Bill Text: CA AB3049 | 2023-2024 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Dependency: court hearings.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Engrossed) 2024-08-15 - In committee: Held under submission. [AB3049 Detail]

Download: California-2023-AB3049-Amended.html

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Amended  IN  Senate  June 24, 2024

Amended  IN  Assembly  April 17, 2024

Amended  IN  Assembly  March 21, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill

No. 3049

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Introduced by Assembly Member Bryan

February 16, 2024

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An act to amend Section 349 Sections 317 and 349 of the Welfare and Institutions Code, relating to juveniles.

LEGISLATIVE COUNSEL'S DIGEST

AB 3049, as amended, Bryan. Dependency: court hearings.

Existing law requires counsel in juvenile court proceedings to represent the child’s interests. Existing law authorizes counsel to introduce and examine their own witnesses, make recommendations to the court about the child’s welfare, and participate in the proceedings as necessary to adequately represent the child.

This bill would require counsel for a minor or nonminor dependent or their agents to meet regularly with their client, regardless of the age of the client or the client’s ability to communicate verbally. The bill would require counsel for the minor or nonminor dependent to have sufficient personal contact with the minor or nonminor dependent to establish and maintain an adequate and professional attorney-client relationship.

Existing law entitles a minor who is the subject of a juvenile court hearing to be present at that hearing. Existing law requires the court to inform the minor, if the minor is present at the hearing, of their right to address the court and participate in the hearing. Existing law requires the court, if the minor is 10 years of age or older and not present at the hearing, to determine whether the minor was properly notified of their right to attend the hearing and inquire whether they were given an opportunity to attend. Existing law requires the court to continue the hearing to allow the minor to be present, if they were not properly notified or if they wished to present, but were not given the opportunity, unless the court finds that it is in the minor’s best interest not to continue the hearing. Existing law requires the court to continue the hearing only for the period of time necessary to provide the child notice and secure their presence.

This bill would expand the above provisions to include nonminor dependents. The bill would require, if the minor or nonminor dependent participates in the hearing by virtual or telephonic means, remotely, the court to inquire whether the minor or nonminor dependent wished inform the minor or nonminor dependent that they have the right to be physically present at the hearing. The bill would require, if the minor or nonminor dependant wished to be physically present, for the court to continue the hearing to allow the minor or nonminor dependent to be physically present, unless the court finds the continuance would be contrary to the interest of the minor or nonminor dependent. allow the minor or nonminor dependent the opportunity to consult with their counsel. If, after the consultation, counsel requests to continue the hearing to allow the minor or nonminor dependent to be physically present, the bill would require the court to grant the request unless the court finds it is in the best interest of the minor or nonminor dependent not to continue the hearing. The bill would require the court to ask the a minor or nonminor dependent, whether present at the hearing or participating by virtual or telephonic means, dependent present at the hearing if they have had an opportunity to consult with their counsel. The bill would require, if the minor or nonminor dependent has not had an opportunity to consult with counsel, to allow the minor or nonminor dependent an opportunity to do so prior to proceeding with the hearing. The bill would also require a court, if the minor or nonminor dependent is not present at the hearing, to determine whether the minor or nonminor dependent had an opportunity to consult with counsel. The bill would the court to continue the hearing to allow counsel time to do so to assess their well-being and determine their wishes with respect to the issues presently before the court, unless the court finds that it is in the best interest of the minor or nonminor dependent not to continue the hearing, or the minor or nonminor dependent waiver their right to be physically present at the hearing. The bill would authorize a court to continue a hearing to allow counsel a reasonable amount of time to contact a minor or nonminor dependent if the minor or nonminor dependent was not present at the hearing, had not waived their right to be present, or had not had an opportunity to consult with their counsel. The bill would require the court to continue the hearing only for the period of time necessary to provide counsel with a reasonable amount of time to contact the minor or nonminor dependent.

The bill would require counsel for the minor or nonminor dependent or their agents to meet regularly with their client, regardless of the client’s age or ability to communicate verbally. The bill would require counsel for the minor or nonminor dependent to have sufficient personal contact to establish and maintain an adequate and professional attorney-client relationship. The bill would prohibit counsel from waiving the appearance of a client who is 10 years of age or older, unless counsel has received direction from the minor or nonminor dependent and counsel has interviewed the minor or nonminor dependent to determine their wishes and assess their well-being. dependent. The bill would expand this requirement to a minor under 10 years of age if required by local rule.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

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Bill Text

The people of the State of California do enact as follows:

SECTION 1.

 Section 317 of the Welfare and Institutions Code is amended to read:

317.

 (a) (1) When it appears to the court that a parent or guardian of the child desires counsel but is presently financially unable to afford and cannot for that reason employ counsel, the court may appoint counsel as provided in this section.

(2) When it appears to the court that a parent or Indian custodian in an Indian child custody proceeding desires counsel but is presently unable to afford and cannot for that reason employ counsel, the provisions of Section 1912(b) of Title 25 of the United States Code and Section 23.13 of Title 25 of the Code of Federal Regulations shall apply.

(b) When it appears to the court that a parent or guardian of the child is presently financially unable to afford and cannot for that reason employ counsel, and the child has been placed in out-of-home care, or the petitioning agency is recommending that the child be placed in out-of-home care, the court shall appoint counsel for the parent or guardian, unless the court finds that the parent or guardian has made a knowing and intelligent waiver of counsel as provided in this section.

(c) (1) If a child or nonminor dependent is not represented by counsel, the court shall appoint counsel for the child or nonminor dependent, unless the court finds that the child or nonminor dependent would not benefit from the appointment of counsel. The court shall state on the record its reasons for that finding.

(2) A primary responsibility of counsel appointed to represent a child or nonminor dependent pursuant to this section shall be to advocate for the protection, safety, and physical and emotional well-being of the child or nonminor dependent.

(3) Counsel may be a district attorney, public defender, or other member of the bar, provided that he or she does they do not represent another party or county agency whose interests conflict with the child’s or nonminor dependent’s interests. The fact that the district attorney represents the child or nonminor dependent in a proceeding pursuant to Section 300 as well as conducts a criminal investigation or files a criminal complaint or information arising from the same or reasonably related set of facts as the proceeding pursuant to Section 300 is not in and of itself a conflict of interest.

(4) The court may fix the compensation for the services of appointed counsel.

(5) (A) The appointed counsel shall have a caseload and training that ensures adequate representation of the child or nonminor dependent. The Judicial Council shall promulgate rules of court that establish caseload standards, training requirements, and guidelines for appointed counsel for children and shall adopt rules as required by Section 326.5 no later than July 1, 2001.

(B) The training requirements imposed pursuant to subparagraph (A) shall include instruction on both of the following:

(i) Cultural competency and sensitivity relating to, and best practices for, providing adequate care to lesbian, gay, bisexual, and transgender youth in out-of-home care.

(ii) The information described in subdivision (d) of Section 16501.4.

(d) Counsel shall represent the parent, guardian, child, or nonminor dependent at the detention hearing and at all subsequent proceedings before the juvenile court. Counsel shall continue to represent the parent, guardian, child, or nonminor dependent unless relieved by the court upon the substitution of other counsel or for cause. The representation shall include representing the parent, guardian, or the child in termination proceedings and in those proceedings relating to the institution or setting aside of a legal guardianship. On and after January 1, 2012, in the case of a nonminor dependent, as described in subdivision (v) of Section 11400, no representation by counsel shall be provided for a parent, unless the parent is receiving court-ordered family reunification services.

(e) (1) Counsel shall be charged in general with the representation of the child’s interests. To that end, counsel shall make or cause to have made any further investigations that he or she deems they deem in good faith to be reasonably necessary to ascertain the facts, including the interviewing of witnesses, and shall examine and cross-examine witnesses in both the adjudicatory and dispositional hearings. Counsel may also introduce and examine his or her their own witnesses, make recommendations to the court concerning the child’s welfare, and participate further in the proceedings to the degree necessary to adequately represent the child. When counsel is appointed to represent a nonminor dependent, counsel is charged with representing the wishes of the nonminor dependent except when advocating for those wishes conflicts with the protection or safety of the nonminor dependent. If the court finds that a nonminor dependent is not competent to direct counsel, the court shall appoint a guardian ad litem for the nonminor dependent. Counsel for the minor or nonminor dependent or their agents are expected to meet regularly with their client, regardless of the age of the client or the client’s ability to communicate verbally. Counsel for the minor or nonminor dependent shall have sufficient personal contact with the minor or nonminor dependent to establish and maintain an adequate and professional attorney-client relationship.

(2) If the child is four years of age or older, counsel shall interview the child to determine the child’s wishes and assess the child’s well-being, and shall advise the court of the child’s wishes. Counsel shall not advocate for the return of the child if, to the best of his or her their knowledge, return of the child conflicts with the protection and safety of the child.

(3) Counsel shall investigate the interests of the child beyond the scope of the juvenile proceeding, and report to the court other interests of the child that may need to be protected by the institution of other administrative or judicial proceedings. Counsel representing a child in a dependency proceeding is not required to assume the responsibilities of a social worker, and is not expected to provide nonlegal services to the child.

(4) (A) At least once every year, if the list of educational liaisons is available on the Internet Web site internet website for the State Department of Education, both of the following shall apply:

(i) Counsel shall provide his or her their contact information to the educational liaison, as described in subdivision (c) of Section 48853.5 of the Education Code, of each local educational agency serving counsel’s foster child clients in the county of jurisdiction.

(ii) If counsel is part of a firm or organization representing foster children, the firm or organization may provide its contact information in lieu of contact information for the individual counsel. The firm or organization may designate a person or persons within the firm or organization to receive communications from educational liaisons.

(B) The child’s caregiver or other person holding the right to make educational decisions for the child may provide the contact information of the child’s attorney to the child’s local educational agency.

(C) Counsel for the child and counsel’s agent may, but are not required to, disclose to an individual who is being assessed for the possibility of placement pursuant to Section 361.3 the fact that the child is in custody, the alleged reasons that the child is in custody, and the projected likely date for the child’s return home, placement for adoption, or legal guardianship. Nothing in this paragraph shall be construed to prohibit counsel from making other disclosures pursuant to this subdivision, as appropriate.

(5) Nothing in this subdivision shall be construed to permit counsel to violate a child’s attorney-client privilege.

(6) The changes made to this subdivision during the 2011–12 Regular Session of the Legislature by the act adding subparagraph (C) of paragraph (4) and paragraph (5) are declaratory of existing law.

(7) The court shall take whatever appropriate action is necessary to fully protect the interests of the child.

(f) Either the child or counsel for the child, with the informed consent of the child if the child is found by the court to be of sufficient age and maturity to consent, which shall be presumed, subject to rebuttal by clear and convincing evidence, if the child is over 12 years of age, may invoke the psychotherapist-client privilege, physician-patient privilege, and clergyman-penitent privilege. If the child invokes the privilege, counsel may not waive it, but if counsel invokes the privilege, the child may waive it. Counsel shall be the holder of these privileges if the child is found by the court not to be of sufficient age and maturity to consent. For the sole purpose of fulfilling his or her their obligation to provide legal representation of the child, counsel shall have access to all records with regard to the child maintained by a health care facility, as defined in Section 1545 of the Penal Code, health care providers, as defined in Section 6146 of the Business and Professions Code, a physician and surgeon or other health practitioner, as defined in former Section 11165.8 of the Penal Code, as that section read on January 1, 2000, or a child care custodian, as defined in former Section 11165.7 of the Penal Code, as that section read on January 1, 2000. Notwithstanding any other law, counsel shall be given access to all records relevant to the case that are maintained by state or local public agencies. All information requested from a child protective agency regarding a child who is in protective custody, or from a child’s guardian ad litem, shall be provided to the child’s counsel within 30 days of the request.

(g) In a county of the third class, if counsel is to be provided to a child at the county’s expense other than by counsel for the agency, the court shall first use the services of the public defender before appointing private counsel. Nothing in this subdivision shall be construed to require the appointment of the public defender in any case in which the public defender has a conflict of interest. In the interest of justice, a court may depart from that portion of the procedure requiring appointment of the public defender after making a finding of good cause and stating the reasons therefor on the record.

(h) In a county of the third class, if counsel is to be appointed to provide legal counsel for a parent or guardian at the county’s expense, the court shall first use the services of the alternate public defender before appointing private counsel. Nothing in this subdivision shall be construed to require the appointment of the alternate public defender in any case in which the public defender has a conflict of interest. In the interest of justice, a court may depart from that portion of the procedure requiring appointment of the alternate public defender after making a finding of good cause and stating the reasons therefor on the record.

SECTION 1.SEC. 2.

 Section 349 of the Welfare and Institutions Code is amended to read:

349.

 (a) A minor or nonminor dependent who is the subject of a juvenile court hearing, and any person entitled to notice of the hearing under Sections 290.1 and 290.2, is entitled to be present at the hearing.

(b) The minor or nonminor dependent and any person who is entitled to that notice has the right to be represented at the hearing by counsel of their own choice.

(c) (1) If the minor or nonminor dependent is present at the hearing, the court shall inform the minor or nonminor dependent that they have the right to address the court and participate in the hearing and the court shall allow the minor or nonminor dependent, if they so desire, to address the court and participate in the hearing.

(2) If the minor or nonminor dependent participates in the hearing by virtual or telephonic means, remotely, the court shall inquire as to whether inform the minor or nonminor dependent wished that they have the right to be physically present at the hearing. If the minor or nonminor dependent wished to be physically present at the hearing, the court shall allow the minor or nonminor dependent an opportunity to consult with their counsel. If, after consultation, counsel for the minor or nonminor dependent requests to continue the hearing to allow the minor or nonminor dependent to be physically present, the court shall grant the request unless the court finds that the continuance would be contrary to the interest of the minor or nonminor dependent. it is not in the best interest of the minor or nonminor dependent not to continue the hearing.

(3) The If the minor or nonminor dependent is present at the hearing, the court shall also ask the minor or nonminor dependent, whether they are present at the hearing or participating by virtual or telephonic means, dependent if they have had an opportunity to consult with their counsel. If the minor or nonminor dependent has not had an opportunity to consult with their counsel, the court shall allow the minor or nonminor dependent an opportunity to consult with their counsel prior to proceeding with the hearing.

(d) (1) If the minor or nonminor dependent is not present at the hearing, the court shall determine whether the minor or nonminor dependent had an opportunity to consult with their counsel. The court shall has not waived their right to be present at the hearing, and has not had an opportunity to consult with their counsel, the court may continue the hearing to allow counsel to personally a reasonable amount of time to contact the minor or nonminor dependent to assess their well-being and determine their wishes with respect to the issues presently before the court, unless the court finds that it is in the best interest of the minor or nonminor dependent not to continue the hearing, or that the minor or nonminor dependent waived their right to be physically present at the hearing. dependent. The court shall continue the hearing only for that period of time necessary to provide counsel or their agent with a reasonable amount of time to personally contact the minor or nonminor dependent. Nothing in this subdivision shall be construed to permit counsel to violate a minor’s or nonminor dependent’s attorney-client privilege.

(2) (A) In the case of If a minor 10 years of age or older, or a nonminor dependent, who is not present at the hearing, the court shall also determine whether the minor or nonminor dependent was properly notified of their right to attend the hearing and inquire whether the minor or nonminor dependent was given an opportunity to attend. If that minor or nonminor dependent was not properly notified, or if they wished to be present and were not given an opportunity to be present, the court shall continue the hearing to allow the minor or nonminor dependent to be present unless the court finds that it is in the best interest of the minor or nonminor dependent not to continue the hearing, or that the minor or nonminor dependent waived their right to be present at the hearing. The court shall continue the hearing only for that period of time necessary to provide notice and secure the presence of the minor or nonminor dependent. The court may issue any and all orders reasonably necessary to ensure that the minor or nonminor dependent has an opportunity to attend.

(B) A court shall, if required by local rule, apply the rights described in this paragraph to a minor under 10 years of age.

(e)Counsel for the minor or nonminor dependent or their agents are expected to meet regularly with their client, regardless of the age of the client or the client’s ability to communicate verbally. Counsel for the minor or nonminor dependent shall have sufficient personal contact with the minor or nonminor dependent to establish and maintain an adequate and professional attorney-client relationship.

(f)

(e) (1) Counsel shall not waive the appearance of their client who is 10 years of age or older, unless counsel has received direction from the minor or nonminor dependent and counsel has interviewed the minor or nonminor dependent to determine their wishes and to assess their well-being. dependent.

(2) A court shall, if required by local rule, apply the rights described in this subdivision to a minor under 10 years of age.

(g)

(f) Nothing in this section shall prevent or limit any minor’s or nonminor dependent’s right to attend or participate in the hearing.