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AB-868 Courts: training programs: gender identity and sexual orientation.(2013-2014)

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Assembly Bill No. 868
CHAPTER 300

An act to amend Section 68553 of the Government Code, and to amend Sections 102, 304.7, and 317 of the Welfare and Institutions Code, relating to courts.

[ Approved by Governor  September 09, 2013. Filed with Secretary of State  September 09, 2013. ]

LEGISLATIVE COUNSEL'S DIGEST


AB 868, Ammiano. Courts: training programs: gender identity and sexual orientation.
(1) Existing law requires the Judicial Council to perform various duties designed to assist the judiciary, including establishing judicial training programs for judges, referees, commissioners, mediators, and others who perform duties in family law matters. Existing law requires this training to include instruction in all aspects of family law, including the effects of gender on family law proceedings.
This bill would require that training to also include the effects of gender identity and sexual orientation on family law proceedings.
(2) Existing law establishes the jurisdiction of the juvenile court, which is authorized to adjudge certain children to be dependents of the court under certain circumstances, and prescribes various hearings and other procedures for these purposes. Existing law requires a court to appoint counsel for a child who is not represented by counsel in these dependency proceedings, except as specified. Under existing law, appointed counsel is required to have a caseload and training that ensures adequate representation, and Judicial Council is required to promulgate rules of court that establish caseload standards, training requirements, and guidelines for counsel.
This bill would require that training to also include instruction on cultural competency and sensitivity relating to, and best practices for, providing adequate care to lesbian, gay, bisexual, and transgender youth.
(3) Existing law requires the Judicial Council to establish a planning and advisory group to recommend on the development of program guidelines and funding procedures for court-appointed special advocates (CASAs) and to establish a request-for-proposal process to establish, maintain, or expand local CASA programs, pursuant to which volunteer CASAs provide designated services and support to children under the jurisdiction of the juvenile court. The council is required to, among other things, require an initial and ongoing training program for all persons acting as a CASA that covers various topics, including, but not limited to, child development.
This bill would require that training to also include cultural competency and sensitivity relating to, and best practices for, providing adequate care to lesbian, gay, bisexual, and transgender (LGBT) youth.
(4) Existing law requires the Judicial Council to develop and implement standards for the education and training of all judges who conduct dependency hearings.
This bill would require that training to include instruction on cultural competency and sensitivity relating to, and best practices for, providing adequate care to lesbian, gay, bisexual, and transgender youth.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 Section 68553 of the Government Code is amended to read:

68553.
 (a) The Judicial Council shall establish judicial training programs for judges, referees, commissioners, mediators, and others who are deemed appropriate who perform duties in family law matters.
(b) The training shall include a family law session in any orientation session conducted for newly appointed or elected judges and an annual training session in family law.
(c) The training shall include instruction in all aspects of family law, including effects of gender, gender identity, and sexual orientation on family law proceedings, the economic effects of dissolution on the involved parties, and, on and after July 1, 1994, the effects of allegations of child abuse or neglect made during family law proceedings.

SEC. 2.

 Section 102 of the Welfare and Institutions Code is amended to read:

102.
 (a) Each CASA program shall, if feasible, be staffed by a minimum of one paid administrator. The staff shall be directly accountable to the presiding juvenile court judge and the CASA program board of directors, as applicable.
(b) The program shall provide for volunteers to serve as CASAs. A CASA may be appointed in juvenile dependency proceedings under Section 300, including proceedings involving a nonminor dependent.
(c) Each CASA shall serve at the pleasure of the court having jurisdiction over the proceedings in which a CASA has been appointed and that appointment may continue after the child attains his or her age of majority, with the consent of the nonminor dependent. A CASA shall do all of the following:
(1) Provide independent, factual information to the court regarding the cases to which he or she is appointed.
(2) Represent the best interests of the child involved, and consider the best interests of the family, in the cases to which he or she is appointed.
(3) At the request of the judge, monitor cases to which he or she has been appointed to ensure that the court’s orders have been fulfilled.
(d) The Judicial Council, through its rules and regulations, shall require an initial and ongoing training program consistent with this chapter for all persons acting as a CASA, including, but not limited to, each of the following:
(1) Dynamics of child abuse and neglect.
(2) Court structure, including juvenile court laws regarding dependency.
(3) Social service systems.
(4) Child development.
(5) Cultural competency and sensitivity relating to, and best practices for, providing adequate care to lesbian, gay, bisexual, and transgender youth.
(6) Interviewing techniques.
(7) Report writing.
(8) Roles and responsibilities of a CASA.
(9) Rules of evidence and discovery procedures.
(10) Problems associated with verifying reports.
(e) The Judicial Council, through its CASA Advisory Committee, shall adopt guidelines for the screening of CASA volunteers, which shall include personal interviews, reference checks, checks for records of sex offenses and other criminal records, information from the Department of Motor Vehicles, and other information that the Judicial Council deems appropriate.

SEC. 3.

 Section 304.7 of the Welfare and Institutions Code is amended to read:

304.7.
 (a) The Judicial Council shall develop and implement standards for the education and training of all judges who conduct hearings pursuant to Section 300. The training shall include, but not be limited to, both of the following:
(1) A component relating to Section 300 proceedings for newly appointed or elected judges and an annual training session in Section 300 proceedings.
(2) Cultural competency and sensitivity relating to, and best practices for, providing adequate care to lesbian, gay, bisexual, and transgender youth.
(b) Any commissioner or referee who is assigned to conduct hearings held pursuant to Section 300 shall meet the minimum standards for education and training established pursuant to subdivision (a), by July 31, 1998.
(c) The Judicial Council shall submit an annual report to the Legislature on compliance by judges, commissioners and referees with the education and training standards described in subdivisions (a) and (b).

SEC. 4.

 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) 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. 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. Counsel may be a district attorney, public defender, or other member of the bar, provided that he or she does 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. The court may fix the compensation for the services of appointed counsel. 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. Those training requirements shall include instruction on 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.
(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 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 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.
(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 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 for the State Department of Education, both of the following shall apply:
(i) Counsel shall provide his or her contact information to the educational liaison, as described in subdivision (b) 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 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.