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AB-685 Juveniles: Indian tribes: counsel.(2019-2020)

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Date Published: 02/15/2019 09:00 PM
AB685:v99#DOCUMENT

Revised  May 16, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 685


Introduced by Assembly Members Reyes and Ramos
(Principal coauthor: Assembly Member Waldron)
(Coauthor: Assembly Member Gloria)

February 15, 2019


An act to add Section 6214.4 to the Business and Professions Code, and to amend Sections 317 and 395 of the Welfare and Institutions Code, relating to juveniles.


LEGISLATIVE COUNSEL'S DIGEST


AB 685, as introduced, Reyes. Juveniles: Indian tribes: counsel.
Existing federal law, the Indian Child Welfare Act of 1978, governs the proceedings for determining the placement of an Indian child when that child is removed from the custody of their parent or guardian. Existing provisions of state law govern child custody proceedings, adoption proceedings, and dependency proceedings, including termination of parental rights, the voluntary relinquishment of a child by a parent, and guardianship proceedings. Existing law recognizes that the federal Indian Child Welfare Act of 1978 applies if the subject of these proceedings is or may be an Indian child, and specifies conforming procedures in these cases with regard to the right to notice and intervention accorded to the child’s tribe and the standard of proof applied in evaluating the evidence submitted, among other things.
Existing law requires an attorney or law firm that receives or disburses trust funds to establish and maintain an Interest on Lawyers’ Trust Account (IOLTA) and to deposit in the account all client deposits or funds that are nominal in amount or are on deposit or invested for a short period of time, the interest and dividend earnings on which are to be paid to the State Bar of California to be used to fund qualified legal services projects that provide free civil legal services to indigent persons and qualified support centers that provide legal training, legal technical assistance, or advocacy support to qualified legal services projects, as specified.
This bill would require the State Bar of California to administer grants to qualified legal services projects and qualified support centers for the purpose of providing legal services to Indian tribes in child welfare matters under the federal Indian Child Welfare Act of 1978. The bill would prohibit the grants from being awarded until an appropriation of not less than $1,000,000 to the State Bar of California in the annual Budget Act is expressly identified for those purposes.
Existing law prescribes the circumstances upon which the court appoints counsel for a child or nonminor dependent in dependency proceedings. Existing law authorizes the court to appoint a district attorney, public defender, or other member of the bar, as specified. Existing law requires appointed counsel to have a caseload and training that ensures adequate representation of the child or nonminor dependent. Existing law requires the Judicial Council to adopt training requirements that include instruction on, among other things, 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.
This bill would require the adoption of training requirements that include instruction on the federal Indian Child Welfare Act of 1978 and cultural competency and sensitivity relating to, and best practices for, providing adequate care to Indian children in out-of-home care.
Existing law prescribes the circumstances upon which the court appoints counsel for a child in any appellate proceeding, as specified.
This bill would require the court of appeal to appoint separate counsel for a child’s Indian tribe, at the request of the tribe, in any appellate proceeding involving an Indian child.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 Section 6214.4 is added to the Business and Professions Code, to read:

6214.4.
 (a) The State Bar of California shall administer grants to qualified legal services projects and qualified support centers in accordance with this article for the purpose of providing legal services to Indian tribes in child welfare matters under the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.).
(b) Grants shall be provided only to qualified legal services projects and qualified support centers that have experience handling child welfare matters under the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.) or providing legal services to Indian tribes.
(c) Grants under this section shall be awarded only upon an appropriation of not less than one million dollars ($1,000,000) to the State Bar of California in the annual Budget Act that is expressly identified for the purposes of this section.

SEC. 2.

 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 the attorney 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.
(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 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 federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.) and cultural competency and sensitivity relating to, and best practices for, providing adequate care to Indian children in out-of-home care.

(ii)

(iii) 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 counsel 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 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.
(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 counsel’s 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.

SEC. 3.

 Section 395 of the Welfare and Institutions Code is amended to read:

395.
 (a) (1) A judgment in a proceeding under Section 300 may be appealed in the same manner as any final judgment, and any subsequent order may be appealed as an order after judgment. However, that order or judgment shall not be stayed by the appeal, unless, pending the appeal, suitable provision is made for the maintenance, care, and custody of the person alleged or found to come within the provisions of Section 300, and unless the provision is approved by an order of the juvenile court. The appeal shall have precedence over all other cases in the court to which the appeal is taken.
(2) A judgment or subsequent order entered by a referee shall become appealable whenever proceedings pursuant to Section 252, 253, or 254 have become completed or, if proceedings pursuant to Section 252, 253, or 254 are not initiated, when the time for initiating the proceedings has expired.
(3) An appellant unable to afford counsel, shall be provided a free copy of the transcript in any appeal.
(4) The record shall be prepared and transmitted immediately after filing of the notice of appeal, without advance payment of fees. If the appellant is able to afford counsel, the county may seek reimbursement for the cost of the transcripts under subdivision (d) of Section 68511.3 of the Government Code as though the appellant had been granted permission to proceed in forma pauperis.
(b) (1) In any appellate proceeding in which the child is an appellant, the court of appeal shall appoint separate counsel for the child. If the child is not an appellant, the court of appeal shall appoint separate counsel for the child if the court of appeal determines, after considering the recommendation of the trial counsel or guardian ad litem appointed for the child pursuant to subdivision (e) of Section 317, Section 326.5, and California Rule of Court 1448, that appointment of counsel would benefit the child. In order to assist the court of appeal in making its determination under this subdivision, the trial counsel or guardian ad litem shall make a recommendation to the court of appeal that separate counsel be appointed in any case in which the trial counsel or guardian ad litem determines that, for the purposes of the appeal, the child’s best interests cannot be protected without the appointment of separate counsel, and shall set forth the reasons why the appointment is in the child’s best interests. The court of appeal shall consider that recommendation when determining whether the child would benefit from the appointment of counsel. The Judicial Council shall implement this provision by adopting a rule of court on or before July 1, 2007, to set forth the procedures by which the trial counsel or guardian ad litem may participate in an appeal, as well as the factors to be considered by the trial counsel or guardian ad litem in making a recommendation to the court of appeal, including, but not limited to, the extent to which there exists a potential conflict between the interests of the child and the interests of any respondent.
(2) The Judicial Council shall report to the Legislature on or before July 1, 2008, information regarding the status of appellate representation of dependent children, the results of implementing this subdivision, any recommendations regarding the representation of dependent children in appellate proceedings made by the California Judicial Council’s Blue Ribbon Commission on Children in Foster Care, any actions taken, including rules of court proposed or adopted, in response to those recommendations or taken in order to comply with the Child Abuse Prevention and Treatment Act, as well as any recommendations for legislative change that are deemed necessary to protect the best interests of dependent children in appellate proceedings or ensure compliance with the Child Abuse Prevention and Treatment Act.
(c) In any appellate proceeding involving an Indian child, upon the request of the child’s Indian tribe, the court of appeal shall appoint separate counsel for the child’s Indian tribe.

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REVISIONS:
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