Existing law requires the juvenile court to appoint counsel for a child or nonminor dependent in dependency proceedings if the child or nonminor dependent is not represented by counsel, unless the court determines that there would be no benefit from the appointment of counsel. Existing law requires the Judicial Council to promulgate rules of court that, among other things, establish caseload standards for appointed counsel.

This bill would require the Judicial Council to study and identify the appropriate caseload standards for judges who adjudicate juvenile dependency proceedings and, no later than January 1, 2021, submit a report to the Legislature with the results of that study. The bill would also require, by January 1, 2021, the State Department of Social Services, in consultation with the Judicial Council, to convene a stakeholder group to make recommendations related to juvenile dependency proceedings that may enhance collaboration between juvenile dependency courts and child welfare services, and to identify efficiencies in the provision of child welfare services that would reduce the workload for judges who adjudicate juvenile dependency proceedings, the time from commencement of a dependency case to its completion, or both. and identify efficiencies and best practices in the provision of child welfare services.

GOVERNOR'S VETO

GV Bill Id:AB 859

Author:(Maienschein)

As Enrolled Ver:September 16, 2019

2/3 vote

SUMMARY:

Requires the Department of Social Services (DSS) to convene a stakeholders group to make recommendations regarding juvenile dependency proceedings.

Major Provisions:

1. Requires, by January 1, 2021, DSS in consultation with the Judicial Council to convene a stakeholder group that includes specified groups to make recommendations, by January 1, 2022, related to juvenile dependency proceedings with the purpose of improving child and family outcomes in dependency court and enhancing collaboration between dependency court and child welfare services.
2. States the intent of the Legislature that:
   1. When a child is found to be within the dependency jurisdiction of the juvenile court the state undertakes to make all significant parental decisions for the child; and
   2. Every major decision in the lives of dependent children is made by a judge in a courtroom.

The Senate Amendments:

Delete a Judicial Council dependency caseload study and add the DSS stakeholder group.

Governor’s Veto Message:

This bill requires the California Department of Social Services, in consultation with the Judicial Council, to convene a stakeholder group to make recommendations related to juvenile dependency proceedings in an effort to improve child and family outcomes in juvenile dependency court and enhance collaboration between juvenile dependency courts and child welfare services.

While I support the goal of this bill, it duplicates the purpose and efforts of the existing Child Welfare Council.

COMMENTS:

When children are removed from their families due to abuse or neglect, the state, through the child welfare agency and the juvenile dependency court, effectively becomes their parent. The dependency court has vast power over these children – determining what services they and their families will receive, who will care for them, in both the short- and long-term, and what contact they will have with their families. The court even decides whether to terminate parental rights and begin adoption proceedings. The courts and their child welfare partners share responsibility for the safety and well­ being of children while they are in foster care, in effect, serving as their "parent" until a child either safely returns home, moves to another permanent home, or becomes an adult.

Unfortunately, too often dependency courts have neither adequate time, resources, nor information on which to base difficult, life changing decisions. As the Judicial Council's Blue Ribbon Commission on Children in Foster Care found, "California's dependency courts are overstressed and underresourced, burdened by crowded dockets and inadequate information." (California Blue Ribbon Commission on Children in Foster Care, Fostering a New Future for California's Children: Ensuring Every Child a Safe, Secure, and Permanent Home: Final Report and Action, p. 4 (May, 2009).) Since the time of the report, there have been significant strides to increase resources and improve information, but many dependency courts remain "overstressed and underresourced" today.

This bill takes a step to ensure that dependency courts operate effectively by requiring that DSS, in consultation with the Judicial Council, convene a stakeholders group to make recommendations regarding juvenile dependency proceedings.

According to the Author:

Burdened by vast caseloads, dependency judges cannot proportional to our entirely unique moral obligation to foster children and the child's unique vulnerability of being raised in a government program, do their jobs; cannot get to know the child, question the assessments and arguments and evidence of lawyers and social workers, and make routinely life-altering rulings as the judge's role as a parent.

Arguments in Support:

Child advocates write:

While foster parents and other placements provide daily care for these children, every major and irrevocable decision in the lives of foster children is made by a judge in a courtroom: whether the children will ever see their brothers or sisters again, whether they must against their will be forced to ingest psychotropic medications, where they will live, with whom, and critical matters regarding their education.

For all practical purposes, judges in the lives of these children act as their parents, on our behalf.

Burdened by vast caseloads, dependency judges cannot proportional to our entirely unique moral obligation to foster children and the child's unique vulnerability of being raised in a government program, do their jobs; cannot get to know the child, question the assessments and arguments and evidence of lawyers and social workers, and make routinely life-altering rulings as the judge's role as a parent.

Arguments in Opposition:

None

FISCAL COMMENTS:

According to the Senate Appropriations Committee, this bill will have negligible costs to DSS to convene the stakeholder group.

VOTES:

ASM JUDICIARY: 12-0-0

YES: Mark Stone, Gallagher, Chau, Chiu, Gonzalez, Holden, Kalra, Fong, Maienschein, Obernolte, Petrie-Norris, Reyes

ASM APPROPRIATIONS: 18-0-0

YES: Gonzalez, Bigelow, Bloom, Bonta, Brough, Calderon, Carrillo, Chau, Diep, Eggman, Fong, Gabriel, Eduardo Garcia, Maienschein, Obernolte, Petrie-Norris, Quirk, Robert Rivas

ASSEMBLY FLOOR: 77-0-3

YES: Arambula, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooper, Cunningham, Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, O'Donnell, Obernolte, Patterson, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

ABS, ABST OR NV: Aguiar-Curry, Cooley, Eduardo Garcia

SENATE FLOOR: 40-0-0

YES: Allen, Archuleta, Atkins, Bates, Beall, Borgeas, Bradford, Caballero, Chang, Dahle, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Grove, Hertzberg, Hill, Hueso, Hurtado, Jackson, Jones, Leyva, McGuire, Mitchell, Monning, Moorlach, Morrell, Nielsen, Pan, Portantino, Roth, Rubio, Skinner, Stern, Stone, Umberg, Wieckowski, Wiener, Wilk

ASSEMBLY FLOOR: 79-0-0

YES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

UPDATED:

VERSION: September 16, 2019

CONSULTANT: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0002529

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 859

Author:(Maienschein)

As Amended Ver:September 6, 2019

Majority vote

SUMMARY:

Requires the Department of Social Services (DSS) to convene a stakeholders group to make recommendations regarding juvenile dependency proceedings.

Major Provisions

1. Requires, by January 1, 2021, DSS in consultation with the Judicial Council to convene a stakeholder group that includes specified groups to make recommendations, by January 1, 2022, related to juvenile dependency proceedings with the purpose of improving child and family outcomes in dependency court and enhancing collaboration between dependency court and child welfare services.
2. States the intent of the Legislature that:
   1. When a child is found to be within the dependency jurisdiction of the juvenile court the state undertakes to make all significant parental decisions for the child; and
   2. Every major decision in the lives of dependent children is made by a judge in a courtroom.

The Senate Amendments:

Delete a Judicial Council dependency caseload study and add the DSS stakeholder group.

COMMENTS:

When children are removed from their families due to abuse or neglect, the state, through the child welfare agency and the juvenile dependency court, effectively becomes their parent. The dependency court has vast power over these children – determining what services they and their families will receive, who will care for them, in both the short- and long-term, and what contact they will have with their families. The court even decides whether to terminate parental rights and begin adoption proceedings. The courts and their child welfare partners share responsibility for the safety and well­ being of children while they are in foster care, in effect, serving as their "parent" until a child either safely returns home, moves to another permanent home, or becomes an adult.

Unfortunately, too often dependency courts have neither adequate time, resources, nor information on which to base difficult, life changing decisions. As the Judicial Council's Blue Ribbon Commission on Children in Foster Care found, "California's dependency courts are overstressed and underresourced, burdened by crowded dockets and inadequate information." (California Blue Ribbon Commission on Children in Foster Care, Fostering a New Future for California's Children: Ensuring Every Child a Safe, Secure, and Permanent Home: Final Report and Action, p. 4 (May, 2009).) Since the time of the report, there have been significant strides to increase resources and improve information, but many dependency courts remain "overstressed and underresourced" today.

This bill takes a step to ensure that dependency courts operate effectively by requiring that DSS, in consultation with the Judicial Council, convene a stakeholders group to make recommendations regarding juvenile dependency proceedings.

According to the Author:

Burdened by vast caseloads, dependency judges cannot proportional to our entirely unique moral obligation to foster children and the child's unique vulnerability of being raised in a government program, do their jobs; cannot get to know the child, question the assessments and arguments and evidence of lawyers and social workers, and make routinely life-altering rulings as the judge's role as a parent.

Arguments in Support:

Child advocates write:

While foster parents and other placements provide daily care for these children, every major and irrevocable decision in the lives of foster children is made by a judge in a courtroom: whether the children will ever see their brothers or sisters again, whether they must against their will be forced to ingest psychotropic medications, where they will live, with whom, and critical matters regarding their education.

For all practical purposes, judges in the lives of these children act as their parents, on our behalf.

Burdened by vast caseloads, dependency judges cannot proportional to our entirely unique moral obligation to foster children and the child's unique vulnerability of being raised in a government program, do their jobs; cannot get to know the child, question the assessments and arguments and evidence of lawyers and social workers, and make routinely life-altering rulings as the judge's role as a parent.

Arguments in Opposition:

None

FISCAL COMMENTS:

According to the Senate Appropriations Committee, this bill will have negligible costs to DSS to convene the stakeholder group.

VOTES:

ASM JUDICIARY: 12-0-0

YES: Mark Stone, Gallagher, Chau, Chiu, Gonzalez, Holden, Kalra, Fong, Maienschein, Obernolte, Petrie-Norris, Reyes

ASM APPROPRIATIONS: 18-0-0

YES: Gonzalez, Bigelow, Bloom, Bonta, Brough, Calderon, Carrillo, Chau, Diep, Eggman, Fong, Gabriel, Eduardo Garcia, Maienschein, Obernolte, Petrie-Norris, Quirk, Robert Rivas

ASSEMBLY FLOOR: 77-0-3

YES: Arambula, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooper, Cunningham, Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, O'Donnell, Obernolte, Patterson, Petrie-Norris, Quirk, Quirk‑Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

ABS, ABST OR NV: Aguiar-Curry, Cooley, Eduardo Garcia

SENATE FLOOR: 40-0-0

YES: Allen, Archuleta, Atkins, Bates, Beall, Borgeas, Bradford, Caballero, Chang, Dahle, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Grove, Hertzberg, Hill, Hueso, Hurtado, Jackson, Jones, Leyva, McGuire, Mitchell, Monning, Moorlach, Morrell, Nielsen, Pan, Portantino, Roth, Rubio, Skinner, Stern, Stone, Umberg, Wieckowski, Wiener, Wilk

UPDATED:

VERSION: September 6, 2019

CONSULTANT: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0002211

 THIRD READING  

Bill No: AB 859

Author: Maienschein (D)

Amended: 9/6/19 in Senate

Vote: 21

SENATE JUDICIARY COMMITTEE: 9-0, 7/2/19

AYES: Jackson, Borgeas, Durazo, Lena Gonzalez, Jones, Monning, Stern, Umberg, Wieckowski

SENATE HUMAN SERVICES COMMITTEE: 6-0, 7/8/19

AYES: Hurtado, Stone, Beall, Jackson, Pan, Wiener

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/30/19

AYES: Portantino, Bates, Bradford, Durazo, Hill, Jones, Wieckowski

ASSEMBLY FLOOR: 77-0, 5/23/19 - See last page for vote

SUBJECT: Juveniles: dependency: judicial caseloads

SOURCE: University of San Diego School of Law’s Children’s Advocacy Institute

DIGEST:

This bill requires the Department of Social Services (DSS), in consultation with the Judicial Council, to convene a stakeholder group that includes county counsel, a nonprofit comprised of former foster youth, representatives of dependency counsel, and other stakeholders designated by the DSS, in order to make recommendations related to juvenile dependency proceedings.

Senate Floor Amendments of 9/6/19 add a deadline for submitting, and narrow scope of the subject of, the recommendations.

ANALYSIS:

Existing law:

1. Provides that a child may become a dependent of the juvenile court and be removed from their parents or guardian on the basis of abuse or neglect. (Welf. & Inst. Code § 300.)^[1]
2. Provides, in the context of dependency proceedings, that if the parent or guardian of the child desires counsel but is financially unable to afford and cannot for that reason employ counsel, the court may appoint counsel, as provided. (§ 317(a), (b).) Requires a court to appoint counsel for a child or nonminor dependent, unless the court finds that the child or nonminor dependent would not benefit from the appointment. (Id. at (c).) Requires that appointed counsel have a caseload and training that ensures adequate representation of the child or nonminor dependent. (Id. at (c)(5)(A).) Requires the Judicial Council to promulgate rules to establish caseload standards, training requirements, and guidelines for appointed council. (Id.)
3. Requires that the attorney for a dependent child must have a caseload that allows the attorney to perform the duties required by statute and rule, and to otherwise adequately counsel and represent the child. To enhance the quality of representation afforded to children, prohibits appointed attorneys from maintaining a maximum full-time caseload that is greater than that which allows them to meet stated requirements, including having sufficient contact with the child to establish and maintain an adequate and professional attorney-client relationship. (California Rules of Court, Rule 5.660.)
4. Requires the Judicial Council to report to the Legislature and Governor by November 1 every even-numbered year on the need for new judgeships. (Gov. Code § 69614(c)(1).) Required the Judicial Council, by November 30, 2011, to provide the Legislature with a special assessment of the need for new judgeships in the family law and juvenile law assignments for each superior court. (Id. at (c)(2).)

This bill:

1. Finds and declares:
   1. When a child is found to be within the dependency jurisdiction of the juvenile court pursuant to Section 300 of the Welfare and Institutions Code, the state undertakes a responsibility like no other in government: the responsibility to make all significant parental decisions for a child.
   2. While foster parents and other placements provide daily care for dependent children, every major decision in the lives of these children is made by a judge in a courtroom; whether these children will ever see their siblings again, whether they may be forced to ingest psychotropic medications, where they will live, with whom they will live, and matters regarding their education.
2. Requires, by January 1, 2021, the DSS, in consultation with the Judicial Council, to convene a stakeholder group that includes county counsel, a nonprofit comprised of former foster youth, representatives of dependency counsel, and other stakeholders designated by the DSS, in order to make recommendations, by January 1, 2022, related to juvenile dependency proceedings, with the purpose of improving child and family outcomes in juvenile dependency court and enhancing collaboration between juvenile dependency courts and child welfare services.

Comments

“When…a juvenile court hears a dependency case under section 300 of the Welfare and Institutions Code, the court deals with children who have been seriously abused, abandoned, or neglected. The juvenile court has a special responsibility to the child as parens patriae and must look to the totality of a child's circumstances when making decisions regarding the child.” (In re Chantal S. (1996) 13 Cal.4th 196, 201.) A dependency court is charged with making essential decisions about the child’s future: what services they will receive, who will care for them, and how much contact they will have with their families. Unfortunately, the quality of legal services provided to the children is often a function of resources, and juvenile courts have crowded dockets. This bill seeks to better serve this vulnerable population by requiring the DSS to convene a stakeholder group in consultation with the Judicial Council, in order to make specified recommendations to improve outcomes in juvenile dependency court and enhance collaboration with child welfare services.

Judicial Council opposed a prior version of this bill because it required the Judicial Council to identify maximum caseloads for dependency court judges. This requirement has been amended out of this bill.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee, this bill will have negligible costs to DSS to convene the stakeholder group.

SUPPORT: (Verified 8/30/19)

University of San Diego School of Law’s Children’s Advocacy Institute (source)

County of Alameda

OPPOSITION: (Verified 8/30/19)

None received

ARGUMENTS IN SUPPORT: The author writes:

Burdened by vast caseloads, dependency judges cannot proportional to our entirely unique moral obligation to foster children and the child’s unique vulnerability of being raised in a government program, do their jobs; cannot get to know the child, question the assessments and arguments and evidence of lawyers and social workers, and make routinely life-altering rulings as the judge’s role as a parent.

ASSEMBLY FLOOR: 77-0, 5/23/19

AYES: Arambula, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooper, Cunningham, Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

NO VOTE RECORDED: Aguiar-Curry, Cooley, Eduardo Garcia

Prepared by: Josh Tosney / JUD. / (916) 651-4113

9/9/19 18:13:09

**** END ****

1. All further statutory references are to the Welfare and Institutions Code unless otherwise specified. ↑

 THIRD READING  

Bill No: AB 859

Author: Maienschein (D)

Amended: 8/30/19 in Senate

Vote: 21

SENATE JUDICIARY COMMITTEE: 9-0, 7/2/19

AYES: Jackson, Borgeas, Durazo, Lena Gonzalez, Jones, Monning, Stern, Umberg, Wieckowski

SENATE HUMAN SERVICES COMMITTEE: 6-0, 7/8/19

AYES: Hurtado, Stone, Beall, Jackson, Pan, Wiener

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/30/19

AYES: Portantino, Bates, Bradford, Durazo, Hill, Jones, Wieckowski

ASSEMBLY FLOOR: 77-0, 5/23/19 - See last page for vote

SUBJECT: Juveniles: dependency: judicial caseloads

SOURCE: University of San Diego School of Law’s Children’s Advocacy Institute

DIGEST:

This bill requires the Department of Social Services (DSS), in consultation with the Judicial Council, to convene a stakeholder group that includes county counsel, a nonprofit comprised of former foster youth, representatives of dependency counsel, and other stakeholders designated by the DSS, in order to make recommendations related to juvenile dependency proceedings.

ANALYSIS:

Existing law:

1. Provides that a child may become a dependent of the juvenile court and be removed from their parents or guardian on the basis of abuse or neglect. (Welf. & Inst. Code § 300.)^[1]
2. Provides, in the context of dependency proceedings, that if the parent or guardian of the child desires counsel but is financially unable to afford and cannot for that reason employ counsel, the court may appoint counsel, as provided. (§ 317(a), (b).) Requires a court to appoint counsel for a child or nonminor dependent, unless the court finds that the child or nonminor dependent would not benefit from the appointment. (Id. at (c).) Requires that appointed counsel have a caseload and training that ensures adequate representation of the child or nonminor dependent. (Id. at (c)(5)(A).) Requires the Judicial Council to promulgate rules to establish caseload standards, training requirements, and guidelines for appointed council. (Id.)
3. Requires that the attorney for a dependent child must have a caseload that allows the attorney to perform the duties required by statute and rule, and to otherwise adequately counsel and represent the child. To enhance the quality of representation afforded to children, prohibits appointed attorneys from maintaining a maximum full-time caseload that is greater than that which allows them to meet stated requirements, including having sufficient contact with the child to establish and maintain an adequate and professional attorney-client relationship. (California Rules of Court, Rule 5.660.)
4. Requires the Judicial Council to report to the Legislature and Governor by November 1 every even-numbered year on the need for new judgeships. (Gov. Code § 69614(c)(1).) Required the Judicial Council, by November 30, 2011, to provide the Legislature with a special assessment of the need for new judgeships in the family law and juvenile law assignments for each superior court. (Id. at (c)(2).)

This bill:

1. Finds and declares:
   1. When a child is found to be within the dependency jurisdiction of the juvenile court pursuant to Section 300 of the Welfare and Institutions Code, the state undertakes a responsibility like no other in government: the responsibility to make all significant parental decisions for a child.
   2. While foster parents and other placements provide daily care for dependent children, every major decision in the lives of these children is made by a judge in a courtroom; whether these children will ever see their siblings again, whether they may be forced to ingest psychotropic medications, where they will live, with whom they will live, and matters regarding their education.
2. Requires, by January 1, 2021, the DSS, in consultation with the Judicial Council, to convene a stakeholder group that includes county counsel, a nonprofit comprised of former foster youth, representatives of dependency counsel, and other stakeholders designated by the DSS, in order to make recommendations related to juvenile dependency proceedings, with the purpose of improving child and family outcomes and enhancing collaboration between juvenile dependency courts and child welfare services and to identify efficiencies in the provision of child welfare services and best practices in the provision of child welfare services.

Comments

“When…a juvenile court hears a dependency case under section 300 of the Welfare and Institutions Code, the court deals with children who have been seriously abused, abandoned, or neglected. The juvenile court has a special responsibility to the child as parens patriae and must look to the totality of a child's circumstances when making decisions regarding the child.” (In re Chantal S. (1996) 13 Cal.4th 196, 201.) A dependency court is charged with making essential decisions about the child’s future: what services they will receive, who will care for them, and how much contact they will have with their families. Unfortunately, the quality of legal services provided to the children is often a function of resources, and juvenile courts have crowded dockets. This bill seeks to find way of improving the provision of child welfare services by requiring the DSS to convene a stakeholder group in consultation with the Judicial Council, to make specified recommendations to improve outcomes, enhance collaboration, and identify efficiencies and best practices

This bill was previously opposed by the Judicial Council because the prior version of this bill required the Judicial Council to identify maximum caseloads for dependency court judges. This requirement has been amended out of this bill.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee, this bill will have negligible costs to DSS to convene the stakeholder group.

SUPPORT: (Verified 8/30/19)

University of San Diego School of Law’s Children’s Advocacy Institute (source)

County of Alameda

OPPOSITION: (Verified 8/30/19)

None received

ARGUMENTS IN SUPPORT: The author writes:

Burdened by vast caseloads, dependency judges cannot proportional to our entirely unique moral obligation to foster children and the child’s unique vulnerability of being raised in a government program, do their jobs; cannot get to know the child, question the assessments and arguments and evidence of lawyers and social workers, and make routinely life-altering rulings as the judge’s role as a parent.

ASSEMBLY FLOOR: 77-0, 5/23/19

AYES: Arambula, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooper, Cunningham, Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

NO VOTE RECORDED: Aguiar-Curry, Cooley, Eduardo Garcia

Prepared by: Josh Tosney / JUD. / (916) 651-4113

9/3/19 8:55:29

**** END ****

1. All further statutory references are to the Welfare and Institutions Code unless otherwise specified. ↑

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

AB 859 (Maienschein) - Juveniles: dependency: judicial caseloads

Bill Summary:

AB 859 would require the Department of Social Services (DSS) to convene a stakeholder group to identify measures that may reduce the caseloads for judges who preside over juvenile dependency matters and/or reduce the amount of time to adjudicate these cases. It also would require the Judicial Council to study and identify the appropriate caseload standards for judges who adjudicate dependency proceedings.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on August 30, 2019

Fiscal Impact:

Negligible costs to DSS to convene a stakeholder group.

Committee Amendments:

Strike the study provisions of the measure and related findings and declarations, allow for the expansion of the stakeholder group, and revise purpose of the group.

-- END --

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

AB 859 (Maienschein) - Juveniles: dependency: judicial caseloads

Bill Summary:

AB 859 would require the Department of Social Services (DSS) to convene a stakeholder group to identify measures that may reduce the caseloads for judges who preside over juvenile dependency matters and/or reduce the amount of time to adjudicate these cases. It also would require the Judicial Council to study and identify the appropriate caseload standards for judges who adjudicate dependency proceedings.

Fiscal Impact:

• Judicial Council: One-time costs, likely in the thousands of dollars, to contract with an outside entity to study and identify the appropriate caseload standard for dependency court judges. In 2002, the Judicial Council conducted a similar task. The cost for that study was about $500,000 over a nine-month period and required the use of 3.0 Judicial Council staff to coordinate with the researchers. (General Fund*)
• DSS: The department reports anticipating no fiscal impact associated with this measure.

*Trial Court Trust Fund

Background:

Existing law provides that a child may become a dependent of the juvenile court and be removed from their parent(s) or guardian on the basis of abuse or neglect. For dependency court proceedings, the court must appoint counsel for a child or nonminor dependent, unless the court finds that the child or nonminor dependent would not benefit from the appointment. If the parent or guardian desires legal counsel but is unable to afford it, the court may appoint counsel for the parent or guardian, as specified.

State law requires that attorneys for the child or nonminor dependent must have a caseload and training that ensures adequate representation of the child or nonminor dependent. Court rules also provide that the attorney’s caseload must allow the attorney to perform the duties required by statute and rule and to otherwise adequately counsel and represent the child. To enhance the quality of representation of the child or nonminor dependent, court rules prohibit appointed attorneys from maintaining a maximum full-time caseload that is greater than that which allows them to meet stated requirements, including having sufficient contact with the child to establish and maintain an adequate and professional attorney-client relationship.

In 2000, the Legislature required the Judicial Council to promulgate rules establishing caseload standards, training requirements, and guidelines for appointment of counsel for children in dependency matters. In adopting these rules, the Judicial Council directed staff to undertake a study to identify caseload standards for attorneys representing parents and children. In 2008, the Judicial Council determined that a maximum caseload of 188 clients was necessary to maintain a base-level standard of performance.

Proposed Law:

This bill would require DSS, by January 1, 2021, in consultation with the Judicial Council, to convene a stakeholder group of specified entities and stakeholders to make recommendations related to juvenile depending proceedings that may, as specified, enhance collaboration between juvenile dependency courts and child welfare services and identify efficiencies in the provision of child welfare services that would reduce the workload for judges who adjudicate juvenile dependency proceedings, the time from commencement of a dependency case to its completion, or both.

It also would require the Judicial Council to, in consultation with interested stakeholders, study and identify the appropriate caseload standards for judges who adjudicate dependency matters. The Judicial Council would be required to report the study results to the Legislature by January 1, 2021. AB 859 provides that the Judicial Council would not have to create a new stakeholder group, consult with stakeholders in person, research findings or data in addition to those already in the council’s possession.

Related Legislation:

SB 2160 (Shiff, Ch. 450, Stats. 2000) required (i) counsel be appointed for children in almost all dependency cases; (ii) appointed counsel have caseloads and training that ensure adequate representation; and (iii) the Judicial Council to promulgate rules establishing caseload standards, training requirements, and guidelines for appointment of counsel for children.

Staff Comments:

The Judicial Council periodically updates its Judicial Workload Assessment to capture current law and practice—i.e., account for changes that have affected judicial workload since the last study. The most recent update is the Judicial Workload Assessment: 2018 Judicial Workload Study Updated Caseweights. The Judicial Workload Study, along with the established methodology for prioritization of judgeships, is used to update the Judicial Needs Assessment.

The Judicial Workload Study attempts to measures the amount of time judicial officers spend on case-related activities. It relies on three basic components: (i) three-year annual average filings, (ii) caseweights that provide the estimate of judicial time to process a case from filing to post-disposition, and (iii) work-year value that quantifies the amount of time a judicial officer has available for case-related activities in a year. Caseweights allow for an evaluation of workload that distinguishes the differing levels of complexity among case types (e.g., infraction cases generally require less judicial workload than felony cases). Importantly, caseweights allow for the case mix in different courts to be taken into consideration when evaluating judicial workload. The workload study, however, does not identify what would be “appropriate” caseloads for the different case types. To determine that information would require not only a value judgement but additional research and information that is not contained in the Judicial Workload Study.

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SENATE COMMITTEE ON HUMAN SERVICES

Senator Hurtado, Chair

2019 - 2020 Regular

Subject: Juveniles: dependency: judicial caseloads

SUMMARY

This bill requires the California Department of Social Services (CDSS) to, in consultation with the Judicial Council, convene a stakeholder group, to identify measures that may reduce the caseloads for judges who adjudicate juvenile dependency proceedings or the time from commencement to completion of a dependency case. This bill also requires the Judicial Council, in consultation with stakeholders, to study and identify the appropriate caseload standards for judges who adjudicate dependency proceedings and to report their findings to the Legislature.

ABSTRACT

Existing Law:

1. Establishes a system of juvenile dependency for children for specified reasons, including but not limited to children who are, or are at risk of, being physically, sexually, or emotionally abused, being neglected or being exploited, to ensure their safety, protection, and physical and emotional well-being, as specified. Further provides that a juvenile court has jurisdiction to adjudicate a child a dependent of the court as a result abuse or neglect, as specified. (WIC 300 et seq.)
2. States that the purpose of foster care law is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, neglected or exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of harm. (WIC 300.2)
3. Provides for the juvenile court to direct all orders to the parent, parents, or guardian of a minor who is subject to any juvenile court proceedings as the court deems necessary and proper for the best interests of or for the rehabilitation of the minor. Further provides that these orders may concern the care, supervision, custody, conduct, maintenance, and support of the minor, including education and medical treatment. (WIC 245.5)
4. Requires that the attorney for a dependent child must have a caseload that allows the attorney to perform the duties required by statute and rule, and to otherwise adequately counsel and represent the child. To enhance the quality of representation afforded to children, prohibits appointed attorneys from maintaining a maximum full-time caseload that is greater than that which allows them to meet stated requirements, including having sufficient contact with the child to establish and maintain an adequate and professional attorney-client relationship. (California Rules of Court, Rule 5.660)
5. Establishes the California Child Welfare Council to serve as an advisory body responsible for improving the collaboration and processes of the multiple agencies and the courts that service the children and youth in the child welfare and foster care systems. Further requires the Child Welfare Council to issue advisory reports at least annually to the Governor, the Legislature, the Judicial Council, and the public. (WIC 16540 et seq)
6. Requires the Secretary of HHS, or their designee, and the Chief Justice of the California Supreme Court, or their designee, to serve as the co-chairs of the Child Welfare Council, and requires the membership of other state agencies and stakeholders, as provided. (WIC 16541)
7. Requires the Child Welfare Council to hold public meetings no less frequently than each quarter of the state fiscal year. (WIC 16541.5)
8. Allows the co-chairs of the Child Welfare Council to appoint committees, as provided. (WIC 16542)

This Bill:

1. Makes legislative findings and declarations relating to the dependency jurisdiction of the juvenile court and dependency judge’s caseloads.
2. Requires, by January 1, 2021, CDSS, in consultation with the Judicial Council, to convene a stakeholder group that includes county counsel, a nonprofit comprised of former foster youth, representatives of dependency counsel, and other stakeholders designated by the department, to identify measures that may reduce the caseloads for judges who adjudicate juvenile dependency proceedings or the time from commencement of a dependency case to its completion.
3. Requires the Judicial Council, to in consultation with interested stakeholders, study and identify the appropriate caseload standards for judges who adjudicate juvenile dependency proceedings.
4. Requires the Judicial Council to, by no later than January 1, 2021, report to the Legislature the results of its study on appropriate caseload standards for juvenile dependency judges.
5. Provides that requiring Judicial Council to conduct a study and report to the Legislature on juvenile dependency caseloads is not to be interpreted as requiring any of the following:
   1. The creation of a new stakeholder group;
   2. In person consultation with stakeholders, rather the consultation required could be completed by telephone, email or any other means of communication;
   3. Research findings or data in addition to those already in the possession of the Judicial Council, including but not limited to, research findings and data included in a report submitted to the Judicial Council, dated December 12, 2011, and titled Judicial Workload Assessment: Updated Caseweights.
   4. The study requirement may be met by identifying caseloads based on existing research findings and data derived from superior courts that includes judges assigned to only hear and adjudicate proceedings, as specified.

FISCAL IMPACT

According to an Assembly Appropriations Committee analysis dated April 10, 2019, this bill may have possible one-time costs (Trial Court Trust Fund/General Fund) between $200,000 and $500,000 depending on whether Judicial Council must convene a new rule-making group, including external stakeholders, to study dependency court caseload standards.

BACKGROUND AND DISCUSSION

Purpose of the Bill:

This bill requires by January 1, 2021, that CDSS, in consultation with the Judicial Council, to convene a stakeholder group to identify measures that may reduce the caseloads for dependency judges or the time from commencement of a dependency case to its completion. This bill also requires the Judicial Council to identify the appropriate caseload standards for judges who adjudicate dependency proceedings and report its findings to the Legislature.

According to the bill’s author, “When a foster child is decreed to be a ward of the court pursuant to Welfare & Institutions Code section 300, the state takes on the responsibility of literally, parenting and raising an abused or neglected child. While foster parents and other placements provide daily care for these children, every major and irrevocable decision in the lives of foster children is made by a judge in a courtroom: whether the children will ever see their brothers or sisters again, whether they must against their will be forced to ingest psychotropic medications, where they will live, with whom, and critical matters regarding their education.” According to the author, dependency judges often have heavy caseloads and this creates a hindrance to the judges’ work. This bills seeks to take steps toward setting appropriate caseload standards for dependency judges.

Child Welfare Services

California’s child welfare services (CWS) system is charged with protecting children from abuse and neglect and providing for their health, safety and overall well-being. Social workers in each county receive reports of abuse or neglect, investigate and resolve those reports. When an allegation of abuse or neglect is substantiated, a family is either provided with services to ensure a child’s well-being and avoid court involvement, or a child is removed from the home and placed into foster care.

Abused and neglected children who have been removed from their homes fall under the jurisdiction of the County’s juvenile dependency court. The dependency court holds legal jurisdiction over the children in foster care. CWS system social workers help develop the case plan, offers case management services, monitors the child’s wellbeing, and connects families to resources. This system seeks to ensure the safety and protection of children, and where possible, preserve and strengthen families through visitation and family reunification. The CWS system provides multiple opportunities for the custody of the child, or the child’s placement outside of the home, to be evaluated by the judicial system in consultation with the child’s social worker, on how to provide the best possible services to the child. It is the state’s goal to reunify a foster child or youth with their biological family whenever possible. In instances where reunification is not possible, it is the state’s goal to provide a permanent placement alternative, such as adoption or guardianship, with the second highest placement priority of the CWS system being to unite children with other relatives or nonrelative extended family members.

In 2018, the state’s child welfare agencies received 485,651 reports of abuse or neglect. Of these 485,651, 66,584 reports contained allegations that were substantiated and 27,110 of the substantiated reports resulted in children being removed from their homes and placed into foster care via the CWS system. As of October 1, 2018, there were 59,487 children in California’s CWS system.

Dependency Court

Juvenile dependency courts, which are a division within each county’s superior court, have jurisdiction over the removal, foster care placement, and permanent placement decisions for children involved in the CWS system. The court holds a series of hearings or proceedings that determine how a child moves through the CWS system. Initially, after a social worker files a petition with the court, a detention hearing is held where the allegations against the parents are heard. If, after reading the petition, the court determines that a child's best interests are served by removing the child from their parents' custody, the child will temporarily be removed from the home until the detention hearing.^[1]

A jurisdictional hearing must occur within 15 days of the child’s removal from their parents’ custody. The purpose of the jurisdictional hearing is to determine whether the allegations outlined in the social worker’s petitions are true. If the allegations of maltreatment of the child are sustained, the child is placed within the jurisdiction of the juvenile court, and a dispositional hearing is scheduled. The dispositional hearing must be scheduled within 60 days of the initial detention hearing. At the dispositional hearing, the court determines permanency plans with input from those involved in the child’s case and the family reunification plan is outlined, if applicable. The court will also decide where and with whom the child will reside. Whenever possible, children and youth are placed with relatives or non-relative extended family members in order to preserve familial ties, though resource family homes and group care settings are also utilized when necessary.^[2]

California Child Welfare Council

In 2006, AB 2216 (Bass, Chapter 384, Statutes 2006), also known as the Child Welfare Leadership and Accountability Act of 2006, created the California Child Welfare Council to improve outcomes for foster youth by establishing an advisory body within the California Health and Human Services Agency (CHHS) to improve the coordination and service deliver to the child welfare and foster care systems. AB 2216 required the Child Welfare Council’s membership to include specified representatives from all three branches of state government (executive, judicial and legislative), county government representatives, other stakeholder groups, foster youth and former foster youth.

AB 2216 made the Child Welfare Council responsible for improving the collaboration and processes of the multiple agencies and courts that serve the children and youth in the child welfare and foster care systems. Additionally, AB 2216 required the Child Welfare Council to monitor and report the extent to which child welfare and foster care programs and the courts are responsible to the needs of children in their joint care. The Child Welfare Council does this by issuing annual advisory report to the Governor, the Legislature, the Judicial Council, and the public, and has the ability to issue advisory reports more frequently if the Child Welfare Council deems such reporting appropriate.

This bill specifies that the Judicial Council does not have to create a new stakeholder group or consult in person with stakeholders in order to receive the required stakeholder input for their study and identification of appropriate caseload standards for dependency court judges. The Child Welfare Council may offer an opportunity for the stakeholder group to obtain input on this issue.

Dependency Court System Caseloads

Dependency caseload size has been an ongoing issue for the court system and has caused dependency courts staff to, at times, lack adequate time, resources, and information on which to base difficult, life changing decisions for youth and their families. SB 2160 (Schiff, Chapter 450, Statutes of 2000) required that counsel be appointed for an unrepresented child in dependency proceedings unless the court finds the child would not benefit from the appointment of counsel, and required that the Judicial Council develop and implement rules to establish caseload standards, training requirements, and guidelines for the appointment of counsel. SB 2160 also set forth that the primary responsibility of counsel appointed to represent a child is “to advocate for the protection, safety, and physical and emotional well-being of the child.” In 2001, the Judicial Council completed a study on the dependency counsel caseloads, which recommended “a baseline maximum caseload of 141 clients per full time attorney and optimal maximum caseload of 77 clients.” Due to budgetary concerns, the dependency counsel caseload standard was set at 188 clients and not adopted until 2017.

SB 56 (Dunn, Chapter 390, Statutes of 2006) directed the Judicial Council to adopt and report to the Legislature concerning “judicial administration standards and measures that promote the fair and efficient administration of justice.” The Judicial Council currently uses two tools, the Judicial Workload Assessment and the Resource Assessment Study (which was last updated in 2010) to assist them with estimating the workload of trial courts and how many new judgeships are needed. In 2011, the Judicial Council, with input from the Administrative Office of the Courts, submitted its report to the Legislature as required by SB 56 of the workgroup recommendation on caseweights for evaluating the statewide need for judicial officers.^[3] The study found that,

“The results of the judicial workload assessment reflect the continuing trend of insufficient judicial officers in family and juvenile courts to appropriately handle current caseloads. This is compounded by the fact that, as the assessment found, the time required to process family and juvenile law cases has increased since the last judicial workload study in 2001. Family and juvenile law represent 28 percent of judicial workload, yet only 21 percent of judicial resources are assigned to these case types. The total statewide deficit in judicial positions for family and juvenile law is 262….”

A similar concern has been raised for dependency judges’ caseloads today, as the number of dependency cases rises in certain jurisdictions. This bill would requires CDSS, in consultation with the Judicial Council to convene a stakeholder group to identify measures that may reduce caseloads for judges that adjudicate juvenile dependency proceedings and require the Judicial Council to study and identify the appropriate caseload standards for judges who adjudicate juvenile dependency proceedings by January 1, 2021.

Related/Prior Legislation:

AB 1911 (Eggman, Chapter 637, Statutes 2016) required the development and implementation of standardized definitions and defined goals for youth involved with both the child welfare system and the juvenile justice system through efforts of CDSS and a Judicial Council convened stakeholder committee.

AB 2745 (Committee on Judiciary, Chapter 311, Statutes of 2014) authorized the Judicial Council to convert 10 subordinate judicial officer positions to judgeships and to be assigned to a family law or juvenile law assignment.

SB 56 (Dunn, Chapter 390, Statutes of 2006) required the Judicial Council to report biennially to the Legislature and the Governor on the factually determined need for new judgeships in each superior court, and to the Legislature annually thereafter regarding judicial administration standards and measure that promote the fair and efficient administration of justice.

SB 2160 (Schiff, Chapter 450, Statutes 2000) required the appointment of counsel for an unrepresented child in dependency proceedings unless the court finds the child would not benefit from the appointment of counsel. The bill also required Judicial Council to adopt a rule of court providing for the appointment of a guardian ad litem for children involved in dependency cases and further provided that this rule may include guidelines to courts in determining when the guardian ad litem should be an attorney and what caseload standards should be for guardian ad litems.

COMMENTS

This bill requires CDSS, in consultation with the Judicial Council, to convene a stakeholder group to identify measures that may reduce the caseloads for judges who adjudicate juvenile dependency proceedings or the time from commencement of a dependency case to its completion.

The committee makes the following suggested amendments that will clarify purpose of the stakeholder group:

On page 2, line 32

By January 1, 2021, the State Department of Social Services shall, in consultation with the Judicial Council, convene a stakeholder group that includes county counsel, a nonprofit comprised of organizations composed of current or former foster youth, representatives of dependency counsel, and other stakeholders designated by the department, to identify measures that may reduce the caseloads make recommendations related to juvenile dependency proceedings that may, within existing resources and with the purpose of improving child and family outcomes, enhance collaboration between juvenile dependency courts and child welfare services and identify efficiencies in the provision of child welfare services that would reduce the workload for judges who adjudicate juvenile dependency proceedings, or the time from commencement of a dependency case to its completion or both.

PRIOR VOTES

POSITIONS

Support:

Children's Advocacy Institute at the University Of San Diego School of Law (Sponsor)

Oppose:

None received

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1. The petition must be filed, and a request must be made to hold a detention hearing with the court within 48 hours of the child being taken into temporary custody by the social worker. ↑

2. https://www.courts.ca.gov/1205.htm ↑

3. Government Code 69614 (c)(1) requires the Judicial Council to report “to the Legislature and the Governor on or before November 1 of every even-numbered year on the factually determined need for new judgeships in each superior court using the uniform criteria for allocation of judgeships.” ↑

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2019-2020 Regular Session

Bill No: AB 859 (Author:Maienschein)

Version: June 19, 2019

Hearing Date: July 2, 2019

Fiscal: Yes

Urgency: No

Consultant: JT

SUBJECT

Juveniles: dependency: judicial caseloads

DIGEST

This bill requires (1) the Judicial Council, in consultation with interested stakeholders, to conduct a study on the appropriate caseload for judges who hear dependency cases, and (2) the Department of Social Services (DSS) to convene a stakeholder group to reduce juvenile caseloads and expedite their resolution.

EXECUTIVE SUMMARY

“When…a juvenile court hears a dependency case under section 300 of the Welfare and Institutions Code, the court deals with children who have been seriously abused, abandoned, or neglected. The juvenile court has a special responsibility to the child as parens patriae and must look to the totality of a child's circumstances when making decisions regarding the child.” (In re Chantal S. (1996) 13 Cal.4th 196, 201.) A dependency court is charged with making essential decisions about the child’s future: what services they will receive, who will care for them, and how much contact they will have with their families. Unfortunately, the quality of legal services provided to the children is often a function of resources, and juvenile courts have crowded dockets.

This bill, which is sponsored by the University of San Diego School of Law’s Children’s Advocacy Institute, would require the Judicial Council, in consultation with interested stakeholders, to study and identify appropriate caseload standards for dependency court judges, and, by January 1, 2021, to report to the Legislature on the results of this study. The bill would also require, by January 1, 2021, the DSS, in consultation with the Judicial Council, to convene a stakeholder group to identify measures that may reduce (1) the caseloads for judges who adjudicate juvenile dependency proceedings or (2) the time from commencement of a dependency case to its completion. The bill is opposed by the Judicial Council. If it passes this Committee, the bill will be referred to the Senate Human Services Committee.

PROPOSED CHANGES TO THE LAW

Existing law:

1. Provides that a child may become a dependent of the juvenile court and be removed from their parents or guardian on the basis of abuse or neglect. (Welf. & Inst. Code § 300.)^[1]
2. Provides, in the context of dependency proceedings, that if the parent or guardian of the child desires counsel but is financially unable to afford and cannot for that reason employ counsel, the court may appoint counsel, as provided. (§ 317(a), (b).) Requires a court to appoint counsel for a child or nonminor dependent, unless the court finds that the child or nonminor dependent would not benefit from the appointment. (Id. at (c).) Requires that appointed counsel have a caseload and training that ensures adequate representation of the child or nonminor dependent. (Id. at (c)(5)(A).) Requires the Judicial Council to promulgate rules to establish caseload standards, training requirements, and guidelines for appointed council. (Id.)
3. Requires that the attorney for a dependent child must have a caseload that allows the attorney to perform the duties required by statute and rule, and to otherwise adequately counsel and represent the child. To enhance the quality of representation afforded to children, prohibits appointed attorneys from maintaining a maximum full-time caseload that is greater than that which allows them to meet stated requirements, including having sufficient contact with the child to establish and maintain an adequate and professional attorney-client relationship. (California Rules of Court, Rule 5.660.)
4. Requires the Judicial Council to report to the Legislature and Governor by November 1 every even-numbered year on the need for new judgeships. (Gov. Code § 69614(c)(1).) Required the Judicial Council, by November 30, 2011, to provide the Legislature with a special assessment of the need for new judgeships in the family law and juvenile law assignments for each superior court. (Id. at (c)(2).)

This bill:

1. Finds and declares:
   1. When a child is found to be within the dependency jurisdiction of the juvenile court pursuant to Section 300 of the Welfare and Institutions Code, the state undertakes a responsibility like no other in government: the responsibility to make all significant parental decisions for a child.
   2. While foster parents and other placements provide daily care for dependent children, every major decision in the lives of these children is made by a judge in a courtroom; whether these children will ever see their siblings again, whether they may be forced to ingest psychotropic medications, where they will live, with whom they will live, and matters regarding their education.
   3. A judge’s dependency caseload must permit the judge to review relevant documents in detail, to question assessments and arguments of lawyers and social workers, and, perhaps most importantly, to get to know each child and be able to track the child as the child changes and grows.
   4. While there exist caseload maximums for lawyers assigned to represent foster children, there has been no analysis to determine if a maximum caseload for judges that make parental decisions for these children is necessary. For the Legislature to assess whether, and to what extent, judicial caseloads in dependency proceedings may be harming our most vulnerable children, an analysis of judicial caseloads in dependency proceedings, similar to that which has been done for lawyer caseloads in dependency proceedings, is essential.
2. Requires, by January 1, 2021, the DSS, in consultation with the Judicial Council, to convene a stakeholder groups that includes county counsel, a nonprofit comprised of former foster youth, representatives of dependency counsel, and other stakeholders designated by the DSS, in order to identify measures that may reduce the caseloads for judges who adjudicate juvenile dependency proceedings or the time from commencement of a dependency case to its completion.
3. Requires the Judicial Council, in consultation with interested stakeholders, to study and identify appropriate caseload standards for dependency court judges, and, by January 1, 2021, to report to the Legislature on the results of this study. Specifies that this does not require:
   1. the creation of a new stakeholder group;
   2. consultation with stakeholders in person; or
   3. research findings or data in addition to those already in possession of the Judicial Council, as described.

COMMENTS

1. Juvenile court proceedings

The juvenile dependency system is designed to protect children from abuse and neglect, while also preserving the rights of parents and families. (See In re Alexander (1957) 152 Cal.App.2d 458, 461.) The overarching goal of dependency proceedings is to safeguard the welfare of California’s children. (In re Josiah Z. (2005) 36 Cal.4th 664, 673.) There are approximately 60,000 children in California’s foster care system.

Juvenile court proceedings commence when a social worker files a petition under sections 311 and 332. The purpose of the petition is to protect the child from some parental deficiency, not to punish the parent. (See In re Alysha S. (1996) 51 Cal.App.4th 393, 397; In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) The petition must establish a prima facie case that the child is a victim of abuse or neglect under specified conditions described in section 300.

If the child needs immediate care or is in immediate danger, the child may be removed from a parent’s physical custody and may be placed in the temporary custody of the social worker, a responsible relative, or guardian. (§§ 305, 306.) If the social worker determines that the child should be detained in custody, the social worker is required to file a petition with the juvenile court. (§ 290.1.) The court then holds a detention hearing to determine whether the child should be further detained. (§ 315.)

The hearing on the petition to determine whether the child is a victim of abuse or neglect under section 300, which is held after detention or an initial hearing, is known as the “jurisdictional” hearing. Under section 300, the court has jurisdiction to adjudge the child a dependent if a preponderance of the evidence shows that the child has suffered, or is substantial risk of suffering, serious harm.

After sustaining the petition’s allegations and establishing jurisdiction over the child, the court holds a separate “dispositional” hearing to decide where the child will live. (§ 361(a).) A dependent child may not be taken from the physical custody of a parent, guardian, or custodian unless the juvenile court finds clear and convincing evidence that at least one of several specified conditions showing that the child is endangered applies. (Id. at (c).)

2. Existing law provides caseload standards for dependency counsel but not judges

SB 2160 (Shiff, Ch. 450, Stats. 2000) amended section 317 of the Welfare Institutions Code to require that (1) counsel be appointed for children in almost all dependency cases; (2) appointed counsel have caseloads and training that ensure adequate representation; and (3) the Judicial Council promulgate rules establishing caseload standards, training requirements, and guidelines for appointment of counsel for children.

In adopting these rules, the Judicial Council directed staff to undertake a study to identify caseload standards for attorneys representing parents and children. It was eventually determined that a maximum caseload of 188 clients was necessary to maintain a base-level standard of performance.^[2] The Judicial Council also found a correlation between caseload reduction, compensation standardization and improvements in outcomes for children and families involved in the dependency system.^[3]

AB 2763 (Committee on Judiciary, Ch. 690, Stats. 2010) amended Government Code section 69614(c)(2) to require the Judicial Council to provide the Legislature, by November 30, 2011, with a special assessment of the needs for judgeships in family law and juvenile law for each superior court. Pursuant to this requirement, the Judicial Council concluded:

Statewide, 150 judicial officers are needed to handle juvenile dependency cases. Currently, 83 judicial FTEs [full-time equivalent judicial positions] are hearing juvenile dependency cases, reflecting a need for 81 percent more judicial officers to handle the current caseload. Proportionally, the judicial needs assessment estimates that 6 percent of total judicial officer time is needed to handle juvenile dependency cases. According to the judge census, 4 percent of judicial officer time is devoted to juvenile dependency cases. If we were to apply the 6 percent to the total number of judicial officers reported in the census—i.e., without increasing the total number of judicial officers in the state—one would expect 127 judicial FTEs to be hearing juvenile dependency cases—44 additional judicial positions, or 53 percent more than are currently hearing juvenile dependency cases.^[4]

3. Study and stakeholder group regarding caseloads for dependency court judges

This bill would require the Judicial Council, in consultation with interested stakeholders, to study and identify appropriate caseload standards for dependency court judges, and, by January 1, 2021, to report to the Legislature on the results of this study. In consulting with stakeholders, the Judicial Council need not convene a new stakeholder group, nor meet with them in person; the consultation may be conducted by phone, email, or other means of communication. Furthermore, the Judicial Council is not even required to gather new data—the study may be met by identifying caseloads based on existing research findings and data, including that from a prior Judicial Council study entitled Judicial Workload Assessment: Updated Caseweights.

The bill would also require, by January 1, 2021, the DSS, in consultation with the Judicial Council, to convene a stakeholder group that includes county counsel, a nonprofit comprised of former foster youth, representatives of dependency counsel, and other stakeholders designated by the DSS, to identify measures that may reduce the caseloads for judges who adjudicate juvenile dependency proceedings or reduce the time from commencement of a dependency case to its completion.

The author argues that this bill is necessary to identify caseload maximums for judges assigned to dependency cases in a manner that enables the Legislature and the Governor to determine if additional funding is needed to lower these caseloads. The author also contends that the Judicial Council’s 2011 review of these caseloads is obsolete. The author writes:

Burdened by vast caseloads, dependency judges cannot proportional to our entirely unique moral obligation to foster children and the child’s unique vulnerability of being raised in a government program, do their jobs; cannot get to know the child, question the assessments and arguments and evidence of lawyers and social workers, and make routinely life-altering rulings as the judge’s role as a parent.

4. Arguments in support

The sponsor, the University of San Diego School of Law’s Children’s Advocacy Institute, writes:

The Judicial Council after careful study established caseload maximums exist for each counsel assigned to represent foster children and, because of that standard, advocates […] were able to lobby for additional funding because they could highlight in concrete terms the difference between what was needed and what was appropriated.

In contrast, no such caseload maximum applying to each dependency judge individually has been identified. Nearly ten years ago the Judicial Council studied the workloads of dependency judges and concluded that 36 more judges were required statewide, but it has not translated that finding into a case load ceiling for each judge as it did with attorneys. For the Legislature to assess whether and to what extent judicial caseloads in foster care cases may be harming our most vulnerable children and may need to be addressed to their benefit, a caseload analysis and maximum for those judges comparable to that done for counsel is essential.

In support, Alameda County writes:

While existing law requires the juvenile court to appoint counsel for a child or nonminor dependent in dependency proceedings, if not already represented by counsel, and establishes caseload standards for those appointed counsel, it does not address judicial caseloads.

When a foster child is decreed to be a dependent of the court pursuant to Welfare & Institutions Code section 300, the State takes on the responsibility of literally, parenting and raising the child. In Alameda County as of January 1, 2019, there were approximately 1,500 such dependent youth.

Excessive caseloads present a significant burden and can dangerously hinder the ability of dependency judges to consistently get to know each and every child, question the assessments, arguments, and evidence of lawyers and social workers, and make routinely life-altering rulings.

5. Arguments in opposition

In opposition, the Judicial Council writes:

The bill implicates separation of powers issues which conflict with the authority of presiding judges to make assignments of judicial officers within their courts. The separation of powers concerns are rooted in the bill from its inception; as it was introduced, the bill required the Judicial Council to promulgate rules of court related to appropriate caseload standards for judicial officers in child welfare (dependency) cases. The bill’s sponsor continues to advocate for a qualitative limit to the number of cases assigned to dependency judges; the requirement to identify an “appropriate caseload standard” serves as a step in that direction.

Judicial Council’s concerns appear to be extraneous to the four corners of the bill. Above, Judicial Council mentions an earlier version of the bill, as well as the sponsor’s advocacy efforts separate from this bill.

Turning to the bill itself, it is not clear how a requirement to conduct a study on appropriate caseloads meaningfully implicates separation of powers concerns. Unlike the United States Constitution, in which separation of powers is an implied doctrine, the California Constitution contains a provision that expressly provides for the separation of governmental functions. Article III, section 3 of the California Constitution provides that “[t]he powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.” Although this provision suggests a sharp demarcation between the branches of governments, courts have long recognized the interrelatedness of the branches’ functions:

Indeed, upon brief reflection, the substantial interrelatedness of the three branches’ actions is apparent and commonplace: the judiciary passes upon the constitutional validity of legislative and executive actions, the Legislature enacts statutes that govern the procedures and evidentiary rules applicable in judicial and executive proceedings, and the Governor appoints judges and participates in the legislative process through the veto power. Such interrelationship, of course, lies at the heart of the constitutional theory of ‘checks and balances’ that the separation of powers doctrine is intended to serve.

(Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 52–53 (County of Mendocino).) Consequently, courts have held that the doctrine of separation of powers “prohibits the legislative branch from arrogating to itself core functions of the executive or judicial branch.” (Carmel Valley Fire Protection Dist. v. State of California (2001) 25 Cal.4th 287, 298.) Nevertheless, the doctrine “permits actions of one branch that may ‘significantly affect those of another branch.’” (Ibid.) Legislation that would “defeat or materially impair” the court’s inherent power to decide cases would be an unconstitutional invasion of judicial power. (Ibid.)

It is certainly important for the Legislature to remain mindful of the independence of the branches. If a bill attempted to control the “authority of presiding judges to make assignments of judicial officers within their courts,” it would indeed implicate separation of powers concerns in a significant way. This bill does not do that. The bill simply requires a study on appropriate caseloads, a determination left to the expertise and discretion of the Judicial Council, in consultation with stakeholders. The results of the study could lead to increased funding or additional judgeships. It is difficult to see how the bill itself defeats or materially impairs the Judiciary’s inherent power or arrogates to the Legislature the core functions of the Judiciary.

In fact, proposed section 247(c) attempts to ease the burden of conducting a study in consultation with interested stakeholders. That provision reads as follows:

(c) This section shall not be interpreted as requiring any of the following:

(1) The creation of a new stakeholder group.

(2) Consultation with stakeholders to be in person. The consultation described in subdivision (a) may be conducted by telephone, email, or any other means of communication.

(3) Research findings or data in addition to those already in the possession of the Judicial Council, including, but not limited to, research findings and data included in a report submitted to the Judicial Council, dated December 12, 2011, and titled Judicial Workload Assessment: Updated Caseweights. The study requirement described in subdivision (a) may be met by identifying caseloads based on existing research findings and data derived from superior courts that include judges assigned to only hear and adjudicate proceedings pursuant to Section 300.

These provisions, however, do not allay Judicial Council’s concerns. Judicial Council continues:

Moreover, the goal of the study as identified in subdivision (a), to identify “appropriate caseload standards,” is not information the Judicial Council can provide, regardless of the caveats contained in subdivision (c). The judicial time standards referenced in subdivision (c) and reported to the Judicial Council express how much time bench officers currently spend (based on a three-year rolling average of filings) on their specific case types, including dependency cases. The time standards do not provide any qualitative information as to what number of judicial officers, or minutes or hours per case, would be preferable (in other words, “appropriate”).

Requiring the Judicial Council to highlight and share with the Legislature (presumably) inadequate numbers of judicial officers in one case type sets up an internal division in a branch where every court struggles with inadequate resources. The divisive nature of the bill, coupled with feedback from the Children’s Advocacy Institute that they would not support funding for judgeships more broadly because there was no appetite if those judges were not assigned to dependency cases, underscore the need for the Judicial Council’s opposition.

The issue of judicial needs and increasing the number of authorized judgeships have been part of the judicial branch landscape since 2005 when the Judicial Council committed to seeking 150 new trial court judgeships over three years. For a detailed explanation of this policy priority, please see the enclosed New Judgeships Fact Sheet which includes a detailed look at the judgeship advocacy timeline. The 25 judgeships included in the 2019-20 budget represent the

53rd through 77th judges of that original goal of 150. At no time has the Judicial Council engaged in consideration of preferred assignments for the requested judgeships. Presiding judges are charged with allocating their judicial resources based on filings and local needs and priorities. It would be inappropriate to interfere with local presiding judges and dictate the calendar assignments of future judicial officers.

Again, this bill requires a study on caseloads. This is a far cry from meddling in the allocation of judicial resources, constraining the discretion of presiding judges, or dictating the calendar assignments of future judicial officers.

In response to Judicial Council’s arguments, the sponsor, the University of San Diego School of Law’s Children’s Advocacy Institute, writes:

Apart from a passionate denial that we have ever stated we would for some unknown reason oppose reducing caseloads for all judges, we respond to the Judicial Council’s letter with the following citations: “Chief Justices and state court leadership must take the lead, acting as the foremost champions of children in their court systems ... state judicial leadership should actively promote (1) resource, workload, and training standards for dependency courts, judges and attorneys...” (Final Report, Pew Commission on Foster Care, Fostering the Future: Safety, Permanence and Well-being for Children in Foster Care (2004), p. 18, emphases supplied); “The average caseload per full time dependency judicial officer is approximately 1,000.” (Memorandum to Judicial Council of California from Blue Ribbon Commission on Children in Foster Care and Hon. Carlos R. Moreno (August 15, 2007), at p. 18.)

We finally point out that unlike in every other judicial matter, in dependency judges do not simply resolve disputes between private parties. They also, pursuant to laws passed and general funds appropriated by this Legislature, meshed with child welfare services, perform a social welfare function over children not in private but state government custody. In a nutshell: dependency judges raise children, from infancy to the age of majority. To observe the entirely sui generis nature of the role dependency judges, and, therefore, the sui generis nature of this Legislature’s interest in their work, does not somehow denigrate the work of every other judge, who all in the eyes of the Institute warrant the title “your honor.”

(Emphasis in original.)

SUPPORT

University of San Diego School of Law’s Children’s Advocacy Institute (sponsor)
Alameda County

Children Now

OPPOSITION

Judicial Council

RELATED LEGISLATION

Pending Legislation: None known

Prior Legislation: See Comment 2.

PRIOR VOTES:

Assembly Floor (Ayes 77, Noes 0)

Assembly Appropriations Committee (Ayes 18, Noes 0)

Assembly Judiciary Committee (Ayes 12, Noes 0)

**************

1. All further statutory references are to the Welfare and Institutions Code unless otherwise specified. ↑

2. Judicial Council, Dependency Counsel Caseload Standards (Apr. 2008) pp. 7-8 https://www.courts.ca.gov/documents/DependencyCounselCaseloadStandards2008.pdf (Jun. 24, 2019). ↑

3. Id. at 8. ↑

4. Judicial Council, Special Assessment of the Need for New Judgeships in Family and Juvenile Law (Dec. 2011) https://www.courts.ca.gov/documents/AB-2763-Report.pdf (Jun. 24, 2019). ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 859

Author:(Maienschein)

As Amended Ver:May 16, 2019

Majority vote

SUMMARY:

Requires Judicial Council to conduct a study on the appropriate caseload for judges who hear dependency cases.

Major Provisions

1. Requires the Judicial Council, in consultation with interested stakeholders, to study and identify the appropriate caseload standards for judges who adjudicate child welfare proceedings. Requires that the Judicial Council report the results of the study to the Legislature no later than January 1, 2021.
2. Provides that 1), above, does not require:
   1. Creation of a new stakeholder group;
   2. In-person consultation with stakeholders, consultation may be by telephone, email or other means; and
   3. Research findings or data in addition to those already in the possession of the Judicial Council, as provided.
3. States the intent of the Legislature that, among other things:
   1. When a child is found to be within the dependency jurisdiction of the juvenile court the state undertakes to make all significant parental decisions for the child; a judge's dependency case load must permit the judge to review relevant documents in detail, to question lawyers and social workers, and to get to know each child and be able to track the child as the child changes and grows; and
   2. While there exist caseload maximums for lawyers assigned to represent foster children, there has been no analysis to determine if a maximum caseload for judges that make parental decisions for these children is necessary. An analysis of judicial caseloads in dependency proceedings, similar to that which has been done for lawyer caseloads in dependency proceedings, is essential to assess whether, and to what extent, judicial caseloads in dependency proceedings may be harming our most vulnerable children.

COMMENTS:

When children are removed from their families due to abuse or neglect, the state, through the child welfare agency and the juvenile dependency court, effectively becomes their parent. The dependency court has vast power over these children – determining what services they and their families will receive, who will care for them, in both the short- and long-term, and what contact they will have with their families. The court even decides whether to terminate parental rights and begin adoption proceedings. The critical role of the judiciary was made clear a decade ago by the Judicial Council's Blue Ribbon Commission on Children in Foster Care (Commission):

The courts are often the unseen partners in child welfare, but every child and parent in the foster-care system knows that the courts are where critical decisions are made, including such life-changing issues as where and with whom a child will live. When dependency court judges and attorneys are not acquainted with "100 percent" of the child, when there is inadequate time or not enough information to make informed decisions, hearings are likely to be rushed or delayed. Children and families suffer. (California Blue Ribbon Commission on Children in Foster Care, Fostering a New Future for California's Children: Ensuring Every Child a Safe, Secure, and Permanent Home: Final Report and Action, p. 3 (May, 2009).)

The courts and their child welfare partners share responsibility for the safety and well­ being of children while they are in foster care, in effect, serving as their "parent" until a child either safely returns home, moves to another permanent home, or becomes an adult.

Unfortunately, too often dependency courts have neither adequate time, resources, nor information on which to base difficult, life changing decisions. As the Commission found, "California's dependency courts are overstressed and underresourced, burdened by crowded dockets and inadequate information." (Id. at 4.) Since the time of the report, there have been significant strides to increase resources and improve information, but many dependency courts remain "overstressed and underresourced" today.

This bill takes a first, but significant step to ensure that dependency courts have sufficient judges by requiring that the Judicial Council study what minimum caseloads should be for juvenile court judges hearing dependency cases.

According to the Author:

The Judicial Council after careful study established caseload maximums exist for each counsel assigned to represent foster children and, because of that standard, advocates for additional funding were successful because they could highlight, in concrete terms, the difference between what was needed and what was appropriated. In contrast, no such caseload maximum applying to each dependency judge individually has been identified.

Arguments in Support:

In support of the bill, the Children's Advocacy Institute writes: "For the Legislature to assess whether and to what extent judicial caseloads in foster care cases may be harming our most vulnerable children and may need to be addressed to their benefit, a caseload analysis and maximum for those judges comparable to that done for counsel is essential."

Arguments in Opposition:

None

FISCAL COMMENTS:

According to the Assembly Appropriations analysis, possible one-time costs (Trial Court Trust Fund/GF) of less than $150,000 for Judicial Council to study dependency court caseload standards.

VOTES:

ASM JUDICIARY: 12-0-0

YES: Mark Stone, Gallagher, Chau, Chiu, Gonzalez, Holden, Kalra, Fong, Maienschein, Obernolte, Petrie-Norris, Reyes

ASM APPROPRIATIONS: 18-0-0

YES: Gonzalez, Bigelow, Bloom, Bonta, Brough, Calderon, Carrillo, Chau, Diep, Eggman, Fong, Gabriel, Eduardo Garcia, Maienschein, Obernolte, Petrie-Norris, Quirk, Robert Rivas

UPDATED:

VERSION: May 16, 2019

CONSULTANT: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0000534

Date of Hearing: April 10, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 859

Author:(Maienschein) – As Amended Ver:March 19, 2019

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill requires Judicial Council, in consultation with interested stakeholders, to study and identify the appropriate caseload standards for judges who adjudicate child welfare proceedings. This bill also requires Judicial Council report the results of the study to the Legislature no later than January 1, 2021.

FISCAL EFFECT:

Possible one-time costs (Trial Court Trust Fund/GF) between $200,000 and $500,000 depending on whether Judicial Council must convene a new rule-making group, including external stakeholders, to study dependency court caseload standards.

COMMENTS:

1. Purpose. According to the author:

The Judicial Council after careful study established caseload maximums exist for each counsel assigned to represent foster children and, because of that standard, advocates for additional funding were successful because they could highlight, in concrete terms, the difference between what was needed and what was appropriated. In contrast, no such caseload maximum applying to each dependency judge individually has been identified. The purposes of this bill are: first, to identify case load maximums for judges assigned to dependency cases in a way that permits the Legislature and the Governor easily to be able to measure the gap between the judicial involvement these children deserve and what they obtain, thereby better enabling advocates and legislators to seek additional funding to lower those caseloads. Second, to obtain a needed update the now obsolete prior Council review of such caseloads.

1. Background. In 2000, Welfare and Institutions Code section 317 was added to require appointed child welfare counsel limit caseloads to a maximum of 141 clients. In 2000, the average statewide caseload was 273 clients per attorney. Based on budget concerns, the Judicial Council then modified that caseload standard to 188 clients per attorney with a half-time investigator in 2007. High caseloads mean judges regularly rule without time to probe basic information. Throughout the proceedings, even at critical stages such as when children are first brought into foster care by social workers, hearings are often superficial. Although national guidelines call for hour-long initial hearings, throughout the state they commonly last five minutes or less.
   
   
2. Support. According to Children’s Advocacy Institute:

Burdened by vast caseloads, dependency judges cannot proportional to our entirely unique moral obligation to foster children and the child’s unique vulnerability of being raised in a government program, do their jobs; cannot get to know the child, question the assessments and arguments and evidence of lawyers and social workers, and make routinely life-altering rulings as the judge’s role as a parent. … The Judicial Council after careful study established caseload maximums exist for each counsel assigned to represent foster children and, because of that standard, advocates for additional funding were able to lobby for additional funding because they could highlight in concrete terms the difference between what was needed and what was appropriated. In contrast, no such caseload maximum applying to each dependency judge individually has been identified. For the Legislature to assess whether and to what extent judicial caseloads in foster care cases may be harming our most vulnerable children and may need to be addressed to their benefit, a caseload analysis and maximum for those judges comparable to that done for counsel is essential.

Analysis Prepared by: Kimberly Horiuchi / APPR. / (916) 319-2081

Date of Hearing: March 26, 2019

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 859

Author:(Maienschein) – As Amended Ver:March 19, 2019

PROPOSED CONSENT

SUBJECT: Dependency JUDGES: caseload STUDY

KEY ISSUE: IN ORDER TO HELP ENSURE THAT FOSTER CHILDREN RECEIVE ADEQUATE OVERSIGHT BY THE COURTS, SHOULD THE JUDICIAL COUNCIL STUDY AND IDENTIFY THE APPROPRIATE CASELOAD FOR JUVENILE COURT DEPENDENCY JUDGES?

SYNOPSIS

When children are removed from their families due to abuse or neglect, the state, through the child welfare agency and the juvenile dependency court, effectively becomes their parent. The dependency court has vast power over these children – determining what services they and their families will receive, who will care for them in both the short- and long-term, and what contact they will have with their families. The court even decides whether to terminate parental rights and begin adoption proceedings. Unfortunately, too often dependency courts have neither adequate time, resources, nor information on which to base those difficult, life changing decisions. As the California Blue Ribbon Commission on Children in Foster Care found a decade ago, “California’s dependency courts are overstressed and underresourced, burdened by crowded dockets and inadequate information.” (California Blue Ribbon Commission on Children in Foster Care, Fostering a New Future for California’s Children: Ensuring Every Child a Safe, Secure, and Permanent Home: Final Report and Action, p. 4 (May, 2009).) Since then, there have been significant strides to increase resources and improve information, but many dependency courts remain “overstressed and underresourced” today. While dependency counsel have caseload standards, the judges who hear and decide those cases do not.

This bill takes a first, but significant step to ensure that dependency courts have sufficient judges to hear these cases by requiring the Judicial Council to study what minimum caseloads should be for juvenile court judges hearing dependency cases. In support of the bill, the Children’s Advocacy Institute writes: “For the Legislature to assess whether and to what extent judicial caseloads in foster care cases may be harming our most vulnerable children and may need to be addressed to their benefit, a caseload analysis and maximum for those judges comparable to that done for [dependency] counsel is essential.” There is no reported opposition to the bill.

SUMMARY: Requires Judicial Council to conduct a study on the appropriate caseload for judges who hear dependency cases. Specifically, this bill:

1. Requires the Judicial Council, in consultation with interested stakeholders, to study and identify the appropriate caseload standards for judges who adjudicate child welfare proceedings. Requires that the Judicial Council report the results of the study to the Legislature no later than January 1, 2021.
2. States the intent of the Legislature that, among other things:
   1. When a child is found to be within the dependency jurisdiction of the juvenile court the state undertakes to make all significant parental decisions for the child; while foster parents and other placements provide daily care for dependent children, every major decision in the lives of these children is made by a judge in a courtroom; a judge's dependency case load must permit the judge to review relevant documents in detail, to question assessments and arguments of lawyers and social workers, and, perhaps most importantly, to get to know each child and be able to track the child as the child changes and grows; and
   2. While there exist caseload maximums for lawyers assigned to represent foster children, there has been no analysis to determine if a maximum caseload for judges that make parental decisions for these children is necessary. An analysis of judicial caseloads in dependency proceedings, similar to that which has been done for lawyer caseloads in dependency proceedings, is essential to assess whether, and to what extent, judicial caseloads in dependency proceedings may be harming our most vulnerable children.

EXISTING LAW:

1. Provides that a juvenile court has jurisdiction to adjudicate a child a dependent of the court as the result of abuse or neglect, as specified. (Welfare & Institutions Code Section 300. Unless stated otherwise, all further statutory references are to that code.)
2. In addition to all other powers granted by law, allows the juvenile court to direct all such orders to the parent, parents, or guardian of a minor who is subject to any juvenile court proceedings as the court deems necessary and proper for the best interests of or for the rehabilitation of the minor. Provides that these orders may concern the care, supervision, custody, conduct, maintenance, and support of the minor, including education and medical treatment. (Section 245.5.)
3. Requires the juvenile court to appoint counsel for a child or nonminor dependent in a dependency proceeding, unless the court finds that the child or nonminor dependent would not benefit from the appointment of counsel. Requires that the appointed counsel have a caseload and training that ensures adequate representation of the child or nonminor dependent. Requires the Judicial Council to promulgate rules of court that establish caseload standards, training requirements, and guidelines for appointed counsel for children. (Section 317 (c).)
4. Requires that the attorney for a dependent child must have a caseload that allows the attorney to perform the duties required by statute and rule, and to otherwise adequately counsel and represent the child. To enhance the quality of representation afforded to children, prohibits appointed attorneys from maintaining a maximum full-time caseload that is greater than that which allows them to meet stated requirements, including having sufficient contact with the child to establish and maintain an adequate and professional attorney-client relationship. (California Rules of Court, Rule 5.660.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: When children are removed from their families due to abuse or neglect, the state, through the child welfare agency and the juvenile dependency court, effectively becomes their parent. The dependency court has vast power over these children – determining what services they and their families will receive, who will care for them, in both the short- and long-term, and what contact they will have with their families. The court even decides whether to terminate parental rights and begin adoption proceedings. The critical role of the judiciary was made clear a decade ago by the Judicial Council’s Blue Ribbon Commission on Children in Foster Care (Commission):

The courts are often the unseen partners in child welfare, but every child and parent in the foster-care system knows that the courts are where critical decisions are made, including such life-changing issues as where and with whom a child will live. When dependency court judges and attorneys are not acquainted with “100 percent” of the child, when there is inadequate time or not enough information to make informed decisions, hearings are likely to be rushed or delayed. Children and families suffer. (California Blue Ribbon Commission on Children in Foster Care, Fostering a New Future for California’s Children: Ensuring Every Child a Safe, Secure, and Permanent Home: Final Report and Action, p. 3 (May, 2009).)

The courts and their child welfare partners share responsibility for the safety and well­ being of children while they are in foster care, in effect, serving as their “parent” until a child either safely returns home, moves to another permanent home, or becomes an adult.

Unfortunately, too often dependency courts have neither adequate time, resources, nor information on which to base difficult, life changing decisions. As the Commission found, “California’s dependency courts are overstressed and underresourced, burdened by crowded dockets and inadequate information.” (Id. at 4.) Since the time of the report, there have been significant strides to increase resources and improve information, but many dependency courts remain “overstressed and underresourced” today.

This bill takes a first, but significant step to ensure that dependency courts have sufficient judges by requiring that the Judicial Council study what minimum caseloads should be for juvenile court judges hearing dependency cases. In support of the bill, the author states:

The Judicial Council after careful study established caseload maximums exist for each counsel assigned to represent foster children and, because of that standard, advocates for additional funding were successful because they could highlight, in concrete terms, the difference between what was needed and what was appropriated. In contrast, no such caseload maximum applying to each dependency judge individually has been identified.

The purposes of this bill are:

First, to identify case load maximums for judges assigned to dependency cases in a way that permits the Legislature and the Governor easily to be able to measure the gap between the judicial involvement these children deserve and what they obtain, thereby better enabling advocates and legislators to seek additional funding to lower those caseloads.

Second, to obtain a needed update the now obsolete prior Council review of such caseloads.

The Legislature required and funded caseload standards for attorneys handling child welfare cases. Like dependency court judges, dependency court attorneys fill a vital role in the system to ensure that children are not only protected from harm, but also thrive. In 2000, SB 2160 (Schiff), Chap. 450, required that counsel be appointed for children in almost all cases; appointed counsel have caseloads and training that ensured adequate representation; and the Judicial Council promulgate rules establishing caseload standards, training requirements, and guidelines for appointment of counsel. (Section 317 (c)(5).) That legislation also set forth that the primary responsibility of counsel appointed to represent a child is “to advocate for the protection, safety, and physical and emotional well-being of the child.” (Section 317 (c)(2).) The initial Judicial Council caseload study recommended a maximum of 141 clients per full-time dependency counsel as a baseline, and an optimal maximum caseload of 77. At that time, the average statewide caseload was 273 clients per attorney. Based on budget concerns, the Judicial Council then modified that caseload standard to 188 clients per attorney with a half-time investigator and adopted that caseload standard in 2007.

The rule adopted by Judicial Council requires that attorneys are expected to meet regularly with clients, to contact social workers and other professionals associated with the client's case, to work with other counsel and the court to resolve disputed aspects of a case without contested hearing, and to adhere to the mandated timelines. In particular, the attorney for the child must have sufficient contact with the child to establish and maintain an adequate and professional attorney-client relationship. (California Rule of Court, Rule 5.660 (d)(4).) The rule also defines competent counsel as “an attorney who is a member in good standing of the State Bar of California, who has participated in training in the law of juvenile dependency, and who demonstrates adequate forensic skills, knowledge and comprehension of the statutory scheme, the purposes and goals of dependency proceedings, the specific statutes, rules of court, and cases relevant to such proceedings, and procedures for filing petitions for extraordinary writs.” (California Rule of Court, Rule 5.660 (d)(1).)

Unfortunately, even that modified caseload standard of 188 cases was not, at least initially, adequately funded. However, over the last few years, dependency counsel have received an additionally $33 million annually in the budget. While that has helped alleviate the highest caseloads statewide, it has not resulted in adequate staffing to funding. The Governor has proposed giving dependency counsel an additional $20 million in this year’s budget, but advocates say the need is actually closer to $70 million annually.

Judges are as critical to the oversight and protection of foster children as children’s attorneys. Judges are at least as critical as attorneys to ensuring the protection and well-being of children in the foster care system. While attorneys advocate for the child, judges make the decisions. If there are insufficient judges who have insufficient time to devote to each case and each child, the likelihood that appropriate decisions are made for children is obviously lessened, even if the child has the best attorney and the best social worker. The Mercury News, which spent a year investigating dependency court and produced an in-depth series on the systemic difficulties of the foster care system, entitled “Broken Families, Broken Courts,” noted:

High caseloads mean judges regularly rule without time to probe basic information. Throughout the proceedings, even at critical stages such as when children are first brought into foster care by social workers, hearings are often superficial. Although national guidelines call for hourlong initial hearings, throughout the state they commonly last five or fewer minutes. (Karen de Sá, Broken families, broken courts Day 1: How rushed justice fails our kids, The Mercury News (Feb. 9, 2008).)

That same article found that on a “recent weekday, a San Joaquin County judge ruled on 135 families in a single day.” (Id.) While the Mercury News series ran a decade ago, the needs of foster children and the importance of judges in these cases remains the same.

This bill does not in any way impinge on the judicial branch’s powers. This bill does not create judicial staffing standards or even direct the Judicial Council to create such standards, which some might potentially argue could impinge on the powers of the judiciary. This bill, however, simply directs the Judicial Council to study and make recommendations as to the appropriate caseload for judges who hear dependency cases. That is, unquestionably, within the Legislature’s powers to require.

Like dependency judges, judges hearing family law and delinquency cases also carry large and difficult caseloads. Family court and juvenile court – where dependency and delinquency case are heard –share similar characteristics, including the overwhelming caseloads, the importance of the issues decided, and the critical needs of children and families. Given the importance of all these cases and the large caseloads of the judges who decide them, the author may wish to consider, as this bill moves forward, whether to add family law and delinquency judges to the caseload study for judges hearing dependency cases.

ARGUMENTS IN SUPPORT: In support of the bill, the Children’s Advocacy Institute writes:

Burdened by vast caseloads, dependency judges cannot proportional to our entirely unique moral obligation to foster children and the child’s unique vulnerability of being raised in a government program, do their jobs; cannot get to know the child, question the assessments and arguments and evidence of lawyers and social workers, and make routinely life-altering rulings as the judge’s role as a parent. . . .

The Judicial Council after careful study established caseload maximums exist for each counsel assigned to represent foster children and, because of that standard, advocates for additional funding were able to lobby for additional funding because they could highlight in concrete terms the difference between what was needed and what was appropriated.

In contrast, no such caseload maximum applying to each dependency judge individually has been identified. . . . For the Legislature to assess whether and to what extent judicial caseloads in foster care cases may be harming our most vulnerable children and may need to be addressed to their benefit, a caseload analysis and maximum for those judges comparable to that done for counsel is essential.

REGISTERED SUPPORT / OPPOSITION:

Support

Children’s Advocacy Institute

Children Now

Opposition

None on file

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334