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

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

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

This bill would expand the above provisions to include nonminor dependents. The bill would require, if the minor or nonminor dependent participates in the hearing remotely, the court to inform the minor or nonminor dependent that they have the right to be physically present at the hearing. The bill would require, if the minor or nonminor dependant wished to be physically present, for the court to allow the minor or nonminor dependent the opportunity to consult with their counsel. If, after the consultation, counsel requests to continue the hearing to allow the minor or nonminor dependent to be physically present, the bill would require the court to grant the request unless the court finds it is in the best interest of the minor or nonminor dependent not to continue the hearing. that the continuance would be contrary to the interest of the minor or nonminor dependent. The bill would require the court to ask a minor or nonminor dependent present at the hearing if they have had an opportunity to consult with their counsel. The bill would authorize a court to continue a hearing to allow counsel a reasonable amount of time to contact a minor or nonminor dependent if the minor or nonminor dependent was not present at the hearing, had not waived their right to be present, or had not had an opportunity to consult with their counsel. The bill would require the court to continue the hearing only for the period of time necessary to provide counsel with a reasonable amount of time to contact the minor or nonminor dependent.

The bill would prohibit counsel from waiving the appearance of a client who is 10 years of age or older, unless counsel has received direction from the minor or nonminor dependent. The bill would expand this requirement to a minor under 10 years of age if required by local rule.

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

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

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

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

This bill would expand the above provisions to include nonminor dependents. The bill would require, if the minor or nonminor dependent participates in the hearing by virtual or telephonic means, the court to inquire whether the minor or nonminor dependent wished to be physically present at the hearing. The bill would require, if the minor or nonminor dependant wished to be physically present, for the court to continue the hearing to allow the minor or nonminor dependent to be physically present, unless the court finds the continuance would be contrary to the interest of the minor or nonminor dependent. The bill would require the court to ask the minor or nonminor dependent, whether present at the hearing or participating by virtual or telephonic means, if they have had an opportunity to consult with their counsel. The bill would require, if the minor or nonminor dependent has not had an opportunity to consult with counsel, to allow the minor or nonminor dependent an opportunity to do so prior to proceeding with the hearing. The bill would also require a court, if the child minor or nonminor dependent is not present at the hearing, to ask counsel for the child or nonminor dependent to state, on the record, the date of counsels most recent personal contact with the child or nonminor dependent. The bill would require the court, if the court finds that counsel had no contact with the child or nonminor dependent in the last 6 months, to determine whether the minor or nonminor dependent had an opportunity to consult with counsel. The bill would the court to continue the hearing to allow counsel time to do so to assess their well-being and determine their wishes with respect to the issues presently before the court, unless the court finds that it is in the best interest of the child minor or nonminor dependent not to continue the hearing. hearing, or the minor or nonminor dependent waiver their right to be physically present at the hearing. The bill would require the court to continue the hearing only for the period of time necessary to provide counsel with a reasonable amount of time to contact the child minor or nonminor dependent.

Existing law generally provides for the placement of foster youth in various placement settings and governs the provision of child welfare services, which is defined to mean public social services that are directed toward the accomplishment of specified purposes, including protecting and promoting the welfare of all children, preventing the unnecessary separation of children from their families, and restoring to their families children who have been removed. Existing law provides that it is the policy of the state that all minors and nonminors in foster care have specified rights, including, among others, the right to receive medical, dental, vision, and mental health services, the right to be informed of these rights in an age and developmentally appropriate manner, and the right to receive a copy of these rights, at specified intervals.

This bill would make technical, nonsubstantive changes to this provision.

SENATE COMMITTEE ON

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

AB 3049 (Bryan) - Dependency: court hearings

Bill Summary:

AB 3049 clarifies the duties of counsel for minors in dependency proceedings and provides for a process for the court to advise and inquire about minors participating in hearings remotely or not present of their right to be present.

Fiscal Impact:

Significant ongoing workload costs pressures on the state funded trial court system (General Fund, Trial Court Trust Fund). The Judicial Council anticipates an increase in court hearing time to comply with the requirements of this bill. The California Child Welfare Indicators Project latest estimates show a foster youth population of 42,321, with a hearing requirement with the court every six months. Given the sizable population and bi-annual hearing requirement, the impact to court calendars can be quantified as a cost-pressure on court workload and court calendars of $1.8 million to $3.7 million annually. While the courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources and to increase the amount appropriated to backfill for trial court operations. The Budget Act of 2024, for the fiscal year beginning July 1, 2024, includes a $97 million reduction to the trial courts, a commensurate reduction of up to 7.95 percent to the budget for the state-level judiciary, and a reduction of the trial court state-level emergency reserve in the Trial Court Trust Fund from $10 million to $5 million. The Budget Act also includes a $37.3 million General Fund backfill for the Trial Court Trust Fund to address the continued decline in civil fee and criminal fine and penalty revenues expected in fiscal year 2024‒25.

Background:

To protect the interests of the child or nonminor dependent at the heart of the case, current law requires a juvenile court to appoint counsel for the minor or nonminor dependent. Current law provides a minor, but not a non-minor dependent, to be present at a juvenile court hearing about their case and provides that a minor, but not a non-minor dependent, has the right at a review hearing to address the court and participate in the hearing.

Proposed Law: This bill requires the court to either ask or inform a minor or nonminor dependent whether they were aware they could attend the hearing in-person and if they have had the opportunity to consult with their counsel, or their representative since the previous hearing. If the minor or nonminor dependent wishes to be present or has not had an opportunity to consult, the court may continue their hearing until the individual can be physically present and/or consults with their counsel. Specifically, this bill:

• Provides that in child welfare cases, counsel for the minor or nonminor dependent or their agents are expected to meet regularly with their client, regardless of the age of the client or the client’s ability to communicate verbally. Counsel for the minor or nonminor dependent shall have sufficient personal contact with the minor or nonminor dependent to establish and maintain an adequate and professional attorney-client relationship.
• Provides that if the minor or nonminor dependent participates in the hearing remotely, the court shall inform the minor or nonminor dependent that they have the right to be physically present at the hearing. If the minor or nonminor dependent wished to be physically present at the hearing, the court shall allow the minor or nonminor dependent an opportunity to consult with their counsel. If, after consultation, counsel for the minor or nonminor dependent requests to continue the hearing to allow the minor or nonminor dependent to be physically present, the court shall grant the request unless the court finds it is not in the best interest of the minor or nonminor dependent not to continue the hearing.
• Provides that if the minor or nonminor dependent is present at the hearing, the court shall ask the minor or nonminor dependent if they have had an opportunity to consult with their counsel.
• Provides that if the minor or nonminor dependent is not present at the hearing, has not waived their right to be present at the hearing, and has not had an opportunity to consult with their counsel, the court may continue the hearing to allow counsel a reasonable amount of time to contact the minor or nonminor dependent. The court shall continue the hearing only for that period of time necessary to provide counsel or their agent with a reasonable amount of time to contact the minor or nonminor dependent. Nothing in this subdivision shall be construed to permit counsel to violate a minor’s or nonminor dependent’s attorney-client privilege.
• Provides that the court shall, if required by local rule, apply the rights described above to a minor under 10 years of age.
• Provides that counsel shall not waive the appearance of their client who is 10 years of age or older unless counsel has received direction from the minor or nonminor dependent.

-- END --

SENATE COMMITTEE ON HUMAN SERVICES

Senator Alvarado-Gil, Chair

2023 - 2024 Regular

Subject: Dependency: court hearings

SUMMARY

This bill clarifies the duties of counsel for minors in dependency proceedings and provides for a process for the court to advise and inquire about minors participating in hearings remotely or not present of their right to be present.

ABSTRACT

Existing Law:

1. Establishes the juvenile court with jurisdiction over children who are subject to abuse or neglect. (WIC 300)
   
2. Establishes that the purpose of the juvenile court dependency system is the maximum safety and protection for children who are currently being abused, neglected, or exploited. Provides that the focus is on the preservation of the family, as well as the safety, protection, and physical and emotional well-being of the child. (WIC 300.2)
   
3. Provides that if the minor is present at a dependency hearing, the court shall inform them that they have the right to address the court and participate in the hearing and the court shall allow the minor, if they so desire, to address the court and participate in the hearing. (WIC 349(c))
   
4. Requires the court, if the minor is 10 years of age or older and they are not present at the hearing, to determine whether the minor was properly notified of their right to attend the hearing and inquire whether the minor was given an opportunity to attend; if that minor was not properly notified or if they wished to be present and were not given an opportunity to be present, the court shall continue the hearing to allow the minor to be present, unless the court finds that it is in the best interest of the minor not to continue the hearing. The court shall continue the hearing only for that period of time necessary to provide notice and secure the presence of the child. (WIC 349(d))
   
5. Provides that the court may issue any and all orders reasonably necessary to ensure that the child has an opportunity to attend a juvenile court hearing about their case. (WIC 349(d))
   
6. Requires, pursuant to court rule, that children’s counsel “or their agents” meet regularly with their clients, regardless of their age; requires attorneys themselves to “have sufficient contact with the child to establish and maintain an adequate and professional attorney-client relationship”; and mandates that attorneys provide their contact information to their client’s caregiver, as well as to children who are 10 years of age or older. (Rule 5.660(d), California Rules of Court.)

This Bill:

1. Provides that in child welfare cases, counsel for the minor or nonminor dependent or their agents are expected to meet regularly with their client, regardless of the age of the client or the client’s ability to communicate verbally. Counsel for the minor or nonminor dependent shall have sufficient personal contact with the minor or nonminor dependent to establish and maintain an adequate and professional attorney-client relationship.
   
2. Provides that if the minor or nonminor dependent participates in the hearing remotely, the court shall inform the minor or nonminor dependent that they have the right to be physically present at the hearing. If the minor or nonminor dependent wished to be physically present at the hearing, the court shall allow the minor or nonminor dependent an opportunity to consult with their counsel. If, after consultation, counsel for the minor or nonminor dependent requests to continue the hearing to allow the minor or nonminor dependent to be physically present, the court shall grant the request unless the court finds it is not in the best interest of the minor or nonminor dependent not to continue the hearing.
   
3. Provides that if the minor or nonminor dependent is present at the hearing, the court shall ask the minor or nonminor dependent if they have had an opportunity to consult with their counsel.
   
4. Provides that if the minor or nonminor dependent is not present at the hearing, has not waived their right to be present at the hearing, and has not had an opportunity to consult with their counsel, the court may continue the hearing to allow counsel a reasonable amount of time to contact the minor or nonminor dependent. The court shall continue the hearing only for that period of time necessary to provide counsel or their agent with a reasonable amount of time to contact the minor or nonminor dependent. Nothing in this subdivision shall be construed to permit counsel to violate a minor’s or nonminor dependent’s attorney-client privilege.
   
5. Provides that the court shall, if required by local rule, apply the rights described above to a minor under 10 years of age.
   
6. Provides that counsel shall not waive the appearance of their client who is 10 years of age or older unless counsel has received direction from the minor or nonminor dependent.
   

FISCAL IMPACT

According to the Assembly Appropriations Committee analysis, “Costs (Trial Court Trust Fund, General Fund) to the courts of an unknown but potentially significant amount due to increased workload for court-appointed attorneys. Judicial Council reports some of the duties this bill requires of attorneys are currently carried out primarily by social workers and other staff. Many children in foster care are represented by court-appointed attorneys. To the extent this bill requires court-appointed attorneys to fulfill these duties, rather than other staff, the courts may incur costs in increased attorney compensation.

“The Governor’s 2024-25 budget proposes $83.1 million ongoing from the General Fund to backfill declining revenue to the Trial Court Trust Fund. According to the Legislative Analyst’s

Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years.”

BACKGROUND AND DISCUSSION

Purpose of the Bill:

According to the author, “At any given moment, there are over 40,000 children in the foster care system in California. These children depend on their court-appointed counsel to help them navigate an often traumatic and confusing dependency process. But, in some counties across California, dependency attorneys are failing to meet with their clients before representing them in court and advocating for life-altering decisions that they claim are in the child’s best interests. AB 3049 will expand existing judicial oversight over court-appointed dependency attorneys, requiring that a judge continue a hearing if they find that the child has not had an opportunity to consult their attorney. During periods of instability, a child’s attorney should be a reliable constant and advocate for them. This bill will bring accountability to the dependency court system and ensure that when decisions are made about a child in the foster care system, that decision is informed by the child’s own opinions and lived experiences.”

Representing Children in Child Welfare Cases

Existing law provides for the appointment of counsel in child welfare cases for both the parents and the child^[1]. The law further provides a variety of specific requirements for counsel who represent children in these cases:

• Counsel shall be charged in general with the representation of the child’s interests.
• Counsel shall make or cause to have made any further investigations that he or she deems in good faith to be reasonably necessary to ascertain the facts, including the interviewing of witnesses, and shall examine and cross-examine witnesses in both the adjudicatory and dispositional hearings.
• Counsel may also introduce and examine his or her own witnesses, make recommendations to the court concerning the child’s welfare, and participate further in the proceedings to the degree necessary to adequately represent the child.
• When counsel is appointed to represent a nonminor dependent, counsel is charged with representing the wishes of the nonminor dependent except when advocating for those wishes conflicts with the protection or safety of the nonminor dependent.
• If the court finds that a nonminor dependent is not competent to direct counsel, the court shall appoint a guardian ad litem for the nonminor dependent.
• If the child is four years of age or older, counsel shall interview the child to determine the child’s wishes and assess the child’s well-being, and shall advise the court of the child’s wishes. Counsel shall not advocate for the return of the child if, to the best of his or her knowledge, return of the child conflicts with the protection and safety of the child.
• Counsel shall investigate the interests of the child beyond the scope of the juvenile proceeding, and report to the court other interests of the child that may need to be protected by the institution of other administrative or judicial proceedings. Counsel representing a child in a dependency proceeding is not required to assume the responsibilities of a social worker, and is not expected to provide nonlegal services to the child.
  

Existing law provides that minors in child welfare cases are entitled to be present at hearings, and if present at the hearing, the court shall inform the minor that they have the right to address the court and participate in the hearing. If the minor is 10 years of age or older and not present at the hearing, the court shall determine whether the minor was properly notified of thier right to attend the hearing and inquire whether the minor was given an opportunity to attend. If that minor was not properly notified or if he or she wished to be present and was not given an opportunity to be present, the court shall continue the hearing to allow the minor to be present unless the court finds that it is in the best interest of the minor not to continue the hearing. The court shall continue the hearing only for that period of time necessary to provide notice and secure the presence of the child. The court may issue any and all orders reasonably necessary to ensure that the child has an opportunity to attend.^[2] All parties represented by counsel at dependency proceedings shall be entitled to competent counsel.^[3]

AdvoKids Report and Response

This bill is sponsored by AdvoKids and is in response to a 2024 survey and accompanying report they published^[4]. The survey presented the responses of 879 caregivers and 190 former foster youth, which painted a troubling picture about how counsel are representing foster children in California. Over 43 percent of respondents stated that the counsel never provided their name and contact information to the foster child or caregiver; 65 percent reported that the appointed attorney never met with their client; and over 80 percent of respondents from the Counties of Butte, Fresno, Kern, Riverside, and Stanislaus reported that the appointed attorney never met with their clients. This bill is based on the findings of that report. The need for this bill hinges on the validity of these survey results and report, which has been called into question.

In an open letter^[5] written by dependency counsel representing approximately 60% of the children in California in foster care, the attorneys write:

“This publication espouses that more than half of the children in California’s foster care system have never had contact with their attorney and puts forth a series of recommendations. Importantly, their sweeping claim about the lack of contact between children’s attorneys and their clients is based on seriously flawed research and erroneous data. The conclusions drawn are irresponsible, misleading, and potentially damaging to the overall goals of high-quality representation, accountability, and adequate funding…

“…the drafters collected information almost entirely from caregivers who self-selected to fill out surveys, including some who responded more than one time and others who had previously contacted the survey sponsors seeking assistance, as well as a very small population of former foster youth… the methodology used does not meet any of the basic requirements to be considered research or evidence. The sample size, just over 1,000 responses, is inadequate to be considered representative of California’s child welfare population of more than 50,000 children and their caregivers. Notably, the survey asked for information that some caregivers would not have. For example, the report concluded attorneys “rarely” conduct an independent investigation by contacting the child’s doctors, therapist, and other treatment providers. In actuality, caregivers are typically not entitled to or provided with that kind of information. Attorneys do not report their activities or steps taken in an investigation to caregivers. In California, children in foster care have a right to attorney/client privilege…

“Furthermore, the report takes the position that interaction with an attorney’s agent is problematic and should not be considered “contact” for purposes of meeting ethical duties. This is not aligned with California’s Rule of Court 5.660 regarding standards of representation for dependency attorneys, which specifically states that attorneys or their agents are expected to meet regularly with clients. There are thousands of non-verbal infants in foster care in California. Many dependency law offices employ social work investigators who are trained in child development and who visit infants in their homes regularly to assess their well-being. Their expertise is value-added and allows for a more in-depth assessment of the child’s well-being than a typical attorney can provide. Similarly, some children’s law offices employ peer partners (former foster youth) and survivor advocates. Experience has shown these advocates are able to quickly establish trust with some of the hardest-to-reach older youth who, due to their history of trauma and broken promises, may be understandably reluctant to engage. Not only is this allowed by law, it is also consistent with federal guidance that recommends a multidisciplinary law office as the current best practice in legal representation for children.”

This bill requires the court to play a critical role in advising minors or nonminor dependents of their rights to be present at a hearing and to consult with their attorney. However, as described in the open letter from dependency counsel, this bill may go above what is necessary and be a solution in search of a problem.

Related/Prior Legislation:

AB 217 (Maienschien, Chapter 36, Statutes of 2015) required the court to inform a minor, if the minor is present at the juvenile hearing, of their right to address the court and participate in the hearing.

COMMENTS

This bill requires the court to specifically address minors and nonminor dependents in court, whether they appear in person or remotely, and ask them questions about their relationship with their attorney. Some minors and nonminor dependents may not feel comfortable directly speaking with the court or sharing any concerns or thoughts they have in that manner. Further, this bill may be seen as having the court play an unnecessary role in the attorney-client relationship, without any evidence to suggest there is an issue in that relationship. While minors, as well all individuals appearing before a court, deserve robust representation by counsel, it is not clear that they are not receiving that already. If they are currently being effectively represented by counsel, then this bill may be seen as an unnecessary interference in the attorney-client relationship and may result in unnecessary case continuances and delays.

Proposed Amendments

The Committee proposes the following amendments, with removal of language in bold strikethrough and proposed new language in bold, underline, and italics.

SECTION 1.

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

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

SEC. 2.

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

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

SUPPORT/OPPOSITION

Arguments in Support:

Advokids writes “AB 3049 will amend Welfare and Institutions Code Section 349, to require the court to determine whether a child or youth who is not present at a hearing, had an opportunity to consult with counsel prior to the hearing and authorize a continuance when necessary to allow for counsel to meet with the child or youth, except when a continuance is not in the best interests of the child. This amendment will institute judicial oversight of the requirement that counsel have regular contact with their clients, which is essential to counsel’s ability to competently represent the child’s current wishes, needs, and circumstances.”

Arguments in Opposition:

The Judicial Council writes, “The bill was amended on June 24, 2024, and these amendments address some of the concerns that we have raised with the bill, but we are still reviewing the impact of the required inquiry that remains in the bill with the juvenile courts to determine whether it is an appropriate intervention for the court in the attorney client relationship. We continue to believe that AB 3049 is based on a flawed premise that court appointed counsel for children and youth in California are routinely failing to represent the interests of their clients. …Children and youth are represented because their interests are paramount, but it is not consistent with our model of representation for the court to be in the position of interrogating the child or youth without any indication that there is a problem. Judges engage with children in these cases routinely, but some children and youth are not comfortable being put on the spot by a judicial officer.”

PRIOR VOTES

POSITIONS

Support:

Advokids (Sponsor)
California Alliance of Caregivers
Center for Public Interest Law/children's Advocacy Institute/university of San Diego
Western Center on Law & Poverty

Oppose:

Judicial Council of California

-- END --

1. WIC 317 ↑

2. WIC 349 ↑

3. WIC 317.5 ↑

4. https://advokids.org/out-of-sight-out-of-mind-report-2024/ ↑

5. https://www.clccal.org/wp-content/uploads/sites/80/2024/04/Response_to_Out_of_Sight_Report_2024.pdf ↑

SENATE JUDICIARY COMMITTEE

Senator Thomas Umberg, Chair

2023-2024 Regular Session

Bill No: AB 3049 (Author:Bryan)

Version: April 17, 2024

Hearing Date: June 18, 2024

Fiscal: No

Urgency: No

Consultant:AWM

SUBJECT

Dependency: court hearings

DIGEST

This bill clarifies that a nonminor dependent has the right to be present at a hearing on their case in the juvenile court, and imposes on a juvenile court the right to inquire about certain matters relating to a minor or nonminor dependent’s appearance and contact with counsel.

EXECUTIVE SUMMARY

Children who are at risk of abuse, neglect, or abandonment may be deemed dependents of the juvenile court and provided with services, supports and interventions aimed at protecting them and their health and safety. The system aims to preserve and strengthen families by maintaining or reuniting children with their parents whenever appropriate. To protect the interests of the child or nonminor dependent at the heart of the case, current law requires a juvenile court to appoint counsel for the minor or nonminor dependent. Current law provides a minor, but not a non-minor dependent, to be present at a juvenile court hearing about their case and provides that a minor, but not a non-minor dependent, has the right at a review hearing to address the court and participate in the hearing.

This bill corrects the apparent oversight in the law by extending to nonminor dependents the right to be present at, and participate in, a hearing on their case. The bill also, in response to concerns raised about the efficacy of minor’s counsel in dependency cases, requires courts, at each hearing on a dependency matter, to ask the minor or nonminor dependent certain questions about their appearance and most recent opportunity to confer with counsel. The author has agreed to amend the bill to modify some of the inquiry requirements in response to concerns from stakeholders.

This bill is sponsored by Advokids and is supported by 17 organizations dedicated to children in foster care and over 200 individuals. This bill is opposed by the Judicial Council of California. If this Committee passes this bill, it will then be heard by the Senate Human Services Committee.

PROPOSED CHANGES TO THE LAW

Existing law:

1. Provides that it is the duty of an attorney to maintain inviolate the confidence, and at every peril to themselves to preserve the secrets, of their client. (Bus. & Prof. Code, § 6068(e)(1).)
   1. An attorney may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in the death of, or substantial bodily harm to, an individual. (Bus. & Prof. Code, § 6068(e)(2).)
2. Provides that the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by:
   1. The holder of the privilege, as defined (usually the client);
   2. A person who is authorized to claim the privilege by the holder of the privilege; or
   3. The person who was the lawyer at the time of the confidential communication, unless there is no holder of the privilege in existence or they were otherwise instructed by a person authorized to permit disclosure. (Evid. Code, §§ 953, 954.)
3. Requires the lawyer who received or made a communication subject to the privilege shall claim the privilege whenever they are present when the communication is sought to be disclosed and is authorized to claim the privilege, subject to specified exceptions. (Evid. Code, §§ 955, 961.)
4. Establishes the juvenile court, which is intended to provide for the protection and safety of the public and minors falling under its jurisdiction. (Welf. & Inst. Code, §§ 202, 245.)
5. Establishes that the juvenile court has jurisdiction over:
   1. A child who is subject to abuse or neglect. (Welf. & Inst. Code, § 300.)
   2. A child, when that child has committed acts that trigger delinquency jurisdiction rendering the child a ward. (Welf. & Inst. Code, §§ 601, 602.)
   3. Any nonminor dependent, between the age of majority and 21 years, under specified conditions. A nonminor dependent under the jurisdiction of the juvenile court retains their legal decision-making authority as an adult, except as specified. (Welf. & Inst. Code, §§ 303, 388(e).)
6. Requires a juvenile court to appoint counsel for a child or nonminor dependent if they are not represented. A primary responsibility of the counsel is to represent a child or nonminor dependent and to advocate for the protection, safety, and physical and emotional well-being of the child or nonminor dependent. (Welf. & Inst. Code, § 317(c)(1), (2).)
7. Requires counsel appointed under 8) to have a caseload and training that ensures adequate representation of the child or nonminor dependent, which shall be set forth in rules of court promulgated by the Judicial Council. (Welf. & Inst. Code, § 317(c)(5).)
8. Provides that counsel appointed under to 8) shall be charged in general with the representation of the child’s interests, and to that end, counsel:
   1. Shall make or cause to have made any further investigations that they deem in good faith to be reasonably necessary to ascertain the facts, including interviewing witnesses, and examine and cross-examine witnesses at the adjudicatory and dispositional hearings.
   2. May introduce and examine their own witnesses, make recommendations to the court concerning the child’s welfare, and participate further in the proceedings to the degree necessary to adequately represent the child.
   3. When appointed to represent a nonminor dependent, must represent the interests of the nonminor dependent except when advocating for those wishes conflicts with the protection or safety of the nonminor dependent.
   4. If the child is four years of age or older, must interview the child to determine the child’s best interests and assess the child’s well-being, and shall advise the court of the child’s wishes. Counsel shall not advocate for the return of the child if, to their best knowledge, return of the child conflicts with the protection and safety of the child.
   5. Shall investigate the interests of the child beyond the scope of the juvenile proceeding, and report to the court other interests of the child that may need to be protected by the institution of other administrative or judicial proceedings. Counsel representing a child in a dependency proceeding is not required to assume the responsibilities of a social worker, and is not expected to provide nonlegal services to the child. (Welf. & Inst. Code, § 317(e).)
9. Provides that a minor who is the subject of a juvenile court hearing is entitled to be present at the hearing, and may be represented by counsel at the hearing. (Welf. & Inst. Code, § 349(a), (b).)
10. Provides that, if a minor is present at the hearing, the court shall inform the minor that they have the right to address the court and participate in the hearing and the court shall allow the minor, if they desire, to address the court and participate in the hearing. (Welf. & Inst. Code, § 349(c).)
11. Provides that, if a minor is 10 years of age or older and they are not present at the hearing, counsel shall determine whether the minor was properly notified of their right to attend the hearing and inquire whether they were given an opportunity to attend.
    1. If that minor was not properly notified or if they wished to be present and were not given the opportunity to be present, the court shall continue the hearing to allow the minor to be present unless the court finds that it is in the best interest of the minor not to continue the hearing.
    2. The court shall continue the hearing under 13)(a) only for that period of time necessary to provide notice and secure the presence of the child, and may issue any and all orders reasonably necessary to ensure that the minor has the opportunity to attend. (Welf. & Inst. Code, § 349(d).)

Existing rules of court:

1. Provides that every party in a dependency proceeding who is represented by an attorney is entitled to competent counsel, which is defined 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.” (Cal. Rules of Court, rule 5.660(d) & (d)(1).)
2. Requires the following from counsel representing a party in a dependency proceeding:
   1. Attorneys or their agents are expected to meet regularly with clients, including clients who are children, regardless of the age of the child or the child's ability to communicate verbally, 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. The attorney for the child must have sufficient contact with the child to establish and maintain an adequate and professional attorney-client relationship. The attorney for the child is not required to assume the responsibilities of a social worker and is not expected to perform services for the child that are unrelated to the child's legal representation.
   2. The attorney for a child for whom a dependency petition has been filed must provide their contact information to the child's caregiver no later than 10 days after receipt of the name, address, and telephone number of the child's caregiver. If the child is 10 years of age or older, the attorney must also provide their contact information to the child for whom a dependency petition has been filed no later than 10 days after receipt of the caregiver's contact information. The attorney may give contact information to a child for whom a dependency petition has been filed who is under 10 years of age. (Cal. Rules of Court, rule 5.660(d)(4) & (5).)
3. Requires the juvenile court to establish a process for the review and resolution of complaints or questions by a party regarding the performance of an appointed attorney. Each party must be informed of the procedure for logging the complaint. If it is determined that an appointed attorney has acted improperly or contrary to the rules of policies of the court, the court must take appropriate action. (Cal. Rules of Court, rule 5.660(e).)

This bill:

1. Clarifies that existing provisions in the Welfare and Institutions Code relating to the right to be present at the hearing, the right that they are entitled to be represented by counsel, and the right to address the court and participate in the hearing, extend to nonminor dependents.
2. Provides that, if a minor or nonminor dependent participates in a hearing by virtual or telephonic means, the court shall inquire as to whether the minor or nonminor dependent wished to be physically present at the hearing; if the minor or nonminor dependent wished to be physically present, the court shall continue the hearing to allow them to attend, unless the court finds that the continuance would be contrary to the interest of the minor or nonminor dependent.
3. Provides that, at a hearing if the minor is attending in-person or virtually, the court shall ask the minor or nonminor dependent if they have had an opportunity to consult with their counsel; if the minor or nonminor dependent has not had an opportunity to consult with their counsel, the court shall allow the minor or nonminor dependent an opportunity to consult with their counsel prior to proceeding with the hearing.
4. Provides that, if the minor or nonminor dependent is not present at the hearing, the court shall determine whether the minor or nonminor dependent had an opportunity to consult with their counsel.
   1. The court shall continue the hearing to allow counsel to personally contact the minor or nonminor dependent to assess their well-being and determine their wishes with respect to the issues presently before the court, unless the court finds that it is in the best interest of the minor or nonminor dependent not to continue the hearing, or that the minor or nonminor dependent waived their right to be physically present at the hearing.
   2. The court shall continue the hearing only for that period of time necessary to provide counsel with a reasonable amount of time to personally contact the minor or nonminor dependent.
   3. Nothing in 4) shall be construed to permit counsel to violate a minor or nonminor dependent’s attorney-client privilege.
5. Provides that counsel for a minor or nonminor dependent, or their agents, are expected to meet regularly with their client, regardless of the age of the client or the client’s ability to communicate verbally; and that counsel for the minor or nonminor dependent shall have sufficient personal contact with the minor or nonminor dependent to establish and maintain an adequate and professional attorney-client relationship.
6. Provides that counsel shall not waive the appearance of their client who is 10 years of age or older unless counsel has received direction from the minor or nonminor dependent and counsel has interviewed the minor or nonminor dependent to determine their wishes and to assess their well-being.
7. Specifies that, if a local rule extends the rights granted to minors aged 10 years or older to minors under 10 years of age, the court shall apply the rights granted in 6) and in 13) of the “Existing law” section to a minor under 10 years of age.

COMMENTS

1. Author’s comment

According to the author:

At any given moment, there are over 40,000 children in the foster care system in California. These children depend on their court-appointed counsel to help them navigate an often traumatic and confusing dependency process. But, in some counties across California, dependency attorneys are failing to meet with their clients before representing them in court and advocating for life-altering decisions that they claim are in the child’s best interests. AB 3049 will expand existing judicial oversight over court-appointed dependency attorneys, requiring that a judge continue a hearing if they find that the child has not had an opportunity to consult their attorney. During periods of instability, a child’s attorney should be a reliable constant and advocate for them. This bill will bring accountability to the dependency court system and ensure that when decisions are made about a child in the foster care system, that decision is informed by the child’s own opinions and lived experiences.

2. Background on the dependency process and the minor or nonminor dependent’s rights at dependency proceedings

The overarching goal of dependency proceedings is to safeguard the welfare of California’s children.^[1] Welfare and Institutions Code section 300 sets forth the circumstances that can bring a child within the jurisdiction of the juvenile dependency court. “ ‘Although the harm or risk of harm to the child [for jurisdictional purposes] must generally be the result of an act, omission or inability of one of the parents or guardians, the central focus of dependency jurisdiction is clearly on the child rather than the parent.’ ”^[2] California’s dependency jurisdiction also extends to adults 18 years of age but younger than 21 years of age, if they were in the foster system at the time they turned 18 years and other criteria are met; these dependents are known as “nonminor dependents.”^[3]

When a child is found to be under the jurisdiction of the juvenile court, the court is determined to be a dependent of that court and the court may begin proceedings to remove the child from the custody of their parent(s); if, after a series of hearings, a parent is found to be unfit, the court can terminate the parent’s parental rights.^[4] The overarching inquiry is whether the child would suffer, or is likely to suffer, harm if they remain with their parent.

If a minor or nonminor dependent does not have counsel in a dependency proceeding, the court shall appoint counsel for them.^[5] Current law also extends several protections to minors relating to their appearance and representation at dependency proceedings, which include:

• The right to be present at a hearing at which they are the subject.
• The right to be given notice that they have the right to be represented by the counsel of their own choice.
• Being informed by the court, if the minor is present at the hearing, that they have the right to address the court and participate in the hearing; if the minor so desires, the court shall allow the minor to address the court and participate in the hearing.
• If the minor is 10 years of age or older and not present at the hearing, requiring the court to determine whether the court was properly notified of their right to attend and to inquire whether the minor was given that opportunity. If the minor was not properly notified or they wished to attend but were not given the opportunity, the court shall continue the hearing to allow the minor to be present unless the court finds it is in the best interest of the child not to continue the hearing; the continuance shall be only as long as necessary to provide notice and secure the presence of the child.^[6]

Current law does not, however, expressly provide these rights to nonminor dependents.^[7]

3. Questions about counsel representing dependent minors and nonminor dependents

In 2024, the sponsor of this bill, Advokids, released the result of a survey they conducted with the Western Center on Law and Poverty and Akin Gump regarding minor’s counsel in dependency cases.^[8] The survey presented the responses of 879 caregivers and 190 former foster youth, which painted a concerning picture about the state of counsel representing foster children and youth in California. Over 43 percent of respondents stated that the counsel never provided their name and contact information to the foster child or caregiver;^[9] 65 percent reported that the appointed attorney never met with their client;^[10] and over 80 percent of respondents from the Counties of Butte, Fresno, Kern, Riverside, and Stanislaus reported that the appointed attorney never met with their clients.^[11]

Some organizations providing court-appointed counsel for minors have questioned the accuracy of the survey’s numbers. They note, for example, that the survey responses were not proportional to the population of each county, and some counties had no responses at all.^[12] They also note that participation in the survey was not randomized, but instead elicited by Advokids, including through posts on social media and from individuals who had contacted Advokids’ hotline.^[13] It is therefore unclear to what extent the numbers in the survey are representative of the statewide experience.

Even if the numbers in the survey are not entirely accurate, however, the fact that some counsel are not adequately engaging with their minor clients presents a serious policy issue. While court-appointed counsel are not required to provide the same services as social workers,^[14] an attorney must, at a minimum, contact their client, interview them to determine their needs and their best interests, and be available for outreach if the client so desires.^[15]

4. This bill is intended to strengthen minors’ and nonminor dependents’ rights with respect to hearing and increase court oversight of court-appointed counsel

This bill responds to the issues raised by the Advokids survey by imposing new requirements on courts and court-appointed counsel for minors and nonminor dependents.

First, the bill clarifies that nonminor dependents have the same rights as minors with respect to being present at and participating in their hearings. Committee staff are not aware of evidence suggesting that there was a deliberate policy choice to omit nonminor dependents from the statute in question, so this change appears to merely correct an oversight.

Second, the bill adds new inquiries a court must make at a dependency hearing, depending on whether and how the minor or nonminor is present:

• If the minor or nonminor dependent participates at the hearing through virtual means, the court must inquire as to whether the minor or nonminor dependent wished to be physically present; if so, the court shall continue the hearing to permit them to be physically present, unless the court finds the continuance would be contrary to their interest.
• If the minor or nonminor dependent is present at the hearing (virtually or in person), the court must ask them if they had the opportunity to consult with counsel; if they did not, the court shall allow them an opportunity to consult with counsel.
• If the minor or nonminor dependent is not present at the hearing, the court shall determine whether the minor or nonminor dependent had an opportunity to consult with counsel. The court shall continue the hearing to allow counsel to personally contact the minor or nonminor dependent to assess their well-being and determine their wishes to the issues presently before the court, unless the court finds it is in the best interest of the minor or nonminor dependent not to continue the hearing or that the minor or nonminor dependent waived their right to be physically present at the hearing. The court shall continue the hearing only for the period of time necessary to provide counsel with a reasonable amount of time to personally contact the minor or nonminor dependent. Nothing in this requirement permits counsel to violate the minor or nonminor dependent’s attorney-client privilege.

Third, the bill states that counsel for the minor or nonminor dependent or their agents are expected to meet with the client regularly, regardless of age or ability to communicate verbally, and that counsel should have sufficient personal contact with the client to establish and maintain an adequate and professional attorney-client relationship.

Fourth, the bill prohibits counsel from waiving the appearance of a minor who is 10 years of age or older, unless counsel has received direction from the client and has interviewed the client to determine their wishes and to assess their well-being.

Finally, the bill requires, in courts where local rules confer privileges relating to notice about the opportunity to attend or waiving the right to appear on minors under 10 years of age, that the court also apply the rights relating to notice and appearance set forth for minors aged 10 years or older to the minors covered by that local rule.

5. Concerns about the bill and amendments

This Committee has received concerns from stakeholders regarding the scope of the bill and individual provisions within it. At a high level, some, including the Judicial Council, argue that individual juvenile courts are not the appropriate institutions to engage in the kind of oversight sought by the author and sponsor. Judicial Council also argues that the bill unduly shifts counsel’s responsibilities onto the court and interferes with the attorney-client relationship of the client. Others argue that particular provisions of the bill do not account for how minors, especially young ones, may react to direct questions to the court, and that portions of the bill do not allow attorneys to use agents in circumstances where doing so would be consistent with the counsel’s duties to their client.

In response to concerns from stakeholders, the author has agreed to amend the bill as set forth below, subject to any nonsubstantive technical changes the Office of Legislative Counsel may make. Additions are in bold and underline, and deletions are in strikethrough:

Amendment 1

At page 3, in lines 15-23, modify paragraph (2) of subdivision (c) as follows:

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

Amendment 2

At page 3, in lines 24-30, modify paragraph (3) of subdivision (c) as follows:

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

Amendment 3

At page 3, lines 31-35 and page 4, lines 1-15, modify paragraph (1) of subdivision (d) as follows:

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

Amendment 4

At page 4, in lines 17-22, modify the first sentence of subparagraph (A) of paragraph (2) of subdivision (d) as follows:

(2) (A) IfIn the case of a minor 10 years of age or older, or a nonminor dependent, who is not present at the hearing, the court shall also determine whether the minor or nonminor dependent was properly notified of their right to attend the hearing and inquire whether the minor or nonminor dependent was given an opportunity to attend.

Amendment 5

Move the new subdivision (e), set forth at page 4, lines 37-40, and page 5, lines 1-3, into a new subdivision in Welfare and Institutions Code section 317.

Amendment 6

At page 5, delete line 6 after “dependent” and delete lines 6-8, inclusive.

6. Arguments in support

According to Advokids, the bill’s sponsor:

Welfare and Institutions Code section 349 addresses the rights of children to be present and represented by counsel at hearings in their own dependency cases and in those of their siblings. It presently requires the court to inquire why a child age 10 or older is not present in court and to continue the matter to secure the child’s right to be present, unless the court finds that a continuance is not in the best interests of the child.

AB 3049 will amend Welfare and Institutions Code Section 349, to require the court to determine whether a child or youth who is not present at a hearing, had an opportunity to consult with counsel prior to the hearing and authorize a continuance when necessary to allow for counsel to meet with the child or youth, except when a continuance is not in the best interests of the child. This amendment will institute judicial oversight of the requirement that counsel have regular contact with their clients, which is essential to counsel’s ability to competently represent the child’s current wishes, needs, and circumstances.

7. Arguments in opposition

According to the Judicial Council of California:

AB 3049 is based on a flawed premise that court appointed counsel for children and youth in California are routinely failing to represent the interests of their clients. The sponsor of AB 3049, Advokids, conducted a nonrandom survey of caregivers and some former foster youth on this topic and issued a report that alleges that most children in foster care have had no in-person contact with their attorneys based on the survey results. A group of attorneys who represent about 60 percent of foster children in California issued an open letter contesting the methodology and conclusions of the report. They characterize the report’s findings as follows: “their sweeping claim about the lack of contact between children’s attorneys and their clients is based on seriously flawed research and erroneous data. The conclusions drawn are irresponsible, misleading, and potentially damaging to the overall goals of high-quality representation, accountability, and adequate funding.”

The council concurs with these attorneys that it is not accurate to assert that there is a systemic problem that requires a solution that would impact every juvenile dependency proceeding. Children and youth are represented because their interests are paramount, but it is not consistent with our model of representation for the court to be in the position of interrogating the child or youth without any indication that there is a problem. Judges engage with children in these cases routinely, but some children and youth are not comfortable being put on the spot by a judicial officer. California has provided representation for youth to ensure that their voices are heard regardless of their level of comfort with speaking directly to a judge…

If the Legislature wants to ensure that counsel for children have had an opportunity to consult with their clients prior to a hearing, then section 349 could direct counsel for the child to request these continuances or delays in the proceedings in those cases in which they need time to consult with their clients and require the court to allow for this unless doing so would not be in the best interests of the client.

SUPPORT

Advokids (sponsor)

Allies for Every Child
California Alliance of Caregivers

California Youth Connection

Children Now
Children’s Advocacy Institute

Contra Costa Foster Friends

Extraordinary Families

FASDNow!

Koinonia Family Services

Koinonia Family Services, Gardena office

Legal Services for Children

Marin Foster Care Association

Mariposa County Resource Parent Support Network

National Center on Adoption and Permanency
Our Village Closet

Sierra Child and Family Services

Western Center on Law and Poverty

Over 200 individuals

OPPOSITION

Judicial Council

RELATED LEGISLATION

Pending Legislation: None known.

Prior Legislation: AB 217 (Maienschein, Ch. 36, Stats. 2015) required a juvenile court, in proceedings where the minor is present, to inform the minor that they have the right to address the court and be present at the hearing.

PRIOR VOTES:

Assembly Floor (Ayes 71, Noes 0)

Assembly Appropriations Committee (Ayes 15, Noes 0)

Assembly Human Services Committee (Ayes 6, Noes 0)

Assembly Judiciary Committee (Ayes 12, Noes 0)

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

1. In re Josiah Z. (2005) 36 Cal.4th 664, 673. ↑

2. In re R.T., 3 Cal.5th 622, 626. ↑

3. Welf. & Inst. Code, §§ 303, 388(e). ↑

4. See id., §§ 360, 361.3, 366.26. ↑

5. Id., § 317(c). ↑

6. Id., § 349. ↑

7. See ibid. ↑

8. See, Coyne, et al., Out of Sight, Out of Mind: When Children in Foster Care in California Don’t Meet Their Court-Appointed Attorneys (2024). ↑

9. Id. at p. 15. ↑

10. Id. at p. 3. ↑

11. Ibid. ↑

12. Id. at p. 14. ↑

13. Id. at p. 12. ↑

14. Welf. & Inst. Code, § 317(3)(3). ↑

15. Id., § 317(e); Cal. Rules of Court, rule 3.660. Minor dependency counsel in Los Angeles uses a longstanding “agent” model, whereby agents for counsel conduct some portion of the face-to-face interactions with clients; this analysis does not call into question that model. ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 3049

Author:(Bryan)

As Amended Ver:April 17, 2024

Majority vote

SUMMARY

Entitles a non-minor dependent who is the subject of a juvenile court review hearing, like a minor, to be present at any hearing about their case; and requires a juvenile court to inquire of counsel for a minor or non-minor dependent who is not present in court about their most recent contact with the minor or non-minor dependent.

Major Provisions

1. Requires, if the minor or nonminor dependent who is the subject of a juvenile court review hearing participates in the hearing by virtual or telephonic means, the court to inquire as to whether the minor or nonminor dependent wished to be physically present at the hearing. If the minor or nonminor dependent wished to be physically present at the hearing, the court shall continue the hearing to allow the minor or nonminor dependent to be physically present, unless the court finds that the continuance would be contrary to the interest of the minor or nonminor dependent.
2. Requires the court to ask the minor or nonminor dependent, whether they are present at the hearing or participating by virtual or telephonic means, if they have had an opportunity to consult with their counsel. If the minor or nonminor dependent has not had an opportunity to consult with their counsel, the court shall allow the minor or nonminor dependent an opportunity to consult with their counsel prior to proceeding with the hearing.
3. Requires the court, if the minor or non-minor dependent is not present at the hearing, to determine whether the minor or nonminor dependent had an opportunity to consult with their counsel.
4. Provides that the court shall continue the hearing only for that period of time necessary to provide counsel with a reasonable amount of time to personally contact the child or nonminor dependent; and requires the court to continue the hearing to allow counsel to personally contact the child or nonminor dependent to assess their well-being and determine their wishes with respect to the issues presently before the court, unless the court finds that it is in the best interest of the child or nonminor dependent not to continue the hearing, or that the minor or nonminor dependent waived their right to be physically present at the hearing.
5. Clarifies that nothing above shall be construed to permit counsel to violate a child's or nonminor dependent's attorney-client privilege.
6. Provides that in the case of a minor aged 10 years of age or older, or a nonminor dependent who is not present at the hearing, the court shall also determine whether the minor or nonminor dependent was properly notified of their right to attend the hearing and inquire whether the minor or nonminor dependent was given an opportunity to attend; and clarifies the following:
7. If that minor or nonminor dependent was not properly notified, or if they wished to be present and were not given an opportunity to be present, the court shall continue the hearing to allow the minor or nonminor dependent to be present, unless the court finds that it is in the best interest of the minor or nonminor dependent not to continue the hearing, or that the minor or nonminor dependent waived their right to be present at the hearing.
8. The court shall continue the hearing only for that period of time necessary to provide notice and secure the presence of the minor or nonminor dependent.
9. The court may issue any and all orders reasonably necessary to ensure that the minor or nonminor dependent has an opportunity to attend.
10. Provides that counsel for the minor or nonminor dependent or their agents are expected to meet regularly with their client, regardless of the age of the client or the client's ability to communicate verbally. Counsel for the minor or nonminor dependent must have sufficient personal contact with the minor or nonminor dependent to establish and maintain an adequate and professional attorney-client relationship.
11. Prohibits counsel from waiving the appearance of their client who is 10 years of age or older, unless counsel has received direction from the minor or nonminor dependent and counsel has interviewed the minor or nonminor dependent to determine their wishes and to assess their well-being.
12. Requires a court, if required by local rule, to provide a minor under the age of 10 years of age with the rights provided in 6 or 8).
13. Clarifies that nothing in the provisions above prevents or limits any minor's or nonminor dependent's right to attend or participate in the hearing.

COMMENTS

Current law provides a minor, but not a non-minor dependent, with the right to be present at a juvenile court hearing about their case and provides that a minor, but not a non-minor dependent, has the right at a review hearing to address the court and participate in the hearing, if they so desire. (Welfare & Institutions Code (WIC) Section 349(b) – (c).) This bill, sponsored by Advokids, seeks to address this apparent oversight in the law, and also bring additional accountability to the juvenile court and foster care systems so that foster youth can be informed about and involved in decisions that take place in juvenile court proceedings about them.

Rights of minors to be informed about, and participate in, juvenile court proceedings. A minor has the right to be represented at the hearing by counsel of their own choice. (WIC Section 349 (b).) If the minor is present at the hearing, the court shall inform them that they have the right to address the court and participate in the hearing; and the court shall allow the minor, if they so desire, to address the court and participate in the hearing. (Id., at (c).) If the minor is 10 years of age or older and they are not present at the hearing, the court is required to determine whether the minor was properly notified of their right to attend the hearing and inquire whether the minor was given an opportunity to attend; if the minor was not properly notified or if they wished to be present and were not given an opportunity to be present, the court is required to continue the hearing to allow the minor to be present, unless the court finds that it is in the best interest of the minor not to continue the hearing. (Id., at (d).)

The rights set forth in WIC Section 349 – to be notified of a hearing, to be notified of the right to be present, to address the court if they appear at a hearing; and to have a court determine for a youth who is over the age of 10 years old and not present at a hearing whether the youth was notified and given the opportunity to attend--explicitly apply only to a minor. The rights of a non-minor dependent are not addressed in WIC Section 349. While it seems hard to believe, for example, that a juvenile court would not allow a non-minor dependent to address the court if the nonminor youth appeared at their hearing, existing law does not explicitly provide that right to a non-minor dependent.

Despite these rights (at least for minors), foster youth often are not aware of what is happening in their own cases—including court decisions made about crucial aspects of their life—in juvenile court proceedings. A 2024 statewide survey by Advokids, Western Center on Law and Poverty, and Akin revealed that a large percentage of youth and caregivers in some counties never receive contact information for their court-appointed attorney; many never meet with the counsel who represents them; and of those youth who meet someone, it is more likely to be the agent of an attorney, rather than the attorney themselves. Key findings from the survey of more than 1,000 caregivers and former foster youth (879 caregivers and 190 former foster youth) show the following:

1. 43% reported that the court-appointed attorney never provided their name and contact information.
2. 65% reported that the court-appointed attorney never met with the youth.
3. 80% or more of survey respondents in five counties-- Butte, Fresno, Kern, Riverside and Stanislaus--reported that the court-appointed attorney never met with the children in their care. (Coyne et al, "Out of Sight, Out of Mind; When Children in Foster Care in California Don't Meet Their Court-Appointed Attorneys" (2024), at p. 3.)

It is important to note, however, that despite the survey's findings, many counsel for minors, nonminor dependents, and parents of these youth, in the state do an excellent job of communicating with their clients and establishing a strong attorney-client relationship. In fact, some findings of the survey demonstrate this fact. The survey showed that in three large counties of the state (including the two largest: Los Angeles and San Diego), at least 70% of children met with either an attorney or the attorney’s agent: Alameda (80%), San Diego (80%), and Los Angeles (72%). (Id., at p. 19.)

This bill seeks, in order to improve the quality of the crucial relationship between attorneys and their foster youth clients, to create new duties for a juvenile court in cases where either a minor or a non-minor dependent does not appear; and for counsel of minors, regardless of whether their clients appear. The bill requires the court to "determine whether the minor or nonminor dependent had an opportunity to consult with their counsel." The bill therefore does not jeopardize a breach of the attorney-client privilege because the information that a court must determine can be obtained without requiring disclosure of confidential attorney-client communication.

The bill would require the court to continue the hearing to allow counsel to personally contact the child or nonminor dependent to assess their well-being and determine their wishes with respect to the issues presently before the court, unless the court finds that it is in the best interest of the child or nonminor dependent not to continue the hearing, or that the minor or nonminor dependent waived their right to be physically present at the hearing. The court would be allowed to continue the hearing only for the period of time necessary to provide counsel with a reasonable amount of time to personally contact the child or nonminor dependent. Finally, the bill clarifies that it does not permit counsel to violate a child’s or nonminor dependent’s attorney-client privilege.

To remedy the apparent oversight in existing law that leaves non-minor dependents without explicit rights to attend hearings and address the court, the bill also explicitly applies the rights that minors have under WIC Section 349 to non-minor dependents.

According to the Author

At any given moment, there are over 40,000 children in the foster care system in California. These children depend on their court-appointed counsel to help them navigate an often traumatic and confusing dependency process. But, in some counties across California, dependency attorneys are failing to meet with their clients before representing them in court and advocating for life-altering decisions that they claim are in the child's best interests.

AB 3049 will expand existing judicial oversight over court-appointed dependency attorneys[.] . . . During periods of instability, a child's attorney should be a reliable constant and advocate for them. This bill will bring accountability to the dependency court system and ensure that when decisions are made about a child in the foster care system, that decision is informed by the child's own opinions and lived experiences.

Arguments in Support

The California Alliance of Caregivers and Marin Foster Care Association both write that they support the bill because they "would like to join the efforts to improve the quality of representation for dependent children and to ensure that they are represented by counsel who are familiar with the child and the child's needs and circumstances." The FASD Network of Southern California writes that it supports the bill because, "Every day, children in foster care are represented by court-appointed attorneys in court proceedings where judges make critical decisions about their safety, placement, families, and future. California needs to do more to ensure that the lawyers who are appointed to represent children in foster care meet with their clients."

Arguments in Opposition

No opposition on file.

FISCAL COMMENTS

According to the Assembly Appropriations analysis, costs (Trial Court Trust Fund, General Fund) to the courts of an unknown but potentially significant amount due to increased workload for court-appointed attorneys. Judicial Council reports some of the duties this bill requires of attorneys are currently carried out primarily by social workers and other staff. Many children in foster care are represented by court-appointed attorneys. To the extent this bill requires court-appointed attorneys to fulfill these duties, rather than other staff, the courts may incur costs in increased attorney compensation.

The Governor's 2024-25 budget proposes $83.1 million ongoing from the General Fund to backfill declining revenue to the Trial Court Trust Fund. According to the Legislative Analyst's Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years.

VOTES

ASM JUDICIARY: 12-0-0

YES: Kalra, Dixon, Bauer-Kahan, Bryan, Connolly, Haney, Maienschein, McKinnor, Pacheco, Reyes, Sanchez, Waldron

ASM HUMAN SERVICES: 6-0-1

YES: Lee, Essayli, Calderon, Gipson, Jackson, Ortega

ABS, ABST OR NV: Mathis

ASM APPROPRIATIONS: 15-0-0

YES: Wicks, Sanchez, Arambula, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Grayson, Haney, Hart, Jim Patterson, Pellerin, Ta, Villapudua

UPDATED

VERSION: April 17, 2024

CONSULTANT: Alison Merrilees / JUD. / (916) 319-2334 FN: 0003004

Date of Hearing: May 8, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 3049

Author:(Bryan) – As Amended Ver:April 17, 2024

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

SUMMARY:

This bill entitles a non-minor dependent (NMD) subject to juvenile court review to be present at any hearing about their case. The bill also allows the court to postpone a hearing if the NMD or minor is not physically present and the court determines they have not had an opportunity to consult with their counsel.

FISCAL EFFECT:

Costs (Trial Court Trust Fund, General Fund) to the courts of an unknown but potentially significant amount due to increased workload for court-appointed attorneys. Judicial Council reports some of the duties this bill requires of attorneys are currently carried out primarily by social workers and other staff. Many children in foster care are represented by court-appointed attorneys. To the extent this bill requires court-appointed attorneys to fulfill these duties, rather than other staff, the courts may incur costs in increased attorney compensation.

The Governor’s 2024-25 budget proposes $83.1 million ongoing from the General Fund to backfill declining revenue to the Trial Court Trust Fund. According to the Legislative Analyst’s Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years.

COMMENTS:

1. Purpose. According to the author:

At any given moment, there are over 40,000 children in the foster care system in California. These children depend on their court-appointed counsel to help them navigate an often traumatic and confusing dependency process. But, in some counties across California, dependency attorneys are failing to meet with their clients before representing them in court and advocating for life-altering decisions that they claim are in the child’s best interests…This bill will bring accountability to the dependency court system and ensure that when decisions are made about a child in the foster care system, that decision is informed by the child’s own opinions and lived experiences.

1. Background. Under existing law, a minor has the right to be present for a juvenile court hearing about their case, but an NMD does not have such a right. This bill extends the same right to be present to NMDs that minors currently have. The bill also allows a court to postpone a hearing to ensure an NMD or minor who is not present for a hearing has had a meaningful opportunity to communicate with their attorney. The bill also establishes that counsel for a minor or NMD must have sufficient personal contact with the minor or NMD to establish and maintain an adequate and professional attorney-client relationship, including by meeting regularly regardless of the client’s age or ability to speak.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing: April 23, 2024

ASSEMBLY COMMITTEE ON HUMAN SERVICES

Alex Lee, Chair

ABPCA Bill Id:AB 3049 (

Author:Bryan) – As Amended Ver:April 17, 2024

SUBJECT: Dependency: court hearings

SUMMARY: Includes nonminor dependents (NMDs) in specified entitlements for minors including the right to be present during a juvenile court hearing, and requires counsel for minors and NMDs to have sufficient personal contact to establish and maintain an adequate and professional attorney-client relationship. Specifically, this bill:

1. Expands the following existing entitlements for minors to include NMDs:
2. The right for those who are the subject of a juvenile court hearing to be present at the hearing;
3. The right to be represented at the hearing by counsel of their own choice; and,
4. The right, if present at the hearing, to address the court and participate in the hearing and specifies that nothing in this provision shall prevent or limit their right to attend or participate in the hearing.
5. Requires the court, if the minor or NMD participates in the hearing by virtual or telephonic means, to inquire as to whether the minor or NMD wished to be physically present at the hearing. Further requires the court, if the minor or NMD wishes to be physically present at the hearing, to continue the hearing to allow the minor or NMD to be physically present, unless the court finds that the continuance would be contrary to the interest of the minor or NMD.
6. Requires the court to also ask the minor or NMD, whether they are present at the hearing or participating by virtual or telephonic means, if they have had an opportunity to consult with their counsel. Requires the court, if the minor or NMD has not had an opportunity to consult with their counsel, to allow the minor or NMD an opportunity to consult with their counsel prior to proceeding with the hearing.
7. Requires, if the minor or NMD is not present at the hearing, the court to determine whether the minor or NMD had an opportunity to consult with their counsel. Requires the court to continue the hearing to allow counsel to personally contact the minor or NMD to assess their well-being and determine their wishes with respect to the issues presently before the court, unless the court finds that it is in the best interest of the minor or NMD not to continue the hearing, or that the minor or NMD waived their right to be physically present at the hearing. Requires the court to continue the hearing only for that period of time necessary to provide counsel with a reasonable amount of time to personally contact the minor or NMD. Specifies that nothing in this provision shall be construed to permit counsel to violate a minor’s or NMD’s attorney-client privilege.
   
8. Includes NMDs in the following provisions that already apply to minors 10 years of age or older, who are not present at the hearing, that require the court to do the following:
   
9. To also determine whether the NMD was properly notified of their right to attend the hearing and inquire whether the NMD was given an opportunity to attend; and,
10. If that NMD was not properly notified, or if they wished to be present and were not given an opportunity to be present, to continue the hearing to allow the NMD to be present unless the court finds that it is in the best interest of the NMD not to continue the hearing, or that the minor or NMD waived their right to be present at the hearing.
11. Requires the court to continue the hearing only for that period of time necessary to provide notice and secure the presence of the minor or NMD.
12. Authorizes the court to issue any and all orders reasonably necessary to ensure that the minor or NMD has an opportunity to attend.
13. Specifies that a court shall, if required by local rule, apply the rights described in 5) through 7) above to a minor under 10 years of age.
14. Provides that counsel for the minor or NMD or their agents are expected to meet regularly with their client, regardless of the age of the client or the client’s ability to communicate verbally. Requires counsel for the minor or NMD to have sufficient personal contact with the minor or NMD to establish and maintain an adequate and professional attorney-client relationship.
15. Prohibits counsel from waiving the appearance of their client who is 10 years of age or older, unless counsel has received direction from the minor or NMD and counsel has interviewed the minor or NMD to determine their wishes and to assess their well-being. Specifies that a court shall, if required by local rule, apply the rights described in this provision to a minor under 10 years of age.

EXISTING LAW:

1. Establishes the juvenile court with jurisdiction over children who are subject to abuse or neglect. (Welfare & Institutions Code [WIC] § 300.)
2. Establishes that the purpose of the juvenile court dependency system is the maximum safety and protection for children who are currently being abused, neglected, or exploited. Provides that the focus is on the preservation of the family, as well as the safety, protection, and physical and emotional well-being of the child. (WIC § 300.2.)
3. Provides for extended foster care funding for youth until age 21, as well as adopts other changes to conform to the federal Fostering Connections to Success Act. (WIC §§ 241.1, 303, 366.3, 388, 391, 450, 11400, 11402, 11403.)
4. Requires a social worker who files a dependency petition with the court to file a supplemental report prior to the initial petition hearing, and prior to subsequent review hearings, that sets forth the reasons why the child has been removed from the physical custody of the parents or guardians and, in the case of subsequent review hearings, the reasons for returning or not returning the child to the physical custody of the parent or guardian. Requires the court to review the supplemental report and make findings, as specified. (WIC §§ 319(b), (f); 364(b); 366.21(c))

1. Gives a minor the right to be represented at the hearing by counsel of their own choice. (WIC § 349(b))
2. Provides that if the minor is present at the hearing, the court shall inform them that they have the right to address the court and participate in the hearing and the court shall allow the minor, if they so desire, to address the court and participate in the hearing. (WIC § 349(c).)
3. Requires the court, if the minor is 10 years of age or older and they are not present at the hearing, to determine whether the minor was properly notified of their right to attend the hearing and inquire whether the minor was given an opportunity to attend; if that minor was not properly notified or if they wished to be present and were not given an opportunity to be present, the court shall continue the hearing to allow the minor to be present, unless the court finds that it is in the best interest of the minor not to continue the hearing. The court shall continue the hearing only for that period of time necessary to provide notice and secure the presence of the child. (WIC § 349(d).)
4. Provides that the court may issue any and all orders reasonably necessary to ensure that the child has an opportunity to attend a juvenile court hearing about their case. (WIC § 349(d))
5. Requires, pursuant to court rule, that children’s counsel “or their agents” meet regularly with their clients, regardless of their age; requires attorneys themselves to “have sufficient contact with the child to establish and maintain an adequate and professional attorney-client relationship”; and mandates that attorneys provide their contact information to their client’s caregiver, as well as to children who are 10 years of age or older. (Rule 5.660(d), California Rules of Court.)

FISCAL EFFECT: This bill was keyed nonfiscal by the Legislative Cousel.

COMMENTS:

Background: Child Welfare Services (CWS). California’s CWS system was established with the goal of protecting youth from abuse and neglect and is designed to provide safety, health, and overall well-being of children. When a child is identified as being at risk of abuse or neglect, reports can be made to either law enforcement or a county child welfare agency. Often, these reports are submitted by mandated reporters who are legally required to report suspicion of child abuse or neglect due to their profession, such as a teacher or healthcare provider. When a mandated reporter submits a report to either law enforcement or the county child welfare agency, a social worker determines whether the allegation is of suspected abuse, neglect, or exploitation, and creates a case plan which includes the provision of relevant services. The child's social worker and the court collaborate to evaluate and review the circumstances of each case, seeking either reunification or placement outside of the home as a way for the child to achieve permanency.

The court will then determine whether the allegations are true and if the child can remain at home. If the court orders a child to be placed outside of the home, the parent usually receives court-ordered family reunification services. Upon completion of the services, in addition to making any changes or improvements described in the case plan, the court may dismiss the child’s court case and the county welfare department case will also be closed. If a parent does not participate in the services set forth in the reunification plan, the court can terminate the services, and therefore change the reunification goal to one of finding a permanent home with a caring adult.

California's child welfare services programs are administered by the 58 individual counties with each county organizing and operating its own program of child protection based on local needs while adhering to state and federal regulations. When a child welfare case is open, counties are the primary governmental entity interacting with children and families when addressing issues of child abuse and neglect and are responsible, either directly or through providers, for obtaining or providing the interventions and relevant services to protect children and assist families with issues related to child abuse and neglect.

The California Department of Social Services (CDSS) secures federal funding to support child welfare services programs, provides statewide best practices training for social workers, and conducts program regulatory oversight and administration, and is responsible for the development of policy while also providing direct services such as adoption placements.

As of January 1, 2024, there are 43,633 youth between birth and 20 years of age in foster care in California.

Nonminor Dependents also known as Extended Foster Care. California was one of the first states to opt into the federal opportunity to create an extended foster care program which represented a historic expansion of services to foster youth and was intended to improve outcomes for youth, who often faced enormous challenges as they emancipated from the foster care system at 18 years of age often facing poverty, homelessness, and incarceration.

In 2010, Governor Schwarzenegger signed AB 12 (Beall), Chapter 559, Statutes of 2010, which extended foster care benefits for certain eligible youth until the age of 21. Prior to the adoption of AB 12, known as the Fostering Connections to Success Act, youth aged out of the CWS system at 18 years old and were required to navigate the challenges of young adulthood, including obtaining education, stable housing, and employment, without the support of the CWS system. In recognition of these difficulties, AB 12 provided eligible youth between 18 and 21 years of age, known as NMDs, with the services and supports they need to experience independent living in supervised living environments. Extended foster care also enables youth to obtain educational and employment training to better prepare them to transition to adulthood and self-sufficiency.

At the six-month hearing prior to a youth attaining 18 years of age, the youth’s social worker or probation officer must have a plan to ensure that the youth will meet at least one of the following criteria for participation in extended foster care:

1. Be enrolled in a high school or equivalent program;
2. Be enrolled in a college, community college, or vocational program;
3. Be employed at least 80 hours a month;
4. Participate in a program or activity designed to remove barriers to employment; or,
5. Be unable to do one of the above requirements due to a medical condition.

NMDs must also sign an agreement to remain in foster care within six months of turning 18, reside in an eligible placement, and agree to work with their social worker to meet the goals of their transitional living plan.

For all intents and purposes, the CWS system treats NMDs similar to minors. This bill would bring parity in how courts handle their cases as well.

Dependency Court Procedure. When a child is removed from the custody of their parent, they are temporarily placed within the jurisdiction of the child welfare system until a determination about the child’s welfare is made. Within 48 hours after a child is taken into temporary custody, the county social worker must file a petition with the court requesting that a detention hearing take place in order to determine if further detention of the child is necessary. If a petition to declare the child a dependent of the court is filed by the county social worker, then the detention hearing must be held within 48 hours of the petition being filed. At the detention hearing, the social worker outlines the allegations of abuse or neglect made against the parent and why it is necessary to remove the child from the custody of their parent. If the court determines that removing the child from their parents’ custody is in the best interests of the child, the child is then removed. The permanent placement of the child is determined at a later date.

Once a child has been removed from the custody of their parents, a jurisdictional hearing must take place within 15 days. It is at the jurisdictional hearing that the court determines whether the allegations outlined in the social worker’s petition are true. If the allegations are deemed to be true, then the child is determined to be within the jurisdiction of the juvenile court and a dispositional hearing must be held within 60 days of the initial detention hearing in order to determine the permanent placement of the child.

At the dispositional hearing, the court determines the parameters of the family reunification plan, which includes where and with whom the child will live, be it with relatives or in a foster family home. The reunification plan also can entail recommendations for parents such as parenting classes, anger management, counseling, substance use disorder counseling and testing, sexual abuse counseling, parenting training, and anger management.

Except for limited circumstances, if the child is not returned to the parent’s custody at the 18-month permanency reviewing hearing, the juvenile court is required to terminate reunification services and set a hearing to terminate parental rights. The court then determines whether reasonable services have been offered or provided to the parent or legal guardian, but the court’s authority to set the hearing to terminate parental rights is not conditioned on whether reasonable services were provided.

Courts appoint attorneys to represent minors and NMDs in the foster care system, but the Author and Sponsor state there are no rules in statute that guide their practice and there is no guarantee that when an attorney appears in front of a judge for a child that they've personally contacted or spoken to the child. This bill would clarify the requirements for counsel and court as well as expand the rights already afforded to minors to include NMDs who are involved in court proceedings.

Recent Reporting on Court-Appointed Attorneys. A recent investigative report was published on April 16, 2024, entitled Out of Sight, Out of Mind When Children in Foster Care in California Don’t Meet Their Court Appointed Attorneys and was a collaboration by several organizations: Advokids, Western Center on Law and Poverty, and Akin Gump. The report presented findings from surveys of more than 1,000 caregivers and former foster youth, which revealed that two-thirds of children in California foster care have never met with their attorney and according to the Advokids Executive Director, “Our report sounds the alarm that most court-appointed attorneys in California fail the 45,000 children in foster care who depend on them to advocate for their protection, safety and well-being - posing real dangers to these children who do not receive the quality of legal advocacy promised under California law. There are currently no oversight measures in place to hold court appointed attorneys accountable for failing to meet with and advocate for their clients who are vulnerable children and youth who must have a voice in the courtroom. It is time to demand accountability.”

In response to this report, a coalition of dependency attorneys representing the following organizations: East Bay Children's Law Offices, Children's Law Center of California, Children's Legal Services of San Diego, Dependency Advocacy Center, Dependency Legal Services, and Law Foundation of Silicon Valley noted that, “While we appreciate the focus of the ‘Out of Sight’ report on the important role of children’s attorneys in the foster care system, and we agree oversight and accountability are critical to ensure children in every California county are provided high-quality multidisciplinary representation, the report is replete with misinformation and sweeping conclusions based on inaccurate data.”

Author’s Statement: According to the Author, “At any given moment, there are over 40,000 children in the foster care system in California. These children depend on their court-appointed counsel to help them navigate an often traumatic and confusing dependency process. But, in some counties across California, dependency attorneys are failing to meet with their clients before representing them in court and advocating for life-altering decisions that they claim are in the child’s best interests. [This bill] will expand existing judicial oversight over court-appointed dependency attorneys, requiring that a judge continue a hearing if they find that the child has not had an opportunity to consult their attorney. During periods of instability, a child’s attorney should be a reliable constant and advocate for them. This bill will bring accountability to the dependency court system and ensure that when decisions are made about a child in the foster care system, that decision is informed by the child’s own opinions and lived experiences.”

Equity Implications: The provisions of this bill seek to expand existing rights of children and young people in the foster care system ensuring they have the opportunity to consult with their attorneys if a presiding judge determines that they were not able to do so prior to a hearing. According to an April 3, 2024, publication by the Legislative Analyst's Office, entitled Update: Racial and Ethnic Disproportionalities and Disparities in California’s Child Welfare System, “The proportions of Black and Native American youth in foster care are around four times larger than the proportions of Black and Native American youth in California overall.” Because of the disproportionality that exists in the child welfare system, the provisions of this bill seek to ensure that these youth’s wishes are aligned with the actions of the dependency proceedings.

Double referral: This bill was previously heard in the Assembly Judiciary Committee on April 16, 2024, on consent and was approved on a 12-0 vote.

RELATED AND PRIOR LEGISLATION:

AB 217 (Maienschien), Chapter 36, Statutes of 2015, required the court to inform a minor, if the minor is present at the juvenile hearing, of their right to address the court and participate in the hearing.

REGISTERED SUPPORT / OPPOSITION:

Support

Advokids (Sponsor)

Allies for Every Child

California Alliance of Caregivers

California Youth Connection (CYC)

Children Now

Contra Costa Foster Friends

Extraordinary Families

FASD Network of Southern California

FASD Now! a California Alliance

Koinonia Family Services

Legal Services for Children

Marin Foster Care Association

Mariposa County Resource Parent Support Network

National Center on Adoption and Permanency

Our Village Closet

Sierra Child & Family Services

Western Center on Law & Poverty

Opposition

None on file.

Analysis Prepared by: Jessica Langtry / HUM. S. / (916) 319-2089

Date of Hearing: April 16, 2024

ASSEMBLY COMMITTEE ON JUDICIARY

Ash Kalra, Chair

ABPCA Bill Id:AB 3049

Author:(Bryan) – As Amended Ver:March 21, 2024

PROPOSED CONSENT (As Proposed to be Amended)

SUBJECT: Dependency: court hearings

KEY ISSUE: SHOULD A NON-MINOR DEPENDENT WHO IS THE SUBJECT OF A JUVENILE COURT REVIEW HEARING, LIKE A MINOR, HAVE THE EXPLICIT RIGHT TO BE PRESENT AT ANY HEARING ABOUT THEIR CASE; AND SHOULD A JUVENILE COURT BE REQUIRED TO INQUIRE OF COUNSEL FOR A MINOR OR A NON-MINOR DEPENDENT WHO IS NOT PRESENT IN COURT, ABOUT THEIR MOST RECENT CONTACT WITH THE MINOR OR NON-MINOR DEPENDENT?

SYNOPSIS

Children who are at risk of abuse, neglect, or abandonment may be deemed dependents of the juvenile court and provided with services, supports and interventions aimed at protecting them and their health and safety. The system aims to preserve and strengthen families by maintaining or reuniting children with their parents whenever appropriate. The dependency process begins when child abuse, neglect, or abandonment is reported to the local child welfare agency. A social worker with the child welfare agency investigates the allegation to determine if the child requires protection in order to ensure their safety. If so, the child welfare agency files a petition with the juvenile court to make the child a dependent of the court. Throughout this process, there are multiple court hearings – including the detention hearing, the jurisdictional hearing and the dispositional hearing, followed by ongoing review hearings and the permanency hearing – where the custody of a child or their placement is evaluated, reviewed, and determined by the court, in consultation with the child’s social worker appointed by the county and the child's attorney, to help provide the best possible support and services to the child.

Current law provides a minor, but not a non-minor dependent, to be present at a juvenile court hearing about their case and provides that a minor, but not a non-minor dependent, has the right at a review hearing to address the court and participate in the hearing, if they so desire. (Section 349 (b) – (c).) This bill will address this apparent oversight in the law. The bill also creates new duties for a juvenile court in a case where either a minor or a non-minor dependent does not appear. The bill in print requires the court to ask counsel for the minor or nonminor dependent to state, on the record, the date of counsel’s most recent personal contact with the child or nonminor dependent. This could violate the attorney-client privilege. The author proposes a number of amendments that address this issue; strengthen the rights of foster youth; and specify requirements for counsel to meet and establish an attorney-client relationship with the clients. The amendments are incorporated into the SUMMARY, below, and explained in the analysis.

The bill is sponsored by Advokids, supported by numerous organizations that support foster children and their families, and has no opposition on file. Should it be approved by this Committee, it will be referred to the Assembly Committee on Human Services.

SUMMARY: Entitles a non-minor dependent who is the subject of a juvenile court review hearing, like a minor, to be present at any hearing about their case; and requires a juvenile court to inquire of counsel for a minor or non-minor dependent who is not present in court about their most recent contact with the minor or non-minor dependent. Specifically, this bill:

1. Applies all of the rights that a minor has pursuant to 5) – 8), below, to a non-minor dependent.
2. Requires, if the minor or nonminor dependent who is the subject of a juvenile court review hearing participates in the hearing by virtual or telephonic means, the court to inquire as to whether the minor or nonminor dependent wished to be physically present at the hearing. If the minor or nonminor dependent wished to be physically present at the hearing, the court shall continue the hearing to allow the minor or nonminor dependent to be physically present, unless the court finds that the continuance would be contrary to the interest of the minor or nonminor dependent.
3. Requires the court to ask the minor or nonminor dependent, whether they are present at the hearing or participating by virtual or telephonic means, if they have had an opportunity to consult with their counsel. If the minor or nonminor dependent has not had an opportunity to consult with their counsel, the court shall allow the minor or nonminor dependent an opportunity to consult with their counsel prior to proceeding with the hearing.
4. Requires the court, if the minor or non-minor dependent is not present at the hearing, to determine whether the minor or nonminor dependent had an opportunity to consult with their counsel.
5. Provides that the court shall continue the hearing only for that period of time necessary to provide counsel with a reasonable amount of time to personally contact the child or nonminor dependent; and requires the court to continue the hearing to allow counsel to personally contact the child or nonminor dependent to assess their well-being and determine their wishes with respect to the issues presently before the court, unless the court finds that it is in the best interest of the child or nonminor dependent not to continue the hearing, or that the minor or nonminor dependent waived their right to be physically present at the hearing.
6. Clarifies that nothing in 2) – 5) shall be construed to permit counsel to violate a child’s or nonminor dependent’s attorney-client privilege.
7. Provides that in the case of a minor aged 10 years of age or older, or a nonminor dependent who is not present at the hearing, the court shall also determine whether the minor or nonminor dependent was properly notified of their right to attend the hearing and inquire whether the minor or nonminor dependent was given an opportunity to attend; and clarifies the following:
8. If that minor or nonminor dependent was not properly notified, or if they wished to be present and were not given an opportunity to be present, the court shall continue the hearing to allow the minor or nonminor dependent to be present, unless the court finds that it is in the best interest of the minor or nonminor dependent not to continue the hearing, or that the minor or nonminor dependent waived their right to be present at the hearing.
9. The court shall continue the hearing only for that period of time necessary to provide notice and secure the presence of the minor or nonminor dependent.
10. The court may issue any and all orders reasonably necessary to ensure that the minor or nonminor dependent has an opportunity to attend.
11. Requires the court, if required by local rule, to provide a minor under the age of 10 years of age with the rights provided in 7).
12. Provides that counsel for the minor or nonminor dependent or their agents are expected to meet regularly with their client, regardless of the age of the client or the client’s ability to communicate verbally. Counsel for the minor or nonminor dependent must have sufficient personal contact with the minor or nonminor dependent to establish and maintain an adequate and professional attorney-client relationship.
13. Prohibits counsel from waiving the appearance of their client who is 10 years of age or older, unless counsel has received direction from the minor or nonminor dependent and counsel has interviewed the minor or nonminor dependent to determine their wishes and to assess their well-being.
14. Requires a court, if required by local rule, to provide a minor under the age of 10 years of age with the rights provided in 10).
15. Clarifies that nothing in the provisions above prevents or limits any minor’s or nonminor dependent’s right to attend or participate in the hearing.

EXISTING LAW:

1. Establishes the juvenile court with jurisdiction over children who are subject to abuse or neglect. (Welfare & Institutions Code Section 300. Unless stated otherwise, all further statutory references are to the Welfare & Institutions Code.)
2. Establishes that the purpose of the juvenile court dependency system is the maximum safety and protection for children who are currently being abused, neglected, or exploited. Provides that the focus is on the preservation of the family, as well as the safety, protection, and physical and emotional well-being of the child. (Section 300.2.)
3. Provides for extended foster care funding for youth until age 21, as well as adopts other changes to conform to the federal Fostering Connections to Success Act. (Sections 241.1, 303, 366.3, 388, 391, 450, 11400, 11402, 11403.)
4. Requires a social worker who files a dependency petition with the court to file a supplemental report prior to the initial petition hearing, and prior to subsequent review hearings, that sets forth the reasons why the child has been removed from the physical custody of the parents or guardians and, in the case of subsequent review hearings, the reasons for returning or not returning the child to the physical custody of the parent or guardian. Requires the court to review the supplemental report and make findings, as specified. (Sections 319 (b), (f); 364 (b); 366.21 (c).)
5. Gives a minor the right to be represented at the hearing by counsel of their own choice. (Section 349 (b).)
6. Provides that if the minor is present at the hearing, the court shall inform them that they have the right to address the court and participate in the hearing and the court shall allow the minor, if they so desire, to address the court and participate in the hearing. (Id., at (c).)
7. Requires the court, if the minor is 10 years of age or older and they are not present at the hearing, to determine whether the minor was properly notified of their right to attend the hearing and inquire whether the minor was given an opportunity to attend; if that minor was not properly notified or if they wished to be present and were not given an opportunity to be present, the court shall continue the hearing to allow the minor to be present, unless the court finds that it is in the best interest of the minor not to continue the hearing. The court shall continue the hearing only for that period of time necessary to provide notice and secure the presence of the child. (Id., at (d).)
8. Provides that the court may issue any and all orders reasonably necessary to ensure that the child has an opportunity to attend a juvenile court hearing about their case. (Ibid.)
9. Requires, pursuant to court rule, that children’s counsel “or their agents” meet regularly with their clients, regardless of their age; requires attorneys themselves to “have sufficient contact with the child to establish and maintain an adequate and professional attorney-client relationship”; and mandates that attorneys provide their contact information to their client’s caregiver, as well as to children who are aged 10 years or older. (Rule 5.660 (d), California Rules of Court.)

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

COMMENTS: Current law provides a minor, but not a non-minor dependent, with the right to be present at a juvenile court hearing about their case and provides that a minor, but not a non-minor dependent, has the right at a review hearing to address the court and participate in the hearing, if they so desire. (Section 349 (b) – (c).) This bill, sponsored by Advokids, seeks to address this apparent oversight in the law, and also bring additional accountability to the juvenile court and foster care systems so that foster youth can be informed about and involved in decisions that take place in juvenile court proceedings about them. According to the author:

At any given moment, there are over 40,000 children in the foster care system in California. These children depend on their court-appointed counsel to help them navigate an often traumatic and confusing dependency process. But, in some counties across California, dependency attorneys are failing to meet with their clients before representing them in court and advocating for life-altering decisions that they claim are in the child’s best interests.

AB 3049 will expand existing judicial oversight over court-appointed dependency attorneys[.] . . . During periods of instability, a child’s attorney should be a reliable constant and advocate for them. This bill will bring accountability to the dependency court system and ensure that when decisions are made about a child in the foster care system, that decision is informed by the child’s own opinions and lived experiences.

Overview of child welfare services and juvenile dependency court. Children who are at risk of abuse, neglect, or abandonment may be deemed dependents of the juvenile court and provided with services, supports and interventions aimed at protecting them and their health and safety. The system aims to preserve and strengthen families by maintaining or reuniting children with their parents whenever appropriate. The dependency process begins when child abuse, neglect, or abandonment is reported to the local child welfare agency. A social worker with the child welfare agency investigates the allegation to determine if the child requires protection in order to ensure their safety. If so, the child welfare agency files a petition with the juvenile court to make the child a dependent of the court. If necessary, the social worker will remove the child from their home and take the child into protective custody.

At the subsequent court hearing, the court may elect to keep the child in, or return the child to, their home or remove the child from the home. Removal may either result in eventual reunification with the family, or the court may determine that an alternate permanent placement –including the options of guardianship or adoption – is more fitting. When reunification is not possible or appropriate, children are placed in the setting deemed least restrictive and most suitable; the court must give preference to potential placements with relatives or nonrelative extended family members.

Throughout this process, there are multiple court hearings – including the detention hearing, jurisdictional hearing and dispositional hearing, followed by ongoing review hearings and a permanency hearing – where the custody of a foster youth or their placement is evaluated, reviewed, and determined by the court, in consultation with the youth’s social worker appointed by the county and their attorney, to help provide the best possible support and services to the youth. In order to provide much needed support for older foster youth who age out of the system, the law allows a juvenile court to extend its jurisdiction after the youth reach the age of 18 years (when they are a “non-minor dependent”), and until they reach 21 years of age.

Rights of minors to be informed about, and participate in, juvenile court proceedings. A minor has the right to be represented at the hearing by counsel of their own choice. (Section 349 (b).) If the minor is present at the hearing, the court shall inform them that they have the right to address the court and participate in the hearing; and the court shall allow the minor, if they so desire, to address the court and participate in the hearing. (Id., at (c).) If the minor is 10 years of age or older and they are not present at the hearing, the court is required to determine whether the minor was properly notified of their right to attend the hearing and inquire whether the minor was given an opportunity to attend; if the minor was not properly notified or if they wished to be present and were not given an opportunity to be present, the court is required to continue the hearing to allow the minor to be present, unless the court finds that it is in the best interest of the minor not to continue the hearing. (Id., at (d).)

The rights set forth in Section 349 – to be notified of a hearing, to be notified of the right to be present, to address the court if they appear at a hearing; and to have a court determine for a youth who is over the age of 10 years old and not present at a hearing whether the youth was notified and given the opportunity to attend--explicitly apply only to a minor. The rights of a non-minor dependent are not addressed in Section 349. While it seems hard to believe, for example, that a juvenile court would not allow a non-minor dependent to address the court if the nonminor youth appeared at their hearing, existing law does not explicitly provide that right to a non-minor dependent.

Despite these rights (at least for minors), foster youth often are not aware of what is happening in their own cases—including court decisions made about crucial aspects of their life—in juvenile court proceedings. A 2024 statewide survey by Advokids, Western Center on Law and Poverty, and Akin revealed that a large percentage of youth and caregivers in some counties never receive contact information for their court-appointed attorney; many never meet with the counsel who represents them; and of those youth who meet someone, it is more likely to be the agent of an attorney, rather than the attorney themselves. Key findings from the survey of more than 1,000 caregivers and former foster youth (879 caregivers and 190 former foster youth) show the following:

• 43% reported that the court-appointed attorney never provided their name and contact information.
• 65% reported that the court-appointed attorney never met with the youth.
• 80% or more of survey respondents in five counties-- Butte, Fresno, Kern, Riverside and Stanislaus--reported that the court-appointed attorney never met with the children in their care. (Coyne et al, “Out of Sight, Out of Mind; When Children in Foster Care in California Don’t Meet Their Court-Appointed Attorneys” (2024), at p. 3.)

It is important to note, however, that despite the survey’s findings, many counsel for minors, nonminor dependents, and parents of these youth, in the state do an excellent job of communicating with their clients and establishing a strong attorney-client relationship. In fact, some findings of the survey demonstrate this fact. The survey showed that in three large counties of the state (including the two largest: Los Angeles and San Diego), at least 70% of children met with either an attorney or the attorney’s agent: Alameda (80%), San Diego (80%), and Los Angeles (72%). (Id., at p. 19.) Also, the Committee received one letter from a former foster youth that lavishly praised their counsel and the positive impact that the attorney-client relationship had on their life:

As a former foster youth from the ages of 8 to 13, I was fortunate to have a court appointed attorney who met with me every time I had a court date. She made me feel safe, heard, and like I had a say in my case. She helped me understand what was going on and explained what all the big words meant. She made me feel safe and comfortable by offering me snacks and giving me a teddy bear. Every child in the foster care system deserves this. A child’s attorney is one of their biggest advocates and it is extremely important that they maintain a relationship.

This bill seeks, in order to improve the quality of the crucial relationship between attorneys and their foster youth clients, to create new duties for a juvenile court in cases where either a minor or a non-minor dependent does not appear; and for counsel of minors, regardless of whether their clients appear. The bill in print requires the court to ask counsel for the minor or nonminor dependent to “state, on the record, the date of counsel’s most recent personal contact with the child or nonminor dependent.” This requirement risks violating the attorney-client privilege, which is inappropriate. The bill, as proposed to be amended, requires the court to “determine whether the minor or nonminor dependent had an opportunity to consult with their counsel,” which does not raise such issues. The amended language achieves the same goal but does not jeopardize a breach of the attorney-client privilege because the information that a court must determine can be obtained without requiring disclosure of confidential attorney-client communication.

The bill would require the court to continue the hearing to allow counsel to personally contact the child or nonminor dependent to assess their well-being and determine their wishes with respect to the issues presently before the court, unless the court finds that it is in the best interest of the child or nonminor dependent not to continue the hearing, or that the minor or nonminor dependent waived their right to be physically present at the hearing. The court would be allowed to continue the hearing only for the period of time necessary to provide counsel with a reasonable amount of time to personally contact the child or nonminor dependent. Finally, the bill clarifies that it does not permit counsel to violate a child’s or nonminor dependent’s attorney-client privilege.

To remedy the apparent oversight in existing law that leaves non-minor dependents without explicit rights to attend hearings and address the court, the bill also explicitly applies the rights that minors have under Section 349 to non-minor dependents.

Author’s amendments. The author seeks to strengthen a number of important rights of minors and non-minor dependents relating to juvenile court proceedings, including the right to be notified of hearings, attend hearings, and have a strong attorney client relationship with their counsel. The author’s proposed amendments expand and strengthen these rights in several ways.

1. Rights when the minor or non-minor dependent participates in a hearing by virtual or telephonic means.

The use of technology to facilitate hearings in juvenile dependency proceedings by virtual or telephonic means began by necessity during the COVID-19 pandemic, as facilitated by emergency orders from the California Supreme Court. But such remote appearances for juvenile dependency proceedings have proved to be popular and successful with both courts and parties. They allow youth to be involved in the process, without losing days of educational time. Parents do not have to take off entire days from work. All parties are saved the time and cost of traveling to court and waiting for hours in court hallways before their cases are called.

The author’s amendments anticipate the use of this technology and provide new rights to minors and non-minor dependents who participate in hearings by virtual or telephonic means.

1. Obligations of counsel for the minor or non-minor dependent to meet with their clients and establish an attorney-client relationship.

An existing rule of court provides that children’s counsel “or their agents” must meet regularly with their clients, regardless of their age. (Rule 5.660 (d), California Rules of Court.) The rule also requires attorneys themselves to “have sufficient contact with the child to establish and maintain an adequate and professional attorney-client relationship” and mandates that attorneys provide their contact information to their client’s caregiver, as well as to children who are aged 10 years or older. (Ibid.) Based upon the findings of the Advokids survey discussed above, however, it seems clear that not all counsel for minors comply with this rule. As proposed to be amended, the bill would codify these requirements.

1. Other miscellaneous provisions.

The amendments also update Section 349 to reflect the terminology that is now more frequently used to describe foster youth who are under the age of 18 years old so that the term “minor” (rather than the term “child”) is used throughout; correct a drafting error that refers to nonminor dependents who are over the age of 10 years old; and clarify that a court can provide the rights specified in Section 349 as applying to children over the age of 10 to younger children, as well, if a local court rule requires it.

Finally, the amendments acknowledge that courts are required to follow any local rule that makes the Section 349 rights of minors applicable to youth who are under the age of 10 years of age. To address all of these issues, the author proposes the following amendments to the bill:

SECTION 1. Section 349 of the Welfare and Institutions Code is amended to read:

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

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

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

(2) If the minor or nonminor dependent participates in the hearing by virtual or telephonic means, the court shall inquire as to whether the minor or nonminor dependent wished to be physically present at the hearing. If the minor or nonminor dependent wished to be physically present at the hearing, the court shall continue the hearing to allow the minor or nonminor dependent to be physically present, unless the court finds that the continuance would be contrary to the interest of the minor or nonminor dependent.

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

(d) (1) If the child or nonminor dependent is not present at the hearing, the court shall ask counsel for the child or nonminor dependent to state, on the record, the date of counsel’s most recent personal contact with the child or nonminor dependent. If the court finds that counsel has had no personal contact with the child or nonminor dependent in the last six months, the court shall determine whether the minor or nonminor dependent had an opportunity to consult with their counsel. The court shall continue the hearing to allow counsel to personally contact the child or nonminor dependent to assess their well-being and determine their wishes with respect to the issues presently before the court, unless the court finds that it is in the best interest of the child or nonminor dependent not to continue the hearing. The court shall continue the hearing only for that period of time necessary to provide counsel with a reasonable amount of time to personally contact the child minor or nonminor dependent, or that the minor or nonminor dependent waived their right to be physically present at the hearing. Nothing in this subdivision shall be construed to permit counsel to violate a child’s minor’s or nonminor dependent’s attorney-client privilege.

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

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

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

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

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

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

ARGUMENTS IN SUPPORT: The California Alliance of Caregivers and Marin Foster Care Association both write that they support the bill because they “would like to join the efforts to improve the quality of representation for dependent children and to ensure that they are represented by counsel who are familiar with the child and the child’s needs and circumstances.” The FASD Network of Southern California writes that it supports the bill because, “Every day, children in foster care are represented by court-appointed attorneys in court proceedings where judges make critical decisions about their safety, placement, families, and future. California needs to do more to ensure that the lawyers who are appointed to represent children in foster care meet with their clients.”

REGISTERED SUPPORT / OPPOSITION:

Support

Advokids
Allies for Every Child
California Alliance of Caregivers
California Youth Connection (CYC)
Children Now
Contra Costa Foster Friends
Extraordinary Families
FASD Network of Southern California
FASD Now! a California Alliance
Koinonia Family Services
Legal Services for Children
Marin Foster Care Association
Mariposa County Resource Parent Support Network
National Center on Adoption and Permanency
Our Village Closet
Sierra Child & Family Services
Western Center on Law & Poverty

Three (3) individuals

Opposition

None on file

Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334