California Law Concerning Appointment of Attorneys in Dependency Cases
| This California code (WIC 317) is copied here for its relevance to policy in Nevada. (Also see full code, section 300, for dependency proceedings.) Any emphasis and comments in green are those of the webmaster. |
317. (a) When it appears to the court
that a parent or guardian of the child
desires counsel but is presently financially
unable to afford and cannot for that reason
employ counsel, the court may appoint counsel
as provided in this section.
(b) When it appears to the court that a
parent or guardian of the child is presently
financially unable to afford and cannot for
that reason employ counsel, and the child has
been placed in out-of-home care, or the
petitioning agency is recommending that the
child be placed in out-of-home care, the
court shall appoint counsel, unless the court
finds that the parent or guardian has made a
knowing and intelligent waiver of counsel as
provided in this section.
(c) Where a child is not represented by
counsel, the court shall appoint counsel for
the child unless the court finds that the
child would not benefit from the appointment
of counsel. The court shall state on the
record its reasons for that finding. A
primary responsibility of any counsel
appointed to represent a child pursuant to
this section shall be to advocate for the
protection, safety, and physical and
emotional well-being of the child.
Counsel
for the child may be a district attorney,
public defender, or other member of the bar,
provided that the counsel does not represent
another party or county agency whose
interests conflict with the child's. The
fact that the district attorney represents
the child in a proceeding pursuant to Section
300 as well as conducts a criminal
investigation or files a criminal complaint
or information arising from the same or
reasonably related set of facts as the
proceeding pursuant to Section 300 is not in
and of itself a conflict of interest. The
court may fix the compensation for the
services of appointed counsel. The appointed
counsel shall have a caseload and training
that assures adequate representation of the
child. The Judicial Council shall promulgate
rules of court that establish caseload
standards, training requirements, and
guidelines for appointed counsel for children
and shall adopt rules as required by Section
326.5 no later than July 1, 2001.
(d) The counsel appointed by the court
shall represent the parent, guardian, or
child at the detention hearing and at all
subsequent proceedings before the juvenile
court. Counsel shall continue to represent
the parent or child unless relieved by the
court upon the substitution of other counsel
or for cause. The representation shall
include representing the parent or the child
in termination proceedings and in those
proceedings relating to the institution or
setting aside of a legal guardianship.
(e) The counsel for the child shall be
charged in general with the representation of
the child's interests. To that end, the
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 he or she
shall examine and cross-examine witnesses in
both the adjudicatory and dispositional
hearings. He or she 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. In any case
in which the child is four years of age or
older, counsel shall interview the child to
determine the child's wishes and to assess
the child's well-being, and shall advise the
court of the child's wishes. Counsel for the
child shall not advocate for the return of
the child if, to the best of his or her
knowledge, that return conflicts with the
protection and safety of the child. In
addition 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.
The attorney 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. The court
shall take whatever appropriate action is
necessary to fully protect the interests of
the child.
(f) Either the child or the counsel for
the child, with the informed consent of the
child if the child is found by the court to
be of sufficient age and maturity to so
consent, may invoke the
psychotherapist-client privilege,
physician-patient privilege, and
clergyman-penitent privilege; and if the
child invokes the privilege, counsel may not
waive it, but if counsel invokes the
privilege, the child may waive it. Counsel
shall be holder of these privileges if the
child is found by the court not to be of
sufficient age and maturity to so consent.
For the sole purpose of fulfilling his or her
obligation to provide legal representation of
the child, counsel for a child shall have
access to all records with regard to the
child maintained by a health care facility,
as defined in Section 1545 of the Penal Code,
health care providers, as defined in Section
6146 of the Business and Professions Code, a
physician and surgeon or other health
practitioner as defined in Section 11165.8 of
the Penal Code or a child care custodian, as
defined in Section 11165.7 of the Penal Code.
Notwithstanding any other law, counsel shall
be given access to all records relevant to
the case which are maintained by state or
local public agencies. All information
requested from a child protective agency
regarding a child who is in protective
custody, or from a child's guardian ad litem,
shall be provided to the child's counsel
within 30 days of the request.
(g) In a county of the third class, if
counsel is to be provided to a child at
county expense other than by counsel for the
agency, the court shall first utilize the
services of the public defender prior to
appointing private counsel, to provide legal
counsel. Nothing in this subdivision shall be
construed to require the appointment of the
public defender in any case in which the
public defender has a conflict of interest.
In the interest of justice, a court may
depart from that portion of the procedure
requiring appointment of the public defender
after making a finding of good cause and
stating the reasons therefor on the record.
(h) In a county of the third class, if
counsel is to be appointed for a parent or
guardian at county expense, the court shall
first utilize the services of the alternate
public defender, prior to appointing private
counsel, to provide legal counsel. Nothing
in this subdivision shall be construed to
require the appointment of the alternate
public defender in any case in which the
public defender has a conflict of interest.
In the interest of justice, a court may
depart from that portion of the procedure
requiring appointment of the alternate public
defender after making a finding of good cause
and stating the reasons therefor on the
record. 317.5. (a) All parties who are
represented by counsel at dependency
proceedings shall be entitled to competent
counsel.
(b) Each minor who is the subject of a
dependency proceeding is a party to that
proceeding.
317.6. (a) On or before January 1, 1996,
the Judicial Council shall, after consulting
with representatives from the State Bar of
California, county counsels, district
attorneys, public defenders, county welfare
directors, and children's advocacy groups,
adopt rules of court regarding the
appointment of competent counsel in
dependency proceedings, including, but not
limited to, the following:
(1) The screening and appointment of
competent counsel.
(2) Establishing minimum standards of
experience and education necessary to qualify
as competent counsel to represent a party in
dependency proceedings.
(3) Procedures for handling client
complaints regarding attorney performance,
including measures to inform clients of the
complaint process.
(4) Procedures for informing the court of
any interests of the minor that may need to
be protected in other proceedings.
(b) On or before July 1, 1996, each
superior court shall, after consulting with
representatives from the State Bar of
California and the local offices of the
county counsel, district attorney, public
defender, county welfare department, and
children's advocacy groups, adopt local rules
of court regarding the conduct of dependency
proceedings that address items such as
procedures and timeframes for the
presentation of contested issues and witness
lists to eliminate unnecessary delays in
dependency hearings.
In other words, every parent
whose child is taken from their care is legally
entitled to a lawyer, whereas in Las Vegas, they
are only entitled to a lawyer later in the process,
during termination of parental rights.
That's a unique
concept: Children's counsel following rules
rather than just winging it.
Note that although
the attorney must ascertain the wishes
of the child and report them to the court,
he does not have to defend those wishes.
Instead, he is defending the child's
interests.
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