Cal.Welf. & Inst.Code § 317

Effective: January 01, 2011

West's Annotated California Codes Currentness
Welfare and Institutions Code (Refs & Annos)
Division 2. Children
Part 1. Delinquents and Wards of the Juvenile Court
Chapter 2. Juvenile Court Law (Refs & Annos)
Article 7. Dependent Children--Temporary Custody and Detention (Refs & Annos)

§ 317. Appointment of counsel

(a)(1) When it appears to the court that a parent or guardian of the child desires counsel but is presently financially unable to afford and cannot for that reason employ counsel, the court may appoint counsel as provided in this section.

(2) When it appears to the court that a parent or Indian custodian in an Indian child custody proceeding desires counsel but is presently unable to afford and cannot for that reason employ counsel, the provisions of subsection (b) of Section 1912 of the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.) and Section 23.13 of Title 25 of the Code of Federal Regulations are applicable.

(b) When it appears to the court that a parent or guardian of the child is presently financially unable to afford and cannot for that reason employ counsel, and the child has been placed in out-of-home care, or the petitioning agency is recommending that the child be placed in out-of-home care, the court shall appoint counsel for the parent or guardian, unless the court finds that the parent or guardian has made a knowing and intelligent waiver of counsel as provided in this section.

(c) If a child 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 interests. 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 ensures 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, guardian, or child unless relieved by the court upon the substitution of other counsel or for cause. The representation shall include representing the parent, guardian, or the child in termination proceedings and in those proceedings relating to the institution or setting aside of a legal guardianship. On and after January 1, 2012, in the case of a nonminor dependent, as described in subdivision (v) of Section 11400, no representation by counsel shall be provided for a parent.

(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, which shall be presumed, subject to rebuttal by clear and convincing evidence, if the child is over 12 years of age, may invoke the psychotherapist-client privilege, physician-patient privilege, and clergyman-penitent privilege; 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 former Section 11165.8 of the Penal Code, as that section read on January 1, 2000, or a child care custodian, as defined in former Section 11165.7 of the Penal Code, as that section read on January 1, 2000. Notwithstanding any other law, counsel shall be given access to all records relevant to the case 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.

CREDIT(S)

(Added by Stats.1987, c. 1485, § 21, operative Jan. 1, 1989. Amended by Stats.1992, c. 433 (A.B.2448), § 1; Stats.1996, c. 1084 (S.B.1516), § 3; Stats.1998, c. 900 (A.B.2316), § 2; Stats.2000, c. 450 (S.B.2160), § 1; Stats.2006, c. 385 (A.B.2480), § 1; Stats.2006, c. 838 (S.B.678), § 46.5; Stats.2010, c. 559 (A.B.12), § 8.5.)

HISTORICAL AND STATUTORY NOTES

2008 Main Volume

Amendment of § 317 by § 4 of Stats.1987, c. 1237 failed to become operative due to the repeal and addition of § 317 by Stats.1987, c. 1485, §§ 20, 21.

Section6 of Stats.1987, c. 1237, provides:

"Sections 4 [amending § 317] and 5 [repeal of § 318 as amended by Stats.1985, c. 302] of this act shall be operative July 1, 1988, and only if Senate Bill 203 of the 1987-88 Regular Session is enacted and becomes effective before that date, provides funding for trial court operations, and defines 'court operations' to include the services of court-appointed counsel."

Effect of amendment of section by two or more acts at the same session of the legislature, see Government Code § 9605.

Legislative findings of Stats.1987, c. 1237, see Historical and Statutory Notes under Civil Code § 34.5.

Sections20 and 53 of Stats.1987, c. 1485, provide:

"SEC. 20. Section 317 of the Welfare and Institutions Code is repealed."

"SEC. 53. Sections 20 and 21 of this act shall be operative January 1, 1989, and only upon the enactment and effectiveness on or before that date of Senate Bill 203 of the 1987-88 Regular Session [Stats.1988, c. 10, eff. Feb. 17, 1988] or any other statute which provides funding for trial court operations, and defines 'court operations' to include the services of court-appointed counsel. [See Government Code § 77003]"

S.B. 203 of the 1987-88 Regular Session was enacted as Stats.1988, c. 10, eff. Feb. 17, 1988 but did not provide funding for trial court operations and did not define "court operations".

The 1992 amendment inserted "presently financially" in subds. (a) and (b); inserted "as provided in this section" in subds. (a), (b), and (c); added "or other public attorney" at the end of subd. (c); in subd. (e), inserted "or cause to have made any", and inserted "in good faith to be reasonably"; added subds. (g) and (h) relating to counties of the third class; and made nonsubstantive changes throughout.

The 1996 amendment, in subd. (c), inserted the second sentence, relating to primary responsibility of counsel; and in subd. (e), at the end of the fourth sentence, added ", and shall advise the court of the minor's wishes" and inserted a fifth sentence, relating to counsel advocating for return of the minor; and made a nonsubstantive change.

Stats.1998, c. 900 (A.B.2316), inserted the penultimate sentence in subd. (e) and inserted the second sentence in subd. (f).

Stats.2000, c. 450 (S.B.2160), substituted "child" for "minor" throughout the section; and, rewrote subds. (c) and (f), which read:

"(c) In any case in which it appears to the court that the minor would benefit from the appointment of counsel the court shall appoint counsel for the minor as provided in this section. A primary responsibility of any counsel appointed to represent a minor pursuant to this section shall be to advocate for the protection, safety, and physical and emotional well-being of the minor. Counsel for the minor may be a county counsel, 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 minor's. The fact that the district attorney represents the minor 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 shall determine if representation of both the petitioning agency and the minor constitutes a conflict of interest. If the court finds there is a conflict of interest, separate counsel shall be appointed for the minor. The court may fix the compensation to be paid by the county for the services of appointed counsel, if counsel is not a county counsel, district attorney, public defender or other public attorney."

"(f) 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. Counsel shall be given access to records maintained by hospitals or by other medical or nonmedical practitioners or by child care custodians, in the manner prescribed by Section 1158 of the Evidence Code."

The Assembly Daily Journal for the 2005-2006 Regular Session, page 7640, contained the following letter dated August 29, 2006, from Assembly Member Noreen Evans, regarding the intent of Stats.2006, c. 385 (A.B.2480):

"The Honorable Fabian Nunez

"Speaker, California State Assembly

"State Capitol, Sacramento, California

"Dear Speaker Nunez:   This letter is to confirm that, consistent with the language contained in the August 14, 2006 amended version of AB 2480, Judicial Council will report on the caseload standards for attorneys in dependency cases.

"Judicial Council is already looking at the issue of caseload standards in dependency cases through their ongoing Dependency Representation Administration Funding and Training (DRAFT) pilot project, and plans to report their findings and recommendations to the Legislature on or before January 1, 2008 as was proposed in AB 2480.

"Sincerely,

"NOREEN EVANS, Assembly Member

"Seventh District"

Section 3 of Stats.2006, c. 385 (A.B.2480), provides:

"SEC. 3. Section 1.5 of this bill incorporates amendments to Section 317 of the Welfare and Institutions Code proposed by this bill and SB 678 [Stats.2006, c. 838]. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2007, (2) each bill amends Section 317 of the Welfare and Institutions Code, and (3) this bill is enacted after SB 678 [Stats.2006, c. 838], in which case Section 317 of the Welfare and Institutions Code, as amended by SB 678, shall remain operative only until the operative date of this bill, at which time Section 1.5 of this bill shall become operative, and Section 1 of this bill shall not become operative."

An amendment of this section by § 1.5 of Stats.2006, c. 385 (A.B.2480), failed to become operative under the provisions of § 3 of that Act.

Stats.2006, c. 838 (S.B.678), designated subd. (a) as subd. (a)(1) and added par. (2); in subd. (b), inserted "for the parent or guardian"; in subd. (c), in the first sentence, substituted "If" for "Where", in the fourth sentence added "interests" and in the seventh sentence substituted "ensures" for "assures"; in subd. (d), inserted ", guardian," twice; and in subd. (f), in the first sentence, inserted "which shall be presumed, subject to rebuttal by clear and convincing evidence, if the child is over 12 years of age,", in the third sentence, inserted "former" preceding "Section" two times, and inserted ", as that section read on January 1, 2000," two times and made a nonsubstantive change to correct punctuation.

Section 57(b) of Stats.2006, c. 838 (S.B.678), provides in part:

"(b) Section 46.5 of this bill incorporates amendments to Section 317 of the Welfare and Institutions Code proposed by both this bill and Assembly Bill 2480 [Stats.2006, c. 385]. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2007, (2) each bill amends Section 317 of the Welfare and Institutions Code, and (3) this bill is enacted after Assembly Bill 2480 [Stats.2006, c. 385], in which case Section 46 of this bill shall not become operative."

An amendment of this section by § 46 of Stats.2006, c. 838 (S.B.678), failed to become operative under the provisions of § 57(b) of that Act.

Section affected by two or more acts at the same session of the legislature, see Government Code § 9605.

Cost reimbursement provisions to local agencies and school districts relating to Stats.2006, c. 838 (S.B.678), see Historical and Statutory Notes under Family Code § 170.

For letter of intent and Governor's signing message regarding Stats.2006, c. 838 (S.B.678), see Historical and Statutory Notes under Family Code § 170.

2011 Electronic Update                                                          

2010 Legislation

Stats.2010, c. 559 (A.B.12), in subd. (d), added the fourth sentence.

For short title, appropriation, and cost reimbursement provisions relating to Stats.2010, c. 559 (A.B.12), see Historical and Statutory Notes under Family Code§ 17552.

2008 Main Volume

Former Notes

Former § 317, added by Stats.1976, c. 1068, § 7, relating to appointment of counsel, was repealed by Stats.1987, c. 1485, § 20, operative Jan. 1, 1989. See this section.

Similar provisions relating to dependent children were previously contained at Welfare and Institutions Code §§ 634, 634.5 and 634.6.

Derivation

Former § 317, added by Stats.1976, c. 1068, § 7.

Former § 318, added by Stats.1987, c. 1485, § 23.

Former § 318, added by Stats.1976, c. 1068, § 7, amended by Stats.1980, c. 254, § 1; Stats.1985, c. 302, § 1.

West's Ann. Cal. Welf. & Inst. Code § 317, CA WEL & INST § 317

Current with urgency legislation through Ch. 28 of 2011 Reg.Sess.              
and Ch. 2 of 2011-2012 1st Ex.Sess.                                            

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