Representation of Children in Child Abuse and Neglect Proceedings - California

Making The Appointment

Citation: Welf. & Inst. Code §§ 317(c), 326.5; 326.7; Cal. Rules of Ct., Rule 5.660(b)

If a child or nonminor dependent is not represented by counsel, the court shall appoint counsel for the child or nonminor dependent, unless the court finds that he or she would not benefit from the appointment of counsel. The court shall state on the record its reasons for that finding.

The Judicial Council shall adopt a rule of court effective July 1, 2001, that complies with the requirement of the Federal Child Abuse Prevention and Treatment Act (CAPTA, P.L. 93-247) for the appointment of a guardian ad litem (GAL) for a child in cases in which a petition is filed based upon neglect or abuse of the child or in which a prosecution is initiated under the Penal Code arising from neglect or abuse of the child.

Appointment of a GAL shall not be required for a minor who is a parent of the child who is the subject of the dependency petition unless the minor parent is unable to understand the nature of the proceedings or to assist counsel in preparing the case.

In court rules: The court must appoint counsel for a child who is the subject of a petition under § 300 and who is unrepresented by counsel unless the court finds that the child would not benefit from the appointment of counsel.

In order to find that a child would not benefit from the appointment of counsel, the court must find all the following:

• The child understands the nature of the proceedings.
• The child is able to communicate and advocate effectively with the court, other counsel, and other parties, including social workers and other professionals involved in the case.
• Under the circumstances of the case, the child would not gain any benefit by being represented by counsel.

If the court finds that the child would not benefit from representation by counsel, the court must appoint a court-appointed special advocate (CASA) volunteer for the child, to serve as the CAPTA GAL, as required in § 326.5.

The Use of Court-Appointed Special Advocates (CASAs)

Citation: Welf. & Inst. Code §§ 326.5; 356.5; 102(b); 103(g), (h)

The rule of court may include guidelines to the courts for determining when an attorney should be appointed rather than a CASA, as well as caseload standards for GALs.

A child advocate appointed by the court to represent the interests of a dependent child shall have the same duties and responsibilities as a GAL and shall be trained by and function under the auspices of a CASA/GAL program, formed and operating under the guidelines established by the National Court Appointed Special Advocate Association.

A CASA may be appointed to any dependent, nonminor dependent, or ward who is subject to the jurisdiction of the juvenile court.

A judge may appoint a CASA when, in the opinion of the judge, a child requires services that can be provided by the CASA consistent with the local rules of court.

To accomplish the appointment of a CASA, the judge making the appointment shall sign an order that may grant the CASA the authority to review specific relevant documents and interview parties involved in the case, as well as other persons having significant information relating to the child, to the same extent as any other officer of the court appointed to investigate proceedings on behalf of the court.

Qualifications/Training

Citation: Welf. & Inst. Code §§ 317(c); 102; 103; Cal. Rules of Ct. Rule 5.660(d)(3)

Counsel may be a district attorney, public defender, or other member of the bar, provided that he or she does not represent another party or county agency whose interests conflict with the child€™s or nonminor dependent€™s interests. The appointed counsel shall have a caseload and training that ensures adequate representation of the child or nonminor dependent. The Judicial Council shall promulgate rules of court that establish caseload standards, training requirements, and guidelines for appointed counsel for children.

The training requirements shall include instruction on both of the following:

• Cultural competency and sensitivity relating to, and best practices for, providing adequate care to lesbian, gay, bisexual, and transgender youth in out-of-home care
• Information that addresses the authorization, uses, risks, benefits, assistance with self-administration, oversight, and monitoring of psychotropic medications; trauma; and substance use disorder and mental health treatments, including how to access those treatments, as described in § 16501.4(d)

The Judicial Council shall require an initial and ongoing training program to all persons acting as a CASA, including, but not limited to, the following:

• Dynamics of child abuse and neglect
• Court structure, including juvenile court rules
• Social service systems
• Child development
• Cultural competency and sensitivity relating to, and best practices for, providing adequate care to lesbian, gay, bisexual, and transgender youth
• Interviewing techniques
• Report writing
• Roles and responsibilities of a CASA
• Rules of evidence and discovery procedures
• Problems associated with verifying reports

The Judicial Council, through its CASA Advisory Committee, shall adopt guidelines for screening CASA volunteers that shall include personal interviews, reference checks, checks for records of sex offenses and other criminal records, information from the Department of Motor Vehicles, and other information the Judicial Council deems appropriate.

Persons acting as CASAs shall be individuals who have demonstrated an interest in children and their welfare. Each CASA shall participate in ongoing training and supervision throughout his or her involvement in the program. Each CASA shall be evaluated before and after initial training to determine his or her fitness for these responsibilities. Ongoing training shall be provided at least monthly.

Each CASA shall commit a minimum of 1 year of service to a child until a permanent placement is achieved for the child or until relieved by the court, whichever is first. At the end of each year of service, the CASA, with the approval of the court, may recommit for an additional year.

A CASA shall have no associations that create a conflict of interest with his or her duties as a CASA.

In court rules: Only those attorneys who have completed a minimum of 8 hours of training or education in juvenile dependency, or who have sufficient recent experience in dependency proceedings in which the attorney has demonstrated competency, may be appointed to represent parties. Attorney training must include the following:

• An overview of dependency law and related statutes and cases
• Information on child development, child abuse and neglect, substance abuse, domestic violence, family reunification and preservation, and reasonable efforts
• Instruction on cultural competency and sensitivity relating to, and best practices for, providing adequate care to lesbian, gay, bisexual, and transgender youth in out-of-home placement

Within every 3 years, attorneys must complete at least 8 hours of continuing education related to dependency proceedings.

Specific Duties

Citation: Welf. & Inst. Code §§ 102; 104; 317(c)(2), (e)

A CASA shall do all the following in the cases to which he or she is appointed:

• Provide independent, factual information to the court
• Represent the best interests of the children involved and consider the best interests of the family
• At the request of the judge, monitor cases to ensure that the court's orders have been fulfilled

The court shall determine the extent of the CASA's duties in each case. These duties may include an independent investigation of the circumstances surrounding a case to which he or she has been appointed, interviewing and observing the child and other appropriate individuals, and the reviewing of appropriate records and reports.

The CASA shall report the results of the investigation to the court, follow the direction and orders of the court, and provide information specifically requested by the court.

A primary responsibility of counsel appointed to represent a child or nonminor dependent shall be to advocate for the protection, safety, and physical and emotional well-being of the child or nonminor dependent.

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 interviewing witnesses, and he or she 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 GAL for the nonminor dependent.

If the child is age 4 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.

How the Representative Is Compensated

Citation: Welf. & Inst. Code § 317(c)(4), (g)

The court may fix the compensation for the services of appointed counsel.

In a county of the third class, if counsel is to be provided to a child at the county's expense other than by counsel for the agency, the court shall first use the services of the public defender before appointing private counsel. Nothing in this subdivision shall be construed to require the appointment of the public defender in any case in which the public defender has a conflict of interest. In the interest of justice, a court may depart from that portion of the procedure requiring appointment of the public defender after making a finding of good cause and stating the reasons therefore on the record.