Duties of Minor's Counsel
Attorneys charged with the duty of representing foster children in the juvenile court system have a tremendous responsibility. It is important for all child advocates to be familiar with Welfare and Institutions Code Section 317(e), which lays out the roles and responsibilities of attorneys charged with the representation of a child in foster care:
317 (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 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.
(2) 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.
(3) 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.
Welfare and Institutions Code § 317(e)
Attorneys representing children in juvenile court are also held to “minimum standards of representation” under California Rules of Court Section 5.660. Section 5.660 requires a process for the review and resolution of complaints or questions regarding the performance of an appointed attorney.
Standards of representation
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.
Calfornia Rule of Court 5.660(d)(4)
NOTE: Some counties also have “Local Rules of Court” requiring more specified duties of minor’s counsel beyond the requirements or standards of representation required by Welfare and Institutions Code §317(e), and California Rule of Court, Rule 5.660. Please visit our Local Rules of Court web page for more information.
NOTE: On November 1, 2018, new ethics rules pertaining to attorneys' professional code of conduct went into effect. The California Rules of Professional Conduct are binding on all attorneys licensed by the State Bar of California. New Rules 1.2 and 1.4 are pertinent to representation of clients (including minors) as follows:
Rule 1.2 Scope of Representation and Allocation of Authority: confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer’s professional obligations.
Rule 1.4 Communication with Clients: requires an attorney to reasonably consult with the client to accomplish the client's objectives, keep the client reasonably informed about significant developments, and explain matters to the extent reasonably necessary to permit the client to make informed decision.
The County is Obligated to Notify Minor's Counsel Prior to Placement Changes
As soon as the county case worker (or the agency) makes a decision with respect to a placement or a change in placement of a dependent child, there is an obligation for that case worker/agency to notify the child's attorney PRIOR to the change. The minor's counsel shall be provided with the child's new address, telephone number and name of the caregiver. If the requisite notice cannot be provided to minor's counsel prior to the placement change, the notification shall be provided no later than the close of the following business day. Welfare and Institutions Code §16010.6(a)
If there is going to be a placement change that results in separation of a sibling group that is currently placed together, the child's attorney and the child's siblings' attorney (if they attorney is not the same for the siblings) must be notified of the separation no less than 10 calendar days prior to the planned change of placement so that the attorney(s) may investigate the circumstances of the proposed separation. If the intended separation is due to seven days notice given by a foster family agency, group home, or other foster care provider, the case worker/agency must provide notice to the attorney(s) by the end of the next business day after receipt of seven days notice from the provider. If exigent circumstances exist, the case worker/agency shall provide notice as soon as possible, but no later than the close of the first business day following the change of placement. Welfare and Institutions Code §16010.6(c)
Reporting a Problem with Your Attorney
If you are a foster youth, both California law and California Rules of Court require that anyone who has a court-appointed attorney must be allowed to report a problem or lodge a complaint about their attorney to the presiding judge of the juvenile court.
The court must 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 lodging the complaint. If it is determined that an appointed attorney has acted improperly or contrary to the rules or policies of the court, the court must take appropriate action.
Calfornia Rule of Court § 5.660(e)
If you would like to contact the presiding judge of your juvenile court and report a problem that you are having with your lawyer, download and fill out the “Request for Assistance with Court Appointed Attorney” form and send it to the juvenile court presiding judge in your county. You may also download instructions for completing the form and a directory of mailing addresses for all juvenile court presiding judges in California.
In some California counties, a complaint concerning the performance of an attorney appointed to represent a minor may be lodged on the child’s behalf by a caretaker, relative, or a foster parent. See our Local Rules of Court web page to find the rules in your county regarding complaint procedures.
If you are a relative caretaker or foster parent in one of the counties which allow “non-parties” to lodge a complaint and you would like to contact the presiding judge of your juvenile court to report a problem with the attorney representing the child in your care, download and fill out the Request for Assistance with Court Appointed Attorney form and send it to the juvenile court presiding judge in your county. You may also download instructions for completing the form and a directory of mailing addresses for all juvenile court presiding judges in California.