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CREATING AN ENHANCED LEGAL PROCESS FOR DEPENDENT CHILDREN
Problems with Current Law: - There are no clear guidelines as to when a foster child is old enough to decide whether to assert the legal privileges protecting the child’s communications with a doctor or therapist from disclosure in court.1
- On appeal as well as at the trial level, children often have interests
that may conflict with the positions of both their parents and the
county agency. The outcome of an appeal can have a serious impact on a
child’s current and future safety and welfare, the child’s chances for
a safe, stable and permanent home, and the child’s constitutional
interests in protection from harm while in foster care, and in
maintaining family relationships. 2 Yet children – unlike other parties
to a dependency case – have no representation on appeal. Without an
independent presentation of the facts and applicable law by a child’s
appellate counsel, the Court of Appeals may make decisions that are not
fully informed and may be contrary to the child’s best interests and/or
violate the child’s statutory or constitutional rights.
The Solutions: - Amend § 317 of the Welfare and Institutions Code to:
Create a rebuttable presumption that children age 12 or older are able to decide whether their attorneys should invoke doctor-patient and therapist-patient privileges on their behalf; and
- Amend § 395 of the Welfare and Institutions Code to:
Require the court to appoint appellate counsel for the child, when the child is the appellant and in other cases where the court finds that the child would benefit from appointment of counsel.
For additional information contact:
- Curt Child, National Center for Youth Law, 916-444-2290
- Miriam Krinsky, Children’s Law Center, 323-980-1712
- Alecia Sanchez, Children’s Advocacy Institute, 916-444-3875
1Welf. & Inst. Code § 317(f) states only that the child’s consent is required for the child’s attorney to assert these privileges “if the child is found by the court to be of sufficient age and maturity to so consent.”
2 See In re Marilyn H. (1993) 5 Cal.4th 295; In re Jasmon O. (1994) 8 Cal.4th 398.
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