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Minnesota Legislature

Office of the Revisor of Statutes

HF 1064

as introduced - 91st Legislature (2019 - 2020) Posted on 02/11/2019 02:19pm

KEY: stricken = removed, old language.
underscored = added, new language.

Current Version - as introduced

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A bill for an act
relating to children; modifying appointment of counsel in juvenile court; amending
Minnesota Statutes 2018, section 260C.163, subdivisions 3, 10.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2018, section 260C.163, subdivision 3, is amended to read:


Subd. 3.

Appointment of counsel.

(a) The child, parent, guardian or custodian has the
right to effective assistance of counsel in connection with a proceeding in juvenile court as
provided in this subdivision.

(b) Except in proceedings where the sole basis for the petition is habitual truancy, if the
child desires counsel but is unable to employ it, the court shall appoint counsel to represent
the child who is ten years of age or older under section 611.14, clause (4), or other counsel
at public expense.

(c) Except in proceedings where the sole basis for the petition is habitual truancy, if the
parent, guardian, or custodian desires counsel but is unable to employ it, the court shall
appoint counsel to represent the parent, guardian, or custodian in any case in which it feels
that such an appointment is appropriate if the person would be financially unable to obtain
counsel under the guidelines set forth in section 611.17. Court appointed counsel shall be
at county expense as outlined in paragraph (h).

(d) In any proceeding where the subject of a petition for a child in need of protection or
services is ten years of age or older, the responsible social services agency shall, deleted text beginwithin 14
days after filing the petition or
deleted text end at the emergency removal hearing under section 260C.178,
subdivision 1, deleted text beginif the child is present, fully and effectivelydeleted text endnew text begin or no later than the admit-deny
hearing pursuant to Rule 34 of the Minnesota Rules of Juvenile Protection Procedure,
new text end
inform the child of the child's right to be represented by appointed counsel deleted text beginupon requestdeleted text end
and shall notify the court as to whether the child deleted text begindesireddeleted text endnew text begin does or does not desirenew text end counsel.
new text begin The agency is not required to inform the child of the right to be represented by appointed
counsel if the court has already appointed counsel to represent the child.
new text endInformation provided
to the child shall include, at a minimum, the fact that counsel will be provided without
charge to the child, that the child's communications with counsel are confidential, and that
the child has the right to participate in all proceedings on a petition, including the opportunity
to personally attend all hearings. The responsible social services agency shall alsodeleted text begin, within
14 days of the child's tenth birthday, fully and effectively
deleted text end inform the child of the child's
right to be represented by counselnew text begin no later than the first court hearing after the child's tenth
birthday,
new text end if the child reaches the age of ten years while the child is the subject of a petition
for a child in need of protection or services or is a child under the guardianship of the
commissioner.

(e) In any proceeding where the sole basis for the petition is habitual truancy, the child,
parent, guardian, and custodian do not have the right to appointment of a public defender
or other counsel at public expense. However, before any out-of-home placement, including
foster care or inpatient treatment, can be ordered, the court must appoint a public defender
or other counsel at public expense in accordance with this subdivision.

(f) Counsel for the child shall not also act as the child's guardian ad litem.

(g) In any proceeding where the subject of a petition for a child in need of protection or
services is not represented by an attorney, the court shall determine the child's preferences
regarding the proceedings, including informing the child of the right to appointed counsel
and asking whether the child desires counsel, if the child is of suitable age to express a
preference.

(h) Court-appointed counsel for the parent, guardian, or custodian under this subdivision
is at county expense. If the county has contracted with counsel meeting qualifications under
paragraph (i), the court shall appoint the counsel retained by the county, unless a conflict
of interest exists. If a conflict exists, after consulting with the chief judge of the judicial
district or the judge's designee, the county shall contract with competent counsel to provide
the necessary representation. The court may appoint only one counsel at public expense for
the first court hearing to represent the interests of the parents, guardians, and custodians,
unless, at any time during the proceedings upon petition of a party, the court determines
and makes written findings on the record that extraordinary circumstances exist that require
counsel to be appointed to represent a separate interest of other parents, guardians, or
custodians subject to the jurisdiction of the juvenile court.

(i) Counsel retained by the county under paragraph (h) must meet the qualifications
established by the Judicial Council in at least one of the following: (1) has a minimum of
two years' experience handling child protection cases; (2) has training in handling child
protection cases from a course or courses approved by the Judicial Council; or (3) is
supervised by an attorney who meets the minimum qualifications under clause (1) or (2).

Sec. 2.

Minnesota Statutes 2018, section 260C.163, subdivision 10, is amended to read:


Subd. 10.

Waiver.

(a) Waiver of any right which a child has under this chapter must be
an express waiver made voluntarily, intelligently, and in writing by the child after the child
has been fully and effectively informed of the right to counsel and after consulting with an
appointed attorney.

(b) Waiver of a child's right to be represented by counsel provided deleted text beginunder the juvenile
court rules
deleted text endnew text begin in subdivision 3, paragraph (b),new text end must be an express waiver made voluntarily,
intelligently, and new text beginon the record new text endin writing by the child after the child has been deleted text beginfully and
effectively
deleted text end informed of the right being waived by the responsible social services agency
deleted text begin anddeleted text endnew text begin in accordance with subdivision 3, paragraph (d), or afternew text end consultation with an appointed
attorney. In determining whether a child has voluntarily and intelligently waived the right
to counsel, the court shall look to the totality of the circumstances which includes but is not
limited to the child's age, maturity, intelligence, education, experience, and ability to
comprehend, and the presence and competence of the child's parents, guardian, or guardian
ad litem. The court shall not permit the child's parent, other person legally responsible for
the child's care, or the child's guardian ad litem to waive the child's right to be represented
by counsel. If the court accepts the child's waiver, it shall state on the record the findings
and conclusions that form the basis for its decision to accept the waiver.

new text begin (c) A child may revoke a waiver under this section at any time in any juvenile protection
proceeding listed in section 260C.001, subdivision 1, paragraph (b).
new text end