SF 1386

as introduced - 90th Legislature (2017 - 2018) Posted on 02/24/2017 09:20am

A bill for an act
relating to juvenile justice; informing children under 14 years of age of the right
to counsel; requiring that waivers of counsel be in writing by the child; requiring
notice to counsel; amending Minnesota Statutes 2016, sections 260C.163,
subdivisions 3, 10; 260C.607, subdivision 2.

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

Section 1.

Minnesota Statutes 2016, 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, parent, guardian, or custodian 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 new text begin other counsel at public expense. The court shall also appoint counsel
for new text end 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.

(c) new text begin 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, within 14
days after filing the petition or at the emergency removal hearing under section 260C.178,
subdivision 1, if the child is present, fully and effectively inform the child of the child's
right to be represented by appointed counsel upon request and shall notify the court as to
whether the child desired counsel. Information 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 also, within 14 days of the child's tenth birthday,
fully and effectively inform the child of the child's right to be represented by counsel 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.
new text end

new text begin (d) new text end 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.

deleted text begin (d) deleted text end new text begin (e) new text end Counsel for the child shall not also act as the child's guardian ad litem new text begin and shall
continue to represent the child in any proceeding in juvenile court to review the
implementation of the permanency plan in order to ensure that the child's wishes are made
known to the court and the child's interests are protected new text end .

deleted text begin (e) deleted text end new text begin (f) new text end 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, new text begin including informing the child of the right to appointed counsel
and asking whether the child desires counsel, new text end if the child is of suitable age to express a
preference.

deleted text begin (f) deleted text end new text begin (g) new text end 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 deleted text begin (g) deleted text end new text begin (h) new text end , 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.

deleted text begin (g) deleted text end new text begin (h) new text end Counsel retained by the county under paragraph deleted text begin (f) deleted text end new text begin (g) new text end 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 2016, 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 new text begin made new text end voluntarily deleted text begin and deleted text end new text begin , new text end intelligently deleted text begin made deleted text end new text begin , and in writing new text end by the child after
the child has been fully and effectively informed of the right deleted text begin being waived deleted text end new text begin to counsel new text end .

(b) Waiver of a child's right to be represented by counsel provided under the juvenile
court rules must be an express waiver new text begin made new text end voluntarily deleted text begin and deleted text end new text begin , new text end intelligently deleted text begin made deleted text end new text begin , and in
writing new text end by the child after the child has been fully and effectively informed of the right being
waived new text begin by the responsible social services agency new text end . 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. new text begin 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. new text end 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.

Sec. 3.

Minnesota Statutes 2016, section 260C.607, subdivision 2, is amended to read:

Subd. 2.

Notice.

Notice of review hearings shall be given by the court to:

(1) the responsible social services agency;

(2) the child, if the child is age ten and older;

(3) the child's guardian ad litem;

(4) new text begin counsel appointed for the child pursuant to section 260C.163, subdivision 3;
new text end

new text begin (5) new text end relatives of the child who have kept the court informed of their whereabouts as
required in section 260C.221 and who have responded to the agency's notice under section
260C.221, indicating a willingness to provide an adoptive home for the child unless the
relative has been previously ruled out by the court as a suitable foster parent or permanency
resource for the child;

deleted text begin (5) deleted text end new text begin (6) new text end the current foster or adopting parent of the child;

deleted text begin (6) deleted text end new text begin (7) new text end any foster or adopting parents of siblings of the child; and

deleted text begin (7) deleted text end new text begin (8) new text end the Indian child's tribe.