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2017 Arkansas Code
Title 9 - Family Law
Subtitle 3 - Minors
Chapter 27 - Juvenile Courts and Proceedings
Subchapter 3 - Arkansas Juvenile Code
§ 9-27-316. Right to counsel
Universal Citation: AR Code § 9-27-316 (2017)
- (a)
- (1) In delinquency and family in need of services cases, a juvenile and his or her parent, guardian, or custodian shall be advised by the law enforcement official taking a juvenile into custody, by the intake officer at the initial intake interview, and by the court at the juvenile's first appearance before the circuit court that the juvenile has the right to be represented at all stages of the proceedings by counsel.
- (2) An extended juvenile jurisdiction offender shall have a right to counsel at every stage of the proceedings, including all reviews.
- (b) (1) (A) The inquiry concerning the ability of the juvenile to retain counsel shall include a consideration of the juvenile's financial resources and the financial resources of his or her family.
- (B) However, the failure of the juvenile's family to retain counsel for the juvenile shall not deprive the juvenile of the right to appointed counsel if required under this section.
- (2) After review by the court of an affidavit of financial means completed and verified by the parent of the juvenile and a determination by the court that the parent or juvenile has the ability to pay, the court may order financially able juveniles, parents, guardians, or custodians to pay all or part of reasonable attorney's fees and expenses for representation of a juvenile.
- (3) All moneys collected by the circuit clerk under this subsection shall be retained by the clerk and deposited into a special fund to be known as the "juvenile representation fund".
- (4) The court may direct that money from this fund be used in providing counsel for juveniles under this section in delinquency or family in need of services cases and indigent parents or guardians in dependency-neglect cases as provided by subsection (h) of this section.
- (5) Any money remaining in the fund at the end of the fiscal year shall not revert to any other fund but shall carry over into the next fiscal year in the juvenile representation fund.
- (B) However, the failure of the juvenile's family to retain counsel for the juvenile shall not deprive the juvenile of the right to appointed counsel if required under this section.
- (c) If counsel is not retained for the juvenile or it does not appear that counsel will be retained, counsel shall be appointed to represent the juvenile at all appearances before the court unless the right to counsel is waived in writing as set forth in § 9-27-317.
- (d) In a proceeding in which the judge determines that there is a reasonable likelihood that the proceeding may result in the juvenile's commitment to an institution in which the freedom of the juvenile would be curtailed and counsel has not been retained for the juvenile, the court shall appoint counsel for the juvenile.
- (e) Appointment of counsel shall be made at a time sufficiently in advance of the court appearance to allow adequate preparation by appointed counsel and adequate consultation between the appointed counsel and the client.
- (f)
- (1) The court shall appoint an attorney ad litem who shall meet standards and qualifications established by the Supreme Court to represent the best interest of the juvenile when a dependency-neglect petition is filed or when an emergency ex parte order is entered in a dependency-neglect case, whichever occurs earlier.
- (2) The court may appoint an attorney ad litem to represent the best interest of a juvenile involved in any case before the court and shall consider the juvenile's best interest in determining whether to appoint an attorney ad litem.
- (3) Each attorney ad litem shall:
- (A) File written motions, responses, or objections at all stages of the proceedings when necessary to protect the best interest of the juvenile;
- (B) Attend all hearings and participate in all telephone conferences with the court unless excused by the court; and
- (C) Present witnesses and exhibits when necessary to protect the juvenile's best interest.
- (4) An attorney ad litem shall be provided access to all records relevant to the juvenile's case, including, but not limited to, school records, medical records, all court records relating to the juvenile and his or her family, and records, including those maintained electronically and in the Children's Reporting and Information System, of the Department of Human Services relating to the juvenile and his or her family to the extent permitted by federal law.
- (5)
- (A) An attorney ad litem shall represent the best interest of the juvenile.
- (B) If the juvenile's wishes differ from the attorney's determination of the juvenile's best interest, the attorney ad litem shall communicate the juvenile's wishes to the court in addition to presenting his or her determination of the juvenile's best interest.
- (g)
- (1) The court may appoint a volunteer court-appointed special advocate from a program that shall meet all state and national court-appointed special advocate standards to advocate for the best interest of juveniles in dependency-neglect proceedings.
- (2) No court-appointed special advocate shall be assigned a case before:
- (A) Completing a training program in compliance with National Court Appointed Special Advocate Association and state standards; and
- (B) Being approved by the local court-appointed special advocate program, which will include appropriate criminal background and child abuse registry checks.
- (3) Each court-appointed special advocate shall:
- (A)
- (i) Investigate the case to which he or she is assigned to provide independent factual information to the court through the attorney ad litem, court testimony, or court reports.
- (ii) The court-appointed special advocate may testify if called as a witness.
- (iii) When the court-appointed special advocate prepares a written report for the court, the advocate shall provide all parties or the attorney of record with a copy of the written report seven (7) business days before the relevant hearing; and
- (B) Monitor the case to which he or she is assigned to ensure compliance with the court's orders.
- (A)
- (4) Upon presentation of an order of appointment, a court-appointed special advocate shall be provided access to all records relevant to the juvenile's case, including, but not limited to, school records, medical records, all court records relating to the juvenile and his or her family, and department records, including those maintained electronically and in the Children's Reporting and Information System, to the extent permitted by federal law.
- (5) A court-appointed special advocate is not a party to the case to which he or she is assigned and shall not call witnesses or examine witnesses.
- (6) A court-appointed special advocate shall not be liable for damages for personal injury or property damage pursuant to the Arkansas Volunteer Immunity Act, § 16-6-101 et seq.
- (7) Except as provided in this subsection, a court-appointed special advocate shall not disclose any confidential information or reports to anyone except as ordered by the court or otherwise provided by law.
- (h) (1) (A) All parents and custodians have a right to counsel in all dependency-neglect proceedings.
- (B) In all dependency-neglect proceedings that set out to remove legal custody from a parent or custodian, the parent or custodian from whom custody was removed shall have the right to be appointed counsel, and the court shall appoint counsel if the court makes a finding that the parent or custodian from whom custody was removed is indigent and counsel is requested by the parent or custodian.
- (C)
- (i) Parents and custodians shall be advised in the dependency-neglect petition or the ex parte emergency order, whichever is sooner, and at the first appearance before the court, of the right to counsel and the right to appointed counsel, if eligible.
- (ii) As required under § 9-27-314, a circuit court shall appoint counsel in an ex parte emergency order and shall determine eligibility at the commencement of the probable cause hearing.
- (D) All parents shall have the right to be appointed counsel in termination of parental rights hearings, and the court shall appoint counsel if the court makes a finding that the parent is indigent and counsel is requested by the parent.
- (E) In a dependency-neglect proceeding naming a minor parent as a defendant, the court shall appoint a qualified parent counsel for the minor parent.
- (2) If at the permanency planning hearing or at any time the court establishes the goal of adoption and counsel has not yet been appointed for a parent, the court shall appoint counsel to represent the parent as provided by subdivision (h)(1)(D) of this section.
- (3) Putative parents do not have a right to appointed counsel in dependency-neglect proceedings, except for termination of parental rights proceedings, only if the court finds on the record that:
- (A) The putative parent is indigent;
- (B) The putative parent has established significant contacts with the juvenile so that putative rights attach;
- (C) Due process requires appointment of counsel for a full and fair hearing for the putative parent in the termination hearing; and
- (D) The putative parent requested counsel.
- (4) (A) (i) A putative parent has the burden to prove significant contacts with the child so that putative rights attach.
- (ii) The putative parent shall request appointed counsel for a termination of parental rights hearing if the goal of the case changes to adoption with a termination of parental rights petition to be filed.
- (B) The court shall make the findings required in subdivision (h)(3) of this section to determine whether a putative parent is entitled to appointed counsel at the termination hearing.
- (C)
- (i) If the court determines that the putative parent is entitled to appointed counsel under subdivision (h)(3) of this section, the termination petition shall include the putative parent.
- (ii) The court shall appoint counsel subject to subdivision (h)(3) of this section for the putative parent at any time the court establishes adoption as the case goal with a termination of parental rights petition to be filed.
- (D) If the putative parent, after notice by the department, has not made an attempt to establish significant contacts with his or her child or the court determines that the putative parent has not established significant contacts, only legal parents shall be included in the termination petition and no further notice is required of the putative parent.
- (ii) The putative parent shall request appointed counsel for a termination of parental rights hearing if the goal of the case changes to adoption with a termination of parental rights petition to be filed.
- (5)
- (A) The court shall order financially able parents or custodians to pay all or part of reasonable attorney's fees and expenses for court-appointed representation after review by the court of an affidavit of financial means completed and verified by the parent or custodian and a determination by the court of an ability to pay.
- (B)
- (i) All moneys collected by the clerk under this subsection shall be retained by the clerk and deposited into a special fund to be known as the "Juvenile Court Representation Fund".
- (ii) The court may direct that money from the fund be used in providing counsel for indigent parents or custodians at the trial level in dependency-neglect proceedings.
- (iii) Upon a determination of indigency and a finding by the court that the fund does not have sufficient funds to pay reasonable attorney's fees and expenses incurred at the trial court level and state funds have been exhausted, the court may order the county to pay these reasonable fees and expenses until the state provides funding for counsel.
- (6)
- (A) Appointment of counsel shall be made at a time sufficiently in advance of the court appearance to allow adequate preparation by appointed counsel and adequate consultation between the appointed counsel and the client.
- (B)
- (i) When the first appearance before the court is an emergency hearing to remove custody under § 9-27-315, parents shall be appointed a parent counsel in a timely manner for meaningful representation until eligibility for appointed counsel is determined by the court under subdivision (h)(1)(B) of this section.
- (ii) If in the interest of time or availability of qualified parent counsel it becomes necessary for a provisional parent counsel or counsel other than the parent counsel originally appointed under subdivision (h)(1)(B) of this section, a substitute parent counsel shall be appointed.
- (7) The attorney for the parent or custodian shall be provided access to all records relevant to the juvenile's case, including without limitation school records, medical records, all court records relating to the juvenile and his or her family, and department records relating to the juvenile and his or her family, including those maintained electronically and in the Children's Reporting and Information System, to which the parent or custodian is entitled under state and federal law.
- (8)
- (A) In all cases where a court has determined that appointed counsel for an indigent parent or custodian is necessary under this subsection, the court shall appoint counsel in compliance with federal law and Supreme Court Administrative Order Number 15.
- (B) When a court orders payment of funds for parent counsel on behalf of an indigent parent or custodian from a state contract, the court shall make written findings in the appointment order in compliance with this section.
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