2015 Louisiana Laws
Revised Statutes
TITLE 46 - Public Welfare and Assistance
RS 46:460.21 - Fees in child protection cases

PART X. LEGAL FEES AND APPROVED EXPENSES

§460.21. Fees in child protection cases

A.(1) To the extent funds are appropriated by the legislature for such purpose, the state, through the Department of Children and Family Services, office of children and family services, shall pay legal fees and approved expenses arising out of the ad hoc representation of children or indigent parents, but not both, and curatorships in child protection proceedings. Such payments shall be made if legal services, corporations, and private attorneys are not otherwise paid for services in these child protection proceedings. If authorized pursuant to Subsection B of this Section, the department shall also pay mediator fees in child protection proceedings arising out of court referrals pursuant to Article 437 of the Children's Code. Payment for legal fees and approved expenses shall be made only for services, including appeals rendered pursuant to appointments under Children's Code Articles 607, 608, 643, 1016, 1023, 1042, 1136, and 1146 exclusively. Funds appropriated for this purpose shall not be used to supplant a court's prior levels of indigent defender representation.

(2) To facilitate more efficient and effective provision of counsel through salaried or contract attorney arrangements, the Department of Children and Family Services, office of children and family services is explicitly authorized to transfer funds appropriated pursuant to this Section for representation of children and for representation of indigent parents. This transfer of funds shall be guided by the goal of providing for a more efficient and effective statewide system of representation in child protection proceedings by July 1, 2012. The transfer of funds shall not be contingent upon designations for payment of ad hoc fees pursuant to Paragraphs (1) and (6) of this Subsection, or prior utilization patterns.

(3) For judicial districts not yet included or fully included in salaried or contract attorney arrangements as provided in Paragraph (2) of this Subsection, the Department of Children and Family Services, office of children and family services shall pay properly documented requests for legal fees and approved expenses and authorized mediator fees in date order of receipt pursuant to the provisions of Paragraph (1) of this Subsection, until appropriations for that fiscal year are exhausted. Subsequent fiscal year payments shall begin with any unpaid requests in date order of receipt including prior fiscal year requests. the Department of Children and Family Services, office of children and family services in collaboration with the Child Advocacy Program and the Louisiana Indigent Defense Assistance Board, or any successor to that board, shall advise courts concerning the establishment of salaried and contract attorney arrangements in their respective jurisdictions pursuant to Paragraph (2) of this Subsection.

(4) The department shall create a reserve at the beginning of each fiscal year from the funds appropriated pursuant to this Subsection for the payment of approved out-of-pocket expenses. Sixty days prior to the end of each fiscal year, any reserve over current and projected outstanding approved out-of-pocket expenses may be redirected for payment of fees as well as expenses. The amount of the reserve each year shall be based on an average of the last three fiscal year's percentage of approved expenses to total legal fees paid applied to the projected fiscal year obligation for fees and expenses.

(5) For the judicial districts not yet included or fully included in a salaried or contract attorney arrangement as provided in Paragraph (2) of this Subsection, the chief administrative judge of each district, juvenile, city, or parish court exercising juvenile jurisdiction in child protection proceedings pursuant to Children's Code Article 302 shall designate in writing whether counsel for the children or counsel for the indigent parents are to be paid pursuant to this Section. When necessary, due to special circumstances within a judicial district, the chief administrative judge may make separate designations for child in need of care and judicial certification for adoption proceedings. The designations made by the chief administrative judge of a court shall apply in all child protection proceedings before the court except:

(a) In all post-certification for adoption review hearings where parental rights to the child have been terminated and appeal rights have expired or been exhausted, counsel for the child not otherwise being paid for their services may be compensated pursuant to this Section.

(b) When in an individual case the district indigent defender office providing representation in child protection proceedings before the court has a conflict of interest in representing the party it generally represents in such proceedings (i.e., child or parent) and has committed to representing the opposite party in the case, the judge exercising juvenile jurisdiction in the case may invoke a special exception to the designation upon written notification to all counsel and the legal fee processing unit of the department of the conflict and the prospective effective date of the special exception.

(6) The department shall develop and disseminate to all courts exercising juvenile jurisdiction a form to be used to make the requisite designation for the payment of fees pursuant to Paragraph (1) of this Subsection. When a court fails or refuses to make a designation, the default designation shall be counsel for children for all child protection proceedings before the court. A court may change a designation only through a subsequent written designation by its chief administrative judge sent to the department which shall include the court's reasons for the change and a prospective effective date, which date shall be no less than fifteen days from the date mailed to the department. The subsequent designation shall apply to all counsel appointments made on or after its effective date.

(7) Should a court establish through a dependency mediation program involving a statistically significant percentage of its cases that the average length of children's foster care stays is shortened by at least twenty-five percent in mediated cases in contrast with non-mediated cases before the court, the court may apply to the Louisiana Supreme Court and the department for special authorization to approve mediator fees for payment pursuant to this Section. The Louisiana Supreme Court and the department shall develop standards for determining when a mediation program satisfies the threshold requirement. The Louisiana Supreme Court and the department shall grant the special authorization to the court if its mediation program meets the threshold requirement and otherwise enhances safety, permanency, and well-being outcomes for children. The department shall design forms to be used by mediators requesting payment of fees. Upon consultation with one another, the Louisiana Supreme Court or the department may also promulgate by court rule or regulation a uniform fee schedule for mediators requesting compensation pursuant to this Section.

B. As used in this Section, the following terms shall have the following meanings:

(1) "Ad hoc" means the case-by-case appointment of private or legal services corporation attorneys to represent children and indigent parents in child protection proceedings as contrasted with referrals for representation to the Indigent Defense Assistance Board, or any successor to that board, or the Child Advocacy Program of the Mental Health Advocacy Service.

(1.1) "Approved expenses" means the following expenses incurred pursuant to appointment under this Section: search costs in curatorship appointments, expert witness fees, mileage in excess of twenty miles per trip, routine law office expenses, such as long distance telephone or fax charges, photocopies, postage, and delivery charges, parking, and other expenses approved by the court and consistent with applicable state guidelines. The rate of reimbursement for mileage as well as expenses incurred by experts shall be in accordance with state travel regulations established by the division of administration.

(2) "Child protection proceedings" means child in need of care and judicial certification for adoption proceedings, including surrender proceedings, relating to children in the care of the office of children and family services.

(3) "Department" means the Department of Children and Family Services, office of children and services services.

(4) "Legal fees" includes fees for curatorship services as well as traditional legal services.

(5) "Legal services corporations" means those 501(c)(3) tax-exempt corporations, organized under the laws of the state, which are recipients of federal funding from the Legal Services Corporation (LSC).

(6) "Mediator" means an individual meeting the qualifications of Children's Code Article 439.

C. The department shall design forms to be used by attorneys requesting payment of legal fees and approved expenses and is specifically authorized to develop procedures and forms for facilitating electronic approval, submission, and payment of requests. The department shall not pay requests where none of the services invoiced have been rendered within the previous twelve months. The following conditions shall be satisfied and the following documents shall be received by the department before a request may be processed for payment:

(1) Completion by the attorney of a standardized attorney payment form approved by the court which shall include:

(a) The statutory authority for appointment and confirmation regarding the nature of the services provided, whether as counsel or as curator. Counsel services on behalf of absentee parents are not authorized for payment pursuant to this Section. When an attorney serves as curator and as counsel for a parent, the nature of the respective services must be clearly delineated in the attorney fee request form and detailed itemization of services. An attorney cannot be simultaneously serving as curator and as counsel for the same client.

(b) For curatorships, the court's finding that the parent is an absentee parent in accordance with Louisiana law.

(c) For counsel appointments on behalf of parents, the court's finding that the parent is indigent in accordance with Louisiana law.

(d) The presiding judge's approval of the attorney's request for payment shall be evidenced by the judge's signature on this form.

(e) A detailed itemization of the services provided shall accompany the form.

(f) Approved expenses shall be evidenced by an appropriate receipt or itemized log, including beginning and ending odometer readings showing total mileage when travel is required.

(g) The attorney shall certify that:

(i) He meets minimum qualifications for providing representation in child protection cases required by the state of Louisiana.

(ii) The statements contained in the form and required attachments are true and correct.

(iii) The services and expenses billed are reasonable and necessary and consistent with effective and efficient practice in child protection cases.

(iv) For representation of counsel on behalf of a parent, the parent is indigent in accordance with law.

(v) The attorney has received no compensation for the services or expenses described nor will he be receiving or eligible to receive such compensation from any other source.

(h) The judge shall determine based upon the attorney's certifications, upon the information contained within the form and supporting documentation, and upon his or her knowledge of the proceedings that the number of hours billed and expenses charged appear reasonable and necessary.

(2) For counsel appointments, completion of at least one discrete stage in the respective child protection proceedings unless the proceedings are dismissed at adjudication or earlier or the attorney was appointed to provide representation at the continued custody hearing only.

(a) If the proceedings are dismissed at adjudication or earlier, then the proceedings through such dismissal shall be deemed completion of a discrete stage.

(b) The discrete stages of child protection proceedings for purposes of this statute are as follows:

(i) All child in need of care proceedings through judgment of disposition.

(ii) Each six-month review period subsequent to judgment of disposition.

(iii) Judicial certification for adoption proceedings.

(iv) Each one-year period subsequent to a termination or surrender of parental rights until the children are permanently placed.

(3) In order to be reimbursed for legal fees and approved expenses, an attorney appointed to act as counsel during child in need of care proceedings shall provide representation during all subsequent stages of such proceedings except when an attorney has been appointed to provide representation at a continued custody hearing only, or when the court permits withdrawal upon a finding of specific extenuating circumstances justifying the withdrawal. Child in need of care proceedings include all child in need of care actions prior to adjudication, adjudication and disposition hearings, actions in support of such hearings, and all subsequent six-month review periods until the child is permanently placed, as defined in Children's Code Article 603(15), or judicial certification for adoption proceedings is instituted.

(4) The department is specifically authorized to suspend payment of requests which do not meet documentation requirements or which raise questions relative to the accuracy, validity, or compliance of requests with standards promulgated pursuant to recommendations of the multi-agency Task Force on Legal Representation in Child Protection Cases.

D. If an attorney requests payment of legal fees or approved expenses in excess of the standard rates set by Louisiana Supreme Court General Administrative Rule, Part G, Section 9, the presiding judge's approval of the attorney's request for payment shall be evidenced by a completed addendum to the standardized attorney payment form. The addendum shall be developed by the department and shall include at a minimum a satisfactory description and justification for the excess legal fees or approved expenses. The attorney shall submit the addendum to the department with the standardized attorney payment form to which it relates.

E. The department shall implement procedures for monitoring legal fees, mediation fees, and approved expenses charged against the state under this Section. A summary of the analysis shall be reported to the legislature on October first of each year with a summary of the legal fees, authorized mediation fees, and approved expenses for the immediately preceding fiscal year.

F. The department is authorized to promulgate and develop such rules and forms necessary to effect the provisions of this Section and as appropriate, to implement the recommendations of the multi-agency Task Force on Legal Representation in Child Protection Cases.

G. The provisions of this Section shall be repealed effective December 31, 2012, upon the payment of all outstanding requests for fees pursuant to Paragraph (A)(1) of this Section, made by attorneys for services through June 30, 2012. In the interim, the Department of Children and Family Services, office of children and family services, the Mental Health Advocacy Service, the Louisiana Indigent Defense Assistance Board, or any successor to that board, and the Louisiana Supreme Court working through the Task Force on Legal Representation in Child Protection Cases are charged with planning an orderly transition to a more efficient and effective statewide system of representation with necessary funding and appropriate programmatic and fiscal oversight vested in the Child Advocacy Program of the Mental Health Advocacy Service and the Indigent Defense Assistance Board, or any successor to that board.

Acts 1995, No. 807, §1, eff. June 27, 1995; Acts 1997, No. 389, §1, eff. July 1, 1997; Acts 2001, No. 997, §1, eff. Oct. 1, 2001; Acts 2004, No. 664, §1, eff. July 5, 2004; Acts 2006, No. 271, §4; Acts 2007, No. 95, §3; Acts 2011, No. 77, §1, eff. June 20, 2011.