Right to counsel

Key_development Question_mark

Legislation, Abuse/Neglect/Dependency - Children

While Ariz. Stat. § 8-221(B) specifies that the court shall appoint an attorney for the juvenile if indiegent, § 8-221(A) states, "In all proceedings involving . . . dependency or termination of parental rights that are conducted pursuant to this title and that may result in detention, a juvenile has the right to be represented by counsel" (emphasis added). As a dependency case will never result in detention for the juvenile, it is unclear what the legislature intended with this provision.

 

However, an examination of the legislative history reveals that this “detention” limitation was very likely not intended to apply to child welfare proceedings.  Prior to 1997, § 8-221(A) read, “In all proceedings conducted pursuant to this title and the rules of procedure for the juvenile court, a juvenile has the right to be represented by counsel.”  In 1997, the legislature amended the statute to read, “In all proceedings involving offenses that are conducted pursuant to this title and that may result in detention, a juvenile has the right to be represented by counsel.”  The “result in detention” language was added at a time where there was no reference to dependency or termination of parental rights cases, and was apparently intended to screen out some incorrigibility proceedings where incarceration is not an option.  Haas v. Colosi, 202 Ariz. 56, 40 P.3d 1249, 1252 (Ariz. App. 2002).  Finally, in 1998, the legislature amended the statute to its current form: “In all proceedings involving offenses, dependency or termination of parental rights that are conducted pursuant to this title and that may result in detention, a juvenile has the right to be represented by counsel.”  This history suggests the legislature did not consider the “detention” limitation already existing when adding the reference to child welfare cases.  Supporting this interpretation is the fact that a dependency or termination of parental rights case will never result in detention for the juvenile, so applying this “detention” limitation would render the amendment a nullity.

 

Additionally, § 8-221(I) specifies, "In all juvenile court proceedings in which the dependency petition includes an allegation that the juvenile is abused or neglected, the court shall appoint a guardian ad litem to protect the juvenile's best interests. This guardian may be an attorney or a court appointed special advocate."   Given that subsection (I) empowers the court to appoint a GAL who is not an attorney, this provision likely does not override the requirements of subsection (B).

 

In a permanent guardianship proceeding within the context of the child welfare code, the court may appoint counsel for the child if a guardian ad litem has not been appointed.  Ariz. Rev. Stat. Ann. § 8-872(D).  However, upon the motion to appoint a permanent successor guardian to the original permanent guardian, Ariz. Rev. Stat. Ann. § 8-874(C)(2) specifies that the court shall ”Appoint an attorney for the child and appoint an attorney for the proposed successor guardian, if necessary.”

Appointment of Counsel: categorical Qualified: yes