Alaska expands right to counsel for children

Previously, Child in Need of Aid (CINA) Rule 12(3) simply provided that counsel for children must be appointed “when the court determines that the interests of justice require the appointment.”  The “interests of justice” language has been replaced with reference to a new rule, CINA Rule 12.1, which lists circumstances that trigger mandatory and discretionary appointment.

Under Rule 12.1(1), the court must appoint counsel for children 10 years of age or older if:

(A) The child does not consent to placement in a psychiatric hospital or residential treatment center;

(B) The child does not consent to administration of psychotropic medication;

(C) The child objects to disclosure of psychotherapy information or records under CINA Rule 9(b);

(D) A request for a court order authorizing emergency protective custody has been made under AS 47.10.141(c); or

(E) The child is pregnant or has custody of a minor child.

Under CINA Rule 12.1(2), the court may appoint counsel for children 10 years of age or older if:

(A) The child’s and guardian ad litem’s positions are not aligned on placement, family or sibling contact, permanency goal, case plan, or another important issue in the case;

(B) The child would benefit from a confidential relationship with an attorney; or

(C) The child is not residing in the designated placement.

The court is obligated to inform “the parties” of their right to counsel at the first hearing the party attends.  Children are parties to the proceeding. AK R CINA Rule 12(a).  The right to counsel may be waived “by any party if the court determines that the party understands the benefits of counsel and knowingly waives those benefits.” AK R CINA Rule 12(c).