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 court rule, CINA Rule 12.1, which lists circumstances that trigger mandatory and discretionary appointment.

CINA Rule 12.1(b)(1) states:

(A) The court shall appoint an attorney for a child who is 10 years of age or older in any of the following circumstances:

(i) The child does not consent to placement in a residential treatment center;

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

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

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

(v) The child is pregnant or has custody of a minor child; and

(B) The court shall appoint an attorney for a child who has been placed in a hospital as authorized under AS 47.10.105.

Under CINA Rule 12.1(b)(2), “[t]he court may appoint an attorney in other circumstances including, but not limited to:

(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).