Minnesota passes bill strengthening child’s right to counsel
| HB 1702, enacted in 2017, substantially strengthened the child’s right to counsel in abuse and termination of parental rights matters. The bill rewrote Minn. Stat. § 260C.163 to read as follows:
Subd. 3(d): In any proceeding where the subject of a petition for a child in need of protection or services is ten years of age or older, the responsible social services agency shall, within 14 days after filing the petition or at the emergency removal hearing under section 260C.178, subdivision 1, if the child is present, fully and effectively inform the child of the child’s right to be represented by appointed counsel upon request and shall notify the court as to whether the child desired counsel. Information provided to the child shall include, at a minimum, the fact that counsel will be provided without charge to the child, that the child’s communications with counsel are confidential, and that the child has the right to participate in all proceedings on a petition, including the opportunity to personally attend all hearings. The responsible social services agency shall also, within 14 days of the child’s tenth birthday, fully and effectively inform the child of the child’s right to be represented by counsel if the child reaches the age of ten years while the child is the subject of a petition for a child in need of protection or services or is a child under the guardianship of the commissioner. … Subd. 3(g): In any proceeding where the subject of a petition for a child in need of protection or services is not represented by an attorney, the court shall determine the child’s preferences regarding the proceedings, including informing the child of the right to appointed counsel and asking whether the child desires counsel, if the child is of suitable age to express a preference. … Subd. 10(a): Waiver of any right which a child has under this chapter must be an express waiver made voluntarily, intelligently, and in writing by the child after the child has been fully and effectively informed of the right to counsel and after consulting with an appointed attorney. Subd. 10(b): Waiver of a child’s right to be represented by counsel provided under the juvenile court rules must be an express waiver made voluntarily, intelligently, and in writing by the child after the child has been fully and effectively informed of the right being waived by the responsible social services agency and consultation with an appointed attorney. In determining whether a child has voluntarily and intelligently waived the right to counsel, the court shall look to the totality of the circumstances which includes but is not limited to the child’s age, maturity, intelligence, education, experience, and ability to comprehend, and the presence and competence of the child’s parents, guardian, or guardian ad litem. The court shall not permit the child’s parent, other person legally responsible for the child’s care, or the child’s guardian ad litem to waive the child’s right to be represented by counsel. If the court accepts the child’s waiver, it shall state on the record the findings and conclusions that form the basis for its decision to accept the waiver. Passage of the law was covered by CBS, ABC 5, the Morris Sun-Tribune, and the Twin Cities Pioneer Press. Minn. R. Juv. Prot. P. 25.02, Subd. 1(a) adds, “Except in proceedings where the sole basis for the petition is habitual truancy, if the child desires counsel but is financially unable to employ it, the court shall appoint counsel to represent the child who is ten (10) years of age or older and may appoint counsel to represent a child under age ten (10) in any case in which the court determines that such appointment is appropriate.” Thus, children over 10 have a right to counsel in all proceedings, whereas appointment of counsel is discretionary for younger children. |
When a court has ordered a child to be placed outside of the home, the child has the right to counsel in preparation of their case plan, and the right to appointed counsel for such preparation if indigent. Minn. Stat. § 260C.212, subdiv. 1(d).
If the child is appointed counsel, “Counsel for the child shall not also act as the child’s guardian ad litem.” Minn. Stat. Ann. § 260C.163, Subd. 3(f).
Finally, the statute itself specifies that the right to counsel includes the right to effective assistance. See Minn. Stat. § 260C.163(3)(a) (“The child, parent, guardian or custodian has the right to effective assistance of counsel in connection with a proceeding in juvenile court as provided in this subdivision.”). And pursuant to court rule, the right to counsel extends through appeal. Minn. R. Juv. Prot. Rule 36.01 (“Every party and participant has the right to be represented by counsel in every juvenile protection matter, including through appeal, if any.”); see also Minn. R. Juv. Prot. Rule 36.02, Subd. 2 (“For purposes of appeal, appointment of counsel in a juvenile protection matter shall be made within three days of the request for counsel. When possible, the trial court attorney should be appointed as appellate counsel.”).
NCCRC assisted with the drafting of the 2017 bill.
