Mississippi expands child right to counsel in child welfare cases

Previously, courts were only required to appoint a client-directed attorney for children in “all critical stages” of the abuse/neglect case and only if the child was indigent. Miss. Code Ann. § 43–21–201(1).   Terminations stemming from abuse/neglect matters were considered a “critical stage.” Miss. Code Ann. § 43-21-151(1) (giving youth court exclusive jurisdiction in proceedings involving “a child in need of supervision, a neglected child, an abused child or a dependent child”, except in certain limited circumstances).  However, in 2023, Mississippi enacted HB 1149, which expanded the right to counsel to all minors, regardless of indigency. Miss. Code Ann. § 43-21-201(1)(a), (c).  It also removed the qualifying word “critical” and expressly states that shelter hearings are a stage of the proceeding. Id.

Additionally, the court must appoint a guardian ad litem in all cases. Miss. Code Ann. § 43-21-121(1), (4).  However, the amended law incorporates Rule 13(f) of the Uniform Rules of Youth Court Practice, which provides that the child’s GAL may serve in a dual role unless the child’s wishes conflict with the GAL’s recommendations, in which case the court “shall retain the guardian ad litem to represent the best interest of the child and appoint an attorney to represent the child’s preferences.” Miss. Code Ann. § 43-21-201(1)(c).  Note that a dual role is also prohibited where the court appoints a layperson as guardian ad litem. Miss. Code Ann. § 43-21-121(4).

Finally, if abuse/neglect allegations surface in the context of a custody proceeding, then the court “shall appoint a guardian ad litem for the child as provided under Section 43-21-121, who shall be an attorney.”  Miss. Code Ann. § 93-5-23.