Right to counsel

Rule 12 of the Child in Need of Aid Rules requires appointment of counsel for indigent parents in CINA cases, as well as for parents on active military duty who have not appeared in the case.  At the first hearing at which a parent is present, court shall inform the parent of right to be represented at all stages of the proceedings. 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).

Additionally, the notice of hearing on the petition and summons must contain a statement about the parent’s right to counsel. AK R CINA Rule 7.

There is also an arguable statutory right to counsel for parents in temporary emergency custody matters.  In emergency proceedings where the state takes custody of children, parents “may be represented at public expense and without court order by an attorney employed by the Public Defender Agency in connection with the hearing held under [Alaska Stat. § 47.10.142(d)],” which is the temporary custody hearing occurring no more than 48 hours after the child has been taken into custody. Alaska Stat. § 18.85.100(e). 

In R.C. v. State, Department of Health and Social Services, the Alaska Supreme Court considered whether it offended due process to appoint an attorney after the emergency custody hearing. 760 P.2d 501, 507 n.19 (Alaska 1988).  The Court held that it was not a due process violation, although it is unclear whether Alaska Stat. § 18.85.100 existed at that time.  Regardless, AK R CINA Rule 12 would provide that right and presumably nullify the ruling in R.C.  

Regarding payment for attorneys’ fees under the statute, if the person represented by the Public Defender Agency without a court order is later found to not be indigent, the court must assess against the represented person the cost to the Public Defender Agency of providing the representation. Alaska Stat. § 18.85.100(e).  Continued representation by the Public Defender Agency is contingent upon a finding of indigency under Alaska Stat. § 18.85.100(a-d) and a court order. Alaska Stat. § 18.85.100(e).