Right to counsel

Indigent adult individuals have the right to counsel in mental health- and alcoholism-related civil commitment matters.  Indigent minors and the minor’s parent or guardian have the right to counsel in mental health commitments. 

Generally

While Alaska Stat. § 47.30.725(d) speaks of a right to be “represented by an attorney” in civil commitment proceedings, other statutory provisions clarify that this is a right to appointed counsel.  First, Alaska Stat. § 18.85.100(a) (the public defender statute) provides a right to counsel to an indigent person “against whom commitment proceedings for mental illness have been initiated.”  Second, during the initial involuntary commitment procedures, upon petition by any adult, the court must first order a screening investigation, and within 48 hours after completion of that screening, the court must appoint counsel if the court finds probable cause of mental illness.  Alaska Stat. § 47.30.700(a).

But where the threat of “serious harm to self or others [is] of such immediate nature that considerations of safety do not allow initiation of involuntary commitment procedures set out in AS 47.30.700,” the individual may be detained on an emergency basis at a crisis stabilization center pursuant to Alaska Stat. § 47.30.705(a).  The person may only be detained for a period not to exceed 23 hours and 59 minutes, and must be examined within three hours of their arrival. Id.  If, after the examination, the crisis stabilization center files an ex parte application to detain or evaluate the individual that is granted by the court, the court must appoint an attorney to represent the respondent. Alaska Stat. § 47.30.707(b).

An individual may also be brought to a crisis residential center in an emergency and, after the initial examination, a mental health professional may file an ex parte application for admission if “a judicial order has not been obtained under AS 47.30.707.” Alaska Stat. § 47.30.708(c).  If the court finds probable cause and grants the application, it shall appoint an attorney to represent the respondent. Id.

As to alcoholism

There is a right to counsel for indigent individuals subject to commitment due to alcoholism at every stage of the proceedings. Alaska Stat. § 47.37.200 (speaking of the right “to be represented by counsel at every stage of the proceedings relating to commitment and recommitment, to have counsel appointed by the court or provided by the court, if the person is unable to obtain counsel).

As to minors

Generally

When civil commitment of a minor is sought, the minor’s indigent parents have the right to counsel in the proceedings, and representation is provided by the office of public advocacy.  Alaska Stat. § 47.30.775 (“as parties [the minor’s parents or guardians] are entitled to retain their own attorney or have the office of public advocacy appointed for them by the court”); Alaska Stat. § 44.21.410(a)(3) (“[t]he office of public advocacy shall … provide legal representation … to indigent parents or guardians of a minor respondent in a commitment proceeding concerning the minor under AS 47.30.775.”). 

The minor respondent in such proceedings also has the right to counsel, since the provision governing commitment of minors incorporates the provisions applicable to adults. Alaska Stat. § 47.30.775 (“The provisions of AS 47.30.700 – 47.30.815 apply to minors.”;  “A minor respondent has the same rights to waiver and informed consent as an adult respondent under AS 47.30.660 – 47.30.915; however, the minor shall be represented by counsel in waiver and consent proceedings.”).

Substance abuse

No procedure for commitment based on substance abuse alone.

Unlike the Article covering “Involuntary Admission for Treatment,” the Uniform Alcoholism and Intoxication Treatment Act” does not have a section indicating that it applies to minors.  Accordingly, there is seemingly no procedure through which to order a minor to participate in inpatient or outpatient services based on alcoholism or substance dependency alone.  However, case law suggests that a minor may be subject to general civil commitment provisions if they are engaging in substance abuse, at least where the abuse occurs in tandem with psychiatric conditions. See Matter of April S., 499 P.3d 1011, 1013-14 (Alaska 2021) (discussing placement of a child under emergency detention and authorization of involuntary hospitalization where the child, in addition to having various psychiatric diagnoses, was found “likely to run away and engage in risky behaviors including substance abuse…”).

“Voluntary” commitment by parent or guardian

 Discretionary appointment if GAL finds placement inappropriate.

A parent or guardian of a minor younger than 18 may sign admission papers to admit their child for 30 days for the purpose of “evaluation, diagnosis, and treatment at a designated treatment facility.”  If the professional person in charge of the facility agrees that the admision is necessary, the minor shall be admitted. Alaska Stat. § 47.30.690(a).  A minor admitted under this process is entitled to a guardian ad litem, Id. at (b), but the GAL may or may not be an attorney. See id. (incorporating section 25.24.310, which provides at paragraph (c) that “an attorney or other person or the office of public advocacy [may] provide guardian ad litem services to a child in any legal proceedings involving the child’s welfare”).  The GAL’s responsibility is to “monitor the best interests of the minor as soon as possible after the minor’s admission.” Alaska Stat. § 47.30.690(b).  But “[i]f the guardian ad litem finds that placement is not appropriate, the guardian ad litem may request that an attorney be appointed under AS 25.24.310 to represent the minor.” Id.

System-involved minors

In a Child in Need of Aid (CINA) proceeding, the court must appoint counsel for a child 10 years of age or older if “[t]he child does not consent to placement in a psychiatric hospital or residential treatment center”. See CINA Rule 12.1(1). 

The court may appoint counsel for children who are younger than 10 years of age if “[t]he 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”, which could encompass placement or treatment in a psychiatric hospital or residential treatment center. Id. at (2).