Right to counsel

A court must appoint an attorney to represent a child in an abuse/neglect proceeding, and “[t]he attorney for the child shall represent the child’s best interests.”  S.D. Codified Laws § 26-8A-18.

In addition, § 26-7A-31 confers on South Dakota courts the discretion to appoint an attorney for the child or any party without request if legal representation appears necessary to protect the interests of the child. The county in which the proceeding occurs must pay for the expense of counsel in such cases, according to the manner prescribed by the court.

A separate statutory provision requires appointment of a guardian ad litem (GAL) for the child “[i]f a child has been adjudicated an abused or neglected child and is removed from the child’s home with the child’s parents, guardian or custodian” and allows appointment “[i]f a child is an apparent or alleged abused or neglected child.” S.D. Codified Laws § 26-8A-20.

In People in the Interest of C.R.W., the Supreme Court further explained the role of the child’s attorney, rejecting the argument that redundancy is created in having both the child’s attorney and GAL represent the best interests of the child. 962 N.W.2d 730 (S.D. 2021).  It also rejected the argument that a conflict of interest is created when the child’s attorney advocates for a position contrary to the child’s wishes.  Where the attorney’s determination of the child’s best interests conflicts with the child’s wishes, ethical obligations simply require the attorney to present both views to the court. Id. at 742.

Notably, S.D. Codified Laws § 26-7A-30 requires the court to notify parents and children of their “constitutional and statutory rights, including the right to be represented by an attorney.”

In addition, S.D. Codified Laws § 26-8A-9, provides that upon receipt of report of suspected abuse/neglect, DSS investigates and court may appoint attorney to represent best interests of child.