Report Title:

Family Court; Minors; Legal Representation

Description:

Allows minors the right to choose their legal representation in family court proceedings.

HOUSE OF REPRESENTATIVES

H.B. NO.

262

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to family court.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that there is a need to clarify statutory law pertaining to a minor’s right to consent for legal services in certain family court proceedings. Frequently, government agencies and nonprofit child advocacy organizations are contacted by a minor asking for assistance in having legal custody transferred from the minor’s parent to another family member, such as an uncle, aunt, or grandparent. These situations usually involve cases of domestic violence in which a parent or both parents are allegedly abusing the child.

In practice, an attorney will represent the child if the child first obtains consent from the legal guardian, who, in these instances, is the alleged abuser. As such, the decision made by the legal guardian may not be in the best interests of the child.

Furthermore, in cases involving multiple siblings in foster care, it is not uncommon for the court to assign a guardian ad litem to represent all of the children in a family unit. Yet, this often poses conflicts when the needs of one sibling interfere with those of another.

Situations also arise in which a child’s perceived interests differ from those being advocated by the child’s guardian ad litem. When these instances occur, the guardian ad litem is required to inform the court of the child’s interests. The court will then evaluate the necessity for appointing special counsel for the child to serve as the child’s legal advocate concerning "... issues and during ... proceedings as the court deems to be in the best interests of the child." (See, section 587—34(b), Hawaii Revised Statutes) This practice, however, is not always followed. Thus, it is not uncommon for the court to not be aware of the child’s true feelings during its deliberations on matters impacting the child’s welfare and future.

Regarding juvenile delinquency proceedings, the United States Supreme Court found that minors are entitled to adequate notice, the assistance of counsel, and the opportunity to confront their accusers. (See, In re Gault, 387 U.S. 1 (1967)) As expressed in Gault, "whatever may be their precise impact, neither the Fourteenth Amendment nor the Bill of Rights is for adults alone." (See, Gault, supra, 387 U.S. at 13)

Other jurisdictions have also analyzed the issue of whether the court is obligated to respect the wishes of minors regarding their choice of representation. In Wagstaff v. Superior Court, Family Court Division, 535 P.2d 1220 (1975), the supreme court of Alaska rejected the theory that the parent should choose the juvenile’s attorney since they would be monetarily liable, and that a juvenile had no capacity to contract for the attorney’s services. The Wagstaff court held that the child may retain the attorney of the child’s choice, or, alternatively, ask the court to appoint an attorney for the child. The court also cautioned that in instances where the child has retained counsel, the court should respect the child’s choice.

Similarly, a California appellate court held that a minor initially represented by appointed counsel is entitled to seek substitution of retained counsel for dependency related hearings in order to effect the right to counsel of the minor’s "own choice." (See, Akkiko N. v. Superior Court, 163 Cal.App.3d 525, 209 Cal.Rptr. 568(1985)) In Akkiko, the court construed the relevant statute, which provided that a minor "has the right to be represented...by counsel of his or her own choice" as imposing a duty upon the court to consider the minor’s capacity to select counsel as well as the competency of counsel. The Akkiko court held that the trial court was obligated to honor the minor’s choice of counsel, if the minor was competent to choose, and selected competent counsel.

In a case factually analogous to Akkiko, the Illinois supreme court ruled that the juvenile court properly allowed a thirteen-year—old minor to substitute a pro bono private counsel for the county public guardian as the minor’s lawyer in an abuse and neglect proceeding. (See, In Interest of A.W., 618 N.E.2d 729, Ill.App. 1 Dist. (1993))

The Michigan supreme court has held that while there was no legal impediment to appointing one person to serve in the dual capacities of attorney and guardian ad litem for a minor child in protective proceedings, instances may arise in which the guardian ad litem is not able to afford the child "the zealous advocacy of an attorney" that was required under Michigan statute. (See, In re Schaffer (1995), 540 N.W.2d 706 (Mich.App.))

The legislature believes that the codification of a minor’s right to counsel in family court proceedings will greatly enhance the civil protections afforded to minors and ensure that the best interests of every child are served.

The purpose of this Act is to codify a minor’s common law right to consent for legal services in certain family court proceedings.

SECTION 2. Chapter 571, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§571-   Selection of attorney by minor. Whenever a child is a plaintiff or a victim in any proceeding authorized under this chapter, and where the interests of the parent, guardian, custodian, or guardian ad litem are hostile to that of the child, the parent, guardian, custodian, or guardian ad litem shall not select the child’s attorney. The child may retain an attorney of choice in accordance with section 577-   and this chapter, or, in the alternative, the court shall appoint an attorney to represent the child. Whenever possible, the court shall respect the child’s selection."

SECTION 3. Chapter 577, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:

"§577-   Consent for legal services valid; attorney costs; access to records; limitation of cause of action to recover debt. (a) The consent to the provision of legal representation and services by an attorney licensed to practice law, when executed by a minor who is involved in any proceeding initiated pursuant to chapter 571, 578, 580, 586, 587, or this chapter, shall be valid and binding as if the minor had achieved the minor's majority upon determinations by the court that:

(1) The minor’s selection was made at the minor’s own volition;

(2) The minor is competent to select counsel; and

(3) The selected attorney is competent to represent the minor.

The minor's capacity to consent for legal representation shall not be subject to later disaffirmance by reason of the minor’s infancy nor shall it be construed to emancipate the minor. Nothing in this section shall change the status of any person as a minor in connection with any criminal law, nor affect the exclusive original jurisdiction of the family court over the person under section 571-11(1).

(b) If the selection of the attorney is authorized by the court in accordance with subsection (a), the court shall determine the ability of the party to pay for attorney costs. Upon a determination that the party or the person responsible for the party’s support is able to pay, the court may enter an order assessing attorney costs against the party or the person responsible for that party’s support.

(c) Notwithstanding any other law to the contrary, the selected attorney shall be given access to all records relevant to the case that are maintained by:

(1) State or county agencies;

(2) Hospitals or other medical or nonmedical practitioners; and

(3) Child care custodians.

(d) Notwithstanding any other law to the contrary, an action to recover any debt founded upon any contract, obligation, or liability made pursuant to this section shall not commence until the minor has reached the age of majority; provided that the action shall commence within two years of the date a minor reaches the age of majority.

§577-   Selection of attorney by minor. Whenever a child is a plaintiff or a victim in any proceeding authorized under this chapter, and where the interests of the parent, guardian, custodian, or guardian ad litem are hostile to that of the child, the parent, guardian, custodian, or guardian ad litem shall not select the child’s attorney. The child may retain an attorney of choice in accordance with section 577-  , or, in the alternative, the court shall appoint an attorney to represent the child. Whenever possible, the court shall respect the child’s selection."

SECTION 4. Chapter 578, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§578-   Selection of attorney by minor. Whenever a child is the subject of any proceeding authorized under this chapter, and where the interests of the parent, guardian, custodian, or guardian ad litem are hostile to that of the child, the parent, guardian, custodian, or guardian ad litem shall not select the child’s attorney. The child may retain an attorney of choice in accordance with section 577-   and this chapter, or, in the alternative, the court shall appoint an attorney to represent the child. Whenever possible, the court shall respect the child’s selection."

SECTION 5. Chapter 580, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§580-   Selection of attorney by minor. Whenever a child is a subject of any proceeding authorized under this chapter, and where the interests of the parent, guardian, custodian, or guardian ad litem are hostile to that of the child, the parent, guardian, custodian, or guardian ad litem shall not select the child’s attorney. The child may retain an attorney of choice in accordance with section 577-   and this chapter, or, in the alternative, the court shall appoint an attorney to represent the child. Whenever possible, the court shall respect the child’s selection."

SECTION 6. Chapter 586, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§586-   Selection of attorney by minor. Whenever a child is a subject of any proceeding authorized under this chapter, and where the interests of the parent, guardian, custodian, or guardian ad litem are hostile to that of the child, the parent, guardian, custodian, or guardian ad litem shall not select the child’s attorney. The child may retain an attorney of choice in accordance with section 577-   and this chapter, or, in the alternative, the court shall appoint an attorney to represent the child. Whenever possible, the court shall respect the child’s selection."

SECTION 7. Chapter 587, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§587-   Selection of attorney by minor. Whenever a child is a subject of any proceeding authorized under this chapter, and where the interests of the parent, guardian, custodian, or guardian ad litem are hostile to that of the child, the parent, guardian, custodian, or guardian ad litem shall not select the child’s attorney. The child may retain an attorney of choice in accordance with section 577-   and this chapter, or, in the alternative, the court shall appoint an attorney to represent the child. Whenever possible, the court shall respect the child’s selection."

SECTION 8. Section 587-34, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) A guardian ad litem appointed pursuant to subsection (a) shall report to the court and all parties in writing at six month intervals, or as is otherwise ordered by the court, regarding such guardian ad litem’s activities on behalf of the child and recommendations concerning the manner in which the court shall proceed in the best interests of the child; provided that such guardian ad litem shall make face to face contact with the child in the child’s family or foster home at least once every three months. A guardian ad litem shall inform the court of the child’s perceived interests if they differ from those being advocated by the child’s guardian ad litem. If the child and the child’s guardian ad litem are not in agreement, the court shall evaluate the necessity for appointing special counsel for the child to serve as the child’s legal advocate concerning such issues and during such proceedings as the court deems to be in the best interests of the child. If the child believes that the child’s perceived interests are not being advocated by the guardian ad litem, the child may consent to the provision of legal representation and services by an attorney licensed to practice law in accordance with section 577-   and this chapter."

SECTION 9. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 10. New statutory material is underscored.

SECTION 11. This Act shall take effect upon its approval.

INTRODUCED BY:

_____________________________