THIRTY-FIRST LEGISLATURE, 2022
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO COURT-APPOINTED ATTORNEYS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that the Hawaii supreme court held in In re T.M., 131 Hawaii 419 (2014), that indigent parents are guaranteed the right to court-appointed counsel under the due process clause of the Hawaii State Constitution in termination of parental rights proceedings. In this case, the court held that the family court abused its discretion in failing to appoint counsel for the mother until nineteen months after the department of human services filed a petition for temporary foster custody over her infant son. As a result, the mother was left without the legal guidance to help her understand the process and ramifications of the parental rights termination process or prepare her for the parental rights termination hearing. She was also left without an advocate to represent her in negotiations with the department of human services. The court also held that the appointment of an attorney is crucial to ensure that parents are provided a fair process in a termination of parental rights proceeding under the Child Protective Act, chapter 587A, Hawaii Revised Statutes.
The legislature further finds that the Hawaii supreme court held in In re L.I., 149 Hawaii 118 (2021), that parents are constitutionally entitled to counsel upon the filing of a petition for either custody or family supervision and that the failure to timely appoint counsel in those cases constitutes structural error requiring reversal.
The purpose of this Act is to require the family court to appoint counsel to indigent parents upon the filing of a petition for custody or family supervision and make every effort to do so at the first hearing attended by the parents.
SECTION 2. Section 587A-17, Hawaii Revised Statutes, is amended by amending its title and subsection (a) to read as follows:
(a) [ The] Upon filing a
petition for custody or family supervision, the court [ may] shall
appoint an attorney to represent a legal parent who is indigent, or was represented
by private counsel but is now indigent and no longer represented by counsel,
based on court-established guidelines[ .] unless the legal parent knowingly
and voluntarily waives the right to appointed counsel on the record. If a legal parent appears without counsel, the
court or its designee shall utilize court-established guidelines to inquire as to
whether the legal parent is indigent. The
court shall provide counsel by the first hearing attended by the legal parent; provided
that if counsel does not appear at the hearing, the court shall not enter a ruling
or order that would prejudice the legal parent's rights until counsel appears or
the legal parent knowingly and voluntarily waives the right to appointed counsel
on the record; provided further that if counsel is not appointed at least three
days prior to the date of the hearing, the court shall grant a continuance if requested.
Nothing in this section shall preclude the
issuance of court orders required for the immediate safety of the subject child
or children. The court may also
appoint an attorney to represent another indigent party based on court-established
guidelines, if it is deemed to be in the child's best interest. Attorneys who are appointed by the court to
represent indigent legal parents and other indigent qualifying parties may be
paid by the court, unless the legal parent or party for whom counsel is
appointed has an independent estate sufficient to pay such fees and costs. The court may order the appropriate legal
parent or party to pay or reimburse the fees and costs of an attorney appointed
for the child or incapacitated adult."
SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 4. This Act shall take effect upon its approval.
Child Protective Act; Family Court; Count-Appointed Attorneys; Indigent Parents
Requires the court to appoint counsel to indigent parents upon the filing of a petition for custody or family supervision and make every effort to do so at the first hearing attended by the parents. (SD1)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.