House File 2452 - Introduced
HOUSE FILE
BY ALONS
Passed House, Date Passed Senate, Date
Vote: Ayes Nays Vote: Ayes Nays
Approved
A BILL FOR
1 An Act relating to involuntary termination of parental rights
2 proceedings, providing an effective date, and providing for
3 retroactive applicability.
4 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
5 TLSB 6222YH 81
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PAG LIN
1 1 Section 1. Section 13B.4, subsection 1, Code Supplement
1 2 2005, is amended to read as follows:
1 3 1. The state public defender shall coordinate the
1 4 provision of legal representation of all indigents under
1 5 arrest or charged with a crime, seeking postconviction relief,
1 6 against whom a contempt action is pending, in proceedings
1 7 under section 811.1A or chapter 229A, 600A, or 812, in
1 8 juvenile proceedings, on appeal in criminal cases, and on
1 9 appeal in proceedings to obtain postconviction relief when
1 10 ordered to do so by the district court in which the judgment
1 11 or order was issued, and may provide for the representation of
1 12 indigents in proceedings instituted pursuant to chapter 908.
1 13 The state public defender shall not engage in the private
1 14 practice of law.
1 15 Sec. 2. Section 600A.6, subsection 3, paragraph c, Code
1 16 Supplement 2005, is amended to read as follows:
1 17 c. A statement that the person parent against whom a
1 18 proceeding for involuntary termination of parental rights is
1 19 brought filed shall have the right to counsel and, if the
1 20 parent is indigent, the right to appointment of counsel,
1 21 pursuant to section 600A.6A.
1 22 Sec. 3. Section 600A.6A, Code Supplement 2005, is amended
1 23 to read as follows:
1 24 600A.6A INVOLUNTARY TERMINATION == RIGHT TO AND
1 25 APPOINTMENT OF COUNSEL.
1 26 1. Upon the filing of a petition for involuntary
1 27 termination of parental rights under this chapter, the parent
1 28 identified in the petition shall have the right to counsel in
1 29 connection with all subsequent hearings and proceedings.
1 30 2. If the parent against whom the petition is filed
1 31 desires but is financially unable to employ counsel, the
1 32 court, following an in=court colloquy a determination that the
1 33 parent is indigent, shall appoint counsel for the person if
1 34 all of the following criteria are met:
1 35 a. The person requests appointment of counsel parent.
2 1 b. The person is indigent.
2 2 c. The court determines both of the following:
2 3 (1) The person, because of lack of skill or education,
2 4 would have difficulty in presenting the person's version of
2 5 the facts in dispute, particularly where the presentation of
2 6 the facts requires the examination or cross=examination of
2 7 witnesses or the presentation of complex documentary evidence.
2 8 (2) The person has a colorable defense to the termination
2 9 of parental rights, or there are substantial reasons that make
2 10 termination of parental rights inappropriate. In appointing
2 11 counsel to represent a parent under this section, the court
2 12 shall first consider appointing an attorney under contract
2 13 with the state public defender pursuant to section 13B.4. If
2 14 an attorney under contract with the state public defender is
2 15 not available, the court may appoint an attorney who has
2 16 agreed to provide these services. The appointed attorney
2 17 shall apply to the state public defender for payment in the
2 18 manner prescribed by the state public defender.
2 19 3. The state public defender shall review all the claims
2 20 submitted under this section and shall have the same authority
2 21 with regard to the payment of these claims as the state public
2 22 defender has with regard to claims submitted under chapters
2 23 13B and 815, including the authority to adopt rules concerning
2 24 the review and payment of claims submitted.
2 25 Sec. 4. Section 602.1302, subsection 3, Code Supplement
2 26 2005, is amended to read as follows:
2 27 3. A revolving fund is created in the state treasury for
2 28 the payment of jury and witness fees, mileage, costs related
2 29 to summoning jurors by the judicial branch, and attorney fees
2 30 paid by the state public defender for counsel appointed
2 31 pursuant to section 600A.6A. The judicial branch shall
2 32 deposit any reimbursements to the state for the payment of
2 33 jury and witness fees and mileage in the revolving fund. In
2 34 each calendar quarter the judicial branch shall reimburse the
2 35 state public defender for attorney fees paid pursuant to
3 1 section 600A.6B 600A.6A. Notwithstanding section 8.33,
3 2 unencumbered and unobligated receipts in the revolving fund at
3 3 the end of a fiscal year do not revert to the general fund of
3 4 the state. The judicial branch shall on or before February 1
3 5 file a financial accounting of the moneys in the revolving
3 6 fund with the legislative services agency. The accounting
3 7 shall include an estimate of disbursements from the revolving
3 8 fund for the remainder of the fiscal year and for the next
3 9 fiscal year.
3 10 Sec. 5. Section 815.7, Code 2005, is amended to read as
3 11 follows:
3 12 815.7 FEES TO ATTORNEYS.
3 13 An attorney who has not entered into a contract authorized
3 14 under section 13B.4 and who is appointed by the court to
3 15 represent any person charged with a crime in this state,
3 16 seeking postconviction relief, against whom a contempt action
3 17 is pending, appealing a criminal conviction, appealing a
3 18 denial of postconviction relief, or subject to a proceeding
3 19 under section 811.1A or chapter 229A, 600A, or 812, or to
3 20 serve as counsel for any person or guardian ad litem for any
3 21 child in juvenile court, shall be entitled to reasonable
3 22 compensation and expenses. For appointments made on or after
3 23 July 1, 1999, the reasonable compensation shall be calculated
3 24 on the basis of sixty dollars per hour for class "A" felonies,
3 25 fifty=five dollars per hour for class "B" felonies, and fifty
3 26 dollars per hour for all other cases. The expenses shall
3 27 include any sums as are necessary for investigations in the
3 28 interest of justice, and the cost of obtaining the transcript
3 29 of the trial record and briefs if an appeal is filed. The
3 30 attorney need not follow the case into another county or into
3 31 the appellate court unless so directed by the court. If the
3 32 attorney follows the case into another county or into the
3 33 appellate court, the attorney shall be entitled to
3 34 compensation as provided in this section. Only one attorney
3 35 fee shall be so awarded in any one case except that in class
4 1 "A" felony cases, two may be authorized.
4 2 Sec. 6. Section 815.9, Code 2005, is amended by adding the
4 3 following new subsection:
4 4 NEW SUBSECTION. 1A. In addition to appointment of an
4 5 attorney as described in subsection 1, a person is entitled to
4 6 an attorney appointed by the court for the purposes of chapter
4 7 600A if the person is indigent as defined in section 600A.2.
4 8 Sec. 7. Section 815.11, Code Supplement 2005, is amended to
4 9 read as follows:
4 10 815.11 APPROPRIATIONS FOR INDIGENT DEFENSE.
4 11 Costs incurred under chapter 229A, 665, 822, or 908, or
4 12 section 232.141, subsection 3, paragraph "c", or section
4 13 598.23A, 600A.6B 600A.6A, 814.9, 814.10, 814.11, 815.4, 815.7,
4 14 or 815.10 on behalf of an indigent shall be paid from funds
4 15 appropriated by the general assembly to the office of the
4 16 state public defender in the department of inspections and
4 17 appeals for those purposes. Costs incurred representing an
4 18 indigent defendant in a contempt action, or representing an
4 19 indigent juvenile in a juvenile court proceeding under chapter
4 20 600, are also payable from these funds. However, costs
4 21 incurred in any administrative proceeding or in any other
4 22 proceeding under chapter 598, 600, 600A, 633, or 915 or other
4 23 provisions of the Code or administrative rules are not payable
4 24 from these funds.
4 25 Sec. 8. Section 600A.6B, Code Supplement 2005, is
4 26 repealed.
4 27 Sec. 9. EFFECTIVE DATE AND RETROACTIVE APPLICABILITY.
4 28 This Act, being deemed of immediate importance, takes effect
4 29 upon enactment and is retroactively applicable to March 12,
4 30 2004.
4 31 EXPLANATION
4 32 This bill relates to involuntary termination of parental
4 33 rights proceedings under Code chapter 600A. Code chapters 232
4 34 and 600A both provide for termination of parental rights
4 35 proceedings. The bill changes the provisions of Code chapter
5 1 600A to make them consistent with the provisions of Code
5 2 chapter 232 relative to involuntary terminations of parental
5 3 rights. The bill provides that if a petition for involuntary
5 4 termination of parental rights is filed under Code chapter
5 5 600A, the parent identified in the petition has the right to
5 6 counsel in connection with all subsequent hearings and
5 7 proceedings. If the parent identified in the petition for
5 8 involuntary termination desires but is financially unable to
5 9 employ counsel, the bill directs the court, following a
5 10 determination that the parent is indigent, to appoint counsel
5 11 for the parent.
5 12 The bill eliminates the provisions requiring the person who
5 13 files the petition or the person on whose behalf the petition
5 14 is filed to be responsible for the payment of the fees of the
5 15 attorney appointed for the indigent parent. Instead, the bill
5 16 provides that in appointing counsel for an indigent parent,
5 17 the court is first to consider appointing an attorney under
5 18 contract with the state public defender. If an attorney under
5 19 contract with the state public defender is not available, the
5 20 court may then appoint an attorney who has agreed to provide
5 21 these services, and the appointed attorney must apply to the
5 22 state public defender for payment. The bill authorizes the
5 23 state public defender to review all the claims submitted under
5 24 the bill and provides the state public defender with the same
5 25 authority regarding the payment of these claims as with other
5 26 claims submitted.
5 27 The bill also makes conforming changes in Code chapter 13B
5 28 (public defender), chapter 602 (judicial branch relating to
5 29 state funding), and chapter 802 (indigent defense).
5 30 The bill takes effect upon enactment, and is retroactively
5 31 applicable to March 12, 2004, which is the date the Iowa
5 32 supreme court decision in In re S.A.J.B., 679 N.W.2d 645 (Iowa
5 33 2004), was filed. In that case the Iowa supreme court held,
5 34 on equal protection grounds, that if an indigent parent has
5 35 the right to counsel at public expense in involuntary
6 1 termination of parental rights proceedings under Code chapter
6 2 232, the same right should be afforded such parents in
6 3 proceedings brought under Code chapter 600A.
6 4 LSB 6222YH 81
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