HF 2580 (LSB 5658HV (1) 90)

HOUSE FILE 2580

BY  COMMITTEE ON JUDICIARY

(SUCCESSOR TO HF 2209)

A BILL FOR

An Act relating to legal representation for children who are placed in, or may be placed in, foster care.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 232.89, subsection 2, Code 2024, is amended by striking the subsection and inserting in lieu thereof the following:
   2.  a.  Upon the filing of a petition, the court shall:
   (1)  Appoint counsel for a child identified in the petition as a party to the proceedings if the child is ten years of age or older.
   (2)  Appoint a guardian ad litem for a child identified in the petition as a party to the proceedings if the child is younger than ten years of age.
   b.  If counsel has previously been appointed for the child pursuant to section 232.11, 232.113, or 232.126, or a guardian ad litem has previously been appointed for the child in a proceeding under subchapter II or a proceeding in which the court has waived jurisdiction under section 232.45, the court shall appoint the same counsel or guardian ad litem upon the filing of the petition under this part.
   c.  Counsel shall be appointed for a child subject to the following:
   (1)  If the child is represented by counsel and the court determines there is a conflict of interest between the child and the child’s parent, guardian, putative father, or custodian and that the retained counsel cannot properly represent the child as a result of the conflict, the court shall appoint other counsel to represent the child and that counsel shall be compensated pursuant to section 232.141, subsection 2, paragraph “b”.
   (2)  If the child is not represented by counsel, the court shall either order the parent, guardian, or custodian to retain counsel for the child, or the court shall appoint counsel for the child, and the counsel shall be compensated pursuant to section 232.141, subsection 2, paragraph “b”.
    Sec. 2.  Section 232.89, subsection 4, Code 2024, is amended by striking the subsection and inserting in lieu thereof the following:
   4.  If a child attains ten years of age while represented by a guardian ad litem pursuant to this section, the court shall enter an order discharging the guardian ad litem and appoint counsel for the child pursuant to the provisions of this section. A court may appoint a guardian ad litem discharged pursuant to this subsection as counsel for the child if the person can properly represent the legal interests of the child.
    Sec. 3.  Section 232.89, Code 2024, is amended by adding the following new subsection:
   NEW SUBSECTION.  5.  The right to representation pursuant to this section shall continue until a child is no longer receiving foster care.
    Sec. 4.  Section 232.113, subsection 2, Code 2024, is amended by striking the subsection and inserting in lieu thereof the following:
   2.  a.  Upon the filing of a petition, the court shall:
   (1)  Appoint counsel for a child identified in the petition as a party to the proceedings if the child is ten years of age or older.
   (2)  Appoint a guardian ad litem for a child identified in the petition as a party to the proceedings if the child is younger than ten years of age.
   b.  If counsel has previously been appointed for the child pursuant to section 232.11, 232.89, or 232.126, or a guardian ad litem has previously been appointed for the child in a proceeding under subchapter II or a proceeding in which the court has waived jurisdiction under section 232.45, the court shall appoint the same counsel or guardian ad litem upon the filing of the petition under this part.
   c.  Counsel shall be appointed for a child subject to the following:
   (1)  If the child is represented by counsel and the court determines there is a conflict of interest between the child and the child’s parent, guardian, putative father, or custodian and that the retained counsel cannot properly represent the child as a result of the conflict, the court shall appoint other counsel to represent the child and that counsel shall be compensated pursuant to section 232.141, subsection 2, paragraph “b”.
   (2)  If the child is not represented by counsel, the court shall either order the parent, guardian, or custodian to retain counsel for the child, or the court shall appoint counsel for the child, and that counsel shall be compensated pursuant to section 232.141, subsection 2, paragraph “b”.
    Sec. 5.  Section 232.113, Code 2024, is amended by adding the following new subsections:
   NEW SUBSECTION.  3.  The court shall determine, after giving the parent, guardian, or custodian an opportunity to be heard, whether the person has the ability to pay in whole or in part for counsel appointed for the child. If the court determines that the person possesses sufficient financial ability, the court shall then consult with the department, the juvenile probation office, or other authorized agency or individual regarding the likelihood of impairment of the relationship between the child and the child’s parent, guardian, or custodian as a result of ordering the parent, guardian, or custodian to pay for the child’s counsel. If impairment is deemed unlikely, the court shall order that person to pay an amount the court finds appropriate in the manner and to whom the court directs. If the person fails to comply with the order without good reason, the court shall enter judgment against the person. If impairment is deemed likely or if the court determines that the parent, guardian, or custodian cannot pay any part of the expenses of counsel appointed to represent the child, counsel shall be reimbursed pursuant to section 232.141, subsection 2, paragraph “b”.
   NEW SUBSECTION.  4.  If a child attains ten years of age while represented by a guardian ad litem pursuant to this section, the court shall enter an order discharging the guardian ad litem and appoint counsel for the child pursuant to the provisions of this section. A court may appoint a guardian ad litem discharged pursuant to this subsection as counsel for the child if the person can properly represent the legal interests of the child.
   NEW SUBSECTION.  5.  The right to representation pursuant to this section shall continue until a child is no longer receiving foster care.
    Sec. 6.  Section 232.126, subsection 1, Code 2024, is amended by striking the subsection and inserting in lieu thereof the following:
   1.  a.  Upon the filing of a petition, the court shall:
   (1)  Appoint counsel for a child identified in the petition as a party to the proceedings if the child is ten years of age or older.
   (2)  Appoint a guardian ad litem for a child identified in the petition as a party to the proceedings if the child is younger than ten years of age.
   b.  If counsel has previously been appointed for the child pursuant to section 232.11, 232.89, or 232.113, or a guardian ad litem has previously been appointed for the child in a proceeding under subchapter II or a proceeding in which the court has waived jurisdiction under section 232.45, the court shall appoint the same counsel or guardian ad litem upon the filing of the petition under this part.
   c.  Counsel shall be appointed for a child subject to the following:
   (1)  If the child is represented by counsel and the court determines there is a conflict of interest between the child and the child’s parent, guardian, putative father, or custodian and that the retained counsel cannot properly represent the child as a result of the conflict, the court shall appoint other counsel to represent the child and that counsel shall be compensated pursuant to section 232.141, subsection 2, paragraph “b”.
   (2)  If the child is not represented by counsel, the court shall either order the parent, guardian, or custodian to retain counsel for the child, or the court shall appoint counsel for the child, and that counsel shall be compensated pursuant to section 232.141, subsection 2, paragraph “b”.
    Sec. 7.  Section 232.126, Code 2024, is amended by adding the following new subsections:
   NEW SUBSECTION.  3.  The court shall determine, after giving the parent, guardian, or custodian an opportunity to be heard, whether the person has the ability to pay in whole or in part for counsel appointed for the child. If the court determines that the person possesses sufficient financial ability, the court shall then consult with the department, the juvenile probation office, or other authorized agency or individual regarding the likelihood of impairment of the relationship between the child and the child’s parent, guardian, or custodian as a result of ordering the parent, guardian, or custodian to pay for the child’s counsel. If impairment is deemed unlikely, the court shall order that person to pay an amount the court finds appropriate in the manner and to whom the court directs. If the person fails to comply with the order without good reason, the court shall enter judgment against the person. If impairment is deemed likely or if the court determines that the parent, guardian, or custodian cannot pay any part of the expenses of counsel appointed to represent the child, counsel shall be reimbursed pursuant to section 232.141, subsection 2, paragraph “b”.
   NEW SUBSECTION.  4.  If a child attains ten years of age while represented by a guardian ad litem pursuant to this section, the court shall enter an order discharging the guardian ad litem and appoint counsel for the child pursuant to the provisions of this section. A court may appoint a guardian ad litem discharged pursuant to this subsection as counsel for the child if the person can properly represent the legal interests of the child.
   NEW SUBSECTION.  5.  The right to representation pursuant to this section shall continue until a child is no longer receiving foster care.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill relates to legal representation for children who are placed in, or may be placed in, foster care.
   The bill requires a court to appoint counsel for a child 10 years of age or older when the child is identified in a child in need of assistance (CINA) petition as a party to the CINA proceedings.
   The bill requires a court to appoint a guardian ad litem for a child below 10 years of age when the child is identified in a CINA petition as a party to the CINA proceedings.
   If a child identified in a CINA petition already has counsel in a juvenile delinquency matter or parental termination proceeding, or a guardian ad litem has previously been appointed for the child in a juvenile delinquency proceeding or a matter involving a public offense in which the court has waived jurisdiction, the bill requires the court to appoint the same counsel or guardian ad litem upon the filing of the CINA petition.
   The bill requires a court to appoint alternate counsel to represent a child if the child is represented by counsel and the court determines there is a conflict of interest between the child and the child’s parent, guardian, putative father, or custodian and that the retained counsel cannot properly represent the child as a result of the conflict.
   When appointing counsel for a child in a CINA proceeding, the bill requires a court to either order the parent, guardian, or custodian to retain counsel for the child, or counsel be appointed for the child.
   The bill requires a court to discharge the guardian ad litem for a child in a CINA proceeding and appoint counsel for the child upon the child attaining 10 years of age. A discharged guardian ad litem may be appointed counsel for a child if the person can properly represent the legal interests of the child.
   The bill contains similar provisions relating to the appointment of counsel or a guardian ad litem for a child in termination of parental rights proceedings and in family in need of assistance proceedings.
   The bill requires a court in a termination of parental rights proceeding or a family in need of assistance proceeding to determine whether a child’s parent, guardian, or custodian is able to compensate an attorney appointed for the child. If the court determines a parent, guardian, or custodian is able to compensate the appointed attorney, the bill requires the court to order the parent, guardian, or custodian to compensate the attorney. If the court determines a parent, guardian, or custodian cannot compensate the appointed attorney without impairment, then the bill requires the county to make reasonable compensation for the appointed attorney.