THE SENATE	S.B. NO.	1061
TWENTY-NINTH LEGISLATURE, 2017
STATE OF HAWAII

A BILL FOR AN ACT

 

 

relating to the child protective act.

 

 

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

 

     SECTION 1.  The legislature finds that the Hawaii supreme court held in In the Interest of T.M., 131 Hawaii 419 (2014), that indigent parents are guaranteed the right to court-appointed counsel in termination of parental rights proceedings under the due process clause of the Hawaii State Constitution.  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, and without an advocate to represent her in negotiations with the department of human services.  Hence, the court held that the appointment of an attorney is crucial to ensure that parents are provided a fair procedure under the Child Protective Act under chapter 587A, Hawaii Revised Statutes.

     Existing law authorizes the family court to determine whether to appoint an attorney to represent a legal parent who is indigent based on court-established guidelines.  However, the Hawaii supreme court opined that this case-by-case approach for court-appointed attorneys under section 587A-17, Hawaii Revised Statutes, fails to protect an indigent parent's liberty interest in the care, custody, and control of the parent's children and the vagaries of this case-by-case approach would be removed by mandating the appointment of counsel for indigent parents.

     The purpose of this Act is to ensure the due process rights of indigent parents by requiring the court to appoint counsel to indigent parents and to make every effort to do so at the first hearing attended by the parent or parents.

     SECTION 2.  Section 587A-17, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  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 parent knowingly and voluntarily waives the right to appointed counsel on the record.  The court shall make every effort to provide counsel at the first hearing attended by the parent.  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.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 4.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 5.  This Act shall take effect upon its approval.

 

INTRODUCED BY:	_____________________________

 

 

Report Title:

Child Protective Act; Family Court; Court-appointed Attorneys; Indigent Parents

 

Description:

Requires the court to appoint counsel to indigent parents and to make every effort to do so at the first hearing attended by the parent.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.