Bill Text: MS HB1443 | 2025 | Regular Session | Introduced
Bill Title: Guardian ad litem; authorize to be paid a reasonable fee for services to a child.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced) 2025-01-20 - Referred To Judiciary A;Appropriations A [HB1443 Detail]
Download: Mississippi-2025-HB1443-Introduced.html
MISSISSIPPI LEGISLATURE
2025 Regular Session
To: Judiciary A; Appropriations A
By: Representative Oliver
House Bill 1443
AN ACT TO AMEND SECTION 43-21-201, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE COURT TO RAISE A CONFLICT FOR PURPOSES OF APPOINTING A GUARDIAN AD LITEM; TO AMEND SECTION 93-15-107, MISSISSIPPI CODE OF 1972, TO AUTHORIZE PAYMENT TO GUARDIANS AD LITEMS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 43-21-201, Mississippi Code of 1972, is amended as follows:
43-21-201. (1) (a) Each party shall have the right to be represented by counsel at all stages of the proceedings including, but not limited to, detention, shelter, adjudicatory and disposition hearings and parole or probation revocation proceedings.
(b) In delinquency matters the court shall appoint legal defense counsel who is not also a guardian ad litem for the same child. If the party is a child, the child shall be represented by counsel at all critical stages: detention, adjudicatory and disposition hearings; parole or probation revocation proceedings; and post-disposition matters. If indigent, the child shall have the right to have counsel appointed for him by the youth court.
(c) A child who is alleged to have been abused or neglected shall be deemed to be a party to the proceedings under this chapter. The child shall be represented by an attorney at all stages of any proceedings held pursuant to this chapter. The court shall appoint an attorney to any child who is unrepresented.
The guardian ad litem may
serve a dual role as long as no conflict of interest is present. If * * * any party or the court raises a
conflict of interest * * *, * * * the court shall make a finding as to the conflict. If * * * the youth court finds that a conflict
arises, it shall retain the guardian ad litem to represent the best
interest of the child and appoint an attorney to represent the child's
preferences as required by Uniform Rule of Youth Court Practice 13(f).
(2) (a) When a party first appears before the youth court, the judge shall ascertain whether he is represented by counsel and, if not, inform him of his rights including his right to counsel. If the court determines that a custodial parent or guardian who is a party in an abuse, neglect or termination of parental rights proceeding is indigent, the youth court judge shall appoint counsel to represent the indigent parent or guardian in the proceeding. The court may appoint counsel to represent a noncustodial parent if the court determines that the noncustodial parent is indigent and has demonstrated a significant custodial relationship with the child. All parents have the right to be appointed counsel in termination of parental rights hearings, and the court shall appoint counsel if the court makes a finding that the parent is indigent and counsel is requested by the parent. For purposes of this section, indigency shall be determined pursuant to Section 25-32-9 and Rule 7.3 of the Mississippi Rules of Criminal Procedure.
(b) (i) The court shall order a financially able parent or custodian to pay all or part of reasonable attorney's fees and expenses for court-appointed representation after review by the court of an affidavit of financial means completed and verified by a parent or custodian and a determination by the court of an ability to pay.
(ii) All monies collected by the clerk under this paragraph must be retained by the clerk and deposited into a special fund to be known as the "Juvenile Court Representation Fund."
(iii) The Administrative Office of Courts may direct that money from the fund be used in providing counsel for indigent parents or custodians at the trial level in dependency-neglect proceedings.
(iv) Upon a determination of indigency and a finding by the court that the fund does not have sufficient funds to pay reasonable attorney's fees and expenses incurred at the trial court level and that state funds have been exhausted, the court may order the county to pay the reasonable fees and expenses until the state provides funding for counsel.
(v) A special fund, to be designated as the "Juvenile Court Representation Fund", is created within the State Treasury. The fund shall be maintained by the State Treasurer as a separate and special fund, separate and apart from the General Fund of the state. Monies in the fund shall be disbursed by the Administrative Office of Courts as provided in this section. Unexpended amounts remaining in the fund at the end of a fiscal year shall not lapse into the State General Fund, and any interest earned or investment earnings on amounts in the fund shall be deposited into such fund.
(3) An attorney appointed to represent a child shall be required to complete annual juvenile justice training that is approved by the Mississippi Office of State Public Defender and the Mississippi Commission on Continuing Legal Education. An attorney appointed to represent a parent or guardian in an abuse, neglect or termination of parental rights proceeding shall be required to complete annual training that is approved by the Office of State Public Defender and the Mississippi Commission on Continuing Legal Education. The Mississippi Office of State Public Defender and the Mississippi Commission on Continuing Legal Education shall determine the amount of juvenile justice training and continuing education required to fulfill the requirements of this subsection. The State Public Defender shall maintain a roll of attorneys who have complied with the training requirements and shall enforce the provisions of this subsection. Should an attorney fail to complete the annual training requirement or fail to attend the required training within six (6) months of being appointed to a youth court case, the attorney shall be disqualified to serve, and the youth court shall immediately terminate the representation and appoint another attorney. Attorneys appointed by a youth court to five (5) or fewer cases a year are exempt from the requirements of this subsection.
(4) Attorneys for all parties, including the child's attorney, shall owe the duties of undivided loyalty, confidentiality and competent representation to the party client pursuant to the Mississippi Rules of Professional Conduct.
(5) An attorney shall enter his appearance on behalf of a party in the proceeding by filing a written notice of appearance with the youth court, by filing a pleading, notice or motion signed by counsel or by appearing in open court and advising the youth court that he is representing a party. After counsel has entered his appearance, he shall be served with copies of all subsequent pleadings, motions and notices required to be served on the party he represents. An attorney who has entered his appearance shall not be permitted to withdraw from the case until a timely appeal, if any, has been decided, except by leave of the court then exercising jurisdiction of the cause after notice of his intended withdrawal is served by him on the party he represents.
(6) Each designee appointed by a youth court judge shall be subject to the Code of Judicial Conduct and shall govern himself or herself accordingly.
(7) The Department of Child
Protection Services shall be a necessary party at all stages of the proceedings
involving a child for whom the department has custody, including, but not
limited to, * * *
shelter, adjudicatory, disposition, permanency, termination of parental rights
and adoption hearings.
(8) The Department of Child
Protection Services shall have the right to hire agency counsel to represent
the department, or to * * * be represented by counsel from the Attorney
General's Office, at all stages of the proceedings involving a child for
whom the department has custody of or may be awarded custody of, including, but
not limited to, * * *
shelter, adjudicatory disposition, permanency, termination of parental rights
and adoption hearings.
SECTION 2. Section 93-15-107, Mississippi Code of 1972, is amended as follows:
93-15-107. (1) (a) Involuntary termination of parental rights proceedings are commenced upon the filing of a petition under this chapter. The petition may be filed by any interested person, or any agency, institution or person holding custody of the child. The simultaneous filing of a petition for adoption is not a prerequisite for filing a petition under this chapter.
(b) The proceeding shall be triable, either in term time or vacation, thirty (30) days after personal service of process to any necessary party or, for a necessary party whose address is unknown after diligent search, thirty (30) days after the date of the first publication of service of process by publication that complies with the Mississippi Rules of Civil Procedure.
(c) Necessary parties to a termination of parental rights action shall include the mother of the child, the legal father of the child, the putative father of the child when known, and any agency, institution or person holding custody of the child. If the child is twelve (12) years or older at the time of the hearing, a summons must be issued and served upon the minor child, together with a copy of the petition, not less than seven (7) days before the hearing. The minor child shall be represented by counsel throughout the proceedings. The court shall appoint an attorney for any minor child who is unrepresented, so the court has the benefit of knowing the child's stated interest. If the child is fourteen (14) years or older at the time of the hearing, the child's preferences, if any, regarding the termination of parental rights shall be considered by the court. The absence of a necessary party who has been properly served does not preclude the court from conducting the hearing or rendering a final judgment.
(d) A guardian ad litem shall be appointed to protect the best interest of the child, except that the court, in its discretion, may waive this requirement when a parent executes a written voluntary release to terminate parental rights.
(i) The
guardian ad litem * * *
shall be paid a reasonable fee as determined and assessed in the
discretion of the court.
(ii) A guardian ad litem appointed for a child who is in the custody of, or under the supervision of, the Department of Child Protection Services pursuant to youth court proceedings shall be paid a reasonable fee not to exceed One Thousand Two Hundred Dollars ($1,200.00) per matter to be paid in compliance with federal funding guidelines or a specific state appropriation for such services as determined by the Department of Child Protection Services. Within a reasonable time after the conclusion of the matter, but no more than twenty-five (25) days after the termination of parental rights hearing, the guardian ad litem shall submit:
1. A detailed bill for services rendered; and
2. A certification on the record from the court that the guardian ad litem provided representation to protect the best interests of the child, that the matter has been concluded that to the best of his or her knowledge the requested fee is reasonable based on the services provided.
(e) The style of the case shall not include the child's name when the child is not the party plaintiff or petitioner.
(2) Voluntary termination of parental rights by written voluntary release is governed by Section 93-15-111.
(3) In all cases involving termination of parental rights, a minor parent shall be served with process as an adult.
(4) The court may waive service of process if an adoptive child was born in a foreign country, put up for adoption in the birth country, and has been legally admitted into this country.
(5) The clerk shall docket cases seeking relief under this chapter as priority cases. The assigned judge shall be immediately notified when a case is filed in order to provide for expedited proceedings.
(6) (a) Once the petition for termination of parental rights is filed with the court of competent jurisdiction, the court shall hold a hearing on the petition within ninety (90) calendar days of the date the petition is filed, absent extraordinary circumstances.
(b) For purposes of this subsection, the ninety-calendar-day time period will commence when perfected service is made on the parents.
(c) For purposes of this subsection, extraordinary circumstances include:
(i) The Mississippi Supreme Court orders the suspension of in-person court proceedings; or
(ii) One (1) of the following has occurred:
1. The President of the United States has declared a national emergency; or
2. The Governor has declared a state of emergency or a statewide public health emergency; or
(iii) If the best interest of the child is served and the chancellor makes specific findings of such.
SECTION 3. This act shall take effect and be in force from and after July 1, 2025.
