16.1-266 - Appointment of counsel and guardian ad litem.
§ 16.1-266. Appointment of counsel and guardian ad litem.
A. Prior to the hearing by the court of any case involving a child who isalleged to be abused or neglected or who is the subject of an entrustmentagreement or a petition seeking termination of residual parental rights orwho is otherwise before the court pursuant to subdivision A 4 of § 16.1-241or § 63.2-1230, the court shall appoint a discreet and competentattorney-at-law as guardian ad litem to represent the child pursuant to §16.1-266.1.
B. Prior to the detention hearing held pursuant to § 16.1-250, the courtshall appoint a qualified and competent attorney-at-law to represent thechild unless an attorney has been retained and appears on behalf of thechild. For the purposes of appointment of counsel for the detention hearingheld pursuant to § 16.1-250 only, a child's indigence shall be presumed.Nothing in this subsection shall prohibit a judge from releasing a child fromdetention prior to appointment of counsel.
C. Subsequent to the detention hearing, if any, and prior to the adjudicatoryor transfer hearing by the court of any case involving a child who is allegedto be in need of services, in need of supervision or delinquent, such childand his parent, guardian, legal custodian or other person standing in locoparentis shall be informed by a judge, clerk or probation officer of thechild's right to counsel and of the liability of the parent, guardian, legalcustodian or other person standing in loco parentis for the costs of suchlegal services pursuant to § 16.1-267 and be given an opportunity to:
1. Obtain and employ counsel of the child's own choice; or
2. Request that the court appoint counsel, provided that before counsel isappointed or the court continues any appointment previously made pursuant tosubsection B, the court shall determine that the child is indigent within thecontemplation of the law pursuant to guidelines set forth in § 19.2-159 byrequiring the child's parent, guardian, legal custodian or other personstanding in loco parentis to complete a statement of indigence substantiallyin the form provided by § 19.2-159 and a financial statement, and upondetermination of indigence the court shall appoint an attorney from the listmaintained by the Indigent Defense Commission pursuant to § 19.2-163.01 torepresent the child; or
3. Waive the right to representation by an attorney, if the court finds thechild and the parent, guardian, legal custodian or other person standing inloco parentis of the child consent, in writing, and such waiver is consistentwith the interests of the child. Such written waiver shall be in accordancewith law and shall be filed with the court records of the case. A child whois alleged to have committed an offense that would be a felony if committedby an adult, may waive such right only after he consults with an attorney andthe court determines that his waiver is free and voluntary. The waiver shallbe in writing, signed by both the child and the child's attorney and shall befiled with the court records of the case.
D. A judge, clerk or probation officer shall inform the parent or guardian ofhis right to counsel prior to the adjudicatory hearing of a petition in whicha child is alleged to be abused or neglected or at risk of abuse or neglectas provided in subdivision A 2a of § 16.1-241 and prior to a hearing at whicha parent could be subjected to the loss of residual parental rights. Inaddition, prior to the hearing by the court of any case involving any otheradult charged with abuse or neglect of a child, this adult shall be informedof his right to counsel. This adult and the parent or guardian shall be givenan opportunity to:
1. Obtain and employ counsel of the parent's, guardian's or other adult's ownchoice; or
2. If the court determines that the parent, guardian or other adult isindigent within the contemplation of the law pursuant to the guidelines setforth in § 19.2-159, a statement substantially in the form provided by §19.2-159 and a financial statement shall be executed by such parent, guardianor other adult and the court shall appoint an attorney-at-law to representhim; or
3. Waive the right to representation by an attorney in accordance with theprovisions of § 19.2-160.
If the identity or location of a parent or guardian is not reasonablyascertainable or a parent or guardian fails to appear, the court shallconsider appointing an attorney-at-law to represent the interests of theabsent parent or guardian, and the hearing may be held.
Prior to a hearing at which a child is the subject of an initial foster careplan filed pursuant to § 16.1-281, a foster care review hearing pursuant to §16.1-282 and a permanency planning hearing pursuant to § 16.1-282.1, thecourt shall consider appointing counsel to represent the child's parent orguardian.
E. In those cases described in subsections A, B, C and D, which in thediscretion of the court require counsel or a guardian ad litem to representthe child or children or the parent or guardian or other adult party inaddition to the representation provided in those subsections, a discreet andcompetent attorney-at-law may be appointed by the court as counsel or aguardian ad litem.
F. In all other cases which in the discretion of the court require counsel ora guardian ad litem, or both, to represent the child or children or theparent or guardian, discreet and competent attorneys-at-law may be appointedby the court. However, in cases where the custody of a child or children isthe subject of controversy or requires determination and each of the parentsor other persons claiming a right to custody is represented by counsel, thecourt shall not appoint counsel or a guardian ad litem to represent theinterests of the child or children unless the court finds, at any stage inthe proceedings in a specific case, that the interests of the child orchildren are not otherwise adequately represented.
G. Any state or local agency, department, authority or institution and anyschool, hospital, physician or other health or mental health care providershall permit a guardian ad litem or counsel for the child appointed pursuantto this section to inspect and copy, without the consent of the child or hisparents, any records relating to the child whom the guardian or counselrepresents upon presentation by him of a copy of the court order appointinghim or a court order specifically allowing him such access. Upon requesttherefor by the guardian ad litem or counsel for the child made at least 72hours in advance, a mental health care provider shall make himself availableto conduct a review and interpretation of the child's treatment records whichare specifically related to the investigation. Such a request may be made inlieu of or in addition to inspection and copying of the records.
(Code 1950, §§ 16.1-173, 63.1-248.12; 1956, c. 555; 1966, c. 709; 1968, c.581; 1970, c. 87; 1973, c. 440; 1974, c. 513; 1975, cc. 341, 465, 559; 1977,c. 559; 1980, c. 572; 1982, c. 451; 1984, c. 709; 1985, c. 260; 1987, c. 632;1994, c. 36; 1997, c. 790; 2002, c. 687; 2003, c. 98; 2004, cc. 66, 437, 884,921, 1014; 2005, c. 427.)