Discretionary appointment of counsel

Key_development Question_mark

Legislation, Abuse/Neglect/Dependency - Children

In abuse/neglect proceedings, the child or GAL may request appointment of counsel for the child.  With limited exceptions, Me. Rev. Stat. Ann. tit. 22, § 4005(1)(A) requires appointment of a guardian ad litem (GAL) in every “child protection proceeding” (which, according to § 4002(3), includes both abuse/neglect and termination of parental rights proceedings).   The exceptions are “a request for a preliminary protection order under section 4034 or a petition for a medical treatment order under section 4071, but including hearings on those orders ...”  And § 4005(1)(F) provides that “[t]he guardian ad litem or the child may request the court to appoint legal counsel for the child.”


Maine Indian Child Welfare Act

Also, in 2023, the Maine legislature enacted LD 1970, known as the "Maine Indian Child Welfare Act," which provides that "in any Indian child custody proceeding or emergency proceeding", "[t]he court may, in its discretion, appoint counsel for the Indian child upon a finding that such appointment is in the best interest of the Indian child." Me. Rev. Stat. Ann. tit. 22, § 3945(3).  Under the law, an "Indian child custody proceeding" is defined as follows:


[A] proceeding, other than an emergency proceeding, that may culminate in any of the following outcomes for or related to an Indian child:


A. Adoptive placement;

B. Foster care placement; 

C. Preadoptive placement; or 

D. Termination of parental rights.


An Indian child custody proceeding does not include ... a proceeding involving an award of custody to one of the Indian child's parents, including, but not limited to, a divorce proceeding, a parental rights and responsibilities proceeding, a judicial separation proceeding, a protection from abuse proceeding or other domestic relations proceeding.


Me. Rev. Stat. Ann. tit. 22, § 3943(9).  Further, an "Emergency proceeding" is defined as "a court action that involves the emergency removal or emergency placement of an Indian child, including those pursuant to section 4034 or Title 18-C, Article 5" and excludes "a court action involving an emergency award of custody of the Indian child to one of the parents including, but not limited to, an emergency parental rights and responsibilities order or a protection from abuse proceeding."

Appointment of Counsel: discretionary Qualified: no