Right to counsel

Key_development Question_mark

Legislation, Termination of Parental Rights (Private) - Children

While Ariz. Stat. § 8-221(B) speaks of appointing counsel for the juvenile “if indigent and entitled to counsel”, § 8-221(A) states, “In all proceedings involving . . . dependency or termination of parental rights that are conducted pursuant to this title and that may result in detention, a juvenile has the right to be represented by counsel” (emphasis added).  

 

However, an examination of the legislative history reveals that this “detention” limitation was very likely not intended to apply to child welfare proceedings.  Prior to 1997, § 8-221(A) read, “In all proceedings conducted pursuant to this title and the rules of procedure for the juvenile court, a juvenile has the right to be represented by counsel.”  In 1997, the legislature amended the statute to read, “In all proceedings involving offenses that are conducted pursuant to this title and that may result in detention, a juvenile has the right to be represented by counsel.”  The “result in detention” language was added at a time where there was no reference to dependency or termination of parental rights cases, and was apparently intended to screen out some incorrigibility proceedings where incarceration is not an option.  Haas v. Colosi, 202 Ariz. 56, 40 P.3d 1249, 1252 (Ariz. App. 2002).  Finally, in 1998, the legislature amended the statute to its current form: “In all proceedings involving offenses, dependency or termination of parental rights that are conducted pursuant to this title and that may result in detention, a juvenile has the right to be represented by counsel.”  This history suggests the legislature did not consider the “detention” limitation already existing when adding the reference to child welfare cases.  Supporting this interpretation is the fact that a dependency or termination of parental rights case will never result in detention for the juvenile, so applying this “detention” limitation would render the amendment a nullity. 

 

Additionally, given that the Adoption Code is within Title 8, the right to counsel in § 8-221(B) should apply to adoption proceedings.

Appointment of Counsel: categorical Qualified: yes