Delaware grants right to counsel for children in termination cases

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09/22/2016, Legislation, Termination of Parental Rights (State) - Children

13 Del. C. § 2504(f) used to require the court to appoint either an attorney or a court-appointed special advocate (CASA) for termination cases.   However, in 2016, the legislature amended 13 Del. C. § 2504(f) to state, “When a petition is filed under this chapter, the Court shall appoint an attorney authorized to practice law in this State to represent the child.  When appointing an attorney, the Court may also appoint a Court Appointed Special Advocate volunteer to work in conjunction with the attorney.  The rights, responsibilities and duties in representing the child are set forth in § 9007A of Title 29.  For the purposes of the Child Abuse Prevention and Treatment Act [42 U.S.C. Section 5106a, et seq.], the attorney for the child and the Court Appointed Special Advocate volunteer, if one is appointed, shall fulfill the role of guardian ad litem for the child.”  

 

In turn, Del. Code Ann. tit. 29 § 9007A specifies that the attorney fulfills the role of guardian ad litem, but 9007A(c)(14) adds that “If the attorney concludes that the child's wishes conflict with his or her position or the position of the Court Appointed Special Advocate volunteer, if one is appointed, he or she will make the child’s wishes known to the Court, and notify the Court of the conflict so the Court can determine if a conflict exists.  If the Court determines a conflict exists, the Court shall determine how to remedy the conflict such that the child’s best interests and wishes are represented.”

Appointment of Counsel: categorical Qualified: no