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2002 SESSION
Be it enacted by the General Assembly of Virginia:
1. That § 16.1-266 of the Code of Virginia is amended and reenacted as follows:
§ 16.1-266. Appointment of counsel.
A. Prior to the hearing by the court of any case involving a child who is
alleged to be abused or neglected or who is the subject of an entrustment
agreement or a petition terminating seeking termination of residual parental
rights or who is otherwise before the court pursuant to subdivision A 4 of §
16.1-241 or § 63.1-219.37, the court shall appoint a discreet and competent
attorney-at-law as guardian ad litem to represent the child pursuant to §
16.1-266.1.
B. Prior to the detention review hearing or the adjudicatory or transfer
hearing by the court of any case involving a child who is alleged to be in need
of services, in need of supervision or delinquent, such child and his or her
parent, guardian, legal custodian or other person standing in loco parentis shall be
informed by a judge, clerk or probation officer of the child's right to counsel
and of the liability of the parent, guardian, legal custodian or other person
standing in loco parentis for the costs of such legal 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. If the court determines that the child is indigent within the contemplation
of the law pursuant to the guidelines set forth in § 19.2-159 and his or her
parent, guardian, legal custodian or other person standing in loco
parentis does not retain an attorney for the child, a statement of indigence
substantially in the form provided by § 19.2-159 and a financial statement
shall be executed by such child, and the court shall appoint an attorney-at-law to
represent him; or
3. Waive the right to representation by an attorney, if the court finds the child and the parent, guardian, legal custodian or other person standing in loco parentis of the child consent, in writing, to such waiver and that the interests of the child and the parent, guardian, legal custodian or other person standing in loco parentis in the proceeding are not adverse. Such written waiver shall be in accordance with law and shall be filed with the court records of the case.
C. Prior to the hearing by the court of any case involving a parent, guardian
or other adult charged with abuse or neglect of a child or a parent or guardian who
could be subjected to the loss of residual parental rights and responsibilities,
such parent, guardian or other adult shall be informed by a A judge, clerk or
probation officer shall inform the parent or guardian of his right to counsel
and prior to the adjudicatory hearing of a petition in which a child is
alleged to be abused or neglected or at risk of abuse or neglect as provided in
subdivision A 2a of § 16.1-241 and prior to a hearing at which a parent could
be subjected to the loss of residual parental rights. In addition, prior to the
hearing by the court of any case involving any other adult charged with abuse or
neglect of a child, this adult shall be informed of his right to counsel. This
adult and the parent or guardian shall be given an opportunity to:
1. Obtain and employ counsel of the parent's, guardian's or other adult's own choice; or
2. If the court determines that the parent, guardian or other adult is indigent within the contemplation of the law pursuant to the guidelines set forth 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, guardian or other adult and the court shall appoint an attorney-at-law to represent him; or
3. Waive the right to representation by an attorney in accordance with the provisions of § 19.2-160.
If the identity or location of a parent or guardian is not reasonably ascertainable or a parent or guardian fails to appear, the court shall consider appointing an attorney-at-law to represent the interests of the absent parent or guardian, and the hearing may be held.
Prior to a hearing at which a child is the subject of an initial foster care plan 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, the court shall consider appointing counsel to represent the child’s parent or guardian.
D. In all other cases which in the discretion of the court require counsel or a guardian ad litem to represent the interests of the child or children or the parent or guardian, a discreet and competent attorney-at-law may be appointed by the court. However, in cases where the custody of a child or children is the subject of controversy or requires determination and each of the parents or other persons claiming a right to custody is represented by counsel, the court shall not appoint counsel or a guardian ad litem to represent the interests of the child or children unless the court finds, at any stage in the proceedings in a specific case, that the interests of the child or children are not otherwise adequately represented.
E. Any state or local agency, department, authority or institution and any school, hospital, physician or other health or mental health care provider shall permit a guardian ad litem appointed pursuant to this section to inspect and copy, without the consent of the child or his parents, any records relating to the child whom the guardian represents upon presentation by him of a copy of the court order appointing him or a court order specifically allowing him such access. Upon request therefor by the guardian ad litem made at least seventy-two hours in advance, a mental health care provider shall make himself available to conduct a review and interpretation of the child's treatment records which are specifically related to the investigation. Such a request may be made in lieu of or in addition to inspection and copying of the records.