The New Juvenile Appointment of Counsel Rule

The Indiana Supreme Court recently added Indiana Rule of Criminal Procedure Rule 25, which details certain aspects of the right to counsel in juvenile delinquency proceedings.  All of us who have advocated for early appointment of counsel in juvenile delinquency cases are grateful to those who supported this effort and shepherded the rule to get to this point.  This post is divided into three parts:  the text of the rule, the history of this rule-making process, and some detailed thoughts about some potential ambiguity in the language.

The Rule

Right to Counsel in Juvenile Delinquency Proceedings

(A) Right to Counsel. A child charged with a delinquent act is entitled to be represented by counsel in accordance with Ind. Code Section 31-32-4-1.

(B) Mandatory Appointment of Counsel in Certain Juvenile Delinquency Proceedings.

However, counsel for the child must be appointed: (1) when there is a request to waive the child to a court having criminal jurisdiction; or (2) when a parent, guardian, or custodian of the child has an interest adverse to the child; or (3) before any proceeding in which the court may impose the following: (a) wardship of the child to the Department of Correction: (b) placement of the child in a community based correctional facility for children; (c) confinement or continued confinement of the child in a juvenile detention center following the earlier of an initial or detention hearing; (d) placement or continued placement of the child in a secure private facility following the earlier of an initial or detention hearing; (e) placement or continued placement of the child in a shelter care facility following the earlier of an initial or detention hearing; or (f) placement or continued placement of the child in any other non-relative out of home placement following the earlier of an initial or detention hearing; or (4) when a child is taken into custody and detained pursuant to Ind. Code Section 31-37-4-1, 2, or 5. unless or until a valid waiver has been or is made under subsection (C) below.

(C) Waiver. Following the appointment of counsel under subsection (B), any waiver of the right to counsel shall be made in open court, on the record and confirmed in writing, and in the presence of the child’s attorney.

(D) Withdrawing Waiver. Waiver of the right to counsel may be withdrawn at any stage of a proceeding, in which event the court shall appoint counsel for the child.

(E) Effective Date. This rule shall become effective January 1, 2015.

The History

This is the culmination of a two-year process that began with the submission of a proposal (Version 1) to the Indiana Supreme Court Committee on Rules of Practice and Procedure (“Committee”), that was advanced by the Indiana State Bar Association Civil Rights of Children Committee and ultimately the Indiana State Bar Association House of Delegates, and supported by the Indiana Public Defender Council, Youth Law Team, the Children’s Law Center, and other juvenile advocates.  The goal of Version 1 was to mandate that alleged juvenile delinquents meet with an attorney prior to the first appearance in court and prior to any waiver of counsel process to ensure that the children understood what an attorney was, had some information about the court process, and had assistance in the decision about whether to waive the right to counsel and proceed with the delinquency case without an attorney.

The Committee considered Version 1 and eventually issued Version 2 for public comment.  Version 2 was a more straightforward proposal that still met the Version 1 goals of early appointment of counsel.

Version 2 was widely distributed and received support from a broad group of citizens and juvenile justice advocates in Indiana and from around the country.   Opposition to Version 2 was largely based on two arguments.  First, some advocated for continuing the old parens patraie model of juvenile justice that called for the juvenile court judge to act in the role of the parent for the delinquent child and assist the child through the process.  An attorney was not needed in most cases, and would in fact hamper the informal, rehabilitative process.  Second, in counties that do not appoint public defenders in all juvenile delinquency cases currently, some were concerned about the incremental cost of implementing a rule that would require that every alleged delinquent have an attorney.  The comments submitted in opposition and support of Version 2 were not made public record.

The final rule most closely matches Version 3, which was proposed by the juvenile court judges through the Indiana Judicial Center and not distributed for public comment.

Questions about the language in new rule:

Parts of the new rule are a bit confusing, even when analyzed by juvenile justice attorneys.  The new Indiana Rule of Criminal Procedure Rule 25 states (in bold):

“(A)  Right to Counsel.  A child charged with a delinquent act is entitled to be represented by counsel in accordance with Ind. Code Section 31-32-4-1.”

  • To be clear, some aspects of the right to counsel have existed for years in juvenile court.  Every child has a statutory right to an attorney in every juvenile delinquency case, pursuant to I.C. 31-32-4-1, and has since at least 1997.  And, if the child is alleged to be a delinquent child and does not have an attorney and has not waived the right to an attorney, the juvenile court has been required to “appoint counsel for the child at the detention hearing or at the initial hearing, whichever occurs first, or at any earlier time” since at least 1997.  I.C. 31-32-4-2.  The goal of Version 1 and Version 2 was to mandate that the appointment of counsel occur before the detention hearing or initial hearing, which was allowed by I.C. 31-32-4-2, but not required.

“(B)  Mandatory Appointment of Counsel in Certain Juvenile Proceedings.  However, counsel for the child must be appointed:  (1)  when there is a request to waive the child to a court having criminal court jurisdiction.”

  • This section of the rule can be read to require that counsel be appointed when the prosecutor has filed a motion to waive jurisdiction (which requests that the court transfer the juvenile’s case to a court having criminal jurisdiction) and the child has not yet appeared in court for a detention hearing or initial hearing.  As previously stated, an existing statute already required appointment of counsel at the detention hearing or initial hearing.  I.C. 31-32-4-2.  Pursuant to an existing statute (I.C. 31-32-5-1) and the new rule, the child may still waive the right to counsel when facing possible transfer to criminal court if a specified procedure is followed.

(2) [counsel must be appointed] when a parent, guardian or custodian of the child has an interest adverse to the child; or

  • This section relates to the current process required for any waiver of a constitutional right as stated at I.C. 31-32-5-1, which has been the law since at least 1997.  A parent, guardian, or custodian cannot participate in the waiver of rights process if he or she has an adverse interest, which usually means that the parent, guardian, or custodian is also the alleged victim in the case.  Whenever this situation has occurred, the juvenile court would be required to appoint an attorney pursuant to I.C. 31-32-4-2 and the child was required to consult with the attorney prior to any waiver of the right to counsel, unless the child was emancipated.
  • This section does not specify appointment of counsel before the detention hearing or initial hearing.  Therefore, some could read the rule to allow a scenario during which the child would appear at the first hearing without appointed counsel.

(3) [counsel must be appointed]  before any proceeding in which the court may impose the following:  (a) wardship of the child to the Department of Correction; (b) placement of the child in a community based correctional facility for children; (c) confinement or continued confinement of the child in a juvenile detention center following the earlier of an initial or detention hearing; (d) placement or continued placement of the child in a secure private facility following the earlier of an initial or detention hearing; (e) placement or continued placement of the child in a shelter care facility following the earlier of an initial or detention hearing; or (f) placement or continued placement of the child in any other non-relative out of home placement following the earlier of an initial or detention hearing;

  • The term “proceeding” is not defined.   Assume that a child was not appointed counsel under this rule because of a proper waiver of the right to counsel and went through the disposition hearing without an attorney.  If the child violates the terms of the disposition order and may face removal from the community to any of the facilities specified in Section (B)(3), and the review or modification hearings are further proceedings in the cause, does the rule require appointment of counsel before the child may be placed in a facility?
  • Portions of this section of the rule require appointment of counsel “following the earlier initial or detention hearing.”  Some could read section (B)(4) to require appointment of counsel before every detention hearing.  If so, there would rarely be a  scenario that would require appointment of counsel following a detention hearing, unless perhaps the child previously waived the right to counsel and is now requesting an attorney.
  • In every juvenile delinquency case, the court may impose any of the six listed disposition options, except children who are accused of status offenses and are not under written warnings of consequences of future delinquent behavior.  Therefore, the rule could be read to mandate appointment of counsel for all children before the earliest hearing, except the few children who have allegedly committed status offenses.  The meat of the case is at the admission or factfinding hearing phase.  When counsel is appointed, the State’s case must be fully investigated prior to a decision by the child of whether to admit or deny the allegations.  One could therefore infer that the rule is not intended to allow a scenario during which the child would be expected to go through that critical phase without an attorney and without assistance investigating the State’s case.  However, some could read the rule to merely require that an attorney be appointed for the disposition hearing, if a probation officer or some other participant anticipates that the child will be removed from the community.

(4) [counsel must be appointed] when a child is taken into custody and detained pursuant to Ind. Code 31-37-4-1, 2, or 5,

  • Counsel must be appointed when a child is taken into custody and detained because of a court order (IC 31-37-4-1), or when a child is taken into custody by a law enforcement officer “acting with probable cause to believe that the child has committed a delinquent act.” (IC 31-37-4-2).  In reading this portion of the rule (section (B)(4)), some may read the rule to require that every child who is detained must be appointed counsel prior to the detention hearing.  Others may read the rule to require that appointment of counsel at the detention hearing, which would result in the detention hearing being held without the presence of a public defender in some counties.
  • In section (B)(4), there is a reference to IC 31-37-4-5, which is not a statute listed on Westlaw or in the State of Indiana General Assembly’s website.  IC 31-37-4-4 is the last section of chapter 4.
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