Indiana 2023 Regular Session

Indiana Senate Bill SB0485 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1
2	2	Introduced Version
3	3	SENATE BILL No. 485
4	4	_____
5	5	DIGEST OF INTRODUCED BILL
6	6	Citations Affected: IC 31-32; IC 31-34-10-3.5; IC 31-35-2-4;
7	7	IC 33-40-9.
8	8	Synopsis: Office of the child representative. Requires a child's
9	9	attorney to request an independent guardian ad litem or court appointed
10	10	special advocate under certain circumstances. Provides that the
11	11	following are entitled to representation by counsel: (1) A child in a
12	12	proceeding to terminate the parent-child relationship. (2) A child who
13	13	is, or is going to be, in an out-of-home placement with a child services
14	14	provider. (3) A child who is at least 12 years of age in a child in need
15	15	of services case. Allows a child at least 12 years of age to waive the
16	16	right to counsel only after an initial meeting with the appointed
17	17	attorney, in open court, on the record and confirmed in writing, and in
18	18	the presence of the appointed attorney. Establishes the office of the
19	19	child representative, which consists of both a council directed by a
20	20	board of directors and a commission. Provides procedures and duties
21	21	for the council and the commission. Creates the child representative
22	22	fund. Makes an appropriation.
23	23	Effective: July 1, 2023.
24	24	Ford Jon
25	25	January 19, 2023, read first time and referred to Committee on Family and Children
26	26	Services.
27	27	2023 IN 485—LS 6375/DI 148 Introduced
28	28	First Regular Session of the 123rd General Assembly (2023)
29	29	PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
30	30	Constitution) is being amended, the text of the existing provision will appear in this style type,
31	31	additions will appear in this style type, and deletions will appear in this style type.
32	32	Additions: Whenever a new statutory provision is being enacted (or a new constitutional
33	33	provision adopted), the text of the new provision will appear in this style type. Also, the
34	34	word NEW will appear in that style type in the introductory clause of each SECTION that adds
35	35	a new provision to the Indiana Code or the Indiana Constitution.
36	36	Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts
37	37	between statutes enacted by the 2022 Regular Session of the General Assembly.
38	38	SENATE BILL No. 485
39	39	A BILL FOR AN ACT to amend the Indiana Code concerning
40	40	family law and juvenile law and to make an appropriation.
41	41	Be it enacted by the General Assembly of the State of Indiana:
42	42	1 SECTION 1. IC 31-32-3-3 IS AMENDED TO READ AS
43	43	2 FOLLOWS [EFFECTIVE JULY 1, 2023]: Sec. 3. (a) A guardian ad
44	44	3 litem or court appointed special advocate need not be an attorney, but
45	45	4 the attorney representing the child may be appointed the child's
46	46	5 guardian ad litem or court appointed special advocate.
47	47	6 (b) A child's attorney shall request that the court appoint an
48	48	7 independent guardian ad litem or court appointed special advocate
49	49	8 if the child's attorney:
50	50	9 (1) is also serving as the child's guardian ad litem or court
51	51	10 appointed special advocate; and
52	52	11 (2) determines the child's expressed interest differs from the
53	53	12 interests being advocated for as the child's guardian ad litem
54	54	13 or court appointed special advocate.
55	55	14 SECTION 2. IC 31-32-4-1 IS AMENDED TO READ AS
56	56	15 FOLLOWS [EFFECTIVE JULY 1, 2023]: Sec. 1. (a) The following
57	57	16 persons are entitled to be represented by counsel:
58	58	17 (1) A child charged with a delinquent act, as provided by
59	59	2023 IN 485—LS 6375/DI 148 2
60	60	1 IC 31-32-2-2.
61	61	2 (2) A parent, in a proceeding to terminate the parent-child
62	62	3 relationship, as provided by IC 31-32-2-5.
63	63	4 (3) A child in a proceeding to terminate the parent-child
64	64	5 relationship.
65	65	6 (4) A child who is, or is going to be, in an out-of-home
66	66	7 placement with a child services provider (as defined in
67	67	8 IC 31-27-7-2).
68	68	9 (5) A child at least twelve (12) years of age in a child in need
69	69	10 of services case.
70	70	11 (6) Any other person designated by law.
71	71	12 (b) If a child in a child in need of services case turns twelve (12)
72	72	13 years of age while the case is still ongoing, the child is entitled to be
73	73	14 represented by counsel at the time the child turns twelve (12) years
74	74	15 of age.
75	75	16 SECTION 3. IC 31-32-4-2 IS AMENDED TO READ AS
76	76	17 FOLLOWS [EFFECTIVE JULY 1, 2023]: Sec. 2. (a) If:
77	77	18 (1) a child alleged to be a delinquent child does not have an
78	78	19 attorney who may represent the child without a conflict of
79	79	20 interest; and
80	80	21 (2) the child has not lawfully waived the child's right to counsel
81	81	22 under IC 31-32-5 (or IC 31-6-7-3 before its repeal);
82	82	23 the juvenile court shall appoint counsel for the child at the detention
83	83	24 hearing or at the initial hearing, whichever occurs first, or at any earlier
84	84	25 time.
85	85	26 (b) The court shall appoint counsel for a child at the detention
86	86	27 hearing or at the initial hearing, whichever occurs first, or at any
87	87	28 earlier time if the child:
88	88	29 (1) is entitled to representation under section 1(a)(3) through
89	89	30 1(a)(5) of this chapter; and
90	90	31 (2) has not lawfully waived the child's right to counsel under
91	91	32 IC 31-32-5.
92	92	33 (b) (c) The court may appoint counsel to represent any child in any
93	93	34 other proceeding.
94	94	35 SECTION 4. IC 31-32-5-1 IS AMENDED TO READ AS
95	95	36 FOLLOWS [EFFECTIVE JULY 1, 2023]: Sec. 1. (a) Subject to
96	96	37 subsections (b) and (c), any rights guaranteed to a child under the
97	97	38 Constitution of the United States, the Constitution of the State of
98	98	39 Indiana, or any other law may be waived only:
99	99	40 (1) by counsel retained or appointed to represent the child if the
100	100	41 child knowingly and voluntarily joins with the waiver;
101	101	42 (2) by the child's custodial parent, guardian, custodian, or
102	102	2023 IN 485—LS 6375/DI 148 3
103	103	1 guardian ad litem if:
104	104	2 (A) that person knowingly and voluntarily waives the right;
105	105	3 (B) that person has no interest adverse to the child;
106	106	4 (C) meaningful consultation has occurred between that person
107	107	5 and the child; and
108	108	6 (D) the child knowingly and voluntarily joins with the waiver;
109	109	7 or
110	110	8 (3) by the child, without the presence of a custodial parent,
111	111	9 guardian, or guardian ad litem, if:
112	112	10 (A) the child knowingly and voluntarily consents to the
113	113	11 waiver; and
114	114	12 (B) the child has been emancipated under IC 31-34-20-6 or
115	115	13 IC 31-37-19-27, by virtue of having married, or in accordance
116	116	14 with the laws of another state or jurisdiction.
117	117	15 (b) Following the appointment of counsel and an initial meeting
118	118	16 between the child and the child's attorney:
119	119	17 (1) if the child is at least twelve (12) years of age, the child
120	120	18 may waive the right to counsel:
121	121	19 (A) in open court;
122	122	20 (B) on the record and confirmed in writing; and
123	123	21 (C) in the presence of the child's attorney; or
124	124	22 (2) if the child is less than twelve (12) years of age, the child
125	125	23 may not waive the right to counsel.
126	126	24 (c) A child may withdraw the child's waiver under this section
127	127	25 at any time in a proceeding, and the court shall appoint counsel for
128	128	26 the child before the proceeding may resume.
129	129	27 SECTION 5. IC 31-32-5-2 IS AMENDED TO READ AS
130	130	28 FOLLOWS [EFFECTIVE JULY 1, 2023]: Sec. 2. The child may waive
131	131	29 the child's right to meaningful consultation under section 1(2)(C)
132	132	30 1(a)(2)(C) of this chapter if:
133	133	31 (1) the child is informed of that right;
134	134	32 (2) the child's waiver is made in the presence of the child's
135	135	33 custodial parent, guardian, custodian, guardian ad litem, or
136	136	34 attorney; and
137	137	35 (3) the waiver is made knowingly and voluntarily.
138	138	36 SECTION 6. IC 31-34-10-3.5 IS ADDED TO THE INDIANA
139	139	37 CODE AS A NEW SECTION TO READ AS FOLLOWS
140	140	38 [EFFECTIVE JULY 1, 2023]: Sec. 3.5. (a) Before complying with the
141	141	39 other requirements of this chapter, the court shall determine
142	142	40 whether:
143	143	41 (1) the child is entitled to counsel under IC 31-32-4-1; and
144	144	42 (2) counsel has been:
145	145	2023 IN 485—LS 6375/DI 148 4
146	146	1 (A) waived under IC 31-32-5; or
147	147	2 (B) previously obtained.
148	148	3 (b) The finding of whether the child is entitled to counsel must
149	149	4 be made on the record at every hearing, including the initial
150	150	5 hearing.
151	151	6 (c) If the child is entitled to counsel and counsel has not been
152	152	7 waived or previously obtained, the juvenile court shall appoint
153	153	8 counsel.
154	154	9 SECTION 7. IC 31-35-2-4, AS AMENDED BY P.L.258-2019,
155	155	10 SECTION 3, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
156	156	11 JULY 1, 2023]: Sec. 4. (a) A petition to terminate the parent-child
157	157	12 relationship involving a delinquent child or a child in need of services
158	158	13 may be signed and filed with the juvenile or probate court by any of the
159	159	14 following:
160	160	15 (1) The attorney for the department.
161	161	16 (2) The child's court appointed special advocate or guardian ad
162	162	17 litem.
163	163	18 (3) The child's guardian ad litem. The child's attorney on behalf
164	164	19 of the child.
165	165	20 (b) The petition must meet the following requirements:
166	166	21 (1) The petition must be entitled "In the Matter of the Termination
167	167	22 of the Parent-Child Relationship of ___________, a child, and
168	168	23 ____________, the child's parent (or parents)".
169	169	24 (2) The petition must allege the following:
170	170	25 (A) That one (1) of the following is true:
171	171	26 (i) The child has been removed from the parent for at least
172	172	27 six (6) months under a dispositional decree.
173	173	28 (ii) A court has entered a finding under IC 31-34-21-5.6 that
174	174	29 reasonable efforts for family preservation or reunification
175	175	30 are not required, including a description of the court's
176	176	31 finding, the date of the finding, and the manner in which the
177	177	32 finding was made.
178	178	33 (iii) The child has been removed from the parent and has
179	179	34 been under the supervision of a local office or probation
180	180	35 department for at least fifteen (15) months of the most recent
181	181	36 twenty-two (22) months, beginning with the date the child
182	182	37 is removed from the home as a result of the child being
183	183	38 alleged to be a child in need of services or a delinquent
184	184	39 child.
185	185	40 (B) That one (1) of the following is true:
186	186	41 (i) There is a reasonable probability that the conditions that
187	187	42 resulted in the child's removal or the reasons for placement
188	188	2023 IN 485—LS 6375/DI 148 5
189	189	1 outside the home of the parents will not be remedied.
190	190	2 (ii) There is a reasonable probability that the continuation of
191	191	3 the parent-child relationship poses a threat to the well-being
192	192	4 of the child.
193	193	5 (iii) The child has, on two (2) separate occasions, been
194	194	6 adjudicated a child in need of services.
195	195	7 (C) That termination is in the best interests of the child. and
196	196	8 (D) That there is a satisfactory plan for the care and treatment
197	197	9 of the child.
198	198	10 (3) If the department intends to file a motion to dismiss under
199	199	11 section 4.5 of this chapter, the petition must indicate whether at
200	200	12 least one (1) of the factors listed in section 4.5(d)(1) through
201	201	13 4.5(d)(4) of this chapter applies and specify each factor that
202	202	14 would apply as the basis for filing a motion to dismiss the
203	203	15 petition.
204	204	16 (c) At the time the petitioner files the verified petition described in
205	205	17 subsection (b) with the juvenile or probate court, the petitioner shall
206	206	18 also file a:
207	207	19 (1) copy of the order approving the permanency plan under
208	208	20 IC 31-34-21-7 for the child; or
209	209	21 (2) permanency plan for the child as described by
210	210	22 IC 31-34-21-7.5.
211	211	23 SECTION 8. IC 33-40-9 IS ADDED TO THE INDIANA CODE AS
212	212	24 A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY
213	213	25 1, 2023]:
214	214	26 Chapter 9. Office of the Child Representative
215	215	27 Sec. 1. As used in this chapter, "office" refers to the office of the
216	216	28 child representative established by section 2 of this chapter.
217	217	29 Sec. 2. The office of the child representative is established and
218	218	30 consists of a commission, a council, and the employees necessary to
219	219	31 carry out the duties of the office.
220	220	32 Sec. 3. (a) The commission for the office of the child
221	221	33 representative is established.
222	222	34 (b) The commission consists of the following eleven (11)
223	223	35 members:
224	224	36 (1) Three (3) members appointed by the governor, with not
225	225	37 more than two (2) of the appointees belonging to the same
226	226	38 political party.
227	227	39 (2) Three (3) members appointed by the chief justice of the
228	228	40 supreme court, with not more than two (2) appointees
229	229	41 belonging to the same political party.
230	230	42 (3) One (1) member appointed by the board of trustees of the
231	231	2023 IN 485—LS 6375/DI 148 6
232	232	1 Indiana criminal justice institute, who is an attorney admitted
233	233	2 to the practice of law in Indiana.
234	234	3 (4) Two (2) members of the house of representatives, to be
235	235	4 appointed by the speaker of the house of representatives. The
236	236	5 members appointed under this subdivision may not be from
237	237	6 the same political party.
238	238	7 (5) Two (2) members of the senate, to be appointed by the
239	239	8 president pro tempore. The members appointed under this
240	240	9 subdivision may not be from the same political party.
241	241	10 Sec. 4. (a) The members of the commission shall designate one
242	242	11 (1) member of the commission as chairperson.
243	243	12 (b) The term of office for a member of the commission is four
244	244	13 (4) years. A vacancy occurring among the members of the
245	245	14 commission before the expiration of a term must be filled in the
246	246	15 same manner as the original appointment. An appointment to fill
247	247	16 a vacancy occurring before the expiration of a term is for the
248	248	17 remainder of the unexpired term.
249	249	18 (c) A member of the commission who is a state employee is
250	250	19 entitled to reimbursement for traveling expenses and other
251	251	20 expenses actually incurred in connection with the member's duties,
252	252	21 as provided in the state travel policies and procedures established
253	253	22 by the Indiana department of administration and approved by the
254	254	23 budget agency.
255	255	24 (d) A member of the commission who is not a state employee is
256	256	25 entitled to:
257	257	26 (1) the minimum salary per diem provided by
258	258	27 IC 4-10-11-2.1(b); and
259	259	28 (2) reimbursement for traveling expenses and other expenses
260	260	29 actually incurred in connection with the member's duties, as
261	261	30 provided in the state travel policies and procedures
262	262	31 established by the Indiana department of administration and
263	263	32 approved by the budget agency.
264	264	33 (e) The commission shall meet at least quarterly and at times
265	265	34 called by the chairperson or at the request of three (3) commission
266	266	35 members.
267	267	36 Sec. 5. The commission shall do the following:
268	268	37 (1) Make recommendations for standards for the
269	269	38 representation of children in the child welfare system,
270	270	39 including the following:
271	271	40 (A) Selection and qualifications of attorneys to represent
272	272	41 youth in the child welfare system.
273	273	42 (B) Minimum duties and responsibilities of counsel for
274	274	2023 IN 485—LS 6375/DI 148 7
275	275	1 youth in representing children involved in judicial
276	276	2 proceedings.
277	277	3 (C) Determination of conflicts of interest.
278	278	4 (D) Investigative, clerical, and other support services
279	279	5 necessary to provide adequate legal representation for
280	280	6 youth.
281	281	7 (E) Determination of appropriate minimum and maximum
282	282	8 caseloads for persons serving as counsel for youth.
283	283	9 (2) Recommend fair compensation rates for salaried,
284	284	10 contractual, and assigned counsel for youth.
285	285	11 (3) Make recommendations concerning the funding and
286	286	12 delivery of services by attorneys serving as legal
287	287	13 representatives of children.
288	288	14 (4) Make an annual report to the governor, the general
289	289	15 assembly, and the supreme court on the operation of the
290	290	16 office. A report made to the general assembly must be in an
291	291	17 electronic format under IC 5-14-6.
292	292	18 Sec. 6. (a) The council for the office of the child representative
293	293	19 is established and consists of all:
294	294	20 (1) public defenders;
295	295	21 (2) contractual pauper counsel; and
296	296	22 (3) other attorneys regularly appointed to represent indigent
297	297	23 defendants.
298	298	24 (b) The council shall represent an individual who is:
299	299	25 (1) a child or older youth party in a child in need of services
300	300	26 case;
301	301	27 (2) a child or older youth party in a termination of parental
302	302	28 rights proceeding; or
303	303	29 (3) an older youth in a collaborative care case.
304	304	30 Sec. 7. (a) The activities of the council shall be directed by an
305	305	31 eleven (11) member board of directors, ten (10) of whom must be
306	306	32 elected by the entire membership of the council, and the state
307	307	33 public defender.
308	308	34 (b) The members of the board of directors shall designate one
309	309	35 (1) member of the board as chairperson.
310	310	36 (c) The term for a member of the board of directors is four (4)
311	311	37 years. A vacancy occurring among the members before the
312	312	38 expiration of a term must be filled in the same manner as the
313	313	39 original election. An election to fill a vacancy occurring before the
314	314	40 expiration of a term is for the remainder of the unexpired term.
315	315	41 (d) A member of the board of directors who is a state employee
316	316	42 is entitled to reimbursement for traveling expenses and other
317	317	2023 IN 485—LS 6375/DI 148 8
318	318	1 expenses actually incurred in connection with the member's duties,
319	319	2 as provided in the state travel policies and procedures established
320	320	3 by the Indiana department of administration and approved by the
321	321	4 budget agency.
322	322	5 (e) A member of the board of directors who is not a state
323	323	6 employee is entitled to:
324	324	7 (1) the minimum salary per diem provided by
325	325	8 IC 4-10-11-2.1(b); and
326	326	9 (2) reimbursement for traveling expenses and other expenses
327	327	10 actually incurred in connection with the member's duties, as
328	328	11 provided in the state travel policies and procedures
329	329	12 established by the Indiana department of administration and
330	330	13 approved by the budget agency.
331	331	14 (f) The board of directors shall meet at least quarterly and at
332	332	15 times called by the chairperson or at the request of at least three
333	333	16 (3) members of the board.
334	334	17 Sec. 8. (a) The board of directors shall:
335	335	18 (1) appoint an office director; and
336	336	19 (2) fix an annual salary for the office director.
337	337	20 (b) The office director serves at the pleasure of the board and
338	338	21 must be:
339	339	22 (1) a resident of Indiana; and
340	340	23 (2) a practicing attorney in Indiana.
341	341	24 Sec. 9. The office director shall do the following:
342	342	25 (1) Create a statewide office, as well as regional offices under
343	343	26 subdivision (6), to discharge the office director's duties.
344	344	27 (2) Employ staff attorneys and clerical staff to assist the office
345	345	28 director in running the statewide office.
346	346	29 (3) Appoint or employ regional directors to:
347	347	30 (A) oversee regional offices throughout Indiana; and
348	348	31 (B) oversee the employment of attorneys at regional
349	349	32 offices.
350	350	33 (4) Create standards for the representation of children in the
351	351	34 child welfare system, including the following:
352	352	35 (A) Selection and qualifications of attorneys to represent
353	353	36 youth in the child welfare system.
354	354	37 (B) Minimum duties and responsibilities of counsel for
355	355	38 youth in representing children involved in judicial
356	356	39 proceedings.
357	357	40 (C) Determination of conflicts of interest.
358	358	41 (D) Investigative, clerical, and other support services
359	359	42 necessary to provide adequate legal representation for
360	360	2023 IN 485—LS 6375/DI 148 9
361	361	1 youth.
362	362	2 (E) Determination of appropriate minimum and maximum
363	363	3 caseloads for persons serving as counsel for youth.
364	364	4 (5) Ensure fair compensation rates for salaried, contractual,
365	365	5 and assigned counsel for youth.
366	366	6 (6) Establish the creation and operation of regional offices
367	367	7 with local directors.
368	368	8 (7) Make recommendations concerning the funding and
369	369	9 delivery of services by attorneys serving as legal
370	370	10 representatives of children.
371	371	11 (8) Adopt and use a seal that contains the words "Office of the
372	372	12 Child Representative, State of Indiana".
373	373	13 Sec. 10. (a) The child representative fund is created to receive
374	374	14 court costs or other revenues for county reimbursement and
375	375	15 administrative expenses.
376	376	16 (b) The office shall administer the fund.
377	377	17 (c) The treasurer of state shall invest the money in the fund not
378	378	18 currently needed to meet the obligations of the fund in the same
379	379	19 manner as other public funds may be invested.
380	380	20 (d) Money in the fund at the end of a fiscal year does not revert
381	381	21 to the state general fund.
382	382	22 (e) Money accruing to the fund is appropriated continuously for
383	383	23 the purposes of the fund.
384	384	2023 IN 485—LS 6375/DI 148