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Regular Session, 2014
HOUSE BILL NO. 1061
BY REPRESENTATIVE SCHRODER
CHILDREN/ABUSE: Provides relative to legal representation for children and indigent
parents in child protection cases
AN ACT1
To amend and reenact Children's Code Articles 401, 552(2), 553(A) and (B), the heading of2
Part II of Chapter 6 of Title V of the Louisiana Children's Code, Children's Code3
Articles 558, 560(A), 571(B), 574, 575(B), 607, 608, 624(A), 625(A)(4), 627(E),4
631(B), 720(A), (B)(introductory paragraph) and (6), (C), and (D), 723(D), 724(A)5
and (B), 1016(B) and (C), and 1269.4, to enact Chapter 7 of Title V of the Louisiana6
Children's Code, to be comprised of Children's Code Article 581, and Children's7
Code Articles 635.1 and 1405.1, and to repeal Children's Code Articles 559 and8
571(C), relative to legal representation for children and indigent parents in child9
protection cases; to establish and provide for functions of the Louisiana Child10
Representation System and the Child Protection Representation Commission; to11
provide for the Child Advocacy Program of the Mental Health Advocacy Service;12
to provide relative to child in need of care proceedings; to provide for designation13
of programs by the Louisiana Supreme Court for provision of child representation14
services in certain courts; to provide for right to counsel for parents and conditions15
for waiving such right; to provide for custody hearings and orders; to provide for16
motions, case review reports, case plans, and filing in child protection cases; to17
provide for local rules of juvenile courts; and to provide for related matters.18
Be it enacted by the Legislature of Louisiana:19 HLS 14RS-928 ENGROSSED
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Section 1. Children's Code Articles 401, 552(2), 553(A) and (B), the heading of Part1
II of Chapter 6 of Title V of the Louisiana Children's Code, Children's Code Articles 558,2
560(A), 571(B), 574, 575(B), 607, 608, 624(A), 625(A)(4), 627(E), 631(B), 720(A),3
(B)(introductory paragraph) and (6), (C), and (D), 723(D), 724(A) and (B), 1016(B) and (C),4
and 1269.4 are hereby amended and reenacted and Chapter 7 of Title V of the Louisiana5
Children's Code, comprised of Children's Code Article 581, and Children's Code Articles6
635.1 and 1405.1 are hereby enacted to read as follows:7
Art. 401. Adoption of local rules of court8
A. A Unless procedures are otherwise provided through rules promulgated9
by the Louisiana Supreme Court, a court may adopt administrative rules governing10
internal operating procedures not in conflict with provisions of this Code, or of other11
laws for the conduct of proceedings before it. When a court has more than one12
judge, its rules shall be adopted or amended by a majority of the judges thereof13
sitting en banc.14
B. The rules shall be entered on the minutes of the court, made available to15
the public by filing a copy with the Judicial Council of the Louisiana Supreme Court16
and by filing a copy with the clerk of court, and a copy shall be furnished on request17
to any attorney licensed to practice law in this state.18
* * *19
Art. 552. Definitions20
As used in this Chapter:21
* * *22
(2) "Program" means the Child Advocacy Program established in accordance23
with Children's Code Article 558 a program approved by the Louisiana Supreme24
Court to provide qualified legal representation of children in child abuse and neglect25
cases.26
Art. 553. Access to child; records; communication27
A. Any attorney representing a child in a child abuse and neglect case as28
defined herein shall have reasonable access to and the opportunity to consult with the29 HLS 14RS-928 ENGROSSED
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child whenever and wherever necessary in the performance of his duties and shall1
have ready access to view and copy all medical, mental health, developmental2
disability, and education records pertaining to his client whether such records are in3
hard copy or electronic form.4
B. The person with whom or facility with whom in which the child is placed5
shall provide adequate reasonable access and privacy for the purpose of attorney-6
client consultation.7
* * *8
PART II. LOUISIANA CHILD ADVOCACY PROGRAM9
REPRESENTATION SYSTEM10
Art. 558. Louisiana Child Advocacy Program Representation System; establishment11
A Child Advocacy Program The statewide Louisiana Child Representation12
System is hereby established within the Mental Health Advocacy Service authorized13
pursuant to R.S. 28:64 under the oversight of the Louisiana Supreme Court.14
* * *15
Art. 560. Duties of the program Provision of services; qualifications of counsel16
A. The program shall provide qualified legal counsel to children in child17
abuse and neglect cases, subject to availability as determined by the director A18
program designated by the Louisiana Supreme Court shall provide child19
representation services to each court exercising jurisdiction over abuse and neglect20
cases in accordance with a plan for service delivery developed by the program and21
approved by the supreme court.22
* * *23
Art. 571. Legislative findings24
* * *25
B. The legislature finds that there is a need for a more uniform system of26
representation of indigent parents statewide that provides for appropriate oversight,27
minimization of potential conflicts, and adequate local and state funding. To this28
end, the legislature finds that local public defender offices representing children in29 HLS 14RS-928 ENGROSSED
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child abuse and neglect cases should transition within a defined period of time to1
representing indigent parents consistent with a statewide implementation plan to be2
developed by the Louisiana Indigent Defense Assistance Board, or any successor to3
that board in conjunction with the Task Force on Legal Representation in Child4
Protection Cases created by House Concurrent Resolution No. 44 of the 20035
Regular Session of the Legislature best serve the interests of children and families6
by representing indigent parents in child abuse and neglect cases consistent with the7
provisions of R S. 15:185.1 et seq., and with the Trial Court Performance Standards8
for Attorneys Representing Parents in Child in Need of Care and Termination of9
Parental Right Cases provided in Part XV of Title 22 of the Louisiana Administrative10
Code.11
* * *12
Art. 574. Indigent Parents' Representation Program; establishment13
An Indigent Parents' Representation Program is hereby established to be14
developed within the Louisiana Indigent Defense Assistance Public Defender Board,15
or its successor in accordance with the provisions of R.S. 15:185.1 through 185.9.16
Art. 575. Duties of the program; qualifications of counsel17
* * *18
B. Legal representation of indigent parents in child abuse and neglect cases19
shall comply with standards promulgated by the Indigent Defense Assistance20
Louisiana Public Defender Board, or any successor to that board in accordance with21
R.S. 15:185.1 through 185.9 to ensure competent and fair representation.22
CHAPTER 7. CHILD PROTECTION REPRESENTATION COMMISSION23
Art. 581. Child Protection Representation Commission; establishment; purpose and24
functions25
A. The Child Protection Representation Commission, referred to hereinafter26
as the "commission", is hereby established for the purpose of reviewing the system27
of representation of children and indigent parents in child protection cases as28 HLS 14RS-928 ENGROSSED
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provided in Chapters 5 and 6 of this Title. The commission shall be composed of the1
following members:2
(1) The secretary of the Department of Children and Family Services or his3
designee.4
(2) The chief justice of the Louisiana Supreme Court or his designee.5
(3) The chairman of the House Committee on Civil Law and Procedure or6
his designee.7
(4) The chairman of the Senate Committee on Judiciary A or his designee.8
(5) The president or designee of the Louisiana Bar Association.9
(6) The executive director or designee of the Louisiana District Attorneys10
Association.11
(7) The state public defender or designee of the Louisiana Public Defender12
Board.13
(8) The president or designee of the Louisiana Council of Juvenile and14
Family Court Judges.15
B. The members of the commission shall serve without compensation,16
except for the members of the legislature who shall receive a per diem in accordance17
with R.S. 42:3.1.18
C. The commission shall request and have the authority to obtain all19
information necessary to review the system of representation and shall meet20
periodically but in no event less than once annually. The commission shall ascertain21
the continued effectiveness and efficiency of the system and the adequacy of funding22
and may, at its discretion, issue such reports and recommendations as it deems23
necessary to ensure the programmatic efficacy and fiscal viability of the system.24
* * *25
Art. 607. Child's right to appointed counsel; payment26
A. In every proceeding under this Title, the The court shall appoint the27
program designated for the jurisdiction by the Louisiana Supreme Court to provide28
qualified, independent counsel for the child, including a referral to the district public29 HLS 14RS-928 ENGROSSED
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defender at the time the order setting the first court hearing is signed. If attorneys1
are available through the Child Advocacy Program, the court shall contact the office2
of the program and request the assignment of an attorney who shall be appointed.3
Neither the child nor anyone purporting to act on his behalf may be permitted to4
waive this right.5
B. The child shall be a party to the proceedings, and the attorney for the child6
shall have the authority to represent the child at all stages of the proceedings. The7
attorney for the child shall have the authority to take actions, including but not8
limited to the following:9
(1) Accompany the child and be present for all court appearances, school10
hearings, and educational and other meetings related to the child.11
(2) View and copy the child's medical, dental, psychological, psychiatric,12
educational, or counseling records.13
C. If the court finds that the parents of the child are financially able, it may14
order the parents to pay some or all of the costs of the child's representation in15
accordance with Children's Code Articles 320 and 321.16
C. D. In any dispositional or postdispositional hearing which may result in17
the mental health institutionalization of a child who is in the custody of the state, the18
child shall be entitled to representation by an attorney appointed by the Mental19
Health Advocacy Service, unless unavailable as determined by the director, or20
representation by retained private counsel who shall represent only the interest of the21
child.22
Art. 608. Parents' right to counsel; payment23
A. The parents of a child who is the subject of a child in need of care24
proceeding shall be entitled to qualified, independent counsel at the continued25
custody hearing and at all stages of the proceedings thereafter., which This right26
may be waived by the parents. a parent if the court determines that the parent27
choosing to waive his right to representation has been instructed by the court about28 HLS 14RS-928 ENGROSSED
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his rights and the possible consequences of waiver. Before accepting a waiver of1
counsel, the court shall ensure each of the following:2
(1) The parent has been informed by the court that the Department of3
Children and Family Services cannot provide legal advice to the parent or represent4
the parent's interest.5
(2) The parent has been informed by the court that the child's attorney cannot6
provide legal advice to the parent and does not represent the parent's interest.7
(3) The parent has been informed by the court that a proceeding brought8
under this Title may ultimately result in a termination of parental rights and a9
complete and permanent separation of the parent from the child.10
(4) The parent has been informed by the court that if he is unable to afford11
an attorney, one will be provided by the Indigent Parents' Representation Program.12
(5) That the parent is eighteen years of age or older.13
B. If the parents a parent of a child are is financially unable to afford14
counsel, the court shall appoint counsel, or refer the parents parent for representation15
by the district public defender, or any program created by law to provide16
representation to indigent parents in child abuse and neglect cases and to be Indigent17
Parents' Representation Program administered by the Louisiana Public Defender18
Board.19
C. If a parent of the child is entitled to representation by the Indigent Parents'20
Representation Program, the unavailability of counsel to represent the parent shall21
be good cause for a continuance of the continued custody hearing for up to three22
days and the hearing shall not proceed until a qualified, independent attorney is23
provided to the parent.24
* * *25
Art. 624. Continued custody hearing26
A. If a child is not released to the care of his parents, a hearing shall be held27
by the court within three days after the child's removal or entry into custody. An28 HLS 14RS-928 ENGROSSED
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order setting the hearing shall provide for appointment of counsel for the child and1
notice to the program approved to represent children.2
* * *3
Art. 625. Advice of rights and responsibilities of parents, counsel, and department;4
absent parents5
A. At the continued custody hearing, the court shall advise the parents and6
may advise the child, insofar as practicable, of:7
* * *8
(4) The right to be represented by counsel and the right to have counsel9
appointed as provided in Chapter 4 of this Title of indigent parents to representation10
by the Indigent Parents' Representation Program in accordance with Children's Code11
Article 608.12
* * *13
Art. 627. Continued custody order; special provisions; appointments14
* * *15
E. The court shall order the appointment of counsel for the child and the16
appointment of a curator for any parent who is an absentee. The court may order the17
appointment of counsel for the parents or the appointment of a court-appointed18
special advocate.19
* * *20
Art. 631. Authority to file petition; custody21
* * *22
B. During the pendency of a child in need of care proceeding At any time23
prior to adjudication, any person, including a relative of the child, may petition the24
court for the provisional or permanent legal custody of the child.25
* * *26
Art. 635.1. Notice to counsel27
Upon the filing of the petition, the court shall provide notice and a copy of28
the petition to the program designated for the jurisdiction to provide counsel for the29 HLS 14RS-928 ENGROSSED
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child in accordance with Children's Code Article 607, and to the program1
representing indigent parents in accordance with Children's Code Article 608.2
* * *3
Art. 720. Motion for guardianship4
A. After a child has been adjudicated to be in need of care, a motion for5
guardianship may be filed by the department, parent, or counsel for the child; or the6
department may submit a case plan along with the case review report to the court and7
all counsel of record recommending guardianship in accordance with Children's8
Code Articles 674, 688, and 689.9
B. The motion, case review report, or case plan shall include all of the10
following:11
* * *12
(6) A plain and concise statement of the facts on which the motion, case13
review report, or case plan for guardianship is sought and why neither adoption nor14
reunification with a parent is in the best interest of the child.15
C. If any of the information required by Paragraph B of this Article is16
unknown, the motion, case review report, or case plan shall state that fact. In17
addition, if the location of either parent is unknown, the motion, case review report,18
or case plan shall disclose efforts to locate him.19
D. Unless not yet completed, the home study, as required by Children's Code20
Article 721, shall be attached to the motion, case review report, or case plan. If not21
attached, it the home study shall be submitted to the court as soon as it is completed.22
* * *23
Art. 723. Order of guardianship24
* * *25
D. The guardianship order continues until the child obtains attains eighteen26
years of age, unless earlier modified or terminated by the court in accordance with27
Article 724.28 HLS 14RS-928 ENGROSSED
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Art. 724. Motion for modification of guardianship; termination of guardianship1
A. The court shall retain jurisdiction to enforce, modify, or terminate a2
guardianship order until the child obtains attains eighteen years of age. The program3
representing the child in the child of need of care proceedings pursuant to Children's4
Code Article 607 and the program representing the indigent parents in the child in5
need of care proceedings pursuant to Children's Code Article 608 shall provide6
representation in guardianship proceedings.7
B. The department, counsel for the child, the guardian, a parent permitted to8
intervene under Children's Code Article 707, or the court on its own motion may9
seek to enforce, modify or terminate a guardianship order. A copy of the motion to10
modify shall be personally served on the parents, and the court shall promptly notify11
the programs representing the child and indigent parents, respectively, in child in12
need of care proceedings.13
* * *14
Art. 1016. Right to counsel15
* * *16
B. The court shall appoint a the program designated for the jurisdiction by17
the Louisiana Supreme Court to provide qualified, independent attorney to represent18
counsel for the child in such a proceeding. If attorneys are available through the19
Child Advocacy Program, the court shall contact the office of the program and20
request the assignment of an attorney who shall be appointed.21
C. If the court determines that the parent is indigent and unable to employ22
counsel solely for that reason, an attorney shall be appointed to represent the parent23
in accordance with Article 320 the court shall refer the parent for representation by24
the Indigent Parents' Representation Program.25
* * *26
Art. 1269.4. Filing with court; time limitations27
A. Within ten days after the petition is filed, the department, attorney for the28
child, attorney for the parent, or attorney for the prospective adoptive parents shall29 HLS 14RS-928 ENGROSSED
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file in the court in which the adoption is pending an agreement for continuing1
contact.2
* * *3
Art. 1405.1. Child Advocacy Program; establishment within Mental Health4
Advocacy Service; duties5
A. The Child Advocacy Program, referred to hereafter in this Article as the6
"program", is hereby established within the Mental Health Advocacy Service7
authorized pursuant to R.S. 28:64.8
B. The program shall provide qualified legal counsel to children in child9
abuse and neglect cases, subject to availability as determined by the director of the10
program, in those jurisdictions designated by the Louisiana Supreme Court pursuant11
to Children's Code Article 560.12
C. The program shall be governed by the board of trustees established13
pursuant to R.S. 28:64(A)(3).14
D. The duties of the board of trustees shall include those enumerated in R.S.15
28:64(B) and all of the following specific duties:16
(1) To establish general policy guidelines for the operation of the program17
to provide legal counsel and representation for children in child abuse and neglect18
cases of this state in order to ensure that their legal rights are protected; however, the19
board shall not have supervisory power over the conduct of particular cases.20
(2) To review and evaluate the operations of the program and emphasize21
special training for attorneys hired by the service.22
(3) To review and approve an annual budget for the program.23
(4) To review and approve an annual report on the operation of the program24
and submit such report to the legislature, the governor, and the chief justice of the25
Louisiana Supreme Court.26
E. The duties of the director of the program shall include those enumerated27
in R.S. 28:64(C) and all of the following specific duties:28 HLS 14RS-928 ENGROSSED
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(1) To organize and administer a program to provide legal counsel and1
representation for children in child abuse and neglect cases subject to the approval2
of the board of trustees and in accordance with a plan for service delivery approved3
by the Louisiana Supreme Court.4
(2) To identify the needs of children in child abuse and neglect cases for5
legal counsel and representation within the state and the resources necessary to meet6
those needs, subject to the approval of the board of trustees.7
(3) To institute or cause to be instituted such legal proceedings as may be8
necessary to enforce and give effect to any of the duties or powers of the program.9
(4) To hire and train attorneys and other professional and nonprofessional10
staff that may be necessary to carry out the functions of the program. All attorneys11
representing children through this program shall be licensed to practice law in12
Louisiana and be qualified in accordance with Supreme Court Administrative Rules,13
Rule J. Special Rules for Cases Involving the Protection of Children.14
(5) To establish official rules and regulations for the conduct of work of the15
program, subject to the approval of the board of trustees.16
(6) To take such actions as he deems necessary and appropriate to secure17
private and state, federal, or other public funds to help support the program, subject18
to the approval of the board of trustees.19
(7) To have the ability to contract with organizations or individuals for the20
provision of legal services for children in child abuse and neglect cases, subject to21
the approval of the board of trustees and in accordance with a plan for service22
delivery approved by the Louisiana Supreme Court.23
Section 2. Children's Code Articles 559 and 571(C) are hereby repealed in their24
entirety.25 HLS 14RS-928 ENGROSSED
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DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
Schroder HB No. 1061
Abstract: Provides relative to legal representation for children and indigent parents in child
protection cases and establishes the La. Child Representation System under the
oversight of the La. Supreme Court.
Present law comprising Titles V through VII of the Louisiana Children's Code provides
relative to cases of child abuse and neglect, and to child in need of care (CINC) and families
in need of services (FINS) proceedings. Proposed law generally retains present law and
revises certain provisions relative to legal representation for children and indigent parents
in child protection cases.
Proposed law establishes the La. Child Representation System under the oversight of the La.
Supreme Court. Requires that the supreme court, through such program as it may designate,
provide child representation services to each court exercising jurisdiction over abuse and
neglect cases in accordance with a service delivery plan developed by the program and
approved by the supreme court.
Proposed law retains and relocates provisions of present law creating the La. Child
Advocacy Program within the Mental Health Advocacy Service and providing for
governance and duties of the program.
Present law provides legislative finding that local public defender offices representing
children in child abuse and neglect cases should transition to representing indigent parents
per a statewide implementation plan to be developed by the La. Indigent Defense Assistance
Board, or any successor. Proposed law updates finding to indicate that local public defender
offices best serve the interests of children and families by representing indigent parents in
child abuse and neglect cases consistent with the provisions of present law, R S. 15:185.1
et seq., and the Trial Court Performance Standards for Attorneys Representing Parents in
Child in Need of Care and Termination of Parental Right Cases provided in present law
(LAC 22:XV).
Proposed law relocates the Indigent Parents' Representation Program from the La. Indigent
Defense Assistance Board to the La. Public Defender Board.
Proposed law adds provisions requiring that the child be a party to CINC proceedings.
Provides that the attorney for the child shall have the authority to represent the child at all
stages of the proceedings, and to do all of the following:
(1)Accompany the child and be present for all court appearances, school hearings, and
educational and other meetings related to the child.
(2)View and copy the child's medical, dental, psychological, psychiatric, educational,
or counseling records.
Present law provides that the parents of a child who is the subject of a CINC proceeding
shall be entitled to counsel, and that the parents may waive such right. Proposed law revises
present law to stipulate that a parent may waive such right if he has been instructed by the
court about his rights and the possible consequences of waiver. Provides that before
accepting a waiver of counsel, the court shall ensure that the parent is 18 years of age or
older and is informed of all of the following: HLS 14RS-928 ENGROSSED
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(1)The Dept. of Children and Family Services (DCFS) cannot provide legal advice to
the parent or represent the parent's interest.
(2)The child's attorney cannot provide legal advice to the parent and does not represent
the parent's interest.
(3)A proceeding brought under present law and proposed law may ultimately result in
a termination of parental rights and a complete and permanent separation of the
parent from the child.
(4)If he is unable to afford an attorney, one will be provided by the Indigent Parents'
Representation Program.
Proposed law establishes that if a parent of a child in a CINC proceeding is entitled to
representation by the Indigent Parents' Representation Program, the unavailability of counsel
to represent the parent shall be good cause for a continuance of the continued custody
hearing for up to three days and the hearing shall not proceed until a qualified, independent
attorney is provided to the parent.
Proposed law requires that an order setting a continued custody hearing provide for
appointment of counsel for the child and notice to the child representation program.
Proposed law provides that upon the filing of a petition for commencement of a CINC
proceeding, the court shall provide notice and a copy of the petition to the child
representation program designated in accordance with proposed law.
Proposed law provides that after a child has been adjudicated to be in need of care, DCFS
may submit a case plan along with the case review report to the court and all counsel of
record recommending guardianship in accordance with present law.
Proposed law stipulates that the program providing legal representation to a child in CINC
proceedings and the program representing the indigent parents in those proceedings also
provide representation in guardianship proceedings.
Proposed law requires that a copy of any motion to modify a guardianship order be
personally served on the parents, and that the court promptly notify the programs
representing the child and indigent parents, respectively, in CINC proceedings.
Present law provides that within 10 days after filing of a petition relative to continuing
contact with a child, DCFS or the attorney for the prospective adoptive parents shall file in
the court in which the adoption is pending an agreement for continuing contact. Proposed
law adds an attorney for the child and an attorney for the parent as parties authorized to file
such agreement within the specified time frame.
Present law provides that a juvenile court may adopt rules not in conflict with provisions of
present law relative to the conduct of proceedings. Proposed law establishes that a juvenile
court may only establish such rules on the condition that applicable procedures are not
otherwise provided through rules promulgated by the La. Supreme Court. Requires that
local rules of juvenile courts be made available to the public by filing a copy with the
Judicial Council of the supreme court and with the clerk of court. HLS 14RS-928 ENGROSSED
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Proposed law establishes the Child Protection Representation Commission (commission) for
the purpose of reviewing the system of representation of children and indigent parents in
child protection cases provided in proposed law. Provides that the commission shall be
composed of the following members:
(1)The secretary of the Dept. of Children and Family Services or his designee.
(2)The chief justice of the La. Supreme Court or his designee.
(3)The chairman of the House Committee on Civil Law and Procedure or his designee.
(4)The chairman of the Senate Committee on Judiciary A or his designee.
(5)The president or designee of the La. Bar Association.
(6)The executive director or designee of the La. District Attorneys Association.
(7)The state public defender or designee of the La. Public Defender Board.
(8)The president or designee of the La. Council of Juvenile and Family Court Judges.
Proposed law provides that the commission shall ascertain the continued effectiveness and
efficiency of the representation system and the adequacy of funding and may, at its
discretion, issue such reports and recommendations as it deems necessary to ensure
programmatic efficacy and fiscal viability of the system.
(Amends Ch.C. Arts. 401, 552(2), 553(A) and (B), the heading of Part II of Chapter 6 of
Title V of the Louisiana Children's Code, Ch.C. Arts. 558, 560(A), 571(B), 574, 575(B),
607, 608, 624(A), 625(A)(4), 627(E), 631(B), 720(A), (B)(intro. para.) and (6), (C), and (D),
723(D), 724(A) and (B), 1016(B) and (C), and 1269.4; Adds Ch.C. Arts. 581, 635.1, and
1405.1; Repeals Ch.C. Arts. 559 and 571(C))