Tennessee § 37-1-126 - Right to counsel or guardian ad litem — Administrative fee.

§ 37-1-126. Right to counsel or guardian ad litem — Administrative fee.

A child is entitled to representation by legal counsel at all stages of any delinquency proceedings or proceedings alleging unruly conduct that place the child in jeopardy of being removed from the home pursuant to § 37-1-132(b) and is entitled to a guardian ad litem for proceedings alleging a child to be dependent and neglected or abused. An adult is entitled to representation by legal counsel at all stages of any proceeding under this part in proceedings involving: Child abuse prosecutions pursuant to §§ 37-1-412 and 39-15-401; Contributing to the delinquency or unruly behavior of a child pursuant to § 37-1-156 or contributing to the dependency and neglect of a child pursuant to § 37-1-157; Violation of compulsory school attendance pursuant to §§ 49-6-3007 and 49-6-3009; or Criminal contempt. A parent is entitled to representation by legal counsel at all stages of any proceeding under this part in proceedings involving: Abuse, dependency or neglect pursuant to § 37-1-102; or Termination of parental rights pursuant to § 36-1-113. If the person is indigent, the court shall provide counsel for the indigent person. If a person appears without counsel, the court shall ascertain whether the person knows of the right to counsel and of the right to be provided with counsel by the court if the person is indigent. The court may continue the proceeding to enable a person to obtain counsel and shall provide counsel for an unrepresented indigent person upon request. In all delinquency hearings or in unruly hearings in which the child may be in jeopardy of being removed from the home as specified in § 37-1-132(b), counsel must be provided for a child not represented by the child's parent, guardian, guardian ad litem or custodian or where the child's interests conflict with the parent, guardian, custodian or guardian ad litem. If the interest of two (2) or more persons conflict, separate counsel may be provided for each of them. A person is indigent if: That person does not possess sufficient means to pay reasonable compensation for the services of a competent attorney or guardian ad litem. In determining indigency, the court shall consider the financial resources of the child and the child's parents, legal custodians or guardians; or In the case of a child, if the child, the child's parents, legal custodians or guardians are financially able to defray a portion or all of the cost of the child’s representation but refuse to do so timely, the court may make written findings determining this as indigency; provided, the court shall assess the administrative fee and costs pursuant to § 37-1-150(g). Parents, legal custodians, or guardians, or any adult defendants or respondents whose child is provided with court-appointed counsel pursuant to this section, or who themselves are provided with court-appointed counsel pursuant to this section, may be assessed by the court at the time of appointment a nonrefundable administrative fee in the amount of fifty dollars ($50.00). The parents, legal custodians, or guardians of a child who is appointed a guardian ad litem may be assessed by the court an administrative fee as provided in this subdivision (c)(1). The administrative fee shall be assessed only one (1) time per case and shall be waived or reduced by the court upon a finding that the child and the child's parents, legal custodians, or guardians lack financial resources sufficient to pay the fee in such amount. In cases where a guardian ad litem is appointed, the financial resources of the child shall not be considered. The fee may be increased by the court to an amount not in excess of two hundred dollars ($200) upon a finding that the child's parents, legal custodians or guardians, or an adult defendant or respondent possesses sufficient financial resources to pay the fee in such increased amount. The administrative fee shall be payable, at the court's discretion, in a lump sum or in installments; provided, that the fee shall be paid prior to disposition of the case or within two (2) weeks of appointment of counsel, whichever first occurs. Prior to disposition of the case, the clerk of the court shall inform the judge whether the administrative fee has been collected. Failure to pay the administrative fee assessed by the court shall not reduce or in any way affect the rendering of services by court-appointed counsel. The administrative fee shall not be assessed against the child. The administrative fee shall be separate from, and in addition to, any other contribution or recoupment assessed pursuant to law for defrayal of costs associated with the provision of court-appointed counsel. The clerk of the court shall retain a commission of five percent (5%) of each dollar of administrative fees collected and shall transmit the remaining ninety-five percent (95%) of each such dollar to the state treasurer for deposit in the state's general fund. If the administrative fee is not paid prior to disposition of the case, then the fee shall be collected in the same manner as costs are collected; provided, that upon disposition of the case, moneys paid to the clerk, including any cash bond posted by or on behalf of a child who has been transferred or is awaiting a transfer hearing pursuant to § 37-1-134 or an adult, shall be allocated to taxes, costs, and fines and then to the administrative fee and any recoupment ordered. The administrative fee and any recoupment or contribution ordered for the services of court-appointed counsel may apply and may be collected even if the charges against the party are dismissed. The court shall have discretion to waive the administrative fee if the case is dismissed. As part of the clerk's regular monthly report, each clerk of court, who is responsible for collecting administrative fees pursuant to this section, shall file a report with the court, the administrative director of the courts, and the comptroller of the treasury. The report shall indicate the following: Number of children and adults for whom the court appointed counsel pursuant to this section; Number of children for whom the court appointed a guardian ad litem pursuant to § 37-1-149; Number of children and adults for whom the court appointed counsel and waived the administrative fee; Number of children for whom the court appointed a guardian ad litem and waived the administrative fee; Number of children and adults from, or on behalf of, whom the clerk collected administrative fees; Total amount of commissions retained by the clerk from such administrative fees; and Total amount of administrative fees forwarded by the clerk to the state treasurer. Acts 1970, ch. 600, § 26; 1980, ch. 796, § 2; T.C.A., § 37-226; Acts 1997, ch. 547, § 2; 2008, ch. 1084, §§ 1-4; 2009, ch. 417, § 1; 2012, ch. 857, §§ 1-5; 2018, ch. 1052, § 17. Compiler's Notes. Acts 2018, ch. 1052, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.” Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services. Amendments. The 2018 amendment, in (c)(1), rewrote the first sentence which read: “A child who is provided with court-appointed counsel pursuant to this section, the child’s parents, legal custodians or guardians, or any adult defendant or respondent who is provided with court-appointed counsel pursuant to this section shall be assessed by the court at the time of appointment a nonrefundable administrative fee in the amount of fifty dollars ($50.00).”, and in the second sentence substituted “may” for “shall” preceding “be assessed”; in (c)(2), in the second sentence, deleted “child, the” preceding “child’s parents” and substituted “possesses” for “possess” following “respondent”, and, at the end, substituted the present last sentence for “; provided, that willful failure to pay such fee may be weighed by the court when determining appropriate disposition of the case.”; in (c)(4), substituted “a child who has been transferred or is awaiting a transfer hearing pursuant to § 37-1-134 or an” for “the child or” preceding “adult” in the second sentence, twice substituted “may” for “shall”, and in the last sentence, substituted “The” for “In cases where a guardian ad litem is appointed, the”; and in (c)(5), in the first sentence, deleted “and with” following “with the court”, deleted “Tennessee” preceding “administrative director”, and inserted “, and the comptroller of the treasury”. Effective Dates. Acts 2018, ch. 1052, § 58. July 1, 2018; provided that for purposes of rulemaking, the act took effect on May 21, 2018. Rule Reference. This section is referred to in Rules 13 and 28 and under the Advisory Commission Comments of Rule 30 of the Tennessee Rules of Juvenile Procedure. Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 8.4. Law Reviews. A Proposal To Strengthen Juvenile Miranda Rights: Requiring Parental Presence in Custodial Interrogations, 53 Vand. L. Rev. 1355 (2000). Rules of Procedure for Courts with Juvenile Jurisdiction in Tennessee (R.B.J. Campbelle, Jr.), 18 No. 2 Tenn. B.J. 20 (1982). The Essence of Justice: Independent, Ethical, and Zealous Advocacy by Juvenile Defenders, 44 U. Mem. L. Rev. 799 (2014).