Rule 3.915.Assistance of Attorney

MCR 3.915 is the counsel rule for the whole juvenile subchapter. It handles delinquency and child protective cases separately because the parties and the stakes differ, then adds shared provisions on appearance, duration, substitution, and cost.

Delinquency

Subrule (A)(1) requires advice first. If the juvenile is not represented, the court shall advise the juvenile of the right to the assistance of an attorney at each stage of the proceedings on the formal calendar, including trial, plea of admission, and disposition. Subrule (A)(2) then makes appointment mandatory in five situations: the parent, guardian, or legal custodian refuses or fails to appear and participate; that person is the complainant or victim; the juvenile and those responsible for the juvenile's support are found financially unable to retain an attorney and the juvenile does not waive; those responsible for support refuse or neglect to retain an attorney and the juvenile does not waive; or the court determines that the best interests of the juvenile or the public require appointment.

Subrule (A)(3) sets the limits on waiver. A juvenile may waive counsel except where a parent, guardian, legal custodian, or guardian ad litem objects, or where the appointment rests on subrule (A)(2)(e). Any waiver must be made in open court to the judge or referee, who must find and place on the record that it was voluntarily and understandingly made.

The respondent in a child protective case

Subrule (B)(1)(a) puts the advice at the respondent's first court appearance. The court must advise the respondent of the right to retain an attorney at any hearing conducted under these rules, and it must add two points: that the respondent has the right to a court appointed attorney at any hearing, including the preliminary hearing, if the respondent is financially unable to retain one, and that a respondent who is not represented may request a court-appointed attorney at any later hearing. Appointment under subrule (B)(1)(b) turns on two conditions together — the respondent requests an attorney, and it appears to the court, after examining the record, written financial statements, or otherwise, that the respondent cannot afford one. Subrule (B)(1)(c) permits waiver, except that the court shall not accept a waiver from a respondent who is a minor when a parent, guardian, legal custodian, or guardian ad litem objects.

The child

Subrule (B)(2)(a) is not discretionary. The court must appoint a lawyer-guardian ad litem to represent the child at every hearing, including the preliminary hearing, and the child may not waive that assistance. The rule adds an inquiry duty at each hearing: the court asks whether the lawyer-guardian ad litem has met or had contact with the child, and if not, requires the reasons on the record. Where a conflict arises between the lawyer-guardian ad litem and the child about the child's best interests, subrule (B)(2)(b) allows the court to appoint an attorney for the child's stated interests.

Duration, substitution, and cost

Subrule (C) leaves the appearance of an attorney to MCR 2.117(B), the general civil rule. Under subrule (D), retained counsel may withdraw only on order of the court, and an appointed attorney or lawyer-guardian ad litem serves until discharged by the court. The court may permit another attorney to stand in temporarily for the child's lawyer-guardian ad litem to keep a hearing from being adjourned or for other good cause, but the substitute must be familiar with the case and, outside a preliminary hearing or emergency removal hearing, must review the agency case file and consult the foster parents and caseworker unless the lawyer-guardian ad litem has done so and passed that information along. The court asks on the record whether the attorneys have complied. Subrule (E) lets the court assess the cost of appointed representation in a child protective case against the party or a person responsible for that party's support, after a determination of ability to pay.