43-272 Right to counsel; appointment; payment; guardian ad litem; appointment; when; duties. - Nebraska Statutes

43-272. Right to counsel; appointment; payment; guardian ad litem; appointment; when; duties.(1) When any juvenile shall be brought without counsel before a juvenile court, the court shall advise such juvenile and his or her parent or guardian of their right to retain counsel and shall inquire of such juvenile and his or her parent or guardian as to whether they desire to retain counsel. The court shall inform such juvenile and his or her parent or guardian of such juvenile's right to counsel at county expense if none of them is able to afford counsel. If the juvenile or his or her parent or guardian desires to have counsel appointed for such juvenile, or the parent or guardian of such juvenile cannot be located, and the court ascertains that none of such persons are able to afford an attorney, the court shall forthwith appoint an attorney to represent such juvenile for all proceedings before the juvenile court, except that if an attorney is appointed to represent such juvenile and the court later determines that a parent of such juvenile is able to afford an attorney, the court shall order such parent or juvenile to pay for services of the attorney to be collected in the same manner as provided by section 43-290. If the parent willfully refuses to pay any such sum, the court may commit him or her for contempt, and execution may issue at the request of the appointed attorney or the county attorney or by the court without a request.(2) The court, on its own motion or upon application of a party to the proceedings, shall appoint a guardian ad litem for the juvenile: (a) If the juvenile has no parent or guardian of his or her person or if the parent or guardian of the juvenile cannot be located or cannot be brought before the court; (b) if the parent or guardian of the juvenile is excused from participation in all or any part of the proceedings; (c) if the parent is a juvenile or an incompetent; (d) if the parent is indifferent to the interests of the juvenile; or (e) in any proceeding pursuant to the provisions of subdivision (3)(a) of section 43-247.A guardian ad litem shall have the duty to protect the interests of the juvenile for whom he or she has been appointed guardian, and shall be deemed a parent of the juvenile as to those proceedings with respect to which his or her guardianship extends.(3) The court shall appoint an attorney as guardian ad litem. A guardian ad litem shall act as his or her own counsel and as counsel for the juvenile, unless there are special reasons in a particular case why the guardian ad litem or the juvenile or both should have separate counsel. In such cases the guardian ad litem shall have the right to counsel, except that the guardian ad litem shall be entitled to appointed counsel without regard to his or her financial ability to retain counsel. Whether such appointed counsel shall be provided at the cost of the county shall be determined as provided in subsection (1) of this section. SourceLaws 1981, LB 346, § 28; Laws 1982, LB 787, § 12; Laws 2000, LB 1167, § 19. Cross ReferencesRepresentation by public defender, see section 29-3915. AnnotationsA conflict of interest can develop between the roles of counsel for the juvenile and guardian ad litem if the juvenile expresses interests that are adverse to what the attorney considers to be in the juvenile's best interests. Usually when an actual conflict of interest develops between the two roles, separate counsel should be appointed for the child. In re Interest of J.K., 265 Neb. 253, 656 N.W.2d 253 (2003).Given the broad power granted by the Legislature to juvenile courts to determine whether in proceedings under subsection (3)(a) of section 43-247 the guardian ad litem role and the role of counsel for the juvenile should be split, an appellate court reviews the decision to use or not to use that power de novo on the record for an abuse of discretion. In re Interest of J.K., 265 Neb. 253, 656 N.W.2d 253 (2003).The determination whether "special reasons" exist for appointing separate counsel for a juvenile in proceedings under subsection (3)(a) of section 43-247 must be based on a case-by-case basis, taking into consideration the totality of circumstances. In re Interest of J.K., 265 Neb. 253, 656 N.W.2d 253 (2003).The Nebraska Juvenile Code recognizes that generally, the role of guardian ad litem and counsel can be carried out by the same attorney. But the code requires that the roles be split when there are "special reasons in a particular case." In re Interest of J.K., 265 Neb. 253, 656 N.W.2d 253 (2003).The phrase "special reasons in a particular case" as used in subsection (3) of this section grants juvenile courts broad power to safeguard the interests of the juvenile and to ensure that the juvenile's statutory and constitutional rights are respected. In re Interest of J.K., 265 Neb. 253, 656 N.W.2d 253 (2003).When an attorney is appointed for a juvenile under subsections (2) and (3) of this section in proceedings under subsection (3)(a) of section 43-247, the attorney generally serves as both guardian ad litem and as counsel for the child. In re Interest of J.K., 265 Neb. 253, 656 N.W.2d 253 (2003).On a motion to revoke probation, the court must advise the juvenile and his or her parent or guardian of their right to retain counsel, inquire of the juvenile and his or her parent or guardian as to whether they desire to retain counsel, and inform the juvenile and his or her parent or guardian of the juvenile's right to counsel at county expense if none of them is able to afford counsel. In re Interest of David C., 6 Neb. App. 198, 572 N.W.2d 392 (1997).