                                 CODE OF VIRGINIA

APPOINTMENT OF COUNSEL AND GUARDIAN AD LITEM (§ 16.1-266)

A. Prior to the hearing by the court of any case involving a child who is
alleged to be abused or neglected or who is the subject of an entrustment
agreement or a petition seeking termination of residual parental rights or who
is otherwise before the court pursuant to subdivision A 4 of &#xA7; 16.1-241 or
&#xA7; 63.2-1230, the court shall appoint a discreet and competent
attorney-at-law as guardian ad litem to represent the child pursuant to &#xA7;
16.1-266.1.

B. Prior to the detention hearing held pursuant to &#xA7; 16.1-250, the court
shall appoint a qualified and competent attorney-at-law to represent the child
unless an attorney has been retained and appears on behalf of the child. For the
purposes of appointment of counsel for the detention hearing held pursuant to
&#xA7; 16.1-250 only, a child&#8217;s indigence shall be presumed. Nothing in
this subsection shall prohibit a judge from releasing a child from detention
prior to appointment of counsel.

C. Subsequent to the detention hearing, if any, and prior to the adjudicatory or
transfer hearing by the court of any case involving a child who is alleged to be
in need of services, in need of supervision or delinquent, such child and his
parent, guardian, legal custodian or other person standing in loco parentis
shall be informed by a judge, clerk or probation officer of the child&#8217;s
right to counsel and of the liability of the parent, guardian, legal custodian
or other person standing in loco parentis for the costs of such legal services
pursuant to § 16.1-267 and be given an opportunity to:

   1. Obtain and employ counsel of the child&#8217;s own choice; or

   2. Request that the court appoint counsel, provided that before counsel is
   appointed or the court continues any appointment previously made pursuant to
   subsection B, the court shall determine that the child is indigent within the
   contemplation of the law pursuant to guidelines set forth in &#xA7; 19.2-159
   by requiring the child&#8217;s parent, guardian, legal custodian or other
   person standing in loco parentis to complete a statement of indigence
   substantially in the form provided by &#xA7; 19.2-159 and a financial
   statement, and upon determination of indigence the court shall appoint an
   attorney from the list maintained by the Indigent Defense Commission pursuant
   to &#xA7; 19.2-163.01 to represent the child; or

   3. Waive the right to representation by an attorney, if the court finds the
   child and the parent, guardian, legal custodian or other person standing in
   loco parentis of the child consent, in writing, and such waiver is consistent
   with the interests of the child. Such written waiver shall be in accordance
   with law and shall be filed with the court records of the case. A child who is
   alleged to have committed an offense that would be a felony if committed by an
   adult, may waive such right only after he consults with an attorney and the
   court determines that his waiver is free and voluntary. The waiver shall be in
   writing, signed by both the child and the child&#8217;s attorney and shall be
   filed with the court records of the case.

D. A judge, clerk or probation officer shall inform the parent or guardian of
his right to counsel prior to the adjudicatory hearing of a petition in which a
child is alleged to be abused or neglected or at risk of abuse or neglect as
provided in subdivision A 2a of § 16.1-241 and prior to a hearing at which a
parent could be subjected to the loss of residual parental rights. In addition,
prior to the hearing by the court of any case involving any other adult charged
with abuse or neglect of a child, this adult shall be informed of his right to
counsel. This adult and the parent or guardian shall be given an opportunity to:

   1. Obtain and employ counsel of the parent&#8217;s, guardian&#8217;s or other
   adult&#8217;s own choice; or

   2. If the court determines that the parent, guardian or other adult is
   indigent within the contemplation of the law pursuant to the guidelines set
   forth in &#xA7; 19.2-159, a statement substantially in the form provided by
   &#xA7; 19.2-159 and a financial statement shall be executed by such parent,
   guardian or other adult and the court shall appoint an attorney-at-law to
   represent him; or

   3. Waive the right to representation by an attorney in accordance with the
   provisions of &#xA7; 19.2-160.
   				If the identity or location of a parent or guardian is not reasonably
   ascertainable or a parent or guardian fails to appear, the court shall
   consider appointing an attorney-at-law to represent the interests of the
   absent parent or guardian, and the hearing may be held.
   				Prior to a hearing at which a child is the subject of an initial foster
   care plan filed pursuant to &#xA7; 16.1-281, a foster care review hearing
   pursuant to &#xA7; 16.1-282 and a permanency planning hearing pursuant to
   &#xA7; 16.1-282.1, the court shall consider appointing counsel to represent
   the child&#8217;s parent or guardian.

E. In those cases described in subsections A, B, C and D, which in the
discretion of the court require counsel or a guardian ad litem to represent the
child or children or the parent or guardian or other adult party in addition to
the representation provided in those subsections, a discreet and competent
attorney-at-law may be appointed by the court as counsel or a guardian ad litem.

F. In all other cases which in the discretion of the court require counsel or a
guardian ad litem, or both, to represent the child or children or the parent or
guardian, discreet and competent attorneys-at-law may be appointed by the court.
However, in cases where the custody of a child or children is the subject of
controversy or requires determination and each of the parents or other persons
claiming a right to custody is represented by counsel, the court shall not
appoint counsel or a guardian ad litem to represent the interests of the child
or children unless the court finds, at any stage in the proceedings in a
specific case, that the interests of the child or children are not otherwise
adequately represented.

G. Any state or local agency, department, authority or institution and any
school, hospital, physician or other health or mental health care provider shall
permit a guardian ad litem or counsel for the child appointed pursuant to this
section to inspect and copy, without the consent of the child or his parents,
any records relating to the child whom the guardian or counsel represents upon
presentation by him of a copy of the court order appointing him or a court order
specifically allowing him such access. Upon request therefor by the guardian ad
litem or counsel for the child made at least 72 hours in advance, a mental
health care provider shall make himself available to conduct a review and
interpretation of the child&#8217;s treatment records which are specifically
related to the investigation. Such a request may be made in lieu of or in
addition to inspection and copying of the records.

HISTORY: Code 1950, §§ 16.1-173, 63.1-248.12; 1956, c. 555; 1966, c. 709;
1968, c. 581; 1970, c. 87; 1973, c. 440; 1974, c. 513; 1975, cc. 341, 465, 559;
1977, c. 559; 1980, c. 572; 1982, c. 451; 1984, c. 709; 1985, c. 260; 1987, c.
632; 1994, c. 36; 1997, c. 790; 2002, c. 687; 2003, c. 98; 2004, cc. 66, 437,
884, 921, 1014; 2005, c. 427.