2.4 Counsel for Parents or Custodians

• Library: Juvenile Law and Practice in Virginia (Virginia CLE) (2018 Ed.)

2.4 COUNSEL FOR PARENTS OR CUSTODIANS

2.401 Right to Counsel. Section 16.1-266(D) of the Virginia Code gives a parent or guardian the right to the assistance of counsel, and the appointment of an attorney if indigent, in cases involving abuse or neglect and in cases that could result in the termination of residual parental rights and responsibilities. Virginia law thus goes beyond federal constitutional requirements in providing a right to counsel for parents. ¹⁴³ Counsel for parents appointed pursuant to section 16.1-266(D) must be selected from the list of qualified guardians ad litem for children unless no attorney on the list is reasonably available or appropriate. ¹⁴⁴ If that is the case, the judge may appoint any discreet and competent Virginia attorney. ¹⁴⁵ The court must inquire into indigency before appointing counsel. The court also has the discretionary power to appoint counsel or a guardian ad litem for the parent or guardian in other cases before the court. ¹⁴⁶

2.402 Duties of Counsel.

A. Investigating the Case. Counsel for parents should not accept the filing of a petition for abuse or neglect as an indication that the charges are true, nor should the lawyer assume that the allegations contained in an affidavit in support of a removal order are accurate. Counsel must make an independent examination of any charges or allegations and

[Page 87]

must take special care to examine any medical records and interview all health professionals who treated the child. There will usually be an investigation by social services before the petition is filed, and the nature of the investigation and any interviews with the parent or parents should be examined closely. In some cases, criminal charges will be brought against the parent in addition to the abuse or neglect proceeding, and the two cases should be kept separate. However, if the parent or parents were arrested before the abuse or neglect investigation, any statements made to protective services workers are inadmissible unless the parent was advised of his or her constitutional rights. ¹⁴⁷ The parents also have the right to tape-record any conversations with protective services personnel during the course of an abuse or neglect investigation. ¹⁴⁸

B. Preliminary Proceedings. The initial court proceedings may be pursuant to a petition for an emergency removal order, a preliminary removal order, or a preliminary protective order. ¹⁴⁹ In most cases, counsel should urge the least intrusive alternative that will protect the child and still preserve...