Who paid appointed lawyers for indigent parents and children in Louisiana child-protection cases?

Plain-English summary

A district judge asked how to pay appointed lawyers for indigent children and parents in child-in-need-of-care and parental-rights termination cases. In 2001, the attorney general's office read R.S. 46:460.21 to allow the Department of Social Services to pay authorized fees and approved expenses for representation of children or indigent parents, but not both. The opinion also said state appropriations for that purpose could not replace a court's prior level of indigent-defender representation.

If assessing fees to DSS would conflict with that statute, the office said a court could determine whether local funds, such as indigent-defender-board funds, were available for the appointed lawyer. It also cited a state appellate decision recognizing a court's power to appoint counsel in a termination case with or without compensation.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Judges at the time

The opinion said courts could appoint the separate counsel required by the Children's Code. If DSS could not properly be charged under the statute, the court could look for local funds for the appointed lawyer.

Appointed counsel at the time

The office distinguished the child's counsel from indigent parents' counsel when describing DSS's payment authority. It did not say DSS was responsible for both sides' fees in the same proceeding.

Indigent-defender boards at the time

The statute quoted in the opinion barred using the state appropriation to supplant a court's prior levels of indigent-defender representation. The office identified local indigent-defender funds as a possible source when DSS payment was improper.

Common questions

Q: Could DSS pay counsel for both a child and indigent parent in the same child-protection matter?
A: The opinion said its statutory authority covered children or indigent parents, but not both.

Q: If DSS could not pay an appointed parent's lawyer, who could the court consider?
A: The opinion said a court could determine whether local funds, such as indigent-defender-board funds, were available.

Q: Did the child and parent each have a right to counsel?
A: The opinion quoted Children's Code provisions giving each representation rights in the proceedings discussed, with separate counsel in termination cases.

Background and statutory framework

The opinion quoted Children's Code Arts. 607, 608, and 1016 on appointed counsel and R.S. 46:460.21 on payment by DSS. It relied on state appellate cases addressing court appointments and local funding where DSS could not be charged. It also explained that the later statute displaced an earlier state supreme court holding assigning fees to the predecessor agency absent statutory authority.

Citations and references

• Children's Code Art. 607 (child's counsel)
• Children's Code Art. 608 (parents' counsel)
• Children's Code Art. 1016 (separate counsel in termination cases)
• R.S. 46:460.21 (DSS fee authority)
• State in the Interest of HLD, 563 So.2d 360 (La. App. 3rd Cir. 1990)
• State in the Interest of CAM and AMM, 565 So.2d 523 (La. App. 3rd Cir. 1990)
• State in the Interest of TK, 568 So.2d 636 (La. App. 3rd Cir. 1990)

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/00-0473

Original opinion text

January 11, 2001
OPINION 00-473

#00-473
15 COURTS
Honorable Billy H. Ezell 53-2 INDIGENT DEFENDANTS
District Judge
Legal fees incurred arising out of the representation of children or indigent
parents, but not both, may be paid by the Department of Social Services in
Post Office Box 3210
child protection proceedings.
Lake Charles, LA 70602

Dear Judge Ezell:

You have requested the legal opinion of this office concerning the payment of fees and expenses for attorneys appointed to represent an indigent child and parent(s) in child protection proceedings. The specific proceedings under review are child in need of care and termination of parental rights proceedings.

Both the child and his parents are entitled to counsel in a child in need of care proceeding. Articles 607 and 608 of the Louisiana Children’s Code respectively provide, in pertinent part:

Art. 607. Child’s right to appointed counsel; payment

A. In every proceeding under this title, the court shall appoint independent counsel for the child, or refer the child for representation by the indigent defender board. Neither the child nor anyone purporting to act on his behalf may be permitted to waive this right.

B. If the court finds that the parents of the child are financially able, it may order the parents to pay some or all of the costs of the child’s representation.

Art. 608. Parents’ right to counsel; payment

A. The parents of a child who is the subject of a child in need of care proceeding shall be entitled to counsel, which right may be waived by the parents.

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Honorable Billy Ezell
OPINION 00-473
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B. If the parents of a child are financially unable to afford counsel, the court shall appoint counsel, or refer the parents for representation by the indigent defender board.

Similarly, both the child and his parents are entitled to representation by separate counsel in a termination proceeding brought pursuant to Article 1016 of the Louisiana Children’s Code:

Art. 1016. Right to counsel

A. The child and the parent shall each have the right to be represented by separate counsel in a termination proceeding brought under this Title.

B. The court shall appoint an attorney to represent the child in such a proceeding.

C. If the court determines that the parent is indigent and unable to employ counsel solely for that reason, an attorney shall be appointed to represent the parent in accordance with Article 320.

LSA-R.S. 46:460.21 authorizes the State through the Department of Social Services, to pay for “legal fees and approved expenses arising out of the representation of children or indigent parents, but not both, and curatorships in child protection proceedings…” See R.S. 46:460.21A.(1); see also the fee schedule set by the Rules of the Supreme Court of Louisiana1. The cited statute further provides that “funds appropriated for this purpose shall not be used to supplant a court’s prior levels of indigent defender representation.”

The state’s responsibility for legal expenses incurred is limited by the statute. Thus, you advise us that the question commonly arises, to-wit: who is responsible for the payment of the legal expenses incurred by the attorney appointed ad hoc to represent an indigent parent, who is not employed by the indigent defender board, and who is denied payment by DSS because the department has already met its obligation to pay for legal expenses authorized by the statute?

1
Rules of the Supreme Court of Louisiana Part G, § 9 dictate the following: Section 9. Schedule of fees for Child in Need of Care and Termination of Parental Rights Proceedings The following fee schedule is hereby established for occasions in which the State of Louisiana compensates attorneys who represent children and their indigent parents in Child in Need of Care and Termination of Parental Rights proceedings:

A. Fees for in-court work: $75.00 per hour
B. Fees for out-of-court work: $50.00 per hour
C. Fees for curatorship
$100.00 total, plus a maximum of
$100 in reimbursable expenses
Courts may also order higher rates of compensation in extraordinary cases.

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Honorable Billy Ezell
OPINION 00-473
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A court has the inherent power to require an attorney to represent indigent parents in parental termination proceedings, with or without compensation. See State in the Interest of HLD, 563 So.2d 360 (La. App. 3rd Cir. 1990). However, where the assessment of fees to DSS is improper as in contravention of R.S. 46:460.21, it is the opinion of this office that a court has the authority to “determine whether there are local funds such as indigent defender board funds to which the court-appointed attorneys . . . may be referred.” See State in the Interest of CAM and AMM, 565 So.2d 523 (La. App. 3rd Cir. 1990), at page 532, so resolving the matter of the mother’s court-appointed attorneys’ fees in a termination proceeding; see also State in the Interest of TK, 568 So.2d 636 (La. App. 3rd Cir. 1990) at page 642.

The adoption of R.S. 46:460.21 legislatively overruled the holding of the Louisiana Supreme Court in the case of State in the Interest of Johnson, 475 So.2d 340 (La. 1985). In Johnson, the Court held DHHR (now DSS) as the entity responsible for the legal fee of an attorney appointed to represent an indigent parent in a child abandonment proceeding in the absence of a statute authorizing the fee or its payment.

This office adheres to the general principle that the constitutionality of every statute is presumed. See State vs Rones, 67 So.2d 99 (La. 1953). Thus, R.S. 46:460.21 is presumed to be valid until such time as a court determines otherwise.

Very truly yours,

RICHARD P. IEYOUB
ATTORNEY GENERAL

BY: ________
KERRY L. KILPATRICK
ASSISTANT ATTORNEY GENERAL

KLK:ams

cc: Judge Perrell Fuselier
City Court of Oakdale

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Honorable Billy Ezell
OPINION 00-473
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#00-473

15 COURTS
53-2 INDIGENT DEFENDANTS

Legal fees incurred arising out of the representation of children or indigent parents, but not both, may be paid by the Department of Social Services in child protection proceedings.

Honorable Billy H. Ezell
District Judge
Post Office Box 3210
Lake Charles, LA 70602

Date Received:
Date Released: January 11, 2001

KERRY L. KILPATRICK
ASSISTANT ATTORNEY GENERAL