Juvenile & Child Welfare

Juvenile & Child Welfare

Section Blog

New Indigency Procedures (1)

by Michael F. Kilkelly , posted Mon, Feb 20, 2012 5:36 PM

 

The Juvenile Court is implementing new procedures for determining whether juveniles are indigent.

The statutes and court rules that guide the determination of indigency are not new. But in this year's budget, the legislature provided that there be tighter time standards for the determination. Instead of having 60 days to verify indigency, parties now must provide written income verification within 7 business days. And indigency must be reviewed every six months.

At arraignment, juveniles in delinquency and youthful offender proceedings and their families will continue to be interviewed for indigency. If they are found indigent (as is currently occurring) they will be assigned counsel.

Within 7 business days after the probation interview, the family is required to provide written proof of indigency. This can be 1- Current written proof of any DTA benefits, including food stamps, AFDC or Mass Health; 2- Current written proof of Social Security Benefits; 3- Current written proof of Veterans Benefits 4- If the parent is employed, the most recent tax return, W2 statement and a current pay stub.

If the family does not provide this information within the 7 business day period , the probation officer will file notification of this with the clerk's office, and the clerk's office will schedule a date for an Indigency Hearing (IH) before the court. (It is unclear exactly how this will be done but it will be before the next scheduled court date so that those found not indigent by the judge will have an opportunity to obtain private counsel.) Both the client and the client's attorney will be notified of the date of this hearing. It is still unclear if CPCS will be paying for the attorney to appear at this hearing. In any event, it would appear to be a good idea for prior appointed counsel to appear at this hearing.

The probation department and the judges have different standards for determining indigency. The probation department must find the client "not indigent" if they are unable to verify indigency. The judges, on the other hand, must take evidence to show that the client is "not indigent." So the judges do not have to make their determination based on documentation. They have three options in their determination:  1- the client is not indigent. They can then dismiss the court appointed attorney or assess legal fees that they think are appropriate.  (see G.L. c. 119 s. 29A)   2- They can find the client indigent, and assess legal counsel fees.  3- They can continue the matter for further verification. This has no time limit to it.

In cases where the parent is the victim, the child will be appointed counsel. (c. 119 s. 29A)

These standards have been implemented in Middlesex County as of October 17, 2011. All cases already within the system as well as new cases will be subject to 6 month re-determinations, with written verification.

This does not necessarily take into account c. 119 s. 29A, which allows the court to assess fees against parents whether they are indigent or not, and appears to allow appointment of counsel whether the parents are indigent or not.

Please watch out for any issues with indigency, especially if there is a case where the appearance of counsel is being stricken if the counsel fees are not being paid by the family.

Michael Kilkelly

Chair, Juvenile and Child Welfare Section Council

 

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