29 DE Code § 9007A. (2021)
2021 Delaware Code|Title 29 - State Government|Chapter 90A. Office of the Child Advocate|§ 9007A. Legal representation of children.

§ 9007A. Legal representation of children. (a) Purpose. — (1) The General Assembly has recognized the need to safeguard the welfare of abused, neglected and dependent children in this State. As such, it has charged the Office of the Child Advocate with ensuring legal representation in child welfare proceedings. To this end, the Office shall coordinate with the Family Court to implement and administer a program for representation of children. The Office may assist the other courts of this State as needed to coordinate legal representation of children. (2) In determining whether to represent an abused, neglected or dependent child, or a child at risk of same, the Office may communicate with any child at issue and may have access to all information relating to that child and child's family held or maintained by the Department or the Family Court. (3) This section shall be liberally construed so that these purposes may be realized. (b) Appointment. — (1) In the event that the court determines that a child is in DSCYF Custody pursuant to Chapter 25 of Title 13, the court shall sign an order appointing an attorney to represent the child. If a child is otherwise in need of legal representation in a child welfare proceeding, the Office may file a motion with the court requesting appointment, which shall be granted if the court determines it is in the best interests of the child. The court may also issue an order appointing an attorney sua sponte under this statute subject to the resources of the Office. That order shall impose all the duties, rights and responsibilities set forth in this section. Upon request from the Office or any party, the court may also appoint a Court Appointed Special Advocate volunteer to work in conjunction with the child's attorney to accomplish the duties set forth in subsection (c) of this section. Upon entry of the order, the attorney and Court Appointed Special Advocate volunteer, if one is appointed, shall have the authority to review all documents and interview all pertinent persons having significant information relating to the child and the child's life circumstances. (2) The appointment shall last until the attorney or Court Appointed Special Advocate volunteer is released from responsibility by order of the court, or until his or her commitment to the court ends. (3) Upon appointment of an attorney, the child shall be a party to any child welfare proceeding in which the child is the subject, and shall possess all the procedural and substantive rights of a party including those set forth in § 732 of Title 13. (4) Upon presentation of the order of appointment, any agency, hospital, school, organization, division or department of the State, doctor, nurse or other health-care provider, treatment facility, psychologist, psychiatrist, police department or mental health clinic shall permit the attorney or Court Appointed Special Advocate volunteer to inspect and copy any records relating to the child and parents, and guardian or petitioner where the court deems appropriate, involved in the case of appointment without consent of the child, parents, guardian or petitioner. Release of mental health and substance use records shall comply with applicable federal law requiring consent or a court order. (c) Duties and rights. — The attorney's duty is to the child. The scope of the representation of the child is the child's best interests. The attorney and the Court Appointed Special Advocate volunteer, in addition to other Office employees, contractors and volunteers shall have the duty of confidentiality to the child unless disclosure is necessary to protect the child. As such, the attorney or Court Appointed Special Advocate volunteer shall:  (1) Represent the best interests of the child in all child welfare proceedings, and explain to the child, taking into account the child's ability to understand the proceedings, the duties of the attorney, the role of the Court Appointed Special Advocate volunteer, and the rights of the child set forth in § 2522 of Title 13, if the child is in DSCYF custody; (2) Be trained by the Office of the Child Advocate or a course approved by the Office prior to representing any child before the court. The attorney or Court Appointed Special Advocate volunteer shall be required to participate in ongoing multidisciplinary training regarding child welfare. (3) Be employed, contracted or an approved volunteer with the Office and shall be appointed by the court; (4) Conduct an independent investigation of the circumstances of a case of appointment, which shall include but not be limited to interviews and/or observations of the child and relevant individuals, as well as a review of all relevant records and reports; (5) Present evidence to the court in support of his or her position; (6) Be provided with notice of every court proceeding and receive copies of every pleading; (7) Participate in all depositions, negotiations, discovery, pretrial conferences, hearings and appeals; (8) Have access to all records regarding the child and his or her family maintained by the Department; (9) Monitor cases to which he or she is appointed to assure that the terms of the court's orders are fulfilled and permanency for the child is achieved through reunification, adoption, permanent guardianship, guardianship, placement with a fit and willing relative, or alternatively, by another planned permanent living arrangement so long as the child is at least 16 years of age; (10) Receive reasonable notice from the Division of changes in placement, school or any other change of circumstances affecting the child; (11) Receive reasonable notice from the Division of any founded complaint involving:  a. The child, where the child is the alleged victim; b. The residence in which the child lives; and/or c. The home-based daycare which the child attends; (12) Request a hearing before the court when the plan on behalf of the child is not implemented, is not meeting the child's needs, or upon completion of a Division investigation; (13) Request any appropriate relief from the court on behalf of the child; (14) Appear, when appropriate, on behalf of a child before the Violent Crimes Compensation Board, to pursue a claim on behalf of the child, as set forth in Chapter 90 of Title 11; and (15) Ascertain the wishes of the child, give appropriate weight to the child's wishes understanding his or her age and emotional development, and make the child's wishes known to the court. If the attorney concludes that the child's wishes conflict with his or her position or the position of the Court Appointed Special Advocate volunteer, if one is appointed, he or she will make the child's wishes known to the court, and notify the court of the conflict so the court can determine if a conflict exists. If the court determines a conflict exists, the court shall determine how to remedy the conflict such that the child's best interests and wishes are represented. (d) Criminal investigations and/or prosecutions. Notwithstanding any provision of this chapter to the contrary, the Office of the Child Advocate shall in no way intervene in any pending criminal investigation or prosecution, and shall provide no legal representation or advice to any suspect, defendant or respondent in any open criminal investigation or prosecution. 72 Del. Laws, c. 167, §  2;  70 Del. Laws, c. 186, §  1;  72 Del. Laws, c. 451, §  9;  73 Del. Laws, c. 277, §§  1-4, 6;  80 Del. Laws, c. 417, §  3;