Section 1152. Waiver of Counsel

A. Children.

1) Guardian ad litem. A child may not waive the right to a guardian ad litem.

2) Legal Counsel. A child may waive legal counsel if:

a) the waiver is knowingly, intelligently, and voluntarily made; and

b) the court conducts a colloquy with the child on the record.

B. Other parties. Except as provided in paragraph (A), a party may waive the right to counsel if:

1) the waiver is knowingly, intelligently, and voluntarily made; and

2) the court conducts a colloquy with the party on the record.

C. Stand-by counsel. The court may assign stand-by counsel if a party waives counsel at any proceeding or stage of a proceeding.

D. Notice and revocation of waiver. If a party waives counsel for any proceeding, the waiver only applies to that proceeding, and the party may revoke the waiver of counsel at any time. At any subsequent proceeding, the party shall be informed of the right to counsel.

Comment

Under paragraph (A), a child may not waive the right to a guardian ad litem. The right of waiver to legal counsel belongs to the child, not the guardian. See Rule 1800, which suspends 42 Pa.C.S. § 6337, which provides that counsel must be provided unless the guardian is present and waives counsel for the child.

It is recommended that, at a minimum, the court ask questions to elicit the following information in determining a knowing, intelligent, and voluntary waiver of counsel:

1) Whether the party understands the right to be represented by counsel;

2) Whether the party understands the nature of the dependency allegations and the elements of each of those allegations;

3) Whether the party is aware of the dispositions and placements that may be imposed by the court, including foster care placement and adoption;

4) Whether the party understands that if he or she waives the right to counsel, he or she will still be bound by all the normal rules of procedure and that counsel would be familiar with these rules;

5) Whether the party understands that counsel may be better suited to defend the dependency allegations; and

6) Whether the party understands that the party has many rights that, if not timely asserted, may be lost permanently; and if errors occur and are not timely objected to, or otherwise timely raised by the party, the ability to correct these errors may be lost permanently.

Official Note

Rule 1152 adopted August 21, 2006, effective February 1, 2007.

Committee Explanatory Reports:

Final Report explaining the provisions of Rule 1152 published with the Court’s Order at 36 Pa.B. 5571 (September 2, 2006).