Juvenile Indigent Defense Delivery System
Guam provides counsel to indigent youth through the Public Defender Service Corporation (PDSC) of Guam, a statutorily created office designed to provide legal aid and assistance to indigent people in Guam in civil, criminal and juvenile proceedings. 12 G.C.A. § 11103. Clients who cannot be represented by the Public Defender Services Corporation because of conflicts or other reasons are represented by the Alternate Public Defender.
Guam has no statutorily required or recommended training requirements or standards for attorneys representing youth in delinquency proceedings.
In addition to statutes and case law, juvenile court proceedings are governed by court rules. These are often promulgated at the state level, but may also be passed at the local court level instead of or in addition to statewide rules. Guam’s delinquency proceedings are governed by the Family Court Rules for the Superior Court of Guam.
Right to Counsel
Beyond the right to counsel in juvenile court guaranteed by the Due Process Clause of the United States Constitution and In re Gault, 387 U.S. 1 (1967), states often have state constitution or statutory provisions further expanding upon on or delineating that right.
In Guam, youth have the right to counsel in all causes in Family Court. Guam Fam. Ct. R. 11(a). Appointment is mandatory in delinquency proceedings where the juvenile is indigent. Guam Local R. Super. Ct. Misc. R. 1.1.1. The court must advise “the juvenile and his or her parents, guardian, or custodian of their right to retain counsel and, if they are unable to afford counsel the court shall assign counsel to represent them unless such right … is expressly waived.” Guam Fam. Ct. R. 11(b). Notice is also provided in the summons for a court hearing, which “shall advise that the juvenile and his parents, guardian, or custodian have the right to be represented by counsel at every stage of the proceeding and that if unable to afford counsel, upon application to the court counsel will be assigned if in the opinion of the court the proceedings may result in the institutional commitment of the juvenile.” Guam Fam. Ct. R. 24.
Determination of Indigence
Guam has no presumption of indigence in juvenile court proceedings. The determination of indigence and subsequent referral to PDSC is at the discretion of the judge before whom the person appears. 12 G.C.A. § 11104. All persons seeking counsel, including juveniles, must submit a Financial Declaration (affidavit) to the court. Guam Local R. Super. Ct. Misc. R. 1.1.2. If the court finds that a person is financially unable to employ counsel, the court will appoint counsel for that person. The court will not appoint unless the affidavit is submitted. Guam Local R. Super. Ct. Misc. R. 1.1.2. The affidavit asks those under the age of 21 to provide their parent’s or guardian’s approximate monthly income. Guam Local R. Super. Ct. Misc. R. 1.1, App’x. A.
Waiver of Counsel
Guam does not have a specific juvenile statute, rule, or case law addressing a juvenile’s waiver of counsel, except that “In all causes the court shall advise the juvenile and his parents, guardian, or custodian of their right to retain counsel and, if they are unable to afford counsel the court shall assign counsel to represent them unless such right to the aid of counsel is expressly waived.” A juvenile in Guam may waive his or her right to counsel. Guam Fam. Ct. R. 11(b).
When and how the court may decide to detain a child or otherwise place restrictions on the child’s freedom is defined by statute and court rules. In Guam, a child may not be “held in detention longer than two days, excluding Saturdays, Sundays, and holidays unless an order for such detention is signed by the judge.” Guam Fam. Ct. R. 22(c).
Provisions for the detention of juveniles are found in 19 G.C.A. § 5111, and in Guam Fam. Ct. R. 22.
NJDC’s Detention Page provides more information about detaining youth.
The legal needs of children in the delinquency system rarely end at disposition, and states vary in the way they provide a right to representation on these post-disposition issues. Guam statutes list no post-disposition proceedings at which youth have a right to counsel.
NJDC’s Post-Disposition Page has more information on this topic from a national perspective.
Ages of Juvenile Court Jurisdiction
The age of a child who comes within the jurisdiction of the state’s juvenile courts is defined by state law. In Guam:
- No statute specifies the youngest age at which a juvenile can be adjudicated delinquent;
- Juvenile court has jurisdiction over youth alleged to have violated any territorial law and for whom the related legal proceedings are commenced prior to the child’s 18th birthday; if the legal proceedings are first commenced after the youth turns age 18, the youth is charged in adult court, 19 G.C.A. §§ 5102(d), 5103(a)(4);
- Juvenile court has jurisdiction over traffic offenses alleged to have been committed prior to a child’s 16th birthday; after age 16, the youth is charged in adult traffic court, 19 G.C.A. § 5103(a)(4);
- Juvenile court may retain jurisdiction over youth until age 21, provided that the offense alleged to have been committed occurred before the youth turned 18. 19 G.C.A. § 5105.
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Guam has two ways that juveniles can be prosecuted as adults:
- Discretionary Transfer: If a child is under 16 and the charge is homicide, or the child is 16 or older and the charge is a misdemeanor or a felony of the third degree, “after full investigation,” the court may transfer (“certify”) the youth to adult court if the court deems it to be contrary to the best interests of the child or public to pursue the case in juvenile court. 19 G.C.A. § 5106.
- Statutory Exclusion: If a child is 16 or older and charged with a first or second degree felony, that child will be charged as an adult. Id.
NJDC conducts statewide assessments of access to counsel and the quality of juvenile defense representation in delinquency proceedings around the country. These assessments provide a state with baseline information about the nature and efficacy of its juvenile indigent defense structures, highlight the strengths and weaknesses of the indigent juvenile defense system, and provide tailored recommendations that address each state’s distinctive characteristics to help decision-makers focus on key trouble spots and highlight best practices. The NJDC State Assessment Page provides more information about state assessments.
NJDC has not yet conducted an assessment of the juvenile indigent defense system in Guam. If you would like to collaborate with NJDC to fundraise for, plan, or engage in an assessment in this jurisdiction, please contact us.