Right to counsel

In In re Adoption of K.A.S., 499 N.W.2d 558, 563 (N.D. 1993), the North Dakota Supreme Court invoked the state constitution's equal protection clause in examining a statute that allowed termination of the parental rights of an indigent parent without providing appointed counsel.

The court noted that there were three statutes that allowed for involuntary termination of parental rights: 1) the Uniform Juvenile Court Act (N.D. Cent. Code § 27-20-45]); 2) the Uniform Parentage Act (N.D. Cent. Code § 14- 17-24);7 and 3) the Revised Uniform Adoption Act. While the first two unambiguously required the appointment of counsel, the third was vague and the trial court construed it to not require counsel. K.A.S. explained that "the ultimate termination of parental right . . . has been described as a punishment more severe than many criminal sanctions."

The K.A.S. court found that a fundamental right was at stake in adoption proceedings, and applied strict scrutiny to the state classification. The North Dakota Supreme Court explained:

Deciding the appropriate standard of review is straightforward in this case. It is beyond question in this jurisdiction that parents have a fundamental constitutional right to parent their children which is of the highest order. We have specifically recognized that the right to enjoy "'the domestic relations and the privileges of the family and the home'" is embraced by the liberty and pursuit of happiness guarantees contained in Article I, Section 1 of the North Dakota Constitution. Thus, providing court-appointed counsel or not to a parent facing termination of parental rights affects a fundamental right and in the case of not providing counsel, impairs the exercise of that fundamental right. We, therefore, apply strict scrutiny to the classification because it impairs a fundamental right, and when we use strict scrutiny, we do not defer to the legislative choice of classification but, instead, subject the classification "to close analysis in order to preserve substantive values of equality."

Importantly, the court found that there was sufficient state action at issue to trigger equal protection, notwithstanding the fact that the state was not a party to the litigation. The court found that the state was heavily involved indirectly in any adoption proceeding, first through the use of its courts: "Adoption, not recognized under the common law, is wholly a creature of statute ... Only a court may issue a final decree of adoption and then, only if it determines that statutory grounds for doing so have been satisfied ... Resort to the judicial process by the parties in this adoption proceeding was not voluntary; it was the only way the parties could accomplish their respective objectives." The court also pointed out that the court clerk prepared the application for birth record and forwarded the adoption decree to the state Department, and the court was "required to ensure the legislatively mandated confidentiality of the proceedings and records." Moreover, state agencies were "involved throughout the proceedings", since the statute required the petitioner to name the state or a county social service board as a party, and as named party the state could participate fully in all proceedings.