Montana parents have constitutional right to counsel in adoptions, says high court
While a state may have many statutes, court decisions, or court rules governing appointment of counsel for a particular subject area, a "Key Development" is a statute/decision/rule that prevails over the others (example: a state high court decision finding a categorical right to counsel in guardianships cases takes precedence over a statute saying appointment in guardianship cases is discretionary).
12/02/2014, Litigation, Termination of Parental Rights (Private) - Birth Parents
In a unanimous opinion, the Supreme Court of Montana held in In re Adoption of A.W.S. and K.R.S. that the state's guarantee of counsel for parents in termination of parental rights cases but not private adoption terminations violates the state constitution's equal protection clause.
The court recognized that "The fundamental right to parent is equally imperiled whether the proceedings are brought by the State or by a private party," and found sufficient state action as well. It also observed that "[A]lthough Mother did not request counsel formally, we have recognized that pro se litigants are not required to use specific words when requesting counsel ...In this case, where Mother was not advised of any right to counsel, she preserved the issue when she explained that she represented herself only because she did not have the money to employ an attorney."
NCCRC participant Steve Schwinn discusses this case in his blog post for the Constitutional Law Profs Blog Network, and the case was also covered by The Independent Record.
If "yes", the established right to counsel or discretionary appointment of counsel is limited in some way, including any of: the only authority is a lower/intermediate court decision or a city council, not a high court or state legislature; there has been a subsequent case that has cast doubt; a statute is ambiguous; or the right or discretionary appointment is not for all types of individuals or proceedings within that category.
Appointment of Counsel: categorical Qualified: no
|NCCRC contributed substantially to petitioner's merits briefing and strategy.|