Montana Supreme Court acts to protect parent right to counsel

01/03/2019, Litigation, Termination of Parental Rights (Private) - Birth Parents

A number of years ago the NCCRCR assisted a successful case before the Supreme Court Montana (called A.W.S.) establishing the right to counsel for parents in adoption cases.  Last week, the court held in In re L.F.R., 2019 Mont. LEXIS 3 (Mont. 2019) that where a parent is not advised of their right to appointed counsel for an adoption case, they cannot be said to have waived such a right. The court rejected the argument that the parent’s failure to indicate an interest in counsel relieved the court of its duty to notify the parent of this right. The court “acknowledge[d] our line of authority requiring parties to affirmatively invoke the right to counsel”, but observed that it had adopted the “knowing and voluntary” waiver standard and that those cases in the prior line of authority involved parents who had appointed counsel earlier in the process and therefore were presumed to know that they needed to request counsel for future proceedings (i.e., their waiver was more “knowing and voluntary”). The court concluded:

We recognize, as noted above, waiver can arise from a respondent's actions with regard to the right ... However, the record here discloses no indication that Father was notified of his right to counsel, or that he otherwise understood that he was entitled to seek appointment of counsel, and declined to do so. Violation of the right to counsel pervades a proceeding and requires reversal.

The automatic reversal relies on the decision in A.W.S. that the NCCRC helped achieve.