North Dakota ensures counsel for parents, kids in guardianship cases
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).
05/01/2019, Legislation, Other subject area
North Dakota has added a right to counsel for parents in private child guardianship cases by enacting N.D. Cent. Code § 27-20.1-02, which places private guardianships under the jurisdiction of the juvenile court instead of the probate court (under the old probate code, there were limited circumstances, such as abandonment, where a court could order a guardianship without a prior termination of the birth parents’ rights). These provisions allow any interested person to file a petition for guardianship in the juvenile court. N.D. Cent. Code § 27-20.1-09(2) states, “At a proceeding commenced under this chapter, a parent who is indigent and unable to employ legal counsel is entitled to counsel at public expense. If a parent appears without counsel the court shall ascertain whether the parent knows the parent may be represented by counsel and that the parent is entitled to counsel at public expense if indigent. The court may continue the proceeding to enable the parent to obtain counsel and, subject to this section, counsel must be provided for an unrepresented indigent parent upon the parent's request and the court's determination that the parent is indigent.”
It is unclear whether this right to counsel extends to review/termination of the guardianship: on the one hand, N.D. Cent. Code § 27-20.1-09(2) says that the parent’s right to counsel attaches to “a proceeding commenced under this chapter”, and a review/termination of the guardianship would so qualify. On the other hand, N.D. Cent. Code § 27-20.1-16 governs modification/termination of the guardianship and makes no mention of appointing counsel for the parent, whereas it does mention discretionary appointment of counsel for the child.
For the child, N.D. Cent Code § 27-20.1-09 states: “If, at any time in the proceeding, the court determines that the interests of the child are or may be inadequately represented, the court may appoint an attorney to represent the child.” An identical provision for review/termination proceedings is found in N.D. Cent Code § 27-20.1-16(6).
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: yes