North Dakota ensures counsel for parents in guardianship cases

Key_development Question_mark

05/01/2019, Legislation, Guardianship/Conservatorship of Children - Parent or Guardian (incomplete)

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 that they may be represented by counsel and that they are 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.  

Appointment of Counsel: categorical Qualified: yes