Right to counsel

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Legislation, Abuse/Neglect/Dependency - Accused Parents

Mont. Code Ann. § 41-3-425 provides that in abuse/neglect proceedings:


(1) Any party involved in a petition filed pursuant to 41-3-422 has the right to counsel in all proceedings held pursuant to the petition.

(2) Except as provided in subsections (3) and (4), the court shall immediately appoint the office of state public defender to assign counsel for:

(a) any indigent parent, guardian, or other person having legal custody of a child or youth in a removal, placement, or termination proceeding pursuant to 41-3-422, pending a determination of eligibility pursuant to 47-1-111.


A 2017 amendment to § 41-3-425 added that putative fathers must be successfully served and request appointment of counsel before counsel can be appointed, except as provided in the federal Indian Child Welfare Act or sections 1 through 18 of the Montana Child Welfare Act. Mont. Code Ann. § 41-3-425(4).


In addition, an amendment enacted in 2021 states that the court must hold a hearing within five business days of the child's removal from the home to determine whether there is probable cause to continue the removal [Mont. Code Ann. § 41-3-306(1)(a)], and the parties must be represented by counsel at this hearing. Mont. Code Ann. § 41-3-306(3).  Although paragraph 7 of this section states that the emergency protective services hearing requirement does not apply to cases involving an Indian child who is subject to the Indian Child Welfare Act [Mont. Code Ann. § 41-3-306(7)], the Montana Supreme Court found this exception unconstitutional as a violation of the right to equal protection of the law under both the U.S. and Montana Constitutions. A.J.B. v. Mont. Eighteenth Judicial Dist. Ct., 2023 WL 195339 (Mont. 2023).


Finally, Mont. Code Ann. § 47-1-104(c) permits the court to appoint the public defender for the appeal.

Appointment of Counsel: categorical Qualified: no