Montana guarantees child-directed counsel for children

Key_development Question_mark

05/19/2023, Legislation, Abuse/Neglect/Dependency - Children

A 2021 amendment to the child welfare code 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—including the child—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) (Terminates June 30, 2023--sec. 8, Ch. 529, L. 2021)], the Montana Supreme Court recently 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).


In abuse/neglect proceedings, children were previously entitled to counsel only if a guardian ad litem (GAL) was not appointed.  However, Montana enacted SB 148 in 2023, which removed that qualifier.  Mont. Code Ann. § 41-3-425 now guarantees client-directed counsel to children in abuse/neglect proceedings regardless of whether a GAL has been appointed:


[T]he court shall immediately appoint the office of state public defender to assign counsel for:


(b) any child or youth involved in a proceeding under a petition filed pursuant to 41-3-422; and

(c) any party entitled to counsel at public expense under the federal Indian Child Welfare Act or [sections 1 through 18 of the Montana Indian Child Welfare Act].


See also Mont. Code Ann. § 47–1–104(4)(b)(i) (specifying appointment of public defender regardless of indigence "as provided for in 41-3-425"). A public defender may be appointed on appeal as well. Mont. Code Ann. § 47–1–104(4)(c). 


Finally, Mont. Code § 41-3-112(1) says, “In every judicial proceeding, the court shall appoint a court-appointed special advocate as the guardian ad litem for any child alleged to be abused or neglected. If a court-appointed special advocate is not available for appointment, the court may appoint an attorney or other qualified person to serve as the guardian ad litem..."

Appointment of Counsel: categorical Qualified: no