Montana guarantees child-directed counsel for children

Key_development Question_mark

05/19/2023, Legislation, Termination of Parental Rights (State) - Children

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


In 2023, Montana enacted HB 603, which added paragraph (2)(d) to Mont. Code Ann. § 41-3-425, providing that an eligible child adjudicated a youth in need of care whose parent's rights were terminated may petition to reinstate the parent's rights.  The child has the right to counsel in such a proceeding, provided by the state public defender. Mont. Code Ann. § 41-3-425(2)(d).

Appointment of Counsel: categorical Qualified: no