Right to counsel

Legislation, Termination of Parental Rights (Private) - Birth Parents

Minor parents have a right to counsel in adoption matters involving relinquishment, as do respondents where termination of parental rights is sought due to a nonconsensual sexual act, sexual assault, or incest.


Mont. Code § 42-2-405(2) specifies:


In a direct parental placement adoption, a relinquishment and consent to adopt executed by a parent who is a minor is not valid unless the minor parent has been advised by an attorney who does not represent the prospective adoptive parent.  Legal fees charged by the minor parent's attorney are an allowable expense that may be paid by prospective adoptive parents under 42-7-101, subject to the limitations in 42-7-102.


Subsection 3 of § 42-2-405 adds, "If in the court's discretion it is in the best interest of justice, the court may order the office of state public defender, provided for in 47-1-201, to assign counsel to represent the minor parent."


Mont. Code. Ann. § 42-7-101(1)(i) states that adoptive parents “may” pay “[r]easonable adoption fees,” including for the “legal fees incurred for services on behalf” of the birth parent(s), see Mont. Code Ann. § 42-7-101(1)(i), but it is unclear whether this is strictly voluntary for the adoptive parents or whether the court can order it.


Finally, the victim of a crime or act involving sexual intercourse without consent, sexual assault, or incest that caused the child to be conceived may petition the court to terminate the parent-child relationship on this basis. Mont. Code Ann. § 40-6-1001(2). "The respondent to the petition has the right to counsel in all proceedings held pursuant to the petition." Id. at (5).

Appointment of Counsel: categorical Qualified: yes