Right to counsel

Key_development Question_mark

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

The Revised Uniform Adoption Act provides the right to counsel for a parent who consents to the adoption of a minor during all stages of the proceeding to terminate the parent-child relationship if the minor is to be placed for adoption by a child-placing agency.  N.D. Cent. Code § 14-15-19.1.

Additionally, N.D. Cent. Code § 27-20-26 of the Uniform Juvenile Court Act provides indigent parties with appointed counsel "at custodial, post-petition, and informal adjustment stages of proceedings under this chapter", although the next sentence clarifies that only indigent children are entitled to appointed counsel at the informal adjustment stage.  Proceedings occurring under the Uniform Juvenile Court Act include terminations of parental rights.  N.D. Cent. Code § 27-20-03.

Even if a parent consents to a termination (or initiates it themselves), they have a right to counsel.  N.D. Cent. Code § 27-20-45(5).


In In re K.L., 751 N.W.2d 677 (N.D. 2008), the Supreme Court of North Dakota held that there is a right to effective assistance of counsel in termination of parental rights cases:


The statutory right to court-appointed counsel in a parental termination proceeding is much like that in a post-conviction relief proceeding. N.D.C.C. § 27-20-26(1). The reasoning for ineffective assistance of counsel claims in post-conviction relief claims is analogous and persuasive in the context of parental rights termination actions. Because of the legislative directive that respondents be afforded counsel in termination proceedings, it would be absurd and meaningless to have the right to appointed counsel, but not to require counsel to be effective in this context. Johnson, at P 16 (citations omitted). See also In re K.L., 91 S.W.3d 1, 11 (Tex. App. 2002) (adopting ineffective assistance of counsel claims in termination cases and explaining a parent whose parental rights were terminated due to counsel's deficiencies has no meaningful remedy and monetary damages derived of a professional malpractice suit are inadequate due to the nature and severity of the interests involved). Therefore, we acknowledge the need to recognize an ineffective assistance of counsel claim and apply the test announced in Strickland. 466 U.S. at 688.

Appointment of Counsel: categorical Qualified: no