Montana parents have constitutional right to counsel in adoptions, says high court

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12/02/2014, Litigation, Termination of Parental Rights (Private) - Birth Parents

In a unanimous opinion, the Supreme Court of Montana held in In re Adoption of A.W.S. and K.R.S. that the state's guarantee of counsel for parents in termination of parental rights cases but not private adoption terminations violates the state constitution's equal protection clause.  


The court recognized that "The fundamental right to parent is equally imperiled whether the proceedings are brought by the State or by a private party," and found sufficient state action as well.  It also observed that "[A]lthough Mother did not request counsel formally, we have recognized that pro se litigants are not required to use specific words when requesting counsel ...In this case, where Mother was not advised of any right to counsel, she preserved the issue when she explained that she represented herself only because she did not have the money to employ an attorney."


NCCRC participant Steve Schwinn discusses this case in his blog post for the Constitutional Law Profs Blog Network, and the case was also covered by The Independent Record.

Appointment of Counsel: categorical Qualified: no


Nccrc_involvement_icon NCCRC contributed substantially to petitioner's merits briefing and strategy.