Montana guarantees counsel for children, but exact role unclear

Generally

A court must appoint counsel for a child in abuse and termination of parental rights (TPR) matters, Mont. Code Ann. § 41-3-425, and may assign counsel for appeals. Mont. Code Ann. § 47–1–104(4)(c).

Emergency protective services hearing

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).

2023 amendment: Counsel for all kids required

Prior to 2023, children in abuse and termination cases were entitled to counsel only if a guardian ad litem (GAL) was not appointed.  However, Montana enacted SB 148, which removed that qualifier.  Mont. Code Ann. § 41-3-425 now guarantees client-directed counsel to children in abuse and TPR cases 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”).

Role of appointed attorney

In Matter of C.M.B., — P.3d —-2025 WL 3280264 (Mont. 2025), the state brought a dependency petition against a mother and the court appointed a GAL and an attorney for the 5-year old child.  As background, Mont. Code § 41-3-425 requires appointment of counsel for a minor in an abuse/neglect proceeding, and in fact a 2023 law removed the limitation of counsel only being appointed where a GAL is not appointed, so now counsel is always appointed.  In C.M.B., the State moved for TPR, but despite the child having the expressed wish of retaining her relationship with her mother the child’s attorney decided to use substituted judgment and joined the State’s petition for TPR.  The court granted the petition and the mother appealed, arguing that the child received ineffective assistance based on her attorney’s use of substituted judgment.  The Supreme Court of Montana concluded the mother lacked standing to raise the issue, relying in part on In re B.F., 87 P.3d 427 (Mont. 2004), and In re K.H.,285 P.3d 474 (Mont. 2012).

In B.F., a biological mother “brought an action on behalf of her daughters’ biological fathers against the girls’ foster parents, alleging a statutory and constitutional violation” of not having provided sufficient notice to the fathers, but the Supreme Court of Montana held that the mother lacked standing to assert the fathers’ constitutional rights.

In K.H., there was an appointed GAL as well as counsel appointed for the two children.  The children’s attorney joined with the State in arguing that his clients should be adjudicated abused/neglected even though the children wished to return home, but the trial court dismissed the abuse/neglect petition.  The children’s attorney appealed, and in the appeal the mother argued that “[children’s] counsel’s only role, as the children’s attorney, was to advocate for their personal interests.”  After first holding the children’s attorney had standing to file the appeal, the Supreme Court of Montana acknowledged its prior case that “the attorney for the children has a distinct role from that of the GAL.”  But it then relied on In re Marriage of Rolfe, 699 P.2d 79 (Mont. 1985) for the proposition that “[W]hile an attorney has a responsibility to pursue the lawful objectives of his client, this duty may be affected when ‘a client’s ability to make adequately considered decisions in connection with the representation is impaired … because of minority …”.  At the time of Rolfe, which was a divorce case, a statute authorized appointment of an attorney for a child in a custody case to represent the “interests” of a child.  In defining what “interests” meant, the Rolfe Court stated:

We recognize that in Montana the attorney for the child is not a guardian ad litem. Nevertheless his role in a custody dispute is to advocate the child’s best interest, not the child’s wishes. This is a difficult role, particularly when the child’s expressed wishes conflict with the attorney’s determination of his best interests. But, given the immaturity of the client and the pressures that often exist in a divorce situation, it is the Court’s opinion that the best interests of the child, the paramount concern in all custody disputes, is best served by modifying that traditional lawyer-client relationship.”

The Rolfe court explicitly stated, “we are addressing only the very narrow question of court-appointed representation of a child in a custody dispute arising out of a divorce”, and in such cases there was no provision at the time for appointing a GAL (notably, a decade after Rolfe this statute was amended to change “attorney” to “guardian ad litem”, specifying the GAL “may be an attorney”).  In contrast, K.H. was an abuse/neglect case that involved the appointment of a guardian ad litem to argue best interests in addition to appointment of the children’s attorney.  The K.H. Court acknowledged that Rolfe had limited itself to private custody cases but added “our analysis is instructive here.”  It then approved the Rolfe standard for use in defining the child’s attorney’s role in abuse/neglect cases and approvingly quoted the Rolfe language above.  The K.H. court then held that

[C]ounsel was faced with a situation in which his clients expressed their personal wishes, but he reasonably believed advocating for that position would not benefit the young children’s best interests. Counsel disclosed his clients’ desires to the court and then explained why he could not properly execute his responsibilities as counsel by arguing that they be immediately returned to their Mother’s care. The record demonstrates that counsel considered the children’s expressed objective and advocated for it through a process that would serve their best interests. Counsel acknowledged that K.M. and K.H. should ultimately be reunited with Mother, but argued that adjudication of the children as youths in need of care was necessary to ensure Mother received appropriate treatment so that she could protect her children.

While K.H. weakened the client directed role, the children’s attorney in K.H. did support reunification as the eventual goal, albeit with an intermediate step of first adjudicating the children neglected so that the State would provide services first, so one can at least see how the K.H. court could say the attorney was still advocating for the child’s wishes, albeit with an additional “best interests” lens.

Returning to C.M.B., the Supreme Court of Montana noted that the child’s attorney at issue had made the decision for substituted judgment based on the child’s age and made the decision to support the TPR petition based on “Mother’s lack of engagement and ‘criminal behavior and use of dangerous drugs while the Youth was in a trial home visit during the previous legal proceedings’”.  Relying on B.F. and K.H., the C.M.B. Court then concluded:

Mother has not shown a personal constitutional violation and a basis to assert C.M.B.’s statutory and constitutional rights to counsel. The application of this general prudential standing rule here is based upon the status of children within the proceeding and the provision for their representation, as discussed herein. As a prudential rule, it is possible that circumstances could arise, including statutory revisions, which would possibly permit another to assert rights or immunities on behalf of the children … However, those circumstances are not present here, and we see no basis to depart from the application of this “general rule.”