Montana Supreme Court twice acts to protect parent right to counsel

A number of years ago the NCCRCR assisted a successful case before the Supreme Court Montana (called A.W.S.) establishing the right to counsel for parents in adoption cases.  Last week, the court held in In re L.F.R., 2019 Mont. LEXIS 3 (Mont. 2019) that where a parent who appears for a hearing is not advised of their right to appointed counsel for an adoption case, they cannot be said to have waived such a right by failing to indicate an interest in counsel.  Rather, such a failure does not relieve the court of its duty to notify the parent of this right. The court “acknowledge[d] our line of authority requiring parties to affirmatively invoke the right to counsel”, but observed that it had adopted the “knowing and voluntary” waiver standard and that those cases in the prior line of authority involved parents who had appointed counsel earlier in the process and therefore were presumed to know that they needed to request counsel for future proceedings (i.e., their waiver was more “knowing and voluntary”). The court concluded:

We recognize, as noted above, waiver can arise from a respondent’s actions with regard to the right … However, the record here discloses no indication that Father was notified of his right to counsel, or that he otherwise understood that he was entitled to seek appointment of counsel, and declined to do so. Violation of the right to counsel pervades a proceeding and requires reversal.

The automatic reversal relies on the decision in A.W.S. that the NCCRC helped achieve.

Then, in Adoption of A.K.M., — P.3d —- 2025 WL 2650435 (Mont. 2025), the Supreme Court of Montana held that where an incarcerated parent in a private termination of parental rights case was not informed of their right to appointed counsel if indigent, that parent could not be said to have waived their right to counsel regardless of their failure to respond to the complaint or appear in court.   The Supreme Court of Montana contrasted the situation with In re J.W.M., 354 P.3d 626 (Mont. 2015), where the court held that “a parent who appeared, participated, and was repeatedly advised that appointed counsel would be available upon a showing of indigency could not later claim constitutional error when he gave no indication of indigency.”  In contrast, in the instant case the parent had never been informed of the right to counsel, and thus the case was more like L.F.R.  The Supreme Court of Montana thus reversed and remanded for a new trial.