NO. 92-369
IN THE SUPREME COURT OF THE STATE OF MONTANA
IN THE MATTER OF A.S.A.,
J.L.A., G.A., and A.J.A.,
YOUTHS IN NEED OF CARE.
In and for the County of Jefferson,
The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Joseph R. Massman, Massman Law Firm,
Helena, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena,
Montana: Deborah F. Butler, Deputy Jefferson
County Attorney, Boulder, Montana
Guardian Ad Litem:
Paul B. Smith, Attorney at Law,
Boulder, Montana
Submitted on Briefs: January 7, 1993
Filed:
Justice Terry N. Trieweiier delivered the opinion of the Court.
This is an appeal from an order of the Fifth Judicial District
Court, State of Montana, terminating a mother's parental rights to
her four children and awarding permanent legal custody to the
Department of Family Services. The mother asserts on appeal that
the District Court violated her constitutional right to due process
and denied her statutory right to appointed counsel when the court
refused to appoint counsel for her at the hearing to terminate her
parental rights. We reverse.
The dispositive issue on appeal is:
Did the District Court err when it refused to appoint counsel
to represent an indigent mother in proceedings brought to
involuntarily terminate her parental rights?
On August 13, 1990, the Department of Family Services (DFS)
petitioned for temporary investigative authority and temporary
emergency protection of D.A.'s four children. The District Court
granted the DFS petition. In August 1991, the court granted a
subsequent petition by the DFS to continue temporary investigative
authority and protection services for the four children.
On December 18, 1991, the DFS filed a petition for termination
of D.A.'s parental rights and permanent legal custody with the
right to consent to adoption. A termination hearing was held on
February 5, 1992. In the initial minutes of the hearing, Joseph
Massman, guardian ad litem for the children, informed the court
that D.A., an indigent mother, was not represented by counsel.
Massman explained to the court that D.A. was entitled to appointed
2
counsel at the hearingto terminate her parental rights, and
requested that an attorney be appointed to represent her.
The court acknowledged that D.A. was entitled to an attorney
in the termination proceedings: however, the court elected to
proceed without appointing counsel for D.A., because according to
the District Court, the DFS was prepared to present its evidence
and the judge wanted to hear it. The court asked D.A. directly if
she was going to contest not having an attorney and D.A. indicated
that she planned to do so.
Massman made numerous comments to the court throughout the
hearing to the effect that D.A. was unrepresented by counsel and
that she was entitled to counsel at the termination proceedings.
In spite of such suggestions, however, the court continued to hear
evidence without appointing counsel for D.A.
At one point in the hearing, the court admonished Massman that
he was abdicating his position as guardian ad litem for the
children and that he was advocating for the mother. At another
time, the court warned Massman that he could not serve two masters.
However, the court did not stop the termination proceedings and
appoint counsel for D.A.
At the conclusion of the termination hearing on February 5,
1992, the District Court "tentatively" terminated D.A.Is parental
rights to her children. The court informed the parties that the
decision to terminate was based on the evidence presented at the
hearing. The parties were told that the termination was tentative
because D.A. was not formally represented at the hearing. The
court reserved the right to amend its decision to terminate and
explained that additional reports filed by the attorneys would be
considered. The court then removed Massman as the guardian ad
litem for the children and appointed Massman to be attorney for
D.A., the mother. Paul Smith was appointed as guardian ad litem
for the children.
In an omnibus order dated February 5, 1992, (the same date as
the hearing), the District Court directed the deputy county
attorney to prepare proposed Findings of Fact and Conclusions of
Law supporting the court's decision to terminate D.A.'s parental
rights. The court also ordered both Massman and Smith to review
the proposed findings, to conduct further inquiry, and to each make
a formal recommendation to the court as to whether D.A.'s parental
rights should be terminated.
On February 13, 1992, the court issued temporary Findings of
Fact and Conclusions of Law and Order in which D.A. Is parental
rights were terminated. Attorney Massman filed two reports, dated
April 8 and April 16, 1992. Attorney Smith filed a report dated
April 15, 1992. On May 4, 1992, the court issued its final order
and reaffirmed its earlier decision to terminate D.A.'s parental
rights to her four children. D.A. appeals.
D.A. asserts on appeal that when the District Court refused to
appoint counsel to represent her at the hearing to terminate her
parental rights, the court (1) violated her constitutional right to
due process, and (2) deprived her of her statutory right to
appointed counsel. D.A. contends that the due process clause found
at Article 11, 5 17, of the Montana Constitution guarantees
indigent parents the right to court-appointed counsel in
proceedings to terminate parental rights. We agree.
The United States Supreme Court has ruled that a natural
parent's right to the care and custody of his or her child is a
"fundamental liberty interestw that must be protected by
fundamentally fair procedures. Santosky v Krarner (1982), 455 U.S, 745,
.
753-54, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606. In
Suntosky, the Court explained:
The fundamental liberty interest of natural parents in
the care, custody, and management of their child does not
evaporate simply because they have not been model parents
or have lost temporary custody of their child to the
State. Even when blood relationships are strained,
parents retain a vital interest in preventing the
irretrievable destruction of their family life. If
anything, persons faced with forced dissolution of their
parental rights have a more critical need for procedural
protections than do those resisting state intervention
into ongoing family affairs. When the State moves to
destroy weakened familial bonds, it must provide the
parents with fundamentally fair procedures.
Santosky, 455 U.S. at 753-54.
1n MatterofRB. (l985), 217 Mont. 99, 102-03, 703 P.2d 846, 848,
the Montana Supreme Court recognized that a natural parent's right
to the care and custody of his or her child is a "fundamental
liberty interest." This Court also affirmed the requirement set
forth in Santosky that when the State moves to terminate a parent's
rights, the parent must be protected by fundamentally fair
procedures. Matter of R B . , 703 P.2d at 848.
The guarantee of fundamental fairness in judicial proceedings
to terminate parental rights has its source in our State
constitution. Article 11, 5 17, of the Montana Constitution
requires that I1[n]o person shall be deprived of life, liberty, or
property without due process of law." When the State seeks to
terminate a parent's liberty interest in the care and custody of
her child, due process requires that the parent not be placed in an
unfair disadvantage during the termination proceedings. Fairness
requires that a parent, like the State, be represented by counsel
at parental termination proceedings. Without representation, a
parent would not have an equal opportunity to present evidence and
scrutinize the State's evidence.
The potential for unfairness is especially likely when an
indigent parent is involved. Indigent parents often have a limited
education and are unfamiliar with legal proceedings. If an
indigent parent is unrepresented at the termination proceedings,
the risk is substantial that the parent will lose her child due to
intimidation, inarticulateness, or confusion. Lassiter v Dept. of Social
.
SerVice~ (1981), 452 U.S. 18, 47, 101 S. Ct. 2153, 2170, 68 L. Ed. 2d.
640, 662 (Blackmun, J., dissenting). Because of the substantial
risk of an unfair procedure and outcome, and the guarantee under
our Constitution of fundamental fairness, we hold, as a growing
number of other jurisdictions have concluded, that the due process
clause in our State Constitution guarantees an indigent parent the
right to court-appointed counsel in proceedings brought to
terminate parental rights. See KF. v. State (Ak. 1983) , 666 P.2d 42 ;
Joel E . Smith, J .D. , Annotation, Right of Zndigent Parent to Appointed Counsel
in Proceeding for Znvolunta~yTermination of Parental Rights, 8 0 A. L .R . 3 rd 1141
(1977).
Our review of the record reveals that during the proceedings
to terminate D.A.'s parental rights, D.A. was not represented by
counsel. The court appointed counsel for D.A. at the end of the
termination hearing: however, this late action was no substitute
for representation during the hearing. It was the evidentiary
hearing which formed the basis of the court's decision to terminate
D.A.'s parental rights.
We conclude that because D.A. was not protected by a
fundamentally fair procedure at the hearing to terminate her
parental rights, her constitutional right to due process was
violated.
We hold that the District Court committed reversible error
when it denied D.A.'s request for court-appointed counsel at the
termination hearing. We reverse the judgment of the District Court
and remand this case for determination of D.A. 's parental rights in
further proceedings consistent with this opinion.
We concur:
May 6, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
JOSEPH R. MASSMAN
Massman Law F i
P.O. Box 804
Helena, MT 59624
HON. MARC RACICOT, Attorney General
, Assistant
Justice Building
Helena, MT 59620
Deborah F. Elmore
Deputy Jefferson County Attorney
Courthouse P. 0. Box H
Boulder, MT 59632
Paul B. Smith
Attorney at Law
P.O. Box 565
Boulder, MT 59637
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA