IN THE MATTER OF THE ADOPTION OF: A.W.S. and K.R.S., Minor Children, J.N.S., Petitioner and Respondent, v. A.W., Respondent and Appellant.
No. DA 14-0101
In the Supreme Court of the State of Montana
Decided December 2, 2014
2014 MT 322 | 377 Mont. 234 | 339 P.3d 414
Submitted on Briefs October 15, 2014.
For Appellee: Linda Osorio St. Peter, St. Peter Law Offices, P.C., Missoula; Heather McDougall, Attorney at Law, Troy.
JUSTICE BAKER delivered the Opinion of the Court.
¶1 A.W. (Mother) appeals the Nineteenth Judicial District Court‘s order terminating her parental rights to her two minor children in a proceeding for adoption by the children‘s stepmother. She raises two issues on appeal: whether the District Court erred when it did not appoint counsel to her for the involuntary termination proceeding, and whether the court‘s decision to terminate her parental rights was based on clear and convincing evidence. Because we conclude that Mother has a constitutional right to counsel in this case, we do not reach the second issue.
¶2 We reverse and remand for appointment of counsel to Mother and a new hearing on the petition to terminate Mother‘s parental rights.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 Mother and W.A.S. (Father) entered into a common law marriage in 2000 and divorced in 2007. While married, they had two children: A.W.S. and K.R.S. In 2008, Father married J.N.S. (Stepmother). A.W.S. and K.R.S. reside with Father and Stepmother.
¶4 Mother had regular, unsupervised parenting time under the original parenting plan. This changed after her arrest in 2009, when the District Court issued an amended parenting plan that restricted Mother to supervised visitations. In her brief on appeal, Mother claims that she had difficulty scheduling supervised visits and that Father and Stepmother hindered her ability to visit the children. Her last visit with her children was in August 2010.
¶5 On November 25, 2013, Stepmother filed petitions for adoption of A.W.S. and K.R.S. and sought an order terminating Mother‘s parental rights. Mother never filed a formal objection or response to the petitions. The District Court held a show cause hearing on the petitions for both children on January 13, 2014. Mother was present at the hearing, but not represented by an attorney. She did not object to any of the evidence Stepmother presented.
I did not have the money to go through to get an attorney to go to Court. That is obviously why I am here by myself. ... [Y]ou have to have money to get an attorney ... to come into court to go through all of this.
¶7 Mother did not testify on her own behalf. In fact, apart from her testimony in the Stepmother‘s case-in-chief, Mother did not call any witnesses or present any other evidence at all.1 She did, however, inform the court that she opposed the termination of her parental rights.
¶8 On January 16, 2014, approximately five weeks after Mother first received notice of the petitions, the District Court entered a decree of adoption in Stepmother‘s favor and terminated Mother‘s parental rights to both children. The District Court found that Mother had willfully abandoned her children, that she had not supported her children, and that it was in the children‘s best interests to terminate her rights under
¶9 Mother timely appealed.
STANDARD OF REVIEW
¶10 This Court‘s review of constitutional issues is plenary. Jaksha v. Butte-Silver Bow County, 2009 MT 263, ¶ 13, 352 Mont. 46, 214 P.3d 1248; In re L.V-B., 2014 MT 13, ¶ 12, 373 Mont. 344, 317 P.3d 191.
DISCUSSION
¶11 The Montana Constitution guarantees that no person shall be denied the equal protection of the laws.
¶12 “When analyzing an equal protection challenge, we ‘must first identify the classes involved and determine whether they are similarly situated.‘” Snetsinger, ¶ 16 (citing Henry v. State Comp. Ins. Fund, 1999 MT 126, ¶ 27, 294 Mont. 449, 982 P.2d 456). The two classes involved in this appeal are created by Montana‘s alternate statutory frameworks for effecting the involuntary termination of parental rights: involuntary termination may be accomplished in connection with either an abuse and neglect petition under Title 41, MCA, or an adoption petition under Title 42, MCA, the Montana Adoption Act. Title 41, chapter 3, part 4, MCA, provides for the involuntary termination of parental rights by the State for abuse or neglect of a child, whereas Title 42, chapter 2, part 6, MCA, allows certain private parties to file a petition to involuntarily terminate parental rights to a child on the grounds enumerated in
¶13 Indigent parents at risk of losing their parental rights under the provisions of Title 41 are entitled to counsel.
¶14 Under the statutory framework set out in the Adoption Act, however, an indigent parent may have her rights involuntarily terminated by a court without any right to counsel. As happened here, a parent may have her rights terminated in an adoption proceeding on the same grounds that allow for termination in a child abuse and neglect proceeding. The Adoption Act provides for the involuntary termination of parental rights where a court has determined that the parent is “unfit.”
¶15 Even though a court may terminate a parent‘s rights involuntarily under either statutory framework, indigent parents at risk of losing their parental rights are afforded a right to counsel only in abuse and neglect proceedings under Title 41. Thus, Montana‘s statutes create two similarly situated classes: indigent parents facing involuntary termination of parental rights on a petition by the state under
¶16 The next step in our equal protection analysis is to determine the appropriate level of scrutiny. Snetsinger, ¶ 17. Strict scrutiny applies if a fundamental right is affected. Snetsinger, ¶ 17. The U.S. Supreme Court has said that a parent‘s interest in custody of a child “is perhaps the oldest of the [recognized] fundamental liberty interests.” Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000). Montana also has determined that the right to parent one‘s child is a fundamental right. Snetsinger, ¶ 16; In re L.V-B., ¶ 15. Because the challenge here implicates a fundamental right, we apply strict scrutiny.
¶17 In applying the strict scrutiny standard, we determine if the disparity in the current statutory framework is narrowly tailored to serve a compelling governmental interest. Snetsinger, ¶ 17. Ordinarily, the burden of proof falls on the State. Snetsinger, ¶ 17. The State is not a party here, which raises the question whether the State is involved sufficiently to warrant application of the equal protection
A stepparent adoption differs from other parental termination cases in that it is not an action brought by the state and argued by state attorneys. But neither is the adoption proceeding a purely private dispute. The state is called upon to exercise its exclusive authority to terminate the legal relationship of parent and child and establish a new relationship, in accordance with an extensive statutory scheme. ...
In re K.A.S., 499 N.W.2d at 565-66 (quoting In re Jay, 150 Cal. App. 3d 251, 262, 197 Cal. Rptr. 672, 680 (Ct. App. 1983)).
¶18 Under the Montana Adoption Act, like the laws considered in these cases, the State is an integral part of the process in private terminations. See Title 42, chapters 2-5, MCA. Whether an involuntary termination proceeding is initiated by the state or by a private party in conjunction with an adoption petition, “the challenged state action remains essentially the same: [a parent] resists the imposition of an official decree extinguishing, as no power other than the State can, her parent-child relationships.” M.L.B. v. S.L.J., 519 U.S. 102, 116 n. 8, 117 S. Ct. 555, 564 n. 8 (1996); In re L.T.M., 824 N.E.2d at 230; see also O.A.H. v. R.L.A., 712 So. 2d 4, 6 (Fla. Dist. Ct. App. 2d Dist. 1998); In re K.L.J., 813 P.2d 276, 283 (Alaska 1991). We conclude that the extent of State involvement in adoption proceedings is sufficient to trigger the requirement of
¶19 The Stepmother has not addressed directly whether the differences in the current statutory scheme are narrowly tailored to serve a compelling governmental interest. Instead, she argues that Mother “was not a novice to the legal system” because previously she had been provided with counsel in other proceedings, and that Mother raised the right to counsel for the first time on appeal. We address these arguments briefly.
¶20 First, Mother‘s ability to obtain legal services through the public defender‘s office in unrelated cases has no bearing on the question posed here. Mother‘s involvement in separate criminal and youth in need of care cases concerned different interests—these prior cases did not jeopardize Mother‘s right to parent A.W.S. and K.R.S. Any relevance they have to the issue under consideration may be to indicate Mother‘s indigence, having twice qualified for appointed counsel.
¶21 Second, although Mother did not request counsel formally, we
¶22 Whether Mother has a right to appointed counsel depends on whether the difference between the two statutory methods is narrowly tailored to serve a compelling governmental interest. More specifically, is there a compelling reason why counsel is provided to an indigent parent facing the involuntary termination of her parental rights in abuse and neglect proceedings, but not when such proceedings are commenced under the Adoption Act? Though Stepmother does not address this point, the governmental interest identified frequently as possible justification for denial of the right to counsel to indigent parents is the State‘s pecuniary interest in “avoid[ing] both the expense of appointed counsel and the cost of the lengthened proceedings [the] presence [of counsel] may cause.” Lassiter, 452 U.S. at 28, 101 S. Ct. at 2160; In re L.T.M., 824 N.E.2d at 231 (“The only state interest served by denying appointed counsel under the Adoption Act is the interest in limiting the payment of attorney fees.“). The U.S. Supreme Court has observed, however, that “though the State‘s pecuniary interest is legitimate, it is hardly significant enough to overcome private interests as important as those here[.]” Lassiter, 452 U.S. at 28, 101 S. Ct. at 2160.2
¶24 Courts have held in similar contexts that where a statute violates equal protection because of underinclusion, a court “may either declare it a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by exclusion.” Welsh v. United States, 398 U.S. 333, 361, 90 S. Ct. 1792, 1807-08 (1970) (Harlan, J., concurring), cited in In re K.A.S., 499 N.W.2d at 567; In re S.A.J.B., 679 N.W.2d at 651. Extending coverage is the appropriate remedy in this case. Denying counsel in all termination proceedings would contravene legislative intent. See In re S.A.J.B., 679 N.W.2d at 651. The legislature has provided a categorical right to counsel to indigent parents in state-initiated termination proceedings.
¶25 Further, denying the right to counsel in state-initiated termination proceedings would call into question the constitutionality of those proceedings. In re S.A.J.B., 679 N.W.2d at 651 (citing Lassiter, 452 U.S. at 31-32, 101 S. Ct. at 2161-62). There is a “substantial risk of an unfair procedure and outcome” in proceedings brought to terminate parental rights. In re A.S.A., 258 Mont. 194, 198, 852 P.2d 127, 129-30 (1993). We have observed:
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.
In re A.S.A., 258 Mont. at 198, 852 P.2d at 129; see also In re Declaring A.N.W., 2006 MT 42, ¶ 34, 331 Mont. 208, 130 P.3d 619 (“A parent‘s right to the care and custody of a child represents a fundamental
¶26 A parent responding to private termination proceedings should not bear the disadvantage of the inability to obtain counsel. The decision to grant “the opportunity for a parent to benefit from the privilege of assistance by counsel in one mode of termination of parental rights requires that the opportunity to exercise that privilege be extended to all similarly situated parents directly threatened with permanent loss of parental rights.” Zockert v. Fanning, 800 P.2d 773, 778 (Or. 1990); accord Crowell v. State Pub. Defender, 845 N.W.2d 676 (Iowa 2014). We conclude that Montana‘s right to equal protection requires that counsel be appointed for indigent parents in termination proceedings brought under the Adoption Act. On remand, the District Court is directed to appoint counsel for Mother, if it determines that she is financially eligible.3
¶27 Although Mother raises a separate due process argument, we need not address whether due process considerations alone would require a right to counsel under these circumstances. Courts that have considered the right to counsel for private termination proceedings on equal protection grounds have found that the right cannot be provided in state-initiated termination proceedings but denied in private terminations. E.g. In re L.T.M., 824 N.E.2d at 229-32; In re S.A.J.B., 679 N.W.2d at 648-51 (noting that a similar equal protection question “remains open under the federal constitution“); In re Adoption of Meaghan, 961 N.E.2d 110 (Mass. 2012); In re K.A.S., 499 N.W.2d at 563; Zockert, 800 P.2d at 776. Our interpretation of Montana‘s equal protection clause requires the same result here. Because we have decided this case on independent and adequate State grounds under Montana‘s equal protection clause, Mich. v. Long, 463 U.S. 1032, 103
CONCLUSION
¶28 We reverse the decision of the District Court and remand for the appointment of counsel for Mother, and for a new hearing.
CHIEF JUSTICE MCGRATH, JUSTICES COTTER, McKINNON and SHEA concur.