J.N.S. v. A.W. (In re Adoption of A.W.S.), DA 14–0101.

Docket NºNo. DA 14–0101.
Citation2014 MT 322, 339 P.3d 414, 377 Mont. 234
Case DateDecember 02, 2014
CourtUnited States State Supreme Court of Montana

377 Mont. 234
339 P.3d 414
2014 MT 322

In the Matter of the ADOPTION OF A.W.S. and K.R.S., Minor Children
J.N.S., Petitioner and Respondent
A.W., Respondent and Appellant.

No. DA 14–0101.

Supreme Court of Montana.

Submitted on Briefs Oct. 15, 2014.
Decided Dec. 2, 2014.

339 P.3d 415

For Appellant: Scott Peterson, Robert Farris–Olsen, Morrison, Sherwood, Wilson & Deola, PLLP, Helena Montana.

For Appellee: Linda Osorio St. Peter, St. Peter Law Offices, P.C., Missoula, Montana Heather McDougall, Attorney at Law, Troy, Montana.


Justice BETH BAKER delivered the Opinion of the Court.

377 Mont. 235

¶ 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.


¶ 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.

377 Mont. 236

¶ 6 At the hearing, counsel for Stepmother called Mother as a witness. Stepmother's attorney asked Mother why she “never followed through on anything” after initially

339 P.3d 416

attempting to set up supervised visitation. Mother responded:

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 § 42–2–608(1), MCA, and to award adoption to Stepmother.

¶ 9 Mother timely appealed.


¶ 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.


¶ 11 The Montana Constitution guarantees that no person shall be denied the equal protection of the laws. Mont. Const. art. II, § 4. “ ‘The Fourteenth Amendment to the United States Constitution and Article II, Section 4, of the Montana Constitution embody a fundamental principle of fairness: that the law must treat similarly-situated individuals in a similar manner.’ ” Snetsinger v. Mont. Univ. Sys., 2004 MT 390, ¶ 15, 325 Mont. 148, 104 P.3d 445 (quoting

377 Mont. 237

McDermott v. Montana Dept. of Corrections, 2001 MT 134, ¶ 30, 305 Mont. 462, 29 P.3d 992 ). Montana's Equal Protection Clause “provides even more individual protection than the Equal Protection Clause in the Fourteenth Amendment of the United States Constitution.” Snetsinger, ¶ 15 (citing Cottrill v. Cottrill Sodding Serv., 229 Mont. 40, 42, 744 P.2d 895, 897 (1987) ).

¶ 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 § 42–2–607, MCA, when the proceedings also involve the subsequent adoption of the child.

¶ 13 Indigent parents at risk of losing their parental rights under the provisions of Title 41 are entitled to counsel. Sections 41–3–422(11), –425(2)(a), MCA (requiring courts to immediately appoint counsel “pending a determination of eligibility pursuant to 47–1–111”). The attorney general, county attorneys, and attorneys hired by counties are required to use the process prescribed by Title 41, chapter 3 of the Montana Code when seeking termination of parental rights for abuse or neglect. Section 41–3–422(2), MCA.

¶ 14 Under the statutory framework set out in the Adoption Act, however, an indigent parent may have her rights involuntarily

339 P.3d 417

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.” Section 42–2–607(2), MCA. Among other factors, a court may find that a parent is unfit if the parent has “willfully abandoned” the child, as defined in § 41–3–102, MCA, the same definition of abandonment applied in abuse and neglect proceedings. Section 42–2–608(l )(b), MCA. The District Court made such a finding in this case. A court also may find a parent unfit where clear and

377 Mont. 238

convincing evidence demonstrates that “ placing the child in the [parent]'s legal and physical custody would pose a risk of substantial harm to the physical or psychological well-being of the child because the circumstances ... indicate[ ] that the [parent] is unfit to maintain a relationship of parent and child with the child,” or that “failure to terminate the relationship of parent and child would be detrimental to the child.”Section 42–2–608(1)(h)(ii)(C), (D), MCA.

¶ 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 § 41–3–422, MCA, and indigent parents facing involuntary termination of parental rights in an adoption proceeding under § 42–2–603, MCA. Both proceedings involve a court permanently and involuntarily terminating a parent's fundamental interest in the care and custody of her children because the parent is unfit. Yet only the parent in the former proceeding is entitled to counsel. Although the grounds for a finding of unfitness are not identical, the fundamental right to parent is equally imperiled whether the proceedings are brought by the State or by a private party. Because, in either case, a parent stands to lose the same fundamental constitutional right on a...

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17 cases
  • In re Adoption of Y.E.F., No. 2019-0420
    • United States
    • United States State Supreme Court of Ohio
    • December 22, 2020
    ...situated to indigent parents facing termination of their parental rights in juvenile court. See In re Adoption of A.W.S. and K.R.S., 377 Mont. 234, 238, 339 P.3d 414 (2014) (parents facing the loss of parental rights in either state-initiated abuse-and-neglect proceedings or in adoption pro......
  • In re J.R.F., Case No. 16CA701
    • United States
    • United States Court of Appeals (Ohio)
    • September 29, 2017
    ...counsel in a contested adoption where such a right is granted in termination cases in that state"; see also In re Adoption of A.W.S., 339 P.3d 414, ¶ 27 (Mont.2014), and cases cited therein ("Courts that have considered the right to counsel for private termination proceedings on equal prote......
  • In re J.M.P., Case No. 16CA702
    • United States
    • United States Court of Appeals (Ohio)
    • September 29, 2017
    ...counsel in a contested adoption where such a right is granted in termination cases in that state"; see also In re Adoption of A.W.S., 339 P.3d 414, ¶ 27 (Mont.2014), and cases cited therein ("Courts that have considered the right to counsel for private termination proceedings on equal prote......
  • In re L.C.C., No. 18AP-167
    • United States
    • United States Court of Appeals (Ohio)
    • November 15, 2018
    ...See In re Adoption of L.T.M. , 214 Ill.2d 60, 75, 291 Ill.Dec. 645, 824 N.E.2d 221 (2005) ; In the Matter of the Adoption of A.W.S. , 2014 MT 322, 377 Mont. 234, 339 P.3d 414 (2014). In each of the other cited cases, appellant specifically requested the appointment of counsel in the trial c......
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