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 RB., 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~y Termination of Parental Rights, 8 0 A. L . R .3 rd 114 1 

(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 Fi 

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