                                                                                           December 2 2014


                                           DA 14-0101
                                                                                           Case Number: DA 14-0101

                 IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           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,

         v.

A.W.,

              Respondent and Appellant.


APPEAL FROM:           District Court of the Nineteenth Judicial District,
                       In and For the County of Lincoln, Cause Nos. DA 13-13 and DA 13-14
                       Honorable James B. Wheelis, Presiding Judge

COUNSEL OF RECORD:

                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



                                                    Submitted on Briefs: October 15, 2014
                                                               Decided: December 2, 2014



Filed:

                       __________________________________________
                                         Clerk
Justice Beth 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.




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 ¶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.

 ¶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

 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



       1
         Mother claims on appeal that her probation officer would have testified for her, but that the
officer was not available on the date of the hearing. She claims that she did not know to request a
continuance.


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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.

                              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. 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 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


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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 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


                                              5
neglect proceedings. Section 42-2-608(1)(b), MCA. The District Court made such a

finding in this case. A court also may find a parent unfit where clear and 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 judicial determination of unfitness, we conclude that Mother is, for equal




                                              6
 protection purposes, similarly situated to a parent in a state termination proceeding. See In

 re L.T.M., 824 N.E.2d 221, 230-31 (Ill. 2005).

 ¶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 clause. See In re Adoption of K.A.S., 499

 N.W.2d 558, 565-66 (N.D. 1993); In re S.A.J.B., 679 N.W.2d 645, 650-51 (Iowa 2004).

       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)).




                                               7
¶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 Article II, Section 4, of the Montana Constitution that

equal protection of the law be afforded to individuals who are similarly situated. See also In

re K.A.S., 499 N.W.2d at 566.

 ¶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




                                               8
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 have recognized that

pro se litigants are not required to use specific words when requesting counsel. State v.

Buck, 2006 MT 81, ¶ 48, 331 Mont. 517, 134 P.3d 53 (“[W]e still adhere to the rule that

invocation of [the right to counsel] does not depend on the use of any particular words”);

State v. Johnson, 221 Mont. 503, 514, 719 P.2d 1248, 1255 (1986), overruled in part on

unrelated grounds by Buck, ¶ 48 (“To require precise words be uttered would elevate form

over substance.”); see e.g. In re Fernandez, 399 N.W.2d 459, 460-61 (Mich. Ct. App.

1986); In re Adoption of J.D.F., 761 N.W.2d 582, 587-88 (N.D. 2009) (where a parent

articulated his desire for an attorney and his inability to procure legal assistance, the trial

court erred by not advising him of his state constitutional right to counsel). In this case,

where Mother was not advised of any right to counsel, she preserved the issue when she

explained that she represented herself only because she did not have the money to employ

an attorney.

¶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


                                             9
  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

  ¶23       The differences between the involuntary termination provisions in the abuse and

  neglect statutes and in the Adoption Act are not narrowly tailored to serve a compelling

  governmental interest. The state’s pecuniary interests do not justify the denial of the right

  to counsel to indigent parents in involuntary terminations under the Adoption Act, where

  that same right is provided to indigent parents in state-initiated involuntary terminations.

  ¶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
        2
           The U.S. Supreme Court held in Lassiter that an indigent parent’s right to counsel under
the federal due process clause must be made on a case-by-case basis. Lassiter, 452 U.S. at 31, 101
S. Ct. at 2161. Although the Court ultimately affirmed the trial court’s failure to appoint counsel to
Ms. Lassiter, it did so only after noting that Ms. Lassiter “expressly declined to appear at [her] child
custody hearing,” “had not even bothered to speak to her retained lawyer after being notified of the
termination hearing,” and “fail[ed] to make an effort to contest the termination proceeding.”
Because Lassiter involved the federal due process clause and considerably different facts—and
because it did not address the equal protection issue we face here—it has limited application.


                                                  10
 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. Section 41-3-425(2)(a), MCA.

 ¶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 liberty interest, and consequently, the state must provide

fundamentally fair procedures at all stages in the proceedings to terminate parental rights.”).

Unfairness in a termination proceeding also has profound implications for the future of the

child, and the risk of an unfair decision is equally significant to parent and child in both

public and private proceedings.




                                              11
¶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

       3
          In abuse and neglect proceedings, the office of the state public defender is appointed and
assigns counsel to represent indigent parents after determining eligibility as provided in § 47-1-111,
MCA. Section 41-3-425, MCA. The public defender also is responsible for assigning counsel in
paternity proceedings to indigent parties, including the natural mother and persons presumed or
alleged to be the father. Sections 40-6-110, -119, MCA. The Adoption Act allows the payment of a
birth parent’s legal fees by the adoptive parent. Sections 42-7-101(1)(i), 42-7-102(2), MCA. We
leave the manner of appointment of counsel in each case to the district courts’ discretion.


                                                 12
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 S. Ct. 3469 (1983),

we do not address Mother’s due process arguments.

                                   CONCLUSION

¶28     We reverse the decision of the District Court and remand for the appointment

counsel for Mother, and for a new hearing.



                                                  /S/ BETH BAKER

We Concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA




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