Search Corbin's Blog

Tuesday, December 16, 2014

INDIGENT PARENT MUST BE APPOINTED COUNSEL BEFORE RIGHTS TERMINATED IN STEPPARENT ADOPTION


Facts: Mom and dad divorce in 2007. Mom has unsupervised regular parenting time with their two children. Dad remarries in 2008. In 2009 mom is arrested and the trial court amends the parenting plan to require her visits to be supervised. Mom stops visiting the children in August, 2010. The two children reside with dad and stepmom. Three years later, stepmom files petition to adopt the boys. Mom comes to the adoption hearing without an attorney and says she has no money to employ one. The trial court grants the adoption. Mom appeals on equal protection and due process grounds.

Reversed.

The Supreme Court found it to be a denial of equal protection to appoint indigent parents at risk for losing their children in abuse and neglect proceedings but not appoint indigent parents at risk for losing their children in private stepparent adoption proceedings.
"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 protection purposes, similarly situated to a parent in a state termination proceeding. In Re Adoption of A.W.S. @ paragraph 15.
Although mom did not specifically request an attorney, the Supreme Court held that just stating that she represented herself only because she could not afford an attorney was sufficient:
"...although Mother did not request counsel formally, we have recognized that pro se litigants are not required to use specific words when requesting 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." In Re Adoption of A.W.S. @ paragraph 21.
The Supreme Court reversed and remanded for the trial court to appoint mom an attorney and set a new hearing. 

In footnote 3 the Supreme Court noted several ways that the appointment of mom's attorney could be accomplished by the trial court:
"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."

In Re Adoption of A.W.S. 2014 MT 322

PARENT WITH MAJOR DEPRESSIVE DISORDER AWARDED PRIMARY CARE

Parenting Plans: Impact of Major Depressive Disorder

Child Support: How to Modify CSED Final Temporary Order Within Pending Divorce

Equitable Division: Occupancy of Ranch Awarded Primary Custodian During Children’s Minority, Then Sell

Facts. Mom and dad were married 16 years and have 3 children. Mom has major depressive disorder and receives SSDI. One of the children has severe seizure syndrome requiring full time parenting. Mom applies to CSED shortly after petition is filed. CSED issues proposed order including findings about each parent's income. Dad does not ask for a hearing. Consequently, CSED enters a “final temporary” order. The trial court found income numbers substantially different from the CSED order. Trial court awarded mom primary care of children and adopted the CSED child support order. The trial court awarded mom exclusive use of their ranch property until the youngest child graduates from high school. Then the ranch property was to be sold and proceeds divided equally.

Parenting Plan Affirmed. There was ample evidence that mom was excellent parent, despite her disorder. Good quotation: "Moreover, the Social Security Administration's determination that an impairment prevents a person from working in a full-time job does not necessarily mean the person is incapable of parenting her children as the primary custodian.” Pesanti @ 12.

Child Support Reversed: The trial court did not address the income disparities between the testimony at trial and the CSED order. It should have. Because the trial court’s income numbers would produce a different child support award, the trial court either had to adopt the Guideline amount or explain by clear and convincing evidence the variance. In the course of its ruling, the Supreme Court articulated the path to modifying a CSED “final temporary” child support award at the final trial of a divorce proceeding: … a party to a dissolution action who desires to modify a temporary support order entered by CSED under § 40-5-225(3) has a clear path. Once a temporary order is proposed, the party may seek administrative review within CSED before the order is entered as final. Admin. R. M. 37.62.949(2), 37.62.951(1). Once a final order is entered, the party may seek further modification by the court in its final decree of dissolution, provided that CSED has notice and the opportunity to participate in the proceeding. Sections 40-5-202(5)(a), -225(12), MCA.” Pesanti @ ¶25.

Equitable Division. Dad did not appeal the exclusive use award.


Pesanti v. Pesanti 2014 MT 324