The opinion
CHIEF JUSTICE McGRATH
specially concurs.
¶83 While I concur with the decision to affirm the termination of both parents’ parental rights, I maintain that the District Court abused its discretion by appointing an attorney for the child in this case.
¶84 Montana law provides for the appointment of a guardian ad litem (G.A.L.) in cases seeking termination of parental rights. By law, the G.A.L.’s role is to review the family situation and facts surrounding the case and advise the court as to the best interest of the child. See § 41-3-112(3), MCA. As a general rule, appointment of an attorney for a child is not required unless a G.A.L. is not appointed. Section 41-3-425, MCA. A G.A.L. is not required to be an attorney. In certain cases, the code provides the court with the discretion, “when appropriate” to appoint an attorney for the child even though a G.A.L. has been appointed. 1 Section 41-3-425(3)(b), MCA. Such an appointment serves a logical purpose in situations where older children are involved - children above the age of reason who may be able to develop and express an opinion that would help the district court determine the best interest of that child. See e.g. In re J.J.S., 176 Mont. 202, 205-06 , 577 P.2d 378, 381 (1978); In re M.D.Y.R., 177 Mont. 521, 535 , 582 P.2d 758, 766 (1978). The appointment of an attorney for an infant or child below the age of reason, however, is frankly absurd and serves no useful purpose other than to complicate the litigation.
¶85 In our society, parents are responsible for making decisions for children who are unable to decide for themselves. Consequently, parents have the right and responsibility to decide where a child lives, what a child eats, how a child is disciplined, whether and where a child goes to church, and where that child attends school. Troxel v. Granville, 530 U.S. 57 , 120 S. Ct. 2054 (2000). However, in cases such *440 as this, when the parents have abdicated their responsibility to care for that child, then the State has the responsibility to provide protective services as required in Title 41. See §§ 41-3-422(6)-(9) and (11), MCA; § 41-3-425, MCA.
¶86 In those circumstances, the court has the responsibility to determine whether the children are youths in need of care, § 41-3-437, MCA, and ultimately decide an appropriate disposition for that child, § 41-3-438, MCA. As parties, the parents, whose parental rights are being contested by the State, are entitled to be represented by counsel in these proceedings. Section 41-3-425, MCA; In re J.J.L., 2010 MT 4 , ¶ 16, 355 Mont. 23 , 223 P.3d 921 .
¶87 However, nothing in the Montana Constitution, statutes, or case law provides a right to counsel for the child. The child is the subject of litigation but does not have the ability to provide direction for the attorney as to how to proceed. How does the attorney determine her client’s legal position? Should it be based on the personal view of the lawyer? That is not our proper role as attorneys.
¶88 The Montana Rules of Professional Conduct are instructive. Subsection (3) of the preamble, which defines a lawyer’s responsibilities, provides:
(3) As a representative of clients, a lawyer performs various functions. In performance of any functions a lawyer shall behave consistently with the requirements of honest dealings with others. As advisor, a lawyer endeavors to provide a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements under these Rules of honest dealings with others. As an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them.
The Client-lawyer relationship is addressed in Rule 1.2, Scope of Representation and Allocation of Authority between Client and Lawyer:
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter....
*441 Finally, attorney-client communication is addressed in Rule 1.4-Communication:
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(g), is required by these Rules;
(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
¶89 None of the traditional attorney-client functions and responsibilities can be followed where the client is an infant or below the age of reason. While the G.A.L. has a role as an advocate for the child, the role of the attorney appointed to the child is unclear. A G.A.L. is trained for that role and conducts an independent investigation to evaluate the facts and advise the court. That is not the role of the attorney.
¶90 The court has ably demonstrated the substantial evidence that supports the District Court’s decision in this case. Yet, the child’s counsel takes the position that termination was not in the child’s best interest; that the State should have made a better effort to reunite the child and mother and disputed the District Court’s conclusion that the mother’s condition was unlikely to change within a reasonable time. How did an attorney representing a three-year-old child reach this conclusion? Why is that position in the best interest of the child? What are the standards that should be applied by an attorney in taking a position without the guidance of a client? Who then decides what position to take or, for that matter, whether to appeal, and on what grounds?
¶91 Further, the majority opinion has summarized the pertinent timelines involved in this proceeding. After years of State and court involvement, the termination order was issued in March 2012. At that time the client was three years old. The parents appealed. The *442 mother’s brief was filed on August 8, 2012; the father’s brief was filed on October 11, 2012. The attorney who had been appointed to represent the three-year-old child, after deciding sua sponte to appeal, filed a brief on December 6, 2012, further delaying a permanent placement for her client.
¶92 An attorney, acting alone, certainly has no authority to file and participate in an appeal to this Court. Attorneys appointed for a child below the age of reason do not have a client capable of making a knowing and intelligent decision. An attorney at law has no legal basis to make that decision for them.
¶93 There are situations where an attorney’s presence is not helpful or appropriate and merely serves to unnecessarily complicate or delay the proceedings. This is one of those situations. In my view the court abused its discretion by making this appointment.
¶94 To the extent that this Court’s recent opinion in In re K.H., 2012 MT 175 , 366 Mont. 18 , 285 P.3d 474 , provides otherwise, I would overrule it.
Section 41-3-112, MCA, requires the appointment of a G.A.L. in every proceeding for any child alleged to be abused or neglected. The statute further prescribes training and duties for persons appointed as a G.A.L., including a requirement for specific training related to serving as a child’s court-appointed representative.