KY appeals court: denial of counsel for noncustodial parent was reversible error

In M.Q.M. v. Cabinet for Health and Family Services, 2022 WL 3129960 (Ky. App. 2022) (unpublished), a noncustodial parent who was not accused of neglect was not appointed counsel when the permanency goal in the dependency proceeding was changed to adoption.  In fact, the court waited 4 months to appoint counsel for him, only doing so at the point when the Cabinet had moved to terminate his parental rights. 

On appeal, the father argued that he was deprived of his statutory right to counsel at a critical stage of the dependency proceedings and that therefore the termination should be reversed as set out in R.V. v. Commonwealth, Dep't for Health and Fam. Servs., 242 S.W.3d 669, 673 (Ky. App. 2007) ("[T]he parental rights of a child may not be terminated unless that parent has been represented by counsel at every critical stage of the proceedings.”)  The Court of Appeals of Kentucky agreed, first noting the incredibly strong interests at stake:

Our precedence regularly details the immense protections allotted for parents: “constitutional jurisprudence holds that parental rights are ‘essential’ and ‘basic’ civil rights, ‘far more precious ... than property rights.’ ” A.P. v. Commonwealth, 270 S.W.3d 418, 420 (Ky. App. 2008) (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551 (1972) (internal quotation marks and citations omitted)). Therefore, “there is no greater sanction to the parent/child relationship than the involuntary termination of a parent's rights. If the state seeks to terminate this sacrosanct relationship, parents are entitled to fundamentally fair procedures.” Id. (citing Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)).

It then rejected the Cabinet's argument that R.V. only applies to custodial parents:

While the Cabinet does correctly note that this Court at one point referred to the custodial parents in R.V., this Court does not continue such distinction throughout its holdings in that opinion. This Court acknowledged that a goal change to adoption is a critical stage because it significantly increases the chances the parental ties would be terminated. Such severance of the parent/child relationship would apply to all parents – custodial and non-custodial – because non-custodial parents’ rights must also be terminated in order to finalize an adoption. Therefore, based on this Court's reasoning in R.V., we hesitate to conclude that both parents are not granted the constitutional protections Kentucky precedence has mandated.

The Cabinet then tried to argue that the father had not been prejudiced by the denial since he was not named as a perpetrator in any of the earlier proceedings and therefore the earlier findings did not affect the termination case, but the Court of Appeals responded that

We cannot reconcile such arguments with this Court's clear directive in R.V., that permanency hearings, at which the goal is changed to adoption, significantly impact parental rights. Indeed, the fact that he was not a named perpetrator in any of the prior DNA actions, even though those proceedings greatly affected the subsequent termination proceedings, is of concern. As such, we are not persuaded by the Cabinet's arguments.