Right to counsel

Generally

 

Indigent custodial parents are entitled to counsel in dependency proceedings following the initial temporary removal hearing.  The right to counsel is classified as "qualified" because the right does not attach at the temporary removal hearing.

 

Ky. Rev. Stat. Ann. § 620.100(1) states:

 

(1) If the court determines, as a result of a temporary removal hearing, that further proceedings are required, the court shall advise the ... parent or other person exercising custodial control or supervision of their right to appointment of separate counsel:

 

…

 

(b) The court shall appoint separate counsel for the parent who exercises custodial control or supervision if the parent is unable to afford counsel pursuant to KRS Chapter 31. The clerk of the court shall arrange for service on all parties, including the local representative of the Cabinet for Health and Family Services, of the order appointing counsel. The parent's counsel shall be provided or paid for by the Finance and Administration Cabinet. The fee to be fixed by the court shall not exceed five hundred dollars ($500); however, if the action has final disposition in the District Court, the fee shall not exceed two hundred fifty dollars ($250);

 

(c) The court shall appoint separate counsel for a person claiming to be a de facto custodian, as defined in KRS 403.270, if the person is unable to afford counsel pursuant to KRS Chapter 31. The clerk of the court shall arrange for service on all parties, including the local representative of the Cabinet for Health and Family Services, of the order appointing counsel. The person's counsel shall be provided or paid for by the Finance and Administration Cabinet. The fee to be fixed by the court shall not exceed five hundred dollars ($500); however, if the action has final disposition in the District Court, the fee shall not exceed two hundred fifty dollars ($250);

(d) The court may, in the interest of justice, appoint separate counsel for a nonparent who exercises custodial control or supervision of the child, if the person is unable to afford counsel, pursuant to KRS Chapter 31. The clerk of the court shall arrange for service on all parties, including the local representative of the Cabinet for Health and Family Services, of the order appointing counsel. Counsel for the person shall be provided or paid for by the Finance and Administration Cabinet. The fee to be fixed by the court shall not exceed five hundred dollars ($500); however, if the action has final disposition in the District Court, the fee shall not exceed two hundred fifty dollars ($250);

 

...

 

See also § 610.060(1)(a) ("If the Circuit or District Court determines that a formal proceeding is required in the interest of the child or to determine the truth or falsity of the allegations against the child … the court shall, when the child is brought before the court … Explain to the ... parents, guardian, or person exercising custodial control their respective rights to counsel and, if ... his parents, guardian, or person exercising custodial control are unable to obtain counsel, shall appoint counsel for the child, as provided in subsection (2) of this section, and, unless specified to the contrary by other provisions of KRS Chapters 600 to 645, may appoint counsel for the parents, guardian, or person exercising custodial control"); B.C. v. B.T., 182 S.W.3d 213, 217 (Ky. Ct. App. 2005) (applying § 610.060 to a dependency proceeding); Z.T. v. M.T., 258 S.W.3d 31, 36 (Ky. App. 2008) (same).  Despite § 610.060 seemingly making appointment discretionary for the custodial parents, it appears that the mandatory nature appointment of § 620.100(1)(b) still controls, because the latter is a “provision[] of KRS Chapters 600 to 645” (specifically, Chapter 620) that “specifie[s] to the contrary.”

 

The right to counsel includes the right to effective assistance

 

The right to counsel does include the right to effective assistance. See Z.T. v. M.T., 258 S.W.3d 31 (Ky. Ct. App. 2008) ("It is logical that the parent's right to counsel includes effective representation. However, it does not derive from the Sixth Amendment nor can RCr 11.42 be invoked. We hold that if counsel's errors were so serious that it is apparent from the record that the parent was denied a fair and meaningful opportunity to be heard so that due process was denied, this Court will consider a claim that counsel was ineffective."); T.W. v. Cabinet for Health and Fam. Servs., 484 S.W.3d 302 (Ky. Ct. App. 2016) (where counsel has an actual conflict of interest, a parent need not demonstrate prejudice; prejudice is presumed).

 

The right to counsel does not extend to noncustodial parents

 

A parent who does not exercise custodial control or supervision over the child is not entitled to appointed counsel for the dependency proceeding. See B.L. v. J.S., 434 S.W.3d 61, 66 (Ky. App. 2014) (finding that biological father was not statutorily entitled to appointment of counsel in dependency case because [i] “Biological Father [] was not only incarcerated, but also uninvolved with Minor Child for most of his life and at all times relevant for the neglect proceedings”, and [ii] biological mother, and not father, was subject of proceedings). 

 

Harmless error standard is applied on appeal  

 

In R.V. v. Commonwealth, Department for Health and Family Services, the Kentucky Court of Appeals interpreted Sections 620.100 and 625.080 to mean that indigent parents are entitled to representation at all "critical" dependency proceedings prior to termination of parental rights "unless it can be shown that such proceeding had no effect on the subsequent circuit court termination case." 242 S.W.3d 669, 672-73 (Ky. Ct. App. 2007); see also R.M. & A. v. Cabinet, NO. 2016–CA–001274–ME, 2017 WL 4570616 at *6 (Ky. Ct. App. Oct. 13, 2017) (excusing trial court's failure to appoint counsel in the dependency phase because “the lack of counsel during the dependency and neglect phase in juvenile court had no effect on the outcome of the termination proceedings. As discussed above, the circuit court made independent findings of neglect and did not simply rely on the finding of neglect from the dependency and neglect proceeding.”).