Right to counsel

Indigent parents have a right to counsel upon request in involuntary termination of parental rights proceedings.  Ky. Rev. Stat. Ann. § 625.080(3) states:

The parents have the right to legal representation in involuntary termination actions. The Circuit Court shall determine if the parent is indigent and, therefore, entitled to counsel pursuant to KRS Chapter 31. If the Circuit Court so finds, the Circuit Court shall inform the parent; and, upon request, if it appears reasonably necessary in the interest of justice, the Circuit Court shall appoint an attorney to represent the parent pursuant to KRS Chapter 31 to be provided or paid for by the Finance and Administration Cabinet a fee to be set by the court and not to exceed five hundred dollars ($500).

While the "interests of justice" language makes it seem as though appointment is discretionary, courts have interpreted applicable statutes as guaranteeing counsel in abuse/neglect cases for custodial parents.  In R.V. v. Com., Dept. for Health and Family Services, 242 S.W.3d 669 (Ky. Ct. App. 2007), the Court of Appeals held that "pursuant to both the due process clause of the Fourteenth Amendment to the United States Constitution and KRS 625.080(3) and 620.100(1), [] the parental rights of a child may not be terminated unless that parent has been represented by counsel at every critical stage of the proceedings." 

Although appointment is mandatory, it is contingent upon the parent requesting counsel. See C.J.M. v. Cabinet for Health and Fam. Servs., 389 S.W.3d 155, 163 (Ky. App. 2012).

In A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), the court held that the statutory right to counsel in termination of parental rights cases extends to the appeal.  However, in an earlier unpublished decision, the apellate court held that parents are not entitled to additional payment for appointed counsel at the appellate stage beyond the $500 statutory maximum provided in KRS 625.080 because Section 625.080 does not provide for it (a ruling affirmed by A.C.). Commonwealth v. K.B.H., No. 2004–CA–001760–ME, 2005 WL 2108126 (Ky. Ct. App. Sept. 2, 2005).

The K.B.H. court conceded the $500 cap on attorney’s fees did not keep pace with inflation and did not ensure meaningful access to an appeal, but held that “we cannot intrude upon the legislative prerogative and function to legislate.”  Id. at *4.  The court did note, however, that the parent at issue in K.B.H. had not exhausted the $500 at the trial level and thus could apply it towards the appellate proceeding.  Id. at *3.  In addition, the court held that the appointed attorney was obligated by the rules of ethics to handle the appeal, as a lawyer who agrees to represent a client is required to see the case through to completion, including "an appeal if so desired by the client." Id.  The court reaffirmed A.C. and K.B.H. in M.M. v. Commonwealth, NO. 2015–CA–001115–ME, NO. 2015–CA–001116–ME, 2016 WL 6311194 (Ky. Ct. App. Oct. 28, 2016).  At the same time, A.C. held that counsel is not required to pursue a frivolous appeal, applying the standard from Anders v. State of California, 386 U.S. 738 (1967), to termination of parental rights cases.