Right to counsel

Key_development Question_mark

Legislation, Termination of Parental Rights (State) - Birth Parents

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

 

"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 this provision is discretionary due to the "interests of justice" language, Ky. Rev. Stat. Ann. § 620.100(1)(b) guarantees custodial parents counsel in abuse/neglect cases, and in R.V. v. Com., Dept. for Health and Family Services, 242 S.W.3d 669 (Ky. 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."

 

In Commonwealth v. K.B.H., 2005 WL 2108126 at *3 (Ky. Ct. App. 2005), the court held that an attorney appointed at trial is 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."  At the same time, the Kentucky Court of Appeals has 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). It also held that parents are not entitled to additional payment for appointed counsel at the appellate stage because Section 625.080 does not provide for it. 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."

Appointment of Counsel: categorical Qualified: no