Right to counsel

Involuntary termination proceedings

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, 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." 242 S.W.3d 669 (Ky. Ct. App. 2007).

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. Ct. App. 2012).

Right to counsel applies at all "critical stages"

In R.V. v. Commonwealth, Dep't for Health and Family Services, the Kentucky Court of Appeals interpreted Sections 620.100(1) and 625.080(3) to hold that indigent parents are entitled to representation “at every critical stage of the proceedings” prior to the termination of parental rights, including “all critical stages” of a district court dependency proceeding,  “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). 

The R.V. court explicitly addressed Lassiter, noting that by adopting these statutes, the Kentucky legislature had “alleviated the need for a court to make case-by-case determinations [as articulated in Lassiter] . . . by providing . . . for routine appointment of counsel to represent indigent parents in termination cases.” Id. at 672.  See also A.P. v.  Commonwealth, 270 S.W.3d 418, 420-21 (Ky. Ct. App. 2008) (“[H]ere in the Commonwealth, we have further guidance because the legislature mandates routine appointment of counsel to represent indigent parents not only in termination cases but also in dependency cases.”); Commonwealth v. K.B.H., No. 2004–CA–001760–ME, 2005 WL 2108126 at *3 (Ky. Ct. App. Sept. 2, 2005) (“Our General Assembly has gone a step beyond Lassiter in providing for the routine appointment of counsel to represent indigent parents in termination proceedings.”).

The harmless error standard applies on appeal

In M.H. v. A.H., the Court of Appeals concluded that a father whose rights were terminated was not denied due process despite the fact that he was unrepresented at the dependency proceeding, because no allegations were brought against him in the dependency proceeding, and he had counsel for the termination of parental rights hearing. No. 2015-CA-000426-ME, 2016 WL 3962285 (Ky. Ct. App. July 22, 2016).  The M.H. court reasoned, “[T]o justify termination the appropriate court must first find that the child is an abused or neglected child … A finding of dependency is insufficient to support a termination decision.” 2016 WL 3962285 at *4; see also A.P., Jr. v. Commonwealth, Cabinet for Health and Fam. Servs., Nos. 2009–CA–001434–ME, 2009–CA–001541–ME, 2010 WL 391837 at *2 (Ky. Ct. App. Feb. 5, 2010) (unpublished) (declining to reach the issue of whether the temporary removal hearing was a "critical stage", finding that denial of counsel at the hearing did not have any effect on subsequent termination case).

Voluntary termination proceedings

Kentucky law also addresses the appointment of counsel for indigent parents voluntarily seeking to terminate their own parental rights.  Ky. Rev. Stat. Ann. § 625.0405 states: 

(1) A parent desiring the termination of his or her parental rights and a transfer of the parental rights to a person, persons, the cabinet, or a child-placing agency licensed by the cabinet for the purpose of adoption may prior to or upon the filing of the petition request the Circuit Court to appoint an attorney to represent the parent and provide legal representation in the termination action. If the court determines pursuant to KRS Chapter 31 that the requesting parent is indigent, the court shall appoint an attorney (within forty-eight (48) hours) to represent the indigent parent. ...

Right to counsel in appeals and payment for such

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.