Right to counsel

In R.V. v. Com., Dep't for Health and Family Services, the Court of Appeals stated 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), that 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).  This suggests the right to counsel is not only statutory but also constitutional in nature.

See also L.R.H. v. Cabinet for Health and Family Servs., No. 2012–CA–001018–ME, 2013 WL 1002250 (Ky. Ct. App. Mar. 15, 2013) (unpublished) (“[t]he law in this Commonwealth is that the due process clause …. require[s] that the parental rights of a child not be terminated unless the parent has been represented by counsel at every critical stage of the proceedings.”) (relying on e.g., R.V.).

The right to counsel also includes 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).