Kentucky court: parents have right to counsel in adoption proceedings

Key_development Question_mark

09/22/2017, Legislation, Termination of Parental Rights (Private) - Birth Parents

In S.S. v. Commonwealth, No. 2016-CA-001924-ME and No. 2016-CA-001925-ME, 2017 Ky. App. LEXIS 548 (Ky. App. 2017), a birth mother argued she had a right to appointed counsel in a stepparent adoption proceeding.  The trial court had held it lacked the authority to appoint counsel under the Adoption Code, but the Court of Appeals held that


[the Adoption Code’s consent to adoption provision] is only applicable if both parents consent to the adoption, or if the parental rights of one or both parents have been terminated pursuant to KRS Chapter 625 [of the Juvenile Code]…. An adoption without the consent of a living biological parent is a proceeding to involuntarily terminate that parent's parental rights … [the Adoption Code] allows for involuntary termination of parental rights when a parent does not give consent to the adoption, but that section refers to the provisions of KRS 625.090. The trial court made findings under that section to involuntarily terminate S.S.'s parental rights. Consequently, we conclude that the provisions of KRS Chapter 625 apply to step-parent adoption proceedings under KRS Chapter 199 … the General Assembly has eliminated the need for a case-by-case determination by enacting KRS 625.080(3), which specifically provides that "[t]he parents have the right to legal representation in involuntary termination actions." The statute further authorizes the trial court to appoint counsel for a parent who is found to be indigent under the provisions of KRS Chapter 31.


The court also rejected the argument that the mother had waived her right to counsel by making her request one day prior to the hearing.  The court then set aside the adoption, commenting that "We recognize that the result may be the same, but we must conclude that S.S. was entitled to counsel prior to termination of her parental rights.” 

Appointment of Counsel: categorical Qualified: no