Discretionary appointment of counsel

Key_development Question_mark

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



In 2018, the Kentucky Legislature in 2018 added Ky. Rev. Stat. 199.502(3), which states:


Biological living parents have the right to legal representation in an adoption wherein he or she does not consent. The Circuit Court shall determine if a biological living parent is indigent and, therefore, entitled to counsel pursuant KRS Chapter 31. If the Circuit Court so finds, the Circuit Court shall inform the indigent parent; and, upon request, if it appears reasonably necessary in the interest of justice, the Circuit Court shall appoint an attorney to represent the biological living parent pursuant to KRS Chapter 31 to be provided or paid for (a) The petitioner a fee to be set by the court and not to exceed five hundred dollars ($500); or (b) The Finance and Administration Cabinet if the petitioner is a blood relative or fictive kin as established in subsection (4)(a) of Section 4 of this Act a fee to be set by the court and not to exceed five hundred dollars ($500).[1]


(emphasis added).  Although the italicized language seems to invoke discretion, the Kentucky Court of Appeals in R.V. v. Com., Dep't for Health and Family Services, 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, 673 (Ky. Ct. App. 2007).  The court did not confine its holding to state-initiated adoptions, so it arguably applies to the adoption context notwithstanding the Legislature's discretionary language in Ky. Rev. Stat. 199.502(3).  See also W.H.J. v. J.N.W., J.A.W., and N.H.J., No. 2022-CA-1055-ME, 2023 WL 3556222 at *5 (Ky. Ct. App. May 19, 2023) (stating that "KRS 199.502 expressly provides that an indigent parent who contests an adoption is entitled to appointed counsel.") (citing Cabinet for Health & Fam. Servs. v. K.S., 610 S.W.3d 205, 209 (Ky. 2020) ["Kentucky law provides indigent parents with a statutory right to counsel in proceedings which threaten their fundamental right to care and custody of their children."]).


Regarding waiver, the Kentucky Court of Appeals has explained in dicta that the trial court has the duty to inform parents of their right to counsel in plain language. See W.H.J., 2023 WL 3556222 at *5-6.  In W.H.J., the trial court stated to the father that it could provide him with an "affidavit of indigence," and the appellate court noted that such languagealthough "the correct legal terminology""carried a significant risk of not being understood by a layperson"Id. at *6.  The appellate court noted that "the family court did not ever plainly tell Father that he had a statutory right to have counsel appointed for him if he could not afford to retain one."  The appellate court stated that "'Legalese' should be avoided to the greatest extent possible, and any terms familiar to attorneys but likely unfamiliar to laypersons should be explained in the simplest possible language."  However, the appellate court also cautioned that the father had failed to ask any clarifying questions: "Although we understand that court proceedings can be stressful and intimidating and people also generally are reluctant to admit confusion or ignorance, everyone involved in a court proceeding has an obligation to let the court know if he or she is confused."  Ultimately, it did not rule on whether this constituted waiver as it remanded on other grounds.


Note: "Opinions designated 'Not To Be Published' are not binding precedent. These opinions may, however, be cited as non-binding authority as permitted by RAP 41."  Ky. R. App. Pro. Rule 40.

[1] Previously, in S.S. v. Commonwealth, a birth mother argued she had a right to appointed counsel in a stepparent adoption proceeding. 537 S.W.3d 834 (Ky. Ct. App. 2017).  The trial court had held it lacked the authority to appoint counsel under the Adoption Code since it was silent on appointing counsel, but the Court of Appeals held that because an involuntary adoption was a termination of parental rights, “the provisions of KRS Chapter 625 apply to step-parent adoption proceedings under KRS Chapter 199”. S.S., 537 S.W. 3d at 836.  However, the 2018 amendment to the Adoption Code obviated this decision.

Appointment of Counsel: categorical Qualified: yes