Discretionary appointment of counsel

Key_development Question_mark

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

In 2018, the Kentucky Legislature in 2018 added KRS 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).


Previously, 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 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”, meaning there was a categorical right to counsel.  However, the 2018 amendment to the Adoption Code obviated this decision.

Appointment of Counsel: discretionary Qualified: no