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).


However, in R.V. v. Com., Dept. for Health and Family Services, 242 S.W.3d 669 (Ky. App. 2007), 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."  The court did not confine its holding to state-initiated adoptions, so it arguably could be applied to the adoiption context notwithstanding the Legislature's discretionary language KRS 199.502(3).

Appointment of Counsel: categorical Qualified: yes