Right to counsel

Generally

Indigent custodial parents are entitled to counsel in dependency proceedings following the initial temporary removal hearing.  The right to counsel is classified as “qualified” because the right does not attach at the temporary removal hearing.

Specifically, Ky. Rev. Stat. Ann. § 620.100(1) states:

(1) If the court determines, as a result of a temporary removal hearing, that further proceedings are required, the court shall advise the … parent or other person exercising custodial control or supervision of their right to appointment of separate counsel:

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(b) The court shall appoint separate counsel for the parent who exercises custodial control or supervision if the parent is unable to afford counsel pursuant to KRS Chapter 31. The clerk of the court shall arrange for service on all parties, including the local representative of the Cabinet for Health and Family Services, of the order appointing counsel. The parent’s counsel shall be provided or paid for by the Finance and Administration Cabinet. The fee to be fixed by the court shall not exceed five hundred dollars ($500); however, if the action has final disposition in the District Court, the fee shall not exceed two hundred fifty dollars ($250);

(c) The court shall appoint separate counsel for a person claiming to be a de facto custodian, as defined in KRS 403.270, if the person is unable to afford counsel pursuant to KRS Chapter 31. The clerk of the court shall arrange for service on all parties, including the local representative of the Cabinet for Health and Family Services, of the order appointing counsel. The person’s counsel shall be provided or paid for by the Finance and Administration Cabinet. The fee to be fixed by the court shall not exceed five hundred dollars ($500); however, if the action has final disposition in the District Court, the fee shall not exceed two hundred fifty dollars ($250);

(d) The court may, in the interest of justice, appoint separate counsel for a nonparent who exercises custodial control or supervision of the child, if the person is unable to afford counsel, pursuant to KRS Chapter 31. The clerk of the court shall arrange for service on all parties, including the local representative of the Cabinet for Health and Family Services, of the order appointing counsel. Counsel for the person shall be provided or paid for by the Finance and Administration Cabinet. The fee to be fixed by the court shall not exceed five hundred dollars ($500); however, if the action has final disposition in the District Court, the fee shall not exceed two hundred fifty dollars ($250);

…

See also § 610.060(1)(a) (“If the Circuit or District Court determines that a formal proceeding is required in the interest of the child or to determine the truth or falsity of the allegations against the child … the court shall, when the child is brought before the court … Explain to the … parents, guardian, or person exercising custodial control their respective rights to counsel and, if … his parents, guardian, or person exercising custodial control are unable to obtain counsel, shall appoint counsel for the child, as provided in subsection (2) of this section, and, unless specified to the contrary by other provisions of KRS Chapters 600 to 645, may appoint counsel for the parents, guardian, or person exercising custodial control”); B.C. v. B.T., 182 S.W.3d 213, 217 (Ky. Ct. App. 2005) (applying § 610.060 to a dependency proceeding); Z.T. v. M.T., 258 S.W.3d 31, 36 (Ky. App. 2008) (same).  Despite § 610.060 seemingly making appointment discretionary for the custodial parents, it appears that the mandatory nature appointment of § 620.100(1)(b) still controls, because the latter is a “provision[] of KRS Chapters 600 to 645” (specifically, Chapter 620) that “specifie[s] to the contrary.”

The right to counsel includes the right to effective assistance

The right to counsel does include 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).

The right to counsel generally does not extend to noncustodial parents, at least not until a ‘critical stage’

A parent who does not exercise custodial control or supervision over the child is not entitled to appointed counsel for the dependency proceeding. See B.L. v. J.S., 434 S.W.3d 61, 66 (Ky. App. 2014) (finding that biological father was not statutorily entitled to appointment of counsel in dependency case because [i] “Biological Father [] was not only incarcerated, but also uninvolved with Minor Child for most of his life and at all times relevant for the neglect proceedings”, and [ii] biological mother, and not father, was subject of proceedings); but see M.Q.M. v. Cabinet for Health and Family Servs., No. 2021-CA-1249-ME, 2022 WL 3129960 (Ky. Ct. App. Aug. 5, 2022) (unpublished) (finding that noncustodial parent was deprived of his statutory right to counsel at a critical stage of the dependency proceedings–a permanency hearing at which the goal was changed to adoption.).

Harmless error standard is applied on appeal

In R.V. v. Commonwealth, Department for Health and Family Services, the Kentucky Court of Appeals interpreted Sections 620.100 and 625.080 to mean that indigent parents are entitled to representation at all “critical” dependency proceedings prior to termination of parental rights “unless it can be shown that such proceeding had no effect on the subsequent circuit court termination case.” 242 S.W.3d 669, 672-73 (Ky. Ct. App. 2007); see also R.M. & A. v. Cabinet, NO. 2016–CA–001274–ME, 2017 WL 4570616 at *6 (Ky. Ct. App. Oct. 13, 2017) (excusing trial court’s failure to appoint counsel in the dependency phase because “the lack of counsel during the dependency and neglect phase in juvenile court had no effect on the outcome of the termination proceedings. As discussed above, the circuit court made independent findings of neglect and did not simply rely on the finding of neglect from the dependency and neglect proceeding.”).

Anders standard does not apply

In A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), the court held that the statutory right to counsel in termination of parental rights cases extends to the appeal, and that an attorney seeking to withdraw from the appeal due to a perception that the appeal lacks merit must file a brief outlining the reasons as set out for criminal cases in Anders v. California, 386 U.S. 738 (1967).   However, in T.N.D. v. Cabinet for Health and Family Services, — S.W.3d —- 2026 WL 2129820 (Ky. App. 2026), the court held that the Anders procedure would not apply to neglect proceedings.  It first stated that A.C. did not conclude Anders applies whenever there is a right to counsel, noting that it also does not apply to certain post-conviction proceedings, and that the application of Anders was more justified in termination proceedings due to the severe and irrevocable nature of such proceedings.  Conversely, the court held, neglect proceedings “may temporarily disrupt the parent-child relationship and may result in restrictions upon parental custody [but] do not permanently terminate parental rights.”  Instead of Anders, the court stated the following procedure should apply:

If counsel concludes that no nonfrivolous issues exist and the client still desires to appeal, counsel should assist the client in filing a notice of appeal and then seek leave to withdraw. The motion should certify that counsel has reviewed the record but has been unable to identify any nonfrivolous grounds for appeal. Counsel should include the client in the certificate of service. If the Court allows counsel to withdraw, the appealing party may file a brief pro se. Absent a properly filed brief identifying some alleged error, the appeal shall proceed in the same manner as any other appeal in which the appellant has failed to file a brief.