Due process requires counsel at critical stages

Generally

In R.V. v. Com., Dep’t for Health and Family Services, the Court of Appeals stated 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), that 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 (Ky. Ct. App. 2007).  This suggests the right to counsel is not only statutory but also constitutional in nature. See also L.R.H. v. Cabinet for Health and Family Servs., No. 2012–CA–001018–ME, 2013 WL 1002250 (Ky. Ct. App. Mar. 15, 2013) (unpublished) (“[t]he law in this Commonwealth is that the due process clause …. require[s] that the parental rights of a child not be terminated unless the parent has been represented by counsel at every critical stage of the proceedings.”) (relying on e.g., R.V.). The R.V. court explicitly addressed Lassiter, noting that by adopting these statutes, the Kentucky legislature had “alleviated the need for a court to make case-by-case determinations [as articulated in Lassiter] . . .” R.V., 242 S.W.3d at 262.

But see Commonwealth v. K.B.H., No. 2004–CA–001760–ME, 2005 WL 2108126 at *3 (Ky. Ct. App. Sept. 2, 2005) (unpublished) (“[A]n indigent parent in a termination action brought pursuant to the provisions of KRS 625.050 is entitled to court-appointed counsel not because of the dictates of due process under the Kentucky or United State [sic] Constitutions, but due to the policy adopted by our legislature to guarantee the assistance of counsel to an indigent parent.”).

Unclear whether a temporary deprivation hearing is a “critical stage”

However, the right to counsel may or may not extend to temporary removal hearings, as the appellate court, in an unpublished decision, noted that this question was never answered (at least explicitly) by R.V.

In A.P., Jr. v. Commonwealth, Cabinet for Health and Family Services, the parents argued–based upon R.V.–that they were entitled to counsel at all proceedings, including at the temporary removal hearing. Nos. 2009–CA–001434–ME, 2009–CA–001541–ME, 2010 WL 391837, at *2 (Ky. Ct. App. Feb. 5, 2010) (unpublished).

The court noted that “the court in R.V. did not . . . state specifically whether a temporary removal hearing was a critical stage of a termination proceeding, although the court’s opinion implies that it would be.” Id. However, the A.P. court said it did not need to reach the question, because the harmless error standard applies, Id. (relying on R.V., at 242 S.W.3d at 673), and “the temporary removal hearing had no effect on the termination of . . . parental rights . . . .” Id. In support of this, the court reasoned that “Even if any admission made by the parties at the temporary removal hearing concerning the presence of cocaine and marijuana in the child’s bloodstream at birth should have been inadmissible at the adjudication hearing due to lack of counsel at the removal hearing, the blood test itself could have been admitted into evidence at the adjudication hearing to show that fact.”

The RTC includes the right to effective assistance

The right to counsel also includes 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).