Kentucky high court finds that unrepresented minors are entitled to an attorney ad litem

In Smith v. Doe, the Supreme Court of Kentucky held that “unrepresented minors to an IPO [interpersonal protective order] action must have a GAL [guardian ad litem] appointed to represent them,” because “we do not consider it appropriate to permit or direct a parent to represent a child in an IPO hearing”. 627 S.W.3d 903, 912-13 (Ky. 2021).  The court added out that “though the requirements for GAL’s vary from state to state, GALs in Kentucky must be licensed attorneys”, and cited to KRS 387.305(2), which provides that “A guardian ad litem must be a regular, practicing attorney of the court”.

In finding the right to a GAL, the Court relied on Ky. Ct. R. Rule 17.03, which states:

(1) Actions involving unmarried infants or persons of unsound mind shall be brought by the party’s guardian or committee, but if there is none, or such guardian or committee is unwilling or unable to act, a next friend may bring the action.

(2) Actions involving unmarried infants … shall be defended by the party’s guardian or committee.  If there is no guardian or committee or he is unable or unwilling to act or is a plaintiff, the court, or the clerk thereof if its judge or judges are not present in the county, shall appoint a guardian ad litem to defend unless one has been previously appointed under Rule 4.04(3) or the warning order attorney has become such guardian under Rule 4.07(3).

(3) No judgment shall be rendered against an unmarried infant or person or unsound mind until the party’s guardian or committee or the guardian ad litem shall have made defense or filed a report stating that after careful examination he is unable to make defense.

The Court in Smith v. Doe considered the petitioner-appellee’s argument that appointment of a guardian ad litem for minor parties in IPO proceedings is not required under the court rule, because the term “guardian” refers to a child’s “parent” and not to a court-appointed guardian, and therefore the respondent child’s mother represented the child. 627 S.W.3d at 913.  The Court noted that although the court rules do not define “guardian,”  Ky. Rev. Stat. 387.010 (the trusts and estates code) uses the term “guardian” to mean a person appointed by the court to manage a minor’s affairs.  In addition, Ky. Rev. Stat. 387.010 “explicitly distinguishes between a guardian and a parent by also defining the term ‘parent’…” Id. at 914.  The high court also relied upon its decision in Rice v. Floyd, in which “the Rice Court noted that ‘[a]n incompetent cannot be sued and an attorney-in-fact cannot defend an action on behalf of an incompetent. Civil Rule 17.03.  Defense must be completed by a legally appointed guardian or committee.'” Id. at 914-15 (quoting Rice, 768 S.W.2d 57, 59-60 [Ky. 1989]) (emphasis omitted).  

The Court reasoned, “the word ‘guardian’ cannot per se mean ‘parent[,]'” because the court rule “covers both minors and adult ‘persons of unsound mind[,]'” and using the word “guardian” to mean “parent” would mean that “an adult child or spouse of [a disabled individual] could never be appointed ‘guardian’ under CR 17.03, which is a common occurrence.” Id. at 915.

In Woods v. Cooper, the appellate court indicated that it may apply the logic from Smith to extend the right to counsel to another kind of protective order matter, domestic violence order (DVO) cases. 2023-CA-0632-ME, 2023 WL 6932612 (Ky. App. Ct. Oct. 20, 2023).  But the Woods court did not reach the issue since the respondent did not meet the criteria in that he was not a minor. 2023-CA-0632-ME, 2023 WL 6932612 (Ky. App. Ct. Oct. 20, 2023); see also Herrell v. Miller, 2022-CA-1199-ME, 2023 WL 4139889 (Ky. App. Ct. June 23, 2023) (discussed below, contrasting the facts of Smith v. Doe in analyzing the sufficiency of a minor’s representation in a DVO case).

Harmless error standard is applied on appeal

Finally, a recent unpublished appellate decision suggests that, where a minor party in a protective order matter is denied an appointed guardian ad litem (GAL), the appellate court will reverse only if the denial harmed the party. See Herrell v. Miller, 2022-CA-1199-ME, 2023 WL 4139889 at *4 (Ky. App. Ct. June 23, 2023) (relying on Ky. Ct. R. Rule 61.01: “The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”). 

In Herrell, a child’s mother filed for a domestic violence order (DVO) on behalf of her minor child.  The mother was represented by counsel, and although “[mother’s] attorney did not formally announce he represented Child, his representation was in conformity with [the mandates of Smith v. Doe regarding the GAL’s role].” Herrell, 2023 WL 4139889 at *4.  In addition, the appellant was not harmed by the error.  The Herrell court explained: 

In contrast to Smith, where no attorney was present to act on behalf of the minor child, in the case at bar the petitioner’s attorney actively engaged in the hearing on behalf of Child; calling witnesses and making arguments. Here, the allegations were centered around alleged actions of Herrell toward Child. If any party were to be aggrieved by the court’s failure to appoint a GAL it would be Child; and, in the case at bar, Child received the utmost protection afforded in the law. Therefore, any misstep on the part of the family court was harmless error.

Id.

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Note:  Unpublished opinions may not be controlling and are included here simply for illustrative purposes. Per Ky. R. App. Prac. Rule 40, “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.”