Right to counsel

Key_development Question_mark

Legislation, Termination of Parental Rights (Private) - Children

It is unclear whether there is a right to counsel in adoption cases.  KRS § 625.041 of the Juvenile Code provides that, in an action for voluntary termination, “the court shall appoint a guardian ad litem to represent the best interest of the child”, and the Supreme Court of Kentucky has interpreted guardian ad litem to mean counsel:


This statute does not refer to the attorney appointed to represent the child as a guardian ad litem. In termination actions, however, both voluntary, KRS § 625.041, and involuntary, KRS § 625.080, a “guardian ad litem” must be appointed “to represent the best interests of the child.” The GAL’s fee is likewise limited to $500 and is paid, if the Cabinet of Health and Family Services is the proposed custodian, by the Finance and Administration Cabinet. The different terminology does not appear to reflect a substantive distinction, and indeed CR 17.03(5), addressing GAL reimbursement, expressly provides that “fees allowed to counsel for children ... in dependency, abuse or neglect cases ... shall not exceed the amounts specified in KRS § 620.100.” In any event, it is clear that in practice the attorney appointed to represent the child in a DNA action, or, as in this case, in a domestic custody proceeding, is commonly thought of and referred to as a “guardian ad litem.”


Morgan v. Getter, 441 S.W.3d 94, 109 n.6 (2014).  The Juvenile Code then separately covers involuntary termination proceedings, specifies that a parent (but no other private party) can pursue such an action, and grants a right to counsel in those proceedings.  See Ky. Rev. Stat. Ann. § 625.080(2).  The language in § 625.080 refers to a right in “any involuntary action for termination of parental rights,” which is very broad.  See also Moore v. Asente, 110 S. W. 3d 336 (Ky. 2003) (“Like the final order in a TPR proceeding, a valid adoption judgment terminates the parental rights of the birth parent.”)


On the other hand, it appears that contested adoptions are conducted under the Adoption Code.  The Adoption Code allows for adoptions without parental consent in certain circumstances (see Ky. Rev. Stat. Ann. § 199.502).  Section § 199.470 of the Adoption Code makes it clear that private parties can seek adoption.  And while no provisions of the Adoption Code refer to appointing counsel for the child, two provisions describe appointing a guardian ad litem for a child: KRS § 199.480(3) states that “If the child’s biological living parents, if the child is born in lawful wedlock, or if the child is born out of wedlock, its mother, and if paternity is established in legal action or if an affidavit is filed stating that the affiant is father of the child, its father, are parties defendant, no guardian ad litem need be appointed to represent the child to be adopted”, while KRS § 199.500(2) specifies that “A minor parent who is a party defendant may consent to an adoption but a guardian ad litem for the parent shall be appointed.”  So the questions for children in adoptions are a) whether the broad provisions of § 625.080 would apply; and b) whether the decision in Morgan v. Getter means that the guardian ad litem appointed must be counsel.

Appointment of Counsel: categorical Qualified: yes