Right to counsel

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Legislation, Termination of Parental Rights (State) - Birth Parents



The code provision that provides indigent parents with a right to counsel upon request in abuse cases also applies in termination of parental rights proceedings. Kan. Stat. § 38-2205(b)(1) states, "A parent of a child alleged or adjudged to be a child in need of care may be represented by an attorney, in connection with all proceedings under this code", and termination of parental rights happens within that code section.  Paragraph (b)(2) of the Section provides:  "If at any stage of the proceedings a parent desires but is financially unable to employ an attorney, the court shall appoint an attorney for the parent."  The court must distribute a pamphlet to parents advising them of their rights under Kan. Stat. § 38-2205(b).


The statute also requires courts to appoint counsel, regardless of indigency, for any parent who is a minor or who is mentally ill or disabled unless there is retained counsel who will represent that parent's interests. See Kan. Stat. Ann. § 38-2205(b)(2).


Request requirement and waiver


Although the language of Section 38-2205(b)(2) seems to imply that a parent must request counsel, the statute also refers to waiver of counsel. See id. at (b)(1) (“A parent or custodian who is not a minor, a mentally ill person or a disabled person may waive counsel either in writing or on the record.”).  At least one court has pointed to this discrepancy to reject the contention that a parent who fails to ask for counsel is not entitled to counsel. See In Interest of S.R.H., 809 P.2d 1 (Kan. Ct. App. 1991), abrogated on other grounds, In re J.A.H., 172 P.3d 1, 8 (Kan. 2007).  In S.R.H., the Court of Appeals commented:


The right of an indigent parent to be represented by counsel in a hearing to determine whether the parent's minor child shall be adjudicated a child in need of care is not dependent upon a request by the parent to be represented by counsel.  While the statute speaks in terms of a desire, it also speaks in terms of waiver on the record or in writing. 


809 P.2d at 8.  While the S.R.H. court was addressing an earlier version of the statute, the current version also refers to waiver of counsel, suggesting the conflict between the need to request and the waiver standard may still exist.  S.R.H. also suggested that “we do not think that the constitutional rights of due process of this natural mother depend entirely upon her request for counsel”, 809 P.2d at 3, meaning that even if a parent fails to meet the statutory requirement of a request, the right to counsel might still attach on a constitutional basis.  


Regarding waiver, the court in In re J.A.H. concluded that the trial court's denial of a father's request for an attorney on the day of trial, together with his request for a continuance, was not an abuse of discretion where father had previously dismissed his court appointed attorney and elected to proceed pro se:


If parents were allowed to waive their right and re-invoke that right at any time, they could delay these important proceedings and interfere with the best interests of the child. But we do agree with the State's argument that a parent's waiver does not necessarily preclude a later appointment of counsel; only that the re-invocation came too late in the instant case.

172 P.3d at 8.  The J.A.H. decision did add that "If a statutory right has been violated, the trial court's use of discretion is limited.  Under these circumstances there is a greater need for articulation by the trial judge of the reasons for his or her 'discretionary' decision."


Extent of representation


In regard to parents who have been properly served but who fail to attend or appear, section 38-2205 states that it is not necessary to appoint counsel for such a parent.  However, Kan. Stat. § 38-2267(d) requires appointment even for parents who fail to appear prior to hearing a motion requesting termination of parental rights.


Under Section 38-2205(d), representation continues through the appeal ("an attorney appointed for a parent or custodian shall continue to represent the client at all subsequent hearings in proceedings under this code, including any appellate proceedings, unless relieved by the court upon a showing of good cause or upon transfer of venue."); see also In re Brehm, 594 P.2d 269, 270-271 (Kan. Ct. App. 1979) (in termination of parental rights case, "absent a statutory provision to the contrary and absent limitation by the appointing authority, the responsibilities and duties of court-appointed counsel continue until final resolution of the cause for which assigned. Such occurs only after judgment has been rendered, the availability of an appeal has been exhausted, and the time for any rehearing or final review has passed.").


Permissive appointment for indigent interested parties


Finally, the court may appoint counsel for indigent "interested parties" (as defined in Kan. Stat. Ann. § 38-2241) pursuant to Section 38-2205(c).

Appointment of Counsel: categorical Qualified: no