Right to counsel

Key_development Question_mark

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


There is a right to counsel for indigent parents in contested adoption proceedings, including the appeal. See Kan. Stat. Ann. § 59-2136 and In re Application to Adopt H.B.S.C., 12 P.3d 916, 921-22 (Kan. Ct. App. 2000) ("When an indigent parent facing the termination of parental rights in a child in need of care proceeding is entitled to appointed appellate counsel but is not entitled to appointed counsel in a stepparent adoption situation, the procedural differences do not justify the different treatment. In either situation, the parent may face permanent loss of his or her rights to a child.")

Section 59-2136 covers situations "where a relinquishment or consent to an adoption has not been obtained from a parent." Id. at (a).  A court must appoint counsel in adoption proceedings to represent any father whose identity or whereabouts are unknown, Kan. Stat. Ann. § 59-2136(c), and any indigent father (or mother) who appears and asserts parental rights, Kan. Stat. Ann. § 59-2136(h).  While paragraphs (c) and (h) refer to "the father", the provisions also apply to mothers, because Section 59-2136(b) states, "Insofar as practicable, the provisions of this section applicable to the father also shall apply to the mother and those applicable to the mother also shall apply to the father."

Representation rendered pursuant to paragraph (c) does not cease upon locating the parent. See In re Adoption of C.D.F., No. 118,212, 2018 WL 3077557 at *10 (Kan. Ct. App. June 22, 2018) (unpublished). 


Indigency requirement not applicable in stepparent adoption context

Although paragraph (h) contains an indigency requirement, this provision is apparently inapplicable in stepparent adoptions.  In In re Adoption of C.D.F., the court stated:  

[C]aselaw regarding stepparent adoptions suggests that a finding of financial need is not required for a father to continue with representation that was court-appointed pursuant to K.S.A. 2017 Supp. 59-2136(c) ... [S]ince subparagraph (h) does not apply in stepparent adoptions, under In re Adoption of J.M.D., [260 P.3d 1196 (2011)] the statutes do not require a district court to assess a found father's financial ability to employ an attorney in order to continue court-appointed representation initially accomplished pursuant to K.S.A. 2017 Supp. 59-2136(c).

See id. at *11-12.  


Payment for appointed counsel

These statutes are silent on the matter of informing the subjects of their rights in regards to these proceedings, and also on who is to pay for appointed counsel.  However, a court rule provides that “An appellate court may award attorney fees for services on appeal in a case in which the district court had authority to award attorney fees.” Kan. Sup. Ct. R. 7.07(b)(1). 

The Kansas Supreme Court has said in the context of an adoption proceeding that where the trial court ordered the prospective adoptive parents to pay for the natural parents’ appointed counsel at trial, such prospective parents can be required to pay for the natural parents’ appellate counsel as well. In re J.M.D., 260 P.3d 1196, 1209 (Kan. 2011).  Notably, the high court affirmed the decision of the Court of Appeals to reduce the hourly rate of appointed counsel to a rate commensurate with attorneys in criminal cases. Id.


Right to counsel for unrepresented minors parents prior to voluntary relinquishment

Kan. Stat. Ann. § 59-2115 provides that "a minor parent shall have the advice of independent legal counsel as to the consequences of the consent or relinquishment prior to its execution", and "[u]nless the minor parent is otherwise represented by independent legal counsel, the petitioner or child placing agency shall provide independent legal counsel to the minor parent at such petitioner's or child placing agency's sole expense."

In Matter of the Adoption of N.A.P., the court held that “The statute on its face only requires independent legal counsel immediately prior to and at the time consent is executed.  The legislature intended that the minor birth parent be afforded legal counsel to advise as to the consequences of executing a consent to adoption.  It was not intended that the minor be provided legal representation for the adoption proceeding to follow.  If the legislature would have intended full-blown legal representation for a minor, it would have said so.” 930 P.2d 609, 614 (Kan. App. 1996).


Right to counsel for parents subject to private Child in Need of Care (CINC) petitions

A private party can file a CINC petition, Kan. Stat. Ann. § 38-2233 ("Any individual may file a petition alleging a child is a child in need of care..."), in which termination of parental rights may be sought. See Kan. Stat. Ann. § 38-2266 ("Either in the original petition filed under this code or in a motion made in an existing proceeding under this code, any party or interested party may request that either or both parents be found unfit and the parental rights of either or both parents be terminated or a permanent custodian be appointed.").  Parents subject to such petitions have the right to counsel under Kan. Stat. Ann. § 38-2205(b)(1) ("If at any stage of the proceedings a parent [of a child alleged or adjudged to be a child in need of care] desires but is financially unable to employ an attorney, the court shall appoint an attorney for the parent...").


Note:  Pursuant to Kansas Supreme Court Rule 7.04(g), unpublished opinions are not binding and are "not favored for citation and may be cited only if the opinion: (i) has persuasive value with respect to a material issue not addressed in a published opinion of a Kansas appellate court; and (ii) would assist the court in disposition of the issue".  Any unpublished opinions are included here for illustrative purposes only.

Appointment of Counsel: categorical Qualified: no