Right to counsel

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

In In re Cooper, 631 P.2d 632 (Kan. 1981), the Kansas Supreme Court held that due process requires appointment of counsel for parents when termination of parental rights are at stake, although not when only temporary severances of custody are at issue. Writing just after Lassiter was decided, the Cooper court adopted a multi-factor test for child custody cases, making appointment of counsel contingent upon the seriousness of the state's allegations, the length of anticipated separation the parents might face, the presence or absence of parental consent to state assistance, the presence or absence of disputed facts, and the parents' ability to cope with relevant documents and to question the State's witnesses at the hearing. Id. at 640.  In light of those factors, the court concluded that due process does not always require the assistance of counsel when only the temporary removal of children is at issue. Id. at 641.  But the court held that due process does require the appointment of counsel for indigent parents in child in need of care proceedings "whenever the parent, unable to present his or her case properly, faces a substantial possibility of loss of custody and permanent severance of parental rights or of prolonged separation from the child." Id. at 640-41. 


The Cooper opinion does not make it clear whether the court was addressing the federal or state constitution's due process clause.  However, the overall tenor of the opinion's discussion of the due process issue suggests that the court was interpreting both the federal and state constitutions.  For example, the majority opinion referred to the state and federal constitutions together when it stated, "the fact the legislature failed to provide for appointment of counsel for the parent in a ‘deprived child’ hearing does not foreclose a need for such an appointment under the due process requirements of the Constitutions." Id. at 635.  


After the Kansas legislature enacted a statutory right to counsel in "child in need of care" cases in 1982, see Kan. Stat. Ann. § 38-2205(b), the court stated that the Cooper factors had been obviated. In re J.A.H., 172 P.3d 1, 7 (Kan. 2007); but see In re Application to Adopt H.B.S.C., 12 P.3d 916, 920 (Kan. App. 2000) (in finding right to counsel for putative father in appeal of stepparent adoption notwithstanding lack of specific legislative language, court notes that “there is no doubt that the relationship of natural parent and child is a fundamental right of which neither may be deprived without due process of law as guaranteed by the Constitution of the United States and the Kansas Bill of Rights. Nor can there be any doubt that, in such case, the right to counsel, either retained or appointed, is essential to due process.”).


Notably, the Kansas Court of Appeals once held that there is "inherent authority in courts to provide for counsel in order to provide a fair and impartial hearing of matters involved in the severance of parental rights." In re Brehm, 594 P.2d 269, 271 (Kan. Ct. App. 1979).

Appointment of Counsel: categorical Qualified: yes