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. 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. 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."


 

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.


Due to the passage of a statutory right to counsel in "child in need of care" cases, the court later stated that the Cooper factors had been obviated. In re J.A.H., 172 P.3d 1, 7 (Kan. 2007).

 

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