COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; L.I.S., A MINOR CHILD; E.A.S.; AND M.S. APPELLEES AND S.S. APPELLANT
COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; C.F.S., A MINOR CHILD; E.A.S.; AND M.S. APPELLEES
FROM BARREN CIRCUIT COURT HONORABLE W. MITCHELL NANCE, JUDGE
ACTION NOS. 16-AD-00022, 16-AD-00023
FOR APPELLANT: S.S. Traci Lee Peppers Glasgow, Kentucky
FOR APPELLEE: E.A.S. Mica L. Wood Glasgow, Kentucky No Briefs
for Appellees Cabinet for Health and Family Services, L.I.S.,
C.F.S., and M.S.
BEFORE: ACREE, MAZE, AND NICKELL, JUDGES.
appeals from judgments of the Barren Circuit Court which
terminated her parental rights and allowed E.A.S. to adopt
her two children under KRS Chapter 199. We agree with S.S. that
the trial court clearly erred in finding that it lacked
authority to appoint counsel for her in this proceeding.
Hence, we must vacate the termination and adoption judgments,
and remand for additional proceedings, including appointment
of counsel if appropriate.
and S.S. are the father and mother, respectively, of L.I.S.,
born May 2006, and C.F.S. born August 2009. They were married
at the time of the children's births. M.S. testified that
he learned of S.S.'s drug use in 2013. The parties
separated and M.S. filed for divorce. A decree of dissolution
was entered in 2014. During that period, the Cabinet for
Health and Family Services filed a dependency petition,
alleging that S.S. had been highly intoxicated while in a
care- taking role of the children. S.S. stipulated to the
dependency petition. S.S. has failed to complete her case
plan with the Cabinet.
children have been in the custody of M.S. since before the
divorce. M.S. also testified that visitation between S.S. and
the children was hit or miss and did not go well. Her last
visitation was in September of 2015, and the children refused
to have any further contact with her.
married E.A.S. in April of 2015, and she has been the
children's primary caretaker since that time. On June 13,
2015, E.A.S. filed the current petition seeking voluntary
termination of parental rights and to adopt the children.
M.S. consented to the adoption, but S.S. did not. The Cabinet
was named as a party and recommended that the petition be
parties appeared for an evidentiary hearing on November 15,
2016. The day prior to the hearing, S.S. filed a
"Financial Statement, Affidavit of Indigence, Request
for Counsel, and Order (DNA/TPR Cases)." S.S. renewed her
request for appointment of counsel, stating that she had been
in drug rehabilitation for at least a month prior to the
hearing and was unable to obtain an attorney. The trial court
denied the motion to appoint counsel, concluding that it did
not have the authority to appoint counsel for an indigent
parent in a proceeding under KRS Chapter 199.
the pre-hearing proceedings, the trial court determined that
there was an outstanding arrest warrant for S.S. She was
placed under arrest at the commencement of the hearing, but
the trial court directed the deputy sheriff to remove her
handcuffs during the hearing. The court then heard testimony
from M.S., E.A.S., and the children's therapist. S.S. did
not cross-examine any of the witnesses. The court also
considered the prior dependency petitions against S.S. and
the Cabinet's report. S.S. presented testimony from her
sister, but chose not to testify on her own behalf after the
court advised her that she would be subject to
the hearing, the trial court entered findings of fact, and
conclusions of law finding that S.S. had abandoned the
children, and it was in the children's best interests to
terminate S.S.'s parental rights and to allow E.AS. to
adopt them. The court entered separate judgments of adoption
as to each child. S.S. now appeals from these orders and
first argues that the trial court erred by denying her motion
for appointed counsel. The trial court expressed the view
that it did not have the authority to appoint counsel for an
indigent respondent in proceedings under KRS Chapter 199.
However, KRS 199.500 is only applicable if both parents
consent to the adoption, or if the parental rights of one or
both parents have been terminated pursuant to KRS Chapter
625. KRS 199.500(1)(c). An adoption without the consent of a
living biological parent is a proceeding to involuntarily
terminate that parent's parental rights. M.B. v.
D.W., 236 S.W.3d 31, 34 (Ky. App. 2007). KRS 199.500(4)
allows for involuntary termination of parental rights when a
parent does not give consent to the adoption, but that
section refers to the provisions of KRS 625.090. The trial
court made findings under that section to involuntarily
terminate S.S.'s parental rights. Consequently, we
conclude that the provisions of KRS Chapter 625 apply to
step-parent adoption proceedings under KRS Chapter 199.
United States Supreme Court has found no absolute right to
counsel in termination cases under the umbrella of the United
States Constitution, but instead has held the appointment of
counsel need only be made on a case-by-case basis.
Lassiter v. Dep't of Social Services of Durham
County, N.C. , 452 U.S. 18, 31-32, 101 S.Ct. 2153, 2162,
68 L.Ed.2d 640 (1981). See also A.P. v. Commonwealth,
Cabinet for Health and Family Services, 270 S.W.3d 418,
420 (Ky. App. 2008). However, the General Assembly has
eliminated the need for a case-by-case determination by
enacting KRS 625.080(3), which specifically provides that
"[t]he parents have the right to legal representation in