FAMILY LAW: Due process right to counsel in parental rights termination: P.(A.) V. CABINET OF HEALTH AND FAMILHY SVCS. (COA 10/24/2008)

ISSUE: Mother appealed TC’s judgment involuntarily terminating her parental rights to Child, contending that her due process rights were violated, that her counsel’s assistance was ineffective, and that the findings of fact were not supported by clear and convincing evidence. CA agreed as to the due process issue, and therefore, vacated and remanded.

FACTS: Cabinet filed DNA petition which alleged that Mother’s Stepfather had abused the child while Mother and Child were living with him and Maternal Grandmother. Mother subsequently permitted contact between Child and Mother’s Stepfather in violation of safety plan. After hearings, Child was placed with Father and then at the Home of the Innocents and Father’s parental rights were terminated. At a permanency hearing, TC ordered that the goal be changed to adoption. Cabinet filed an involuntary termination of parental rights against Mother and a GAL was appointed and Mother was appointed an attorney. A bench trial occurred over two days. On the first day, all the parties including Mother appeared, but her counsel was not present due to inclement weather in Northern Kentucky. TC tried unsuccessfully to reach him. TC then allowed clinical psychologist to testify, though Mother did not have attorney present, because the psychologist traveled from Frankfort to be there. TC provided that Mother’s attorney would not be limited in his cross-examination of the psychologist. Mother was never questioned about whether or not she wished to proceed with the hearing without her counsel present. At the conclusion of psychologist’s testimony and cross-examination by GAL, TC again attempted to contact Mother’s attorney to ascertain whether the trial could be resumed later in the day. When TC could not reach Mother’s attorney, it allowed Child’s therapist to testify because she would not be able to testify at second trial date. During therapist’s testimony, Mother’s attorney called TC and advised that he would be unable to make the hearing that day due to the road conditions but that it was fine for the court to continue without him. On the second day of trial, Mr. Adams had no questions for either psychologist or therapist both witnesses were released. CA record did not demonstrate whether or not Mother’s attorney had reviewed the tapes from first day of trial. The Cabinet called five more witnesses. The only witness called by Mother’s attorney was Mother. At the conclusion of the trial, TC called upon CASA volunteer. Although she was not sworn in, she was asked by TC to give a 90-second synopsis of her involvement and recommendation for the child to the court. In fact, CASA volunteer was present during the entire trial, having not been asked to leave during the testimony of the other witnesses.

ANALYSIS: On appeal, Mother contended that as her counsel was not present during the first day of the termination hearing, her due process right to a fair hearing was violated. CA agreed. Kentucky’s statutory scheme to protect children and to adjudicate parental rights provides for the appointment of counsel throughout all the proceedings. CA found that the failure of Mother’s counsel to be present on the scheduled day of the trial during the testimony of the first two witnesses could have made a difference in the family court termination proceeding. CA found that the judge, the Cabinet’s counsel, and GAL all indicated uneasiness with the proceeding since Mother’s counsel was not present. Unfortunately, the focus seemed to be on the witnesses’ convenience rather than the mother’s fundamental right to be properly represented during the trial. Upon remand, TC was to conduct another termination hearing under KRS 625.080, and Mother shall be represented by counsel during the entire proceeding. CA held that such a serious matter, possible loss of this elemental societal relationship between parent and child, requires complete deference to providing for all the parent’s due process rights.