COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES v. K.B.H.
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RENDERED:
SEPTEMBER 2, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001760-ME
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND FAMILY SERVICES
v.
APPELLANT
APPEAL FROM GRAYSON CIRCUIT COURT
HONORABLE ROBERT A. MILLER, JUDGE
ACTION NO. 03-AD-00014
K.B.H.
APPELLEE
OPINION
AFFIRMING IN PART,
VACATING IN PART,
AND REMANDING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; BUCKINGHAM AND KNOPF, JUDGES.
COMBS, CHIEF JUDGE:
The Commonwealth of Kentucky, Cabinet for
Health and Family Services (“the Cabinet”) appeals from an order
of the Grayson Circuit Court that assessed against the
Commonwealth attorney’s fees incurred by KBH in appealing the
Cabinet’s termination of her parental rights of an infant.
KBH
was not entitled to appointed counsel under the provisions of
either the state or the federal constitution; and attorney’s
fees may be awarded against the state only where such fees have
been expressly provided for by statute.
However, after our
review of the unique facts in this case, we agree that the trial
court was correct in ordering the Cabinet to provide payment for
appellate counsel.
Therefore, we affirm.
As we shall explain
later, we vacate in part and remand as to the amount to be
allowed to counsel.
KBH is the natural mother of DTH, born August 23,
2002.
At the time of the birth of this baby boy, KBH was being
housed at the Grayson County Detention Center in Leitchfield,
Kentucky, where she was awaiting trial for her alleged murder of
an infant born to her months earlier.
Her parental rights to
three other children had been terminated in an action instituted
by the Texas Department of Protective and Regulatory Services.
Thus, immediately after his birth, DTH was removed from his
mother’s custody and was placed in foster care.
In April 2003, the Cabinet (then known as the Cabinet
for Families and Children) filed a petition for the involuntary
termination of KBH’s parental rights to DTH.
A local attorney
was appointed to act as guardian ad litem for the infant.
Pursuant to KRS 1 625.080(3), another local attorney, Phillip
Smith, was appointed by the circuit court to represent KBH.
Smith filed an answer to the termination petition on June 26,
1
Kentucky Revised Statutes.
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2003.
KBH was found guilty at her trial for murder and was
sentenced to life in prison on November 5, 2003.
Since it had become apparent that KBH was either
unable or unwilling to complete the family case plan devised by
state social workers, the Cabinet filed a memorandum seeking to
finalize the termination of her parental rights to DTH.
In
April 2004, the circuit court conducted a termination hearing
pursuant to the provisions of KRS 625.080(1).
represented by Phillip Smith.
KBH was
On May 6, 2004, the Grayson
Circuit Court entered its findings of fact, conclusions of law,
and judgment terminating KBH’s parental rights.
motion requesting:
Smith filed a
(1) that KBH be permitted to proceed in
forma pauperis and (2) that he be relieved as counsel as soon as
he filed the notice of appeal on her behalf.
On June 2, 2004, Smith filed the notice of appeal in
the Grayson Circuit Court.
On that same date, the court entered
an order directing the Cabinet to “provide for payment of
counsel to be appointed to represent the interests of [KBH] on
[her] appeal, as . . . Phillip W. Smith, shall be relieved of
further duties. . . .”
Mr. Smith did not file a motion for any
fees incurred in his work on behalf of KBH as noted by the trial
court:
“Interestingly enough, Mr. Smith has not filed an
Affidavit or motion for attorney fees even though the time
expended in the circuit court termination proceedings easily
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merits the award of a $500.00 fee.”
Opinion and Order entered
July 27, 2004, p.2.
On June 14, 2004, the Cabinet filed a motion pursuant
to CR 2 59.05 to alter, amend, or vacate the order permitting
Smith to withdraw as counsel and directing that the Cabinet
provide payment for appellate counsel. 3
On July 27, 2004, the
Grayson Circuit Court entered an order denying the CR 59.05
motion.
The court determined that KBH was entitled to appointed
counsel on her appeal and ordered the Cabinet to pay the
additional fees of appellate counsel.
The court reasoned as
follows:
The court is well aware of the Cabinet’s
legitimate concern about the filing of
frivolous appeals by counsel for indigent
and/or incarcerated parents which will in
essence be funded by the taxpayers of the
Commonwealth through the Finance and
Administration Cabinet.
In fairness and practicality the Court must
also weigh the basic right of a parent to
their child(ren). The Cabinet’s argument
for a cap for attorney’s fees of $500 in
essence tells each parent that if they
expend the time at the circuit court level
to attempt to retain their parental rights
and defend the Cabinet’s petition to
involuntary terminate their parental rights,
which defense the award of a $500.00 counsel
fee (sic), that they are really not entitled
to reasonable legal representation to have
2
Kentucky Rules of Civil Procedure.
3
On our own motion, this court ordered the appeal which was filed on June 2,
2004, held in abeyance for sixty (60) days pending a ruling by the circuit
court on the CR 59.05 motion.
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that circuit court proceeding reviewed at
the appellate level. There is a fundamental
flaw and constitutional unfairness in this
scenario.
* * * * *
This Court inquired of Hon. Charles
Mattingly III, attorney at law, if he would
consent to substitute as counsel for [KBH]
to review the proceedings as guardian ad
litem for her on appeal to advise her of the
merits of an appeal or to file a motion to
be relieved as counsel because of his
determination that there are no reversible
errors which he can present with merit.
Mr. Mattingly agreed that any fee on appeal
would be limited to a maximum of $500.00 and
may end up being less if there is no
legitimate basis for appeal.
The Cabinet’s appeal followed.
By our own order, we consolidated KBH’s appeal from
the order terminating her parental rights with the Cabinet’s
appeal from the order directing it to pay a fee to the attorney
handling the appeal.
On March 16, 2005, appellate counsel for
KBH filed a motion to dismiss her appeal of the termination
order.
Consequently, only the Cabinet’s appeal remains for our
consideration.
No brief has been filed on behalf of KBH.
The Cabinet contends that the trial court erred by
ordering the payment of fees incurred as a result of KBH’s
appeal of the termination order.
The Cabinet argues that under
both the state and federal constitutions, due process does not
require the appointment of appellate counsel.
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It also argues
that long-standing case law holds that a trial court has no
authority to assess against the Commonwealth the costs of
attorney fees exceeding an amount provided by statute.
The
Cabinet is correct on both points.
Our discussion of the constitutional issue presented
by this case begins with a review of the United State Supreme
Court decision in Lassiter v. Dep’t. of Social Services, 452
U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981).
Lassiter
involved the appointment of counsel for indigent persons seeking
to contest the involuntary termination of parental rights by the
state.
The Court underscored the importance of the interest of
parents in their children as being so fundamental as to come
within the scope of those liberty interests protected by the
Fourteenth Amendment.
Observing that “[f]ew consequences of
judicial action are so grave as the severance of natural family
ties,” it nonetheless concluded that appointment of counsel was
not to be granted as a matter of course in order to assure a
fair adjudication in termination proceedings.
It held that a
determination of the right to counsel should be made on a caseby-case basis.
See M.L.B. v. S.L.S., 519 U.S. 102, 117 S.Ct.
555, 135 L.Ed.2d 473 (1996).
The Court emphasized that an
appointment of counsel would be required where warranted by the
character and difficulty of the case.
32, 101 S.Ct. at 2161-2162.
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Lassiter, 452 U.S. at 31-
Our General Assembly has gone a step beyond Lassiter
in providing for the routine appointment of counsel to represent
indigent parents in termination proceedings.
Attorneys
accepting such appointments are to be compensated according to
the provisions of KRS 625.090(3).
The statute provides for a
fee to be set by the court not to exceed the sum of $500.00 and
makes no distinction between the trial and the appellate stages
of a proceeding.
Thus, an indigent parent in a termination
action brought pursuant to the provisions of KRS 625.050 is
entitled to court-appointed counsel not because of the dictates
of due process under the Kentucky or United State Constitutions,
but due to the policy adopted by our legislature to guarantee
the assistance of counsel to an indigent parent.
Courts are
thus spared the rigorous case-by-case determination set forth in
Lassiter.
However, the amount of $500 provided by KRS 625.080
is the statutory maximum that may be awarded to appointed
counsel in termination proceedings -- regardless of whether the
services are rendered at trial, on appeal, or in the course of
both stages of litigation.
Commonwealth v. Coleman, 699 S.W.2d
755 (Ky. App. 1985).
This issue was addressed and clarified by our holding
in M.S.M. v. Dep’t for Human Resources, 663 S.W.2d 752 (Ky. App.
1983).
In M.S.M., an indigent mother appealed from a judgment
terminating her parental rights and argued that she was entitled
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to a court-appointed attorney to pursue her appeal.
Citing our
earlier holding in Dep’t for Human Resources v. Paulson, 622
S.W.2d 508 (1981), we reiterated that “the [circuit] court has
only the authority given it by the legislature to assess a fee
against the Commonwealth.”
The statute governing appeals in
involuntary termination of parental rights actions makes no
provision for an attorney’s fee.
Therefore, we held that the
trial court had no authority to assess one.
In the case before us, KBH was entitled to appointed
counsel before the trial court by the provisions of KRS
625.090(3).
Counsel is entitled to an award of fees in an
amount determined by the court not to exceed $500.00.
An order
awarding a larger sum is unauthorized by the clear wording of
the statute.
Kentucky Rule of Professional Conduct 1.16 impliedly
protects an indigent parent from having to choose between
advocacy at trial or on appeal.
As the comment to Rule 1.16
stresses, “A lawyer should not accept representation in a matter
unless it can be performed . . . to completion.”
Completion
presumes seeing the case through an appeal if so desired by the
client.
Except under very limited circumstances, the Rules of
Professional Conduct allow for a lawyer’s permissive withdrawal
from representation only if there will not be material adverse
impact on the client.
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Upon undertaking the representation in this case,
appointed counsel was bound by the attorney-client relationship
to see it through to completion.
Trial counsel had notice of
the limited fee available at the time he accepted the
appointment.
Noting that he knew of no grounds for appeal, he
sought to be relieved of his obligation to pursue an appeal,
duly filing a notice of appeal on behalf of his client.
As he
sought no fee whatsoever for his services, the $500 fee allotted
for KBH’s right to counsel was never exhausted and remained
available for counsel appointed to maintain the appeal.
Since
the court has not ordered the payment of fees in an amount
exceeding the statutory maximum in this case, we cannot say that
it has exceeded its authority.
We have carefully reviewed the final order of the
trial court in this case in which it pondered the injustice of
not mandating access to a meaningful appeal in termination
matters of indigent parents by providing a fee for appointed
counsel at the appellate stage.
It also expressed concern that
the $500 ceiling has not been upgraded by the legislature to
keep pace with inflation.
While we share its concerns policy-
wise, we cannot intrude upon the legislative prerogative and
function to legislate.
We note -- as did the Cabinet in its
brief -- that the General Assembly failed in its 2004 session to
enact into law a proposal to amend KRS 625.080(3) allowing an
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additional fee of $500 for representation in an indigent
parent’s first matter-of-right appeal.
We cannot by judicial
fiat compel what the General Assembly refrained from enacting.
Consequently, we carefully circumscribe and restrict
our holding to the unique facts of this case.
We affirm the
order of the Grayson Circuit Court in allowing a fee to be paid
to appellate counsel in this case as the $500 maximum available
was not exhausted by trial counsel.
However, we vacate that
portion of the order awarding the full $500 for a more explicit
determination of the value of the services actually rendered by
appellate counsel, noting that counsel did not file a brief on
behalf of the appellee.
ALL CONCUR.
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE
Richard G. Sloan
Elizabethtown, KY
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