The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY July 25, 2019
2019COA112
No. 17CA1665, Adoption of S.S.A.R. — Family Law — Juvenile Court — Relinquishment and Adoption — Kinship Adoption; Constitutional Law — Due Process — Right to Counsel
In this kinship adoption case, a division of the court of appeals
concludes, as a matter of first impression, that the factors set forth
in Mathews v. Elridge, 424 U.S. 319 (1976), should be applied to
determine whether a parent should be appointed counsel in the
termination of parental rights proceeding. After applying those
factors to the facts of this case, the division vacates the judgment
terminating father’s parental rights and remands the case for
further proceedings. COLORADO COURT OF APPEALS 2019COA112
Court of Appeals No. 17CA1665 Mesa County District Court No. 17JA70 Honorable Gretchen B. Larson, Judge
In re the Petition of R.L.S.,
Appellant,
for the Adoption of S.S.A.R., a Child,
and Concerning K.L.R., Sr., and S.M.R.,
Appellees.
JUDGMENT VACATED AND CASE REMANDED WITH DIRECTIONS
Division VI Opinion by JUDGE FREYRE Fox and Welling, JJ., concur
Announced July 25, 2019
Brad Junge, Office of Respondent Parents’ Counsel, Grand Junction, Colorado, for Appellant
Susan E. Eggert, PC, Susan E. Eggert, Grand Junction, Colorado, for Appellees ¶1 In this kinship adoption proceeding, R.L.S. (father) appeals the
judgment terminating his parental rights to S.S.A.R. (child) and
decreeing the child’s adoption by K.L.R., Sr., and S.M.R. (aunt and
uncle). Father contends that he was denied his right to counsel
because he was incarcerated out-of-state and had no ability to
participate in the proceedings.
¶2 As a matter of first impression, and under the circumstances
presented, we conclude that in determining whether a parent is
entitled to appointed counsel requires application of the Mathews v.
Elridge, 424 U.S. 319, 334-45 (1976), factors and, we also conclude
that the judgment terminating father’s parental rights is void
because the court entered it in violation of his due process right to
appointed counsel. Consequently, we vacate the judgment
terminating father’s parental rights and decreeing the child’s
adoption and remand the case to the juvenile court for a new
hearing. If the court finds that father is still indigent, it must
appoint counsel.
I. Background
¶3 The child’s maternal aunt and uncle filed petitions for kinship
adoption and to terminate father’s parental rights. The child’s
1 mother was deceased, and father was incarcerated at the Clark
County Detention Center in Las Vegas, Nevada. A court previously
appointed the aunt and uncle guardians for the child in Utah.
¶4 Father, who was not represented by counsel, objected, via
written correspondence, to the adoption and requested the
appointment of a guardian ad litem (GAL) for the child. The court
took no action on father’s request for a GAL because father did not
appear at the termination and adoption hearing. After a brief
hearing, the court terminated father’s parental rights and entered a
final decree of adoption. Father then filed a motion for
reconsideration that argued, in part, that (1) the juvenile court
abused its discretion in failing to appoint a GAL and (2)
fundamental due process required that he have legal representation
during the proceeding.
¶5 Father, who was still incarcerated and appearing pro se, then
filed a notice of appeal and a motion for the appointment of counsel
in this court. As a result, the juvenile court took no action on
father’s motion for reconsideration. We ordered a limited remand to
the juvenile court for the purpose of hearing and ruling on father’s
motion for counsel. The juvenile court held a hearing and
2 concluded that it would have appointed counsel for father had he
requested it during the pendency of the case. We then granted
father’s motion for appointment of counsel for the purposes of
appeal.
II. Right to Counsel
A. Legal Framework
¶6 The parental right to raise one’s child is a fundamental liberty
interest protected by the Due Process Clause of the Fourteenth
Amendment. See Santosky v. Kramer, 455 U.S. 745 (1972); see also
Stanley v. Illinois, 405 U.S. 645, 651 (1972). The Supreme Court
has noted that “the interest of parents in the care, custody, and
control of their children . . . is perhaps the oldest of the
fundamental liberty interests recognized by this Court.” Troxel v.
Granville, 530 U.S. 57, 65 (2000).
¶7 Because this right is fundamental, certain due process
requirements must be met before it may be extinguished in
involuntary child-custody proceedings. See L.L. v. People, 10 P.3d
1271, 1276 (Colo. 2000). Due process, however, is flexible and calls
only for such procedural protections as the situation
demands. A.M. v. A.C., 2013 CO 16, ¶ 28. Because due process is
3 situation-specific, it should be viewed in the context of all the
procedural protections offered to parents. Id. at ¶¶ 28-29.
¶8 In Lassiter v. Department of Social Services, 452 U.S. 18
(1981), the United States Supreme Court held that the Due Process
Clause does not require “the appointment of counsel in every
parental termination proceeding.” Id. at 31. After reviewing its
precedents on the right to appointed counsel, the Court identified a
“presumption that an indigent litigant has a right to appointed
counsel only when, if he loses, he may be deprived of his physical
liberty.” Id. at 26-27.
¶9 Accordingly, because in termination proceedings the parent’s
personal liberty is not at stake, the presumption against a right to
appointed counsel is weighed against the sum total of the “three
elements to be evaluated in deciding what [procedural] due process
requires, viz., the private interests at stake, the government’s
interest, and the risk that the procedures used will lead to
erroneous decisions.” Id. at 27. The Supreme Court formulated
these three elements in Eldridge, 424 U.S. at 334-35, and they are
now commonly referred to as the Eldridge factors.
4 ¶ 10 In Lassiter, the Supreme Court concluded that while in some
termination proceedings the Eldridge factors could be weighted in
such a manner that their sum total was greater than the
presumption against the right to appointed counsel, this would not
always be the case. Lassiter, 452 U.S. at 31-32. Therefore, rather
than require that counsel be provided in all such cases, the
Supreme Court held that the determination must be made on a
case-by-case basis. Id. at 26.
¶ 11 In Colorado, an indigent parent has a statutory right to
court-appointed counsel in dependency and neglect proceedings.
§ 19-3-202(1), C.R.S. 2018; People in Interest of L.A.C., 97 P.3d 363,
367 (Colo. App. 2004). However, no such right exists in kinship
adoption proceedings. Colorado appellate courts have followed
Lassiter and adopted the Eldridge factors in examining the due
process right to counsel in stepparent adoption cases, In re C.A.O.,
192 P.3d 508, 510-12 (Colo. App. 2008), and relinquishment
proceedings. In re R.A.M., 2014 COA 68, ¶ 35. And, other
jurisdictions have recognized a right to counsel in adoption
proceedings. See e.g., In re Fernandez, 399 N.W.2d 459, 461 (Mich.
Ct. App. 1986) (“ While we are not willing at this point to create a
5 rule which would require that probate courts must, in all cases,
consider sua sponte the appointment of trial counsel in proceedings
under the Adoption Code involving the termination of parental
rights, we conclude that, given respondent's stated desire for
counsel and his lack of funds, coupled with his inability to freely
appear before the probate court and attend to the litigation, the trial
court should have considered respondent's communications as a
request for the appointment of trial counsel.”); In re Adoption of
A.W.S., 339 P.3d 414, 418 (Mont. 2014) (”although
Mother did not request counsel formally, we have recognized that
pro se litigants are not required to use specific words when
requesting counsel.”). Therefore, we apply the Eldridge factors in
reviewing this termination proceeding under the kinship adoption
statute.
B. Request for Counsel
¶ 12 The aunt and uncle contend that a parent must invoke the
right to counsel and that father failed to do so. We are not
persuaded.
¶ 13 In R.A.M., a division of this court held that a request for
counsel under the Due Process Clause does not require a formal
6 request using specific words. Id. at ¶ 27. The mother voluntarily
relinquished custody of her child to an adoption agency and the
court terminated the father’s parental rights under section
19-5-105(3), C.R.S. 2018. The father, who was in custody,
appeared at the termination proceeding and indicated that (1) he
was not prepared to proceed; (2) he had thought he would no longer
be incarcerated and would have an attorney for the hearing; and (3)
he did not understand his rights. R.A.M., ¶ 6.
¶ 14 The court did not rule on his request to continue the hearing.
Nor did it ask father whether he wanted or could afford counsel. Id.
at ¶ 7. The division held that the father made an adequate request
for counsel and, using a Lassiter analysis, had a due process right
to the appointment of counsel. Id. at ¶¶ 33, 38.
¶ 15 In this case, father did not expressly request counsel. Still, in
his petition to appoint a GAL, father indicated that he was (1) a
pretrial detainee; (2) indigent; and (3) unable to afford court costs
associated with the case. He further stated that if he “was not
incarcerated . . . he would have much greater ability to assure a full
evaluation would be made and even compel discovery in a contested
matter.” He said he “figuratively and literally has his hands tied.”
7 ¶ 16 Although father did not formally request counsel, we conclude
that given his incarceration, indigency, and inability to freely
appear before the court and attend to the litigation, the juvenile
court should have considered father’s communications as a request
for the appointment of trial counsel or, at the very least, asked if
father wanted counsel.
C. Right to Counsel
¶ 17 We now examine the Eldridge factors in the context of this
case and conclude that father had a due process right to counsel.
¶ 18 In reviewing a parent’s due process right to counsel, a court
must consider (1) whether the parent’s interest is extremely
important; (2) whether the state shares with the parent an interest
in a correct decision and has a relatively weak pecuniary interest;
and (3) whether the complexity of the proceeding and the incapacity
of the uncounseled parent could be great enough to make the risk
of an erroneous deprivation of the parent’s rights unacceptably
high. C.S. v. People in Interest of I.S., 83 P.3d 627, 636 (Colo. 2004)
(citing Lassiter, 452 U.S. at 31). In other words, “due process
requires the appointment of counsel only where the parent’s
interests are at [thei]r strongest, where the state’s interests are at
8 their weakest, and the risks of error are at their peak.” Id. at 636-
67.
¶ 19 To assess the risk of an erroneous decision, the Court in
Lassiter listed several factors that bear on this question: (1) the
possibility of self-incrimination; (2) whether expert testimony is
presented at the hearing; (3) whether the decision involves complex
points of law; and (4) the sufficiency of the evidence. Lassiter, 452
U.S. at 32-33.
1. Father’s Interests
¶ 20 First, we consider father’s private interest. Because he had an
important interest in the companionship, care, custody, and
management of his child, he had a substantial interest in the
accuracy of the termination proceeding. See L.L., 10 P.3d at
1275-76. Given that father was incarcerated on criminal pretrial
matters, he also faced some risk of self-incrimination. Accordingly,
we conclude that father’s interests were at their strongest or very
nearly so.
2. State’s Interests
¶ 21 Second, we consider the strength of the State’s interests in not
appointing counsel. The State, of course, had a legitimate
9 pecuniary interest in not appointing counsel, but, as in Lassiter, we
conclude that that interest is hardly significant enough to overcome
an interest as important as a parent’s rights to his or her child.
Here, the State’s interest in terminating father’s parental rights was
certainly less urgent than it was in Lassiter because this proceeding
was initiated and advanced by a private party rather than by the
State. Regardless, the State still had an interest in the welfare of
the child, and still “share[d] with the parent an interest in a correct
decision,” which is more “likely to be obtained through the equal
contest of opposed interests.” Lassiter, 452 U.S. at 28, 31.
Therefore, we conclude that the State’s interests in not appointing
counsel were quite weak, if not at their weakest.
3. Risk of Error
¶ 22 Third, we consider whether the risks of error were at their
peak. Specifically, we consider “the risk that a parent will be
erroneously deprived of his or her child because the parent is not
represented by counsel.” Id. at 28.
¶ 23 Parents are provided an array of protections in state-initiated
dependency and neglect termination proceedings. These include:
• notice, § 19-3-602(1), C.R.S. 2018;
10 • right to a separate hearing, id.;
• appointment of counsel if indigent, § 19-3-202(1);
• appointment of an expert if indigent, § 19-3-607(1), C.R.S.
2018;
• appointment of a guardian ad litem, § 19-3-602(3);
• right to cross-examine adverse parties and call witnesses,
A.M., ¶ 29; and
• the juvenile court’s consideration and elimination of less
drastic alternatives to terminating parental rights, People in
Interest of M.M., 726 P.2d 1108, 1123 (Colo. 1986).
¶ 24 However, Colorado law provides few procedural protections in
kinship adoption proceedings. Under section 19-5-203(1)(j), C.R.S.
2018 — the kinship adoption statute — a child is available for
adoption upon (1) submission of an affidavit or sworn testimony of
the adoptive relative that the birth parents have abandoned the
child for a period of one year or more or (2) the birth parents have
failed without cause to provide reasonable support for the child for
a period of one year or more. As well, the relative seeking the
kinship adoption must have had physical custody of the child for
one year or more and the child must not be subject to a pending
11 dependency and neglect proceeding. Id. And, once a petition for
adoption is filed, the court only needs to provide notice to the birth
parents and hold the hearing no sooner than thirty-five days after
service of the notice is complete. Then it may enter the termination
order and adoption decree after only a single hearing. Id.
¶ 25 Given the lack of protections in kinship adoption proceedings,
there is considerable risk of error that can be further compounded
for the parent seeking to defend his or her parental rights without
the assistance of counsel.
¶ 26 In this case, the risks of error were significant. Because this
case involves privately initiated termination proceedings, father did
not enjoy the additional protections provided in state-initiated
termination cases. Furthermore, father was incarcerated
out-of-state throughout the proceedings. The record shows that
this led to difficulties, if not a complete inability, to research
Colorado law or to attend proceedings in person or telephonically.
He was not able to present his own evidence or subject the aunt
and uncle’s evidence to cross-examination. While no expert
testimony or complicated evidence was brought before the court, it
is possible that, had father been represented by counsel, such
12 testimony may have been presented. It is also difficult to conclude
that the case was simple and uncomplicated given father’s
allegations that the aunt and uncle had previously abused and
neglected children in their care, and his request that a GAL
independently investigate the child’s best interests.
¶ 27 Based on our application of the Lassiter test, we conclude that
the presumption against the right to counsel was overcome in this
case and that father had a due process right to counsel. We
therefore vacate the judgment terminating father’s parental rights.
III. Appointment of a GAL
¶ 28 Because it may arise on remand, we address father’s
contention that the juvenile court abused its discretion when it
failed to appoint a GAL. He argues that the court erred in not
making factual findings on whether the appointment of a GAL was
in the child’s best interest.
¶ 29 Father requested the appointment of a GAL to make a “full
investigation into child abuse and neglect” by the aunt and uncle.
He alleged substance abuse in their home and argued that a
guardianship or adoption by the child’s adult sister would be in the
child’s best interest. As previously stated, the juvenile court never
13 ruled on the motion because father did not appear at the
termination and adoption proceeding.
¶ 30 A GAL is “a person appointed by a court to act in the best
interests of a person whom the person appointed is representing in
proceedings under [the Children’s Code].” § 19-1-103(59), C.R.S.
2018. Section 19-1-111, C.R.S. 2018, mandates the appointment
of a GAL in dependency and neglect cases, and section
19-5-103(9)(a), C.R.S. 2018, permits the juvenile court to appoint a
GAL under the relinquishment statute under certain
circumstances. However, the Children’s Code is silent about the
appointment of a GAL in kinship adoption proceedings under
section 19-5-203.
¶ 31 Citing People in Interest of A.L.B., 994 P.2d 476 (Colo. App.
1999), aunt and uncle respond that the failure to appoint a GAL
was harmless because the evidence was overwhelming that father’s
parental rights should be terminated and the appointment of a GAL
would not have changed the outcome. We disagree, concluding that
their reliance on A.L.B. is misguided. In A.L.B., the GAL completed
an independent investigation and presented his opinions to the
court, and the father was able to examine the GAL during the
14 termination hearing. Id. at 480. On appeal, the father argued that
his due process rights were violated because he could not call the
potential adoptive parents as witnesses even though the GAL
presented extensive information about them. A division of this
court held that father failed to demonstrate how the lack of direct
testimony from the adoptive parents was prejudicial. Id. That case
does not discuss how the lack of appointment of a GAL was
harmless.
¶ 32 We also disagree with the aunt and uncle’s assertion that
father waived his right to the appointment of a GAL because he
failed to cite legal authority in his motion, obtain a ruling, or
request a continuance to obtain a ruling. They argue that father, as
a result, abandoned the motion.
¶ 33 As discussed above, father was unrepresented and indigent,
lacked access to legal resources, and lacked the ability to appear in
person at the proceedings. The juvenile court denied his request
simply because he did not appear in court, which should have been
of no surprise to the juvenile court as it knew that father was in
custody out-of-state and not represented by counsel. Further, no
statutes or case law directs a court to dismiss a motion for the
15 appointment of a GAL solely because the requesting party failed to
appear.
¶ 34 Under these circumstances, we conclude that father did not
waive his request for a GAL. Although the appointment of a GAL is
not statutorily required, nothing prohibits such appointment should
a parent fail to appear. On remand, should father or another party
request the appointment of a GAL, the juvenile court is directed to
make findings as to whether such appointment is in the child’s best
interest and, if not, why.
IV. Remaining Issues
¶ 35 Because we vacate the judgment and remand the case for
further proceedings, we need not address father’s contention that
the juvenile court failed to make sufficient findings terminating his
parental rights and granting the adoption decree.
V. Conclusion
¶ 36 We vacate the order terminating father’s parental rights and
remand the case for further proceedings. On remand, the court
shall determine whether father is currently indigent and appoint
counsel for him as necessary.
JUDGE FOX and JUDGE WELLING concur.