Peo in Interest of GS

• Court: Colorado Court of Appeals
• Decided: November 21, 2024
• Docket: 24CA0658
• Status: Unknown

Opinion

24CA0658 Peo in Interest of GS 11-21-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0658 Jefferson County District Court No. 22JV30185 Honorable Ann Gail Meinster, Judge

The People of the State of Colorado,

Appellee,

In the Interest of G.S., a Child,

and Concerning L.C.,

Appellant.

JUDGMENT AFFIRMED

Division V Opinion by JUDGE LUM Freyre and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 21, 2024

Kimberly Sorrells, County Attorney, Claire M. Czajkowski, Assistant County Attorney, Golden, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem

Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant ¶1 In this dependency and neglect proceeding, L.C. (mother)

appeals the juvenile court’s judgment allocating sole physical

custody and decision-making responsibility for G.S. (the child) to

J.S. (father). We affirm.

I. Background

¶2 In October 2022, the Jefferson County Division of Children,

Youth, and Families filed a petition in dependency and neglect

concerning the then-six-year-old child and her older brother. The

Division alleged concerns about mother’s substance use and

possible child neglect. The juvenile court granted temporary legal

custody to the Division, and the child was placed with kin. The

Division later amended the petition, alleging concerns that father

acquiesced to mother caring for the child despite mother’s

suspected substance use.

¶3 The parents entered no-fault admissions, and a juvenile court

magistrate adjudicated the child dependent or neglected. Father

agreed to his treatment plan, but mother objected to the mental

health and substance abuse components of hers, and the court set

a contested dispositional hearing. Shortly thereafter, mother’s

counsel withdrew. On the day of the hearing, mother did not

1 appear on time. After waiting fifteen minutes, the court found that

mother had notice of the hearing and allowed the Division to begin

presenting evidence. About fifteen minutes later, mother appeared

and moved for a continuance and the appointment of new counsel.

After considering the other parties’ objections and noting that the

hearing had already begun, the court denied mother’s motion for a

continuance, and mother proceeded pro se. At the end of the

hearing, mother stated that she did not “have a problem with . . .

doing an evaluation to show [her] mental health and substance

use.” The court then adopted mother’s treatment plan and

appointed new counsel for her. Mother appealed, but a division of

this court dismissed the appeal for lack of jurisdiction based on

mother’s failure to file a petition for review of the magistrate’s

adjudication order. See People in Interest of G.S., (Colo. App. No.

23CA541, May 19, 2023) (unpublished order).

¶4 In July 2023, the child was returned home to father. Father

then moved for an allocation of parental responsibilities (APR) and

requested sole decision-making and to be the primary residential

parent, while asking that mother receive limited, professionally

supervised parenting time. The court set a contested APR hearing

2 but granted a continuance at mother’s request for her counsel to

review late-disclosed discovery.

¶5 On the morning of the continued hearing, mother’s counsel

moved for another continuance, stating that mother was unable to

appear because she was very sick and on her way to the hospital.

The other parties objected, and the court denied the motion, noting

that mother could appear virtually if she chose to. Mother

appeared by phone and listened to some of the caseworker’s cross-

examination and all of father’s testimony. But shortly after mother

began to testify, the phone call dropped. The court asked mother’s

counsel to make an offer of proof regarding mother’s testimony, but

counsel declined. The court then recessed for forty-five minutes to

allow mother to rejoin the hearing. At that point, counsel reported

that although mother had been in contact with her, mother was still

having technical difficulties reconnecting to the courtroom. Again,

counsel moved for a continuance, and the court denied the motion.

Thereafter, the court made factual findings and granted father’s

APR motion.

3 II. Legal Authority and Standards of Review

¶6 In general, parents have a constitutionally protected liberty

interest in the care, custody, and management of their children.

People in Interest of A.M. v. T.M., 2021 CO 14, ¶ 17. Thus, due

process requires the state to provide fundamentally fair procedures

in dependency and neglect proceedings. People in Interest of J.R.M.,

2023 COA 81, ¶ 7. At a minimum, a parent must be given

adequate notice of the proceedings and an opportunity to protect

their rights. People in Interest of J.A.S., 160 P.3d 257, 262 (Colo.

App. 2007). In assessing fairness, “the trial court [must] give

primary consideration to the child’s physical, mental, and emotional

needs.” People in Interest of L.S., 2023 CO 3M, ¶ 30 (quoting A.M.,

¶ 20).

¶7 An indigent parent has a right to court-appointed counsel “at

every stage of [dependency and neglect] proceedings.” § 19-3-

202(1), C.R.S. 2024; see also People in Interest of L.B., 254 P.3d

1203, 1206 (Colo. App. 2011). But the right is statutory, not

constitutional. People in Interest of B.H., 2021 CO 39, ¶ 52. Thus,

our supreme court has interpreted procedural due process to

require the appointment of counsel “only where the parent’s

4 interests are at [their] strongest, where the state’s interests are at

their weakest, and the risks of error are at their peak.” Id. at ¶ 54

(quoting C.S. v. People in Interest of I.S., 83 P.3d 627, 637 (Colo.

2004)).

¶8 In termination proceedings, procedural due process is satisfied

if a parent is provided with “notice of the allegations in the

termination motion, the opportunity to be heard, the opportunity to

have counsel if indigent, and the opportunity to call witnesses and

engage in cross examination.” People in Interest of E.B., 2022 CO

55, ¶ 16 (quoting A.M., ¶ 18). But when the state does not seek to

terminate parental rights, but rather, to award custody of a child, a

parent’s interests are not as strong because there is less at stake —

if a parent loses custody, they nevertheless retain many rights,

including the right to petition to regain custody or increase

parenting time. People in Interest of M.G., 128 P.3d 332, 334 (Colo.

App. 2005).

¶9 The Colorado Children’s Code directs courts to “proceed with

all possible speed to a legal determination that will serve the best

interests of the child.” § 19-1-102(1)(c), C.R.S. 2024. Thus, when

ruling on a motion to continue, the juvenile court “should balance

5 the need for orderly and expeditious administration of justice

against the facts underlying the motion and the child’s need for

permanency.” People in Interest of R.J.B., 2021 COA 4, ¶ 11.

¶ 10 We review a juvenile court’s denial of a motion to continue for

an abuse of discretion. Id. at ¶13. A court abuses its discretion

when its ruling is manifestly arbitrary, unfair, or unreasonable. Id.

We review the underlying procedural due process claims de novo.

Id. at ¶ 26.

III. Analysis

¶ 11 Mother’s contends on appeal that the juvenile court granted

sole decision-making and primary residential custody to father

based on violations of her due process rights throughout the case.

She raises two distinct arguments, and we address them separately

as follows.

A. Right to Counsel at the Dispositional Hearing

¶ 12 Mother first argues that the juvenile court violated her right to

due process at the initial dispositional hearing by denying her

request for counsel and requiring her to proceed pro se. Relatedly,

she argues that a division of this court “improperly dismissed” her

first appeal, effectively depriving her of the right to seek meaningful

6 review of the court’s initial dispositional order, which included the

adoption of her treatment plan. We are not persuaded.

¶ 13 Although it is unclear whether mother asks us to review the

previous division’s order dismissing her first appeal, we note that

we cannot do so. Rather, the proper mechanism for review of that

order was the filing of a petition for rehearing or certiorari review,

and mother did not file either. See C.A.R. 40; C.A.R. 52.

¶ 14 Next, the guardian ad litem argues that mother is precluded

from presenting any arguments related to the initial dispositional

hearing and order because those arguments could have been raised

in mother’s first appeal if she had utilized the “proper path for

appeal [that] was available to her.” However, we need not determine

whether mother is barred, based on the dismissal of her first

appeal, from arguing that her right to counsel at the initial

dispositional hearing was violated. Even assuming that mother has

properly raised the argument, we do not discern reversible error.

¶ 15 We agree that in general, parents have the right to counsel at

a dispositional hearing. See § 19-3-202(1). But the dispositional

hearing did not present a situation where mother’s interests were at

their strongest, the state’s interests were at their weakest, and the

7 risks of error were at their peak. See B.H., ¶ 54. Rather, the risk of

error was low because dispositional orders, including the adoption

of treatment plans, are interlocutory and can be changed after

periodic review by the court or by motion of a party. See People in

Interest of H.T., 2019 COA 72, ¶ 24. Thus, even if the court had, as

mother argues, adopted a deficient treatment plan, the court

appointed new counsel shortly after the dispositional hearing, and

counsel could have filed a motion to modify mother’s treatment plan

to cure any deficiencies.

¶ 16 Moreover, although divisions of this court have concluded that

the deprivation of counsel at a termination hearing requires

automatic reversal regardless of whether the error prejudiced a

parent, see, e.g., People in Interest of R.D., 2012 COA 35, ¶ 39, we

have not found, and mother has not directed us to, any legal

authority requiring automatic reversal for a brief deprivation of

counsel at a dispositional hearing. In general, a parent may not

obtain relief on a due process claim absent a showing of harm or

prejudice. J.A.S., 160 P.3d at 262. And mother fails to articulate

how the court’s denial of counsel at the initial dispositional hearing

prejudiced her or ultimately affected the outcome of the APR

8 hearing. Although she broadly argues that the court adopted an

“inappropriate treatment plan that did not reflect the treatment

needs in this case,” she does not explain how the treatment was

inappropriate or identify any treatment needs that were not

addressed. And in the year leading up to the APR hearing, mother

had the opportunity to move, through counsel, for modification of

her treatment plan, but she did not do so.

¶ 17 For these reasons, we are not persuaded that the juvenile

court violated mother’s right to fundamentally fair procedures by

denying her request for counsel at the initial dispositional hearing.

And even if it did, mother fails to articulate how she was prejudiced.

We therefore perceive no basis for reversal.

B. Denial of the Motion to Continue the APR Hearing

¶ 18 Mother also argues that the juvenile court violated her due

process rights by denying her motion to continue the APR hearing.

She asserts that the court prevented her from presenting “evidence

for her side of the adversarial proceeding” in violation of her right to

be heard. We disagree.

¶ 19 In considering mother’s motion to continue, the juvenile court

noted that the APR hearing had already been continued once and

9 that mother was represented by counsel and could appear virtually.

The court also found that if mother had “been in compliance, even

recent compliance” with her treatment plan, it would have been

more inclined to consider a continuance. Then, based on the

“posture of the case,” the court found that a continuance was not in

the child’s best interests and denied mother’s motion. We conclude

that the court did not abuse its discretion because it properly

weighed the need for orderly and expeditious administration of

justice against the facts underlying mother’s motion and the child’s

need for permanency. See R.J.B., ¶ 11.

¶ 20 Further, mother had notice of the proceedings, an opportunity

to cross-examine witnesses, an opportunity to present witnesses

other than herself, and the assistance of legal counsel. See E.B.,

¶ 16 (describing the procedural due process requirements for

dependency and neglect proceedings). And, as it relates to her

argument that she was deprived of the right to present her own

testimony and be heard, mother does not articulate any prejudice

or harm. See J.A.S., 160 P.3d at 262 (“A parent may not obtain

relief on a due process claim absent a showing of harm or

prejudice.”).

10 ¶ 21 It is true, as mother points out, that the juvenile court stated

it had to “assume” that mother was “still using” substances. But

mother takes this statement out of context, and we are not

persuaded that it shows prejudice based on the absence of mother’s

testimony. Rather, the court found, with record support, that

mother did not follow orders or comply with her treatment plan and

that mother “never did UAs [and] never engaged in treatment.”

Based on that evidence, rather than mother’s lack of testimony, the

court “assumed” that mother was still using substances.

¶ 22 Moreover, mother does not explain with any specificity what

other evidence she would have offered if the juvenile court had

granted the continuance. See E.B., ¶ 22 (holding that, in a

termination proceeding, a parent must establish “actual prejudice

resulting from the juvenile court’s denial of [a] requested

continuance” to succeed on a due process claim). Indeed, when

given the opportunity, mother’s trial counsel declined to make any

offer of proof indicating how mother would have testified. And on

appeal, mother only provides broad categories of information she

may have discussed if she had testified but does not give any details

or explain how her testimony would have contradicted the evidence

11 presented to the court or led to a different result. See id. (where a

parent fails to make any offer of proof indicating how they would

have testified or what other evidence they would have offered, an

appellate court is unable to conclude that the proceedings would

have been affected in any appreciable way). Because the stakes of

the APR hearing were lower than they would have been at a

termination hearing, see M.G., 128 P.3d at 334, and because

mother has not established any actual prejudice based on her

absence, her due process claim fails.

IV. Disposition

¶ 23 The judgment is affirmed.

JUDGE FREYRE and JUDGE GROVE concur.