People ex rel. J.L.

121 P.3d 315, 2005 Colo. App. LEXIS 1212, 2005 WL 1773949
CourtColorado Court of Appeals
DecidedJuly 28, 2005
DocketNo. 04CA2616
StatusPublished
Cited by3 cases

This text of 121 P.3d 315 (People ex rel. J.L.) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People ex rel. J.L., 121 P.3d 315, 2005 Colo. App. LEXIS 1212, 2005 WL 1773949 (Colo. Ct. App. 2005).

Opinion

CASEBOLT, J.

M.M. (mother) appeals the dispositional order entered in the dependency and neglect proceeding concerning her child, J.L. Mother’s court-appointed attorney appeals the order denying his motion to be relieved of the appointment. We vacate the dispositional order and remand for further proceedings.

I.

Mother claims, the Department of Human Services concedes, and we agree, that the trial court erred by entering the dispositional order without first holding an adjudicatory hearing and entering an order adjudicating the child dependent and neglected.

A trial court may not enter a disposi-tional order without having first entered an order adjudicating the child dependent or neglected. Section 19-3-507(1)(a), C.R.S.2004 (“After making an order of adjudication, the court shall hear evidence on the question of the proper disposition best serving the interests of the child and the public.”); see also E.O. v. People, 854 P.2d 797, 800 (Colo.1993)(noting that the Children’s Code provides for a bifurcated proceeding in a dependency and neglect action, and that if the court determines in the first phase that there are grounds to adjudicate the child dependent and neglected and sustains the petition, it proceeds to the second, or disposi-tional, phase, which commences with entry of a dispositional order and adoption of a treatment plan); People in Interest of D.R.W., 91 P.3d 453 (Colo.App.2004)(same).

Here, mother denied the allegations in the petition and, pursuant to §§ 19—1— 105(1) and 19-3-202(2), C.R.S.2004, demanded a jury. The court did not hold an adjudicatory hearing or enter an adjudicatory order. Instead, it adopted the department’s proposed treatment plan as a dispositional order. However, as noted above, the court did not have authority to enter the disposi-tional order before adjudicating the child dependent and neglected. See People in Interest of O.E.P., 654 P.2d 312 (Colo.1982); People in Interest of A.M.D., 648 P.2d 625 (Colo.1982).

Accordingly, we conclude that the case must be remanded to the trial court to hold an adjudicatory hearing.

II.

Mother’s attorney contends the trial court erred by denying his motion to be relieved of the appointment. More specifically, he asserts he did not agree to accept court appointments in dependency and neglect proceedings and that he cannot be compelled to represent an indigent parent in such proceedings without just compensation. We remand for further proceedings.

An indigent parent has the right to court-appointed counsel in a dependency and neglect proceeding. Sections 19-1-105(2), 19-3-202(1), C.R.S.2004; see also Waters v. Dist. Court, 935 P.2d 981 (Colo.1997); People in Interest of A.M.D., supra; People in Interest of V.W., 958 P.2d 1132 (Colo.App.1998).

A trial court may appoint an attorney who has a contract with the state to represent indigent parents in such cases or an attorney who is not under contract with the state and is paid on an hourly fee basis. The hourly fee and limit on total compensation paid to a noncontract attorney for work on a dependency and neglect case are determined by the state. Chief Justice Directive 04-05, Appointment and Payment Procedures for Court Appointed Counsel for Children and Indigent Persons in Titles 12, 14, 15, 19 (Dependency and Neglect Only), 22, 25, 27, and Guardians Ad Litern, Non-Attorney Special Advocates and Court Visitors Paid by the State Court Administrator’s Office (May 1, 2004)(rev.Sept. 1, 2004).

Here, the appointment order indicates that “no contract system was in place for this [317]*317appointment type or in this court and that the attorney was to be paid an hourly rate. Counsel filed a motion to be relieved of the appointment, indicating that, although he had a previous contract with the state, he was no longer accepting appointments in dependency and neglect cases. He also asserted that (1) the compensation paid by the state did not adequately compensate him for his time, training, and experience; (2) the appointment violates his constitutional right to equal protection because fewer attorneys are available in rural than in urban areas to accept court appointments and rural attorneys thus shoulder a disproportionate burden of representing indigent parents; and (3) his involuntary appointment creates a conflict of interest between him and his client.

The trial court denied the, motion, concluding that “should counsel desire to not practice in the courts of the County any longer, he may be relieved of the burden of court-appointments in this County.” The court did not make any factual findings or cite any authority in support of its conclusion.

A.

As an initial matter, we address whether the attorney has standing to raise his claim in the context of mother’s appeal of the dis-positional order. We conclude that he does.

Mother does not challenge the order denying counsel’s motion to be relieved of his appointment, counsel is not a party and did not move to intervene in the dependency and neglect proceeding, and he is not a party on appeal.

A nonparty has standing to appeal an order of the trial court following entry of final judgment if it appears that the nonparty is substantially aggrieved by the order. Bush v. Winker, 907 P.2d 79 (Colo.1995); Miller v. Clark, 144 Colo. 431, 356 P.2d 965 (1960); Roberts-Henry v. Richter, 802 P.2d 1159 (Colo.App.1990).

To be substantially aggrieved, a nonparty must have been denied some claim of right or have been burdened with a substantial obligation. Colo. Permanente Med. Group, P.C. v. Evans, 926 P.2d 1218 (Colo.1996); Bush v. Winker, supra; see also Bye v. Dist. Court, 701 P.2d 56, 58 n. 10 (Colo.1985)(eourt-ap-pointed attorneys substantially aggrieved by trial court’s denial óf requested attorney fees); Tower v. Tower, 147 Colo. 480, 364 P.2d 565 (1961)(attorney substantially aggrieved by trial court’s determination that it lacked jurisdiction to award fees to which attorney was entitled); Cary v. United of Omaha Life Ins. Co., 91 P.3d 425 (Colo.App.2003) (although administrators of health insurance plan were not parties to the contract between the plan and the insureds, administrators had Standing to appeal declaratory judgment regarding coverage because that determination directly affected insureds ‘bad faith claims against administrators), rev’d on other grounds, 108 P.3d 288 (Colo.2005).

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Bluebook (online)
121 P.3d 315, 2005 Colo. App. LEXIS 1212, 2005 WL 1773949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-jl-coloctapp-2005.