of S.S.A.R

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

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 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

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 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.

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¶ 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

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 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.”

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¶ 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;

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 • 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

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 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.

16