dissenting.
I dissent.
I disagree with the majority’s holding that B.F. and his wife, S.F., are persons whose legal interests are not directly affected by the challenged judgment and have no standing to challenge this judgment. First, it is important to note an essential omission in the facts as stated by the majority. The May 22, 1979, motion filed by B.F. and S.F. requested appropriate orders and stated that it was filed “individually and on behalf of and as members of a class, The Extended Family of T.A.F., and as next Friend of P.F., a minor and brother of T.A.F..” (emphasis added). The record further reveals that P.F. is in the custody of B.F. and S.F. The May 24, 1979, amended motion for appropriate orders, while eliminating the class status allegation of the first motion, did reiterate it was filed also on behalf of the brother P.F.
*352Until the May 22nd motion, B.F. and his wife had never appeared before the court as interested parties, but they were thereafter joined in the action at the request of The People, at the trial court’s suggestion. The motion challenged the jurisdiction of the trial court for its failure to assure the guardian ad litem’s proper representation of the three minor children as required by § 19-3-105, C.R.S. 1973. The guardian ad litem, who was appointed by the then trial judge was a deputy clerk of the district court and not an attorney. Further, as the record shows, the guardian ad litem did not appear at any stage of the dependency and neglect proceeding nor did the court, when it considered the motion for termination of parental rights of the parents of T.A.F., P.F. and M.F. some three years later, appoint another guardian ad litem for the children.
B.F. and his wife, as members of the childrens’ extended family, had protected rights under the Constitution. Moore v. East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977), and could bring to the attention of the trial court the failure of the court to protect the rights of the children. Such a failure I perceive to be one which denies the court jurisdiction to proceed on the dependency petition and the termination of the parental rights. “Where the object of the amended petition was to terminate parental rights, it was plain error to proceed to the dispositional hearing in the absence of counsel for the children.” People in the Interest of M. B., 188 Colo. 370, 535 P.2d 192 (1975).
True, the parents did not appeal, but that fact left the children without anyone to assert their rights. It is equally true that the statute in effect providing for the appointment of a guardian ad litem did not require that the guardian ad litem be an attorney until it was amended in 1977. Colo.Sess.Laws 1977, ch. 248, § 19-11-103(3) at 1027. Nevertheless, attorney or not, her duty was to protect the interests of the children, and this she did not do.
The rights severed in this case are of the first order and find protection in both the due process and equal protection clauses of the Fourteenth Amendment. People in the Interest of C. S., Colo., 613 P.2d 1304 (1980) (J. Quinn dissenting). See also Overturf v. District Court, Colo., 602 P.2d 850 (1974). And a child has the same fundamental rights. See People in the Interest of K. S. and M. S., 33 Colo.App. 72, 515 P.2d 130 (1973).
In 1972 when the guardian ad litem here was appointed, the General Assembly had, effective April 21, 1972, enacted Section 22-10-8, See Colo.Sess.Laws 1972, ch. 36, at 154, especially § 22-10-8(3). The duties of a guardian ad litem are clearly outlined in mandatory form. And, the court has the obligation to ensure that these duties which devolve upon the guardian ad litem are in fact undertaken by the guardian ad litem. The failure of the court to so act was error so plain as to vitiate not only the order of dependency, but, most certainly, the termination of parental rights. I see no distinction between the duties of a guardian ad litem under § 22-10-8, C.R.S. and those which a guardian ad litem should be required to perform under § 19-3-105, 1973 C.R.S., for under either section, a petition in dependency results.
Here, the guardian ad litem did nothing except file an appearance on a printed form which form merely requested that the court require strict proof of the allegations made in this petition in dependency. It is beyond my comprehension to believe that this pro forma act constitutes adequate representation of the children the guardian ad litem was appointed to protect. Nor would adequate representation by the guardian have ignored the background of the children which was “racially and culturally of Mexican American blood ... who have participated in an extended family which includes Indian ancestors.” And, here, the denial of effective assistance of counsel cannot be attributed to the children nor the appellants. People in the Interest of V. A. E. Y. H. D., Colo., 605 P.2d 916 (1980).
“Litigants cannot ... —by rules of procedure — be deprived of fundamental rights guaranteed by the Constitution and laws of *353the United States ...” Lyon v. Mutual Benefit Health & Accident Ass’n, 305 U.S. 484, 59 S.Ct. 297, 83 L.Ed. 303 (1939) (emphasis added); nor should litigants in state courts be denied these rights under the State Constitution and its laws.
Even had appellants not raised this issue in the trial court, we should take cognizance of it on appeal. For under C.A.R. 1(d) we have the “right and duty to notice error on appeal ... where the error could be characterized as ‘fundamental’ or where it is the cause of a ‘miscarriage of justice.’ ” Bolster v. Griff’s of America, 184 Colo. 418, 520 P.2d 745 (1974).
The effect of the trial court’s order preventing appellants from visiting with or contacting T.A.F. is to deny the child the blood relationship which he has with some members of his extended family and even to deny him the companionship of his brothers. I cannot in good conscience approve the procedure below, nor should this court.