2019 COA 136
Colo. Ct. App.2019Background
- Mother (S.A.S.) has an intellectual disability; after her infant's birth the Denver Department of Human Services removed the child and filed a dependency/neglect petition.
- The juvenile court adjudicated the child dependent/neglected, placed him with foster parents, and adopted a treatment plan for mother.
- Mother was appointed a guardian ad litem (GAL) for her intellectual disability after counsel requested the appointment; later mother changed counsel.
- Mother moved to dismiss her GAL, alleging the GAL advocated against mother's reunification goal, sought reduced visitation, and supported adoption; the juvenile court denied the motion.
- At the termination hearing the GAL gave testimony and closing argument urging termination over mother's objection; the court nonetheless terminated mother's parental rights after three days of evidence.
- On appeal the court addressed (1) whether a parent’s GAL may advocate against reunification or act as a party/witness, (2) denial of continuances, and (3) ineffective-assistance claims against mother’s two attorneys.
Issues
| Issue | Mother's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the juvenile court erred by denying mother's motion to remove her GAL who advocated against reunification | GAL acted outside assistive role, undermined mother’s fundamental right to parent, and relationship had broken down | GAL may represent what she believes is in mother's best interests, even if contrary to mother's wishes | Court held denying dismissal was error: parent’s GAL must assist and protect parent's best interests but may not act as a party advocating against parent's reunification rights |
| Whether the GAL could give closing argument and present testimony adverse to mother | GAL had no right to participate as a party or to offer independent factual testimony against mother; doing so violated mother's procedural and substantive rights | GAL’s observations and recommendations were proper input to the court | Court held permitting GAL to testify and give adverse closing argument was error: parent’s GAL has no party status and must not present independent adverse testimony without being treated as a witness subject to cross-examination |
| Whether the juvenile court’s GAL-related errors required reversal (harmless-error standard) | Errors prejudiced mother’s rights and warrant reversal | Any GAL errors were harmless because the court relied on trial testimony and ample evidence supported termination | Court concluded errors harmless beyond a reasonable doubt: judge said it relied on admitted evidence, and substantial evidence (psychologist, therapist testimony, court findings) supported termination |
| Whether denial of continuances and alleged ineffective assistance of counsel require reversal | Denials prevented presentation of witnesses and further remediation; counsel failed to secure witnesses and earlier counsel’s request for GAL was harmful | No good cause or child-best-interests justification for continuance; mother did not show how missing witnesses or counsel deficiencies would have changed outcome | Court upheld denials of continuance and rejected ineffective-assistance claims for lack of prejudice—mother failed to show a reasonable possibility of a different outcome |
Key Cases Cited
- People in Interest of M.M., 726 P.2d 1108 (Colo. 1986) (discusses appointment and role of guardian ad litem for mentally impaired parents and limits on GAL authority)
- People in Interest of A.R.W., 903 P.2d 10 (Colo. App. 1994) (distinguishes child GAL party rights from non-party roles)
- People in Interest of J.E.B., 854 P.2d 1372 (Colo. App. 1993) (when GAL bases recommendations on independent investigation, those bases are testimonial and subject to cross-examination)
- People in Interest of C.H., 166 P.3d 288 (Colo. App. 2007) (prejudice requirement for ineffective-assistance claims in juvenile proceedings)
- Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) (parents’ fundamental liberty interest in parental rights and burden on state to justify termination)
- Hollingsworth v. Perry, 570 U.S. 693 (U.S. 2013) (litigants generally lack standing to assert third-party rights)