2012 COA 35
Colo. Ct. App.2012Background
- The Department filed a dependency and neglect petition and took protective custody after eviction due to unlivable conditions and animal presencia; the youngest child RD was notably malnourished.
- The court adjudicated the children dependent and neglected and entered a treatment plan requiring consistent visitation, housing, income stability, and participation in services to develop parental protective capacity.
- A year later, GAL moved to terminate parental rights for both parents; the hearing was continued after neither parent appeared, and they were ordered to appear at the next hearing or be found in default.
- On the first day of the termination hearing, father was absent; his counsel was dismissed by the court over objection after the court found him in default and granted termination as to him.
- At the reconvened hearing, mother and father attended; father was represented by substitute counsel who withdrew, after which father testified pro se; no other evidence was presented by father.
- The court terminated both parents under 19-3-604(1)(c), C.R.S. 2011, finding the plan unsuccessful and the parents unfit; S.L.–the father of C.L. and D.L.–was also terminated but he does not appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether father was denied the statutory right to counsel at the termination hearing | Father’s counsel was dismissed and he was deprived of representation during material portions of the hearing. | The court’s actions violated sections 19-3-202(1) and 19-3-602(2), requiring reversal. | Violation of father's right to counsel; judgment vacated and remanded. |
| What standard governs denial of the statutory right to counsel in termination proceedings | Harmless error analysis should apply to non-total denial cases. | The denial is not subject to harmless error; should be automatic reversal per se. | Harmless error analysis not appropriate; denial requires automatic reversible error per se. |
| Whether partial denial of counsel should be reversible per se or by harmless error | Partial denial may still require reversal per se given the stakes. | Partial denial could be reviewed for prejudice on a case-by-case basis. | In this case, partial denial warranted reversible error per se; the record supports reversal. |
| Whether mother's termination is supported by clear and convincing evidence | GAL and Department proved mother failed to comply and remained unfit. | Mother complied with the plan and could become fit in time. | Mother’s termination upheld; clear and convincing evidence supported termination. |
Key Cases Cited
- Lassiter v. Dep't of Soc. Servs., 452 U.S. 18 (U.S. 1981) (due process concerns in termination; case-by-case analysis for counsel)
- Rivera v. Illinois, 556 U.S. 148 (U.S. 2009) (automatic reversible error when no federal constitutional violation; states decide standard)
- People in Interest of L.B., 254 P.3d 1203 (Colo.App.2011) (parental right to counsel; due process concerns in termination)
- In re P.D.L., 102 P.3d 1225 (Mont. 2004) (harmless error analysis in termination when right to counsel not properly advised)
- In re Torrance P., 724 N.W.2d 623 (Wis. 2006) (structural error analysis in termination context)
- In re J.B., 624 So.2d 792 (Fla. Dist. Ct. App.1993) (total denial of counsel at dependency adjudication requiring reversal)