277 P.3d 889
Colo. Ct. App.2012Background
- Department filed a dependency and neglect petition and took custody after unsafe living conditions and animal presence were found.
- Children were adjudicated dependent and neglected; a treatment plan was ordered requiring visitation, housing, income, and completion of services.
- GAL moved to terminate both parents' rights; termination hearing was continued when parents failed to appear at first, and father was later found in default on the first day.
- On the second day, father appeared with substitute counsel who withdrew sua sponte; father testified pro se and was not fully represented.
- Court terminated both parents' rights based on failure to rehabilitate; mother’s rights were terminated; father’s rights were vacated on appeal and remanded.
- Judge Román concurred with affirming mother and noted remand should be limited; Judge Booras concurred in part and dissented in part regarding remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the trial court deprive father of statutory counsel at the termination hearing? | Father | Father | Yes; reversible error; remand. |
Key Cases Cited
- Lassiter v. Dep't of Soc. Servs., 452 U.S. 18 (U.S. 1981) (due process may require counsel in termination proceedings)
- Rivera v. Illinois, 556 U.S. 148 (U.S. 2009) (automatic reversal absent constitutional violation)
- In re Torrance P., 724 N.W.2d 623 (Wis. 2006) (structural error in termination proceedings)
- In re Nalani C., 245 Cal.Rptr. 264 (Cal. Ct. App. 1988) (harmless/error analysis in partial counsel denial)
- In re A.S.A., 852 P.2d 127 (Mont. 1993) (counsel not appointed until late in proceedings; harmless error analysis discussed)
- In re J.B., 624 So.2d 792 (Fla. Dist. Ct. App. 1993) (total denial of counsel cannot be deemed harmless)