2021 CO 39
Colo.2021Background
- In 2016 an Indiana dependency-and-neglect action placed B.H. with Indiana foster parents; he was reunified with his parents in April 2017 and parents moved to Colorado in 2018 (dates disputed).
- Arapahoe County removed B.H. in August 2018 and adjudicated him dependent and neglected after parents’ instability (mother: homelessness/alcohol; father: mental-health issues, homelessness, drug use, threats, and an arrest with weapons/drugs).
- The Colorado court adopted a treatment plan for father; father made early progress but later failed to comply, ceased visits, threatened professionals, and was arrested—visits were suspended and never resumed.
- The Department moved to terminate father's parental rights in September 2019; after a multi-day trial the district court found father unfit, that he would not become fit within a reasonable time, and terminated parental rights; mother’s rights were also terminated (no appeal from mother).
- On appeal father argued (1) Colorado lacked jurisdiction under the UCCJEA because of a prior Indiana custody determination; (2) the trial court violated his right to appointed counsel by refusing a third court‑appointed attorney; and (3) the Department failed to pursue reasonable placement alternatives and family‑finding letters.
Issues
| Issue | Plaintiff's Argument (People/B.H.) | Defendant's Argument (D.H.) | Held |
|---|---|---|---|
| Whether Colorado had jurisdiction under the UCCJEA to terminate parental rights given prior Indiana proceedings | No prior Indiana order qualified as a child‑custody determination, so Colorado could proceed; alternatively Colorado had significant‑connection jurisdiction | Indiana issued orders returning physical custody to parents, which are UCCJEA child‑custody determinations; Colorado had to follow §14‑13‑203 procedures before modifying | Remanded for jurisdictional factfinding. If an Indiana order effectively returned custody, Colorado lacked modification jurisdiction without following UCCJEA procedures; if not, Colorado must establish home‑state or significant‑connection jurisdiction. |
| Whether father’s due process right required appointment of a third court‑appointed attorney | Father needed counsel; proceeding was fundamental and appointment required | Risk of erroneous outcome was low given the weight of evidence and father’s conduct; no constitutional right to a third attorney | No due process violation. Court found risk of error low and a third attorney would not have likely changed outcome. |
| Whether father’s statutory right to court‑appointed counsel was involuntarily lost when he discharged/created conflict with prior attorneys | Dismissal of second attorney was involuntary; he expected replacement | Father’s repeated threats, noncooperation, and dilatory tactics impliedly waived statutory right | Waiver upheld. Court concluded father impliedly and voluntarily waived statutory right to appointed counsel by obstreperous/dilatory conduct. |
| Whether the Department failed to make reasonable efforts / whether less‑drastic alternatives were inadequately explored (family‑finding letters, relative placements) | Department failed to mail family‑finding letters and did not evaluate enough placement options; thus court erred in finding reasonable efforts/no less‑drastic alternative | Department provided required rehabilitative services and explored relatives and other placements; trial court’s best‑interest and alternative findings are supported | Affirmed. Trial court’s finding that no less‑drastic alternative would meet B.H.’s need for stability is supported; reasonable‑efforts statutory inquiry focuses on rehabilitative services, and record supports the court’s conclusions. |
Key Cases Cited
- Brandt v. Brandt, 268 P.3d 406 (Colo. 2012) (framework for assessing domicile/residence and the need for inter‑state communication under UCCJEA)
- People in Interest of S.A.G., 487 P.3d 67 (Colo. 2021) (contemporaneous UCCJEA interpretation and remand for UCCJEA analysis where prior out‑of‑state proceedings may affect jurisdiction)
- People in Interest of C.L.T., 405 P.3d 510 (Colo. App. 2017) (vacatur and remand when record indicates possible out‑of‑state custody order that could deprive trial court of modification jurisdiction)
- G.B. v. Arapahoe Cnty. Ct., 890 P.2d 1153 (Colo. 1995) (definition and effect of custody determinations focusing on orders’ practical effects)
- Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18 (1981) (balancing test for when due process requires appointed counsel in parental‑rights proceedings)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (three‑factor test for procedural due process: private interest, government interest, risk of erroneous deprivation)
- C.S. v. People, 83 P.3d 627 (Colo. 2004) (adoption of Lassiter/Mathews balancing in Colorado parental‑rights context)
- A.R. v. D.R., 456 P.3d 1266 (Colo. 2020) (discussion of presuming prejudice when counsel was not made available in dependency matters)
- People in Interest of A.M., 480 P.3d 682 (Colo. 2021) (standards for termination elements and requirement to consider less‑drastic alternatives)
- Santosky v. Kramer, 455 U.S. 745 (1982) (due‑process principles when the state seeks to terminate parental rights)