In re the Petition of R.A.M., Respondent-Appellant, for the Adoption of B.G.B., a Child, and Concerning Creative Adoptions, Appellee.
Jefferson County District Court No. 12Jr29 Honorable Ann Gail Meinster, Judge
Christine M. Thornton, Denver, Colorado, for Respondent-Appellant
Berenbaum Weinshienk PC, Rajesh K. Kukreja, Denver, Colorado, for Appellee
¶1 R.A.M. (father) appeals the trial court’s order denying his motion for relief from the judgment terminating his parental rights. The child’s mother, M.B. (mother), voluntarily relinquished custody of B.G.B. (child) to Creative Adoptions (adoption agency). The court terminated father’s rights under section 19-5-105(3), C.R.S. 2013, which requires termination of the non-relinquishing parent’s rights if, after appearing, he or she “cannot personally assume legal and physical custody, taking into account the child’s age, needs, and individual circumstances.”
¶2 We conclude, under the particular circumstances presented, that the judgment terminating father’s rights is void because it was entered in violation of his due process right to appointed counsel. Because we conclude the judgment is void, we also conclude the court erred in denying father’s motion for relief from judgment. Consequently, we reverse the order denying father’s motion, vacate the judgment terminating his parent-child legal relationship, and remand the case to the trial court for a new hearing, for which father shall be appointed counsel, if he is still indigent.
¶3 The case below began when mother filed a petition to relinquish her parental rights to the child. Mother named father as the only potential father of the child. With her petition for relinquishment, mother also filed a petition to terminate father’s parental rights. Father was served with the petition, summons, and notice to terminate in jail.
¶4 Father responded to the petition by indicating that he did not wish to relinquish his rights. He also requested DNA testing and asked the court for a writ of habeas corpus ad prosequendum, so that he could personally appear at the hearing.
¶5 At the hearing, the adoption agency’s counsel stated that he appeared on behalf of mother. The court started by hearing mother’s testimony without father, or any representative of father, present. Mother testified that father was the only potential father. She also testified that allowing the child to be adopted was in the child’s best interests, in part, because father was a “bad person” and should not be in the child’s life. During the portion of the hearing where mother testified, the court and counsel for the adoption agency also discussed whether father was entitled to a paternity test.
¶6 There was a pause in the proceedings where mother was excused, and father subsequently appeared pursuant to a writ issued by the court. He indicated that (1) he was not prepared to proceed; (2) he thought he would have been no longer incarcerated and would have an attorney for the hearing; and (3) he did not understand his rights. He also requested to continue the hearing and reiterated that he was “not even sure if the child is mine.”
¶7 The court did not rule on his request to continue the hearing. Although the court engaged in a discussion with the adoption agency’s counsel on the meaning of the relinquishment statute and the appropriate procedure to use, the court did not advise father of the nature of the hearing, what the court must determine, the burden of proof, and did not ask father if he understood. The court also did not inquire further into father’s wish for counsel or whether he could afford counsel.
¶8 Instead, the court stated that “[i]t would be appropriate to take some testimony.” The adoption agency called father as a witness. Father acknowledged that he was currently in custody serving a six-month sentence, but he testified that he would be released in two months. The court also asked father some questions and allowed him to make a statement.
¶9 The court then heard closing arguments. The adoption agency asked the court to accept its interpretation of the relinquishment statute, which would require father to be available to personally assume legal and physical custody of the child “at the time of the hearing.” Because father was incarcerated on the day of the hearing and unavailable to parent, the adoption agency asked the court to terminate his rights.
¶10 In his closing, father again asked the court for more time, for “a chance to get an attorney, ” to “find out what my rights are, ” and to discover “like I said, for sure if I am the father.”
¶11 After considering the matter, the court found by clear and convincing evidence that father was the child’s parent. The court agreed with the adoption agency’s interpretation of the relinquishment statute and found that the law required that father be able to assume legal and physical custody of the child “at thetime of the hearing.” Because father was incarcerated and thus unable to assume legal and physical custody of the child that day, the court granted the petition and terminated father’s rights.
¶12 Father did not timely appeal the trial court’s order terminating his parental rights and we have dismissed that portion of father’s appeal. However, father filed a timely motion under C.R.C.P. 60(b) requesting relief from the judgment alleging, among other things, that the judgment terminating his rights is void because it was entered in violation of his due process right to counsel. He also requested court-appointed counsel.
¶13 The trial court denied father’s motion. It stated that nothing in the written record or in its recollection showed that father requested counsel, but went on to analyze whether father had a constitutional right to counsel. The court concluded that due process did not require the appointment of counsel ...