In re Petition of R.L.S.

          Mesa County District Court No. 17JA70 Honorable Gretchen B. Larson, Judge

          Brad Junge, Office of Respondent Parents' Counsel, Grand Junction, Colorado, for Appellant

          Susan E. Eggert, PC, Susan E. Eggert, Grand Junction, Colorado, for Appellees

          OPINION

          FREYRE JUDGE

         ¶ 1 In this kinship adoption proceeding, R.L.S. (father) appeals the judgment terminating his parental rights to S.S.A.R. (child) and decreeing the child's adoption by K.L.R., Sr., and S.M.R. (aunt and uncle). Father contends that he was denied his right to counsel because he was incarcerated out-of-state and had no ability to participate in the proceedings.

         ¶ 2 As a matter of first impression, and under the circumstances presented, we conclude that in determining whether a parent is entitled to appointed counsel requires application of the Mathews v. Elridge, 424 U.S. 319, 334-45 (1976), factors and, we also conclude that the judgment terminating father's parental rights is void because the court entered it in violation of his due process right to appointed counsel. Consequently, we vacate the judgment terminating father's parental rights and decreeing the child's adoption and remand the case to the juvenile court for a new hearing. If the court finds that father is still indigent, it must appoint counsel.

         I. Background

         ¶ 3 The child's maternal aunt and uncle filed petitions for kinship adoption and to terminate father's parental rights. The child's mother was deceased, and father was incarcerated at the Clark County Detention Center in Las Vegas, Nevada. A court previously appointed the aunt and uncle guardians for the child in Utah.

         ¶ 4 Father, who was not represented by counsel, objected, via written correspondence, to the adoption and requested the appointment of a guardian ad litem (GAL) for the child. The court took no action on father's request for a GAL because father did not appear at the termination and adoption hearing. After a brief hearing, the court terminated father's parental rights and entered a final decree of adoption. Father then filed a motion for reconsideration that argued, in part, that (1) the juvenile court abused its discretion in failing to appoint a GAL and (2) fundamental due process required that he have legal representation during the proceeding.

         ¶ 5 Father, who was still incarcerated and appearing pro se, then filed a notice of appeal and a motion for the appointment of counsel in this court. As a result, the juvenile court took no action on father's motion for reconsideration. We ordered a limited remand to the juvenile court for the purpose of hearing and ruling on father's motion for counsel. The juvenile court held a hearing and concluded that it would have appointed counsel for father had he requested it during the pendency of the case. We then granted father's motion for appointment of counsel for the purposes of appeal.

         II. Right to Counsel

         A. Legal Framework

         ¶ 6 The parental right to raise one's child is a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment. See Santosky v. Kramer, 455 U.S. 745 (1972); see also Stanley v. Illinois, 405 U.S. 645, 651 (1972). The Supreme Court has noted that "the interest of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests recognized by this Court." Troxel v. Granville, 530 U.S. 57, 65 (2000).

         ¶ 7 Because this right is fundamental, certain due process requirements must be met before it may be extinguished in involuntary child-custody proceedings. See L.L. v. People, 10 P.3d 1271, 1276 (Colo. 2000). Due process, however, is flexible and calls only for such procedural protections as the situation demands. A.M. v. A.C., 2013 CO 16, ¶ 28. Because due process is situation-specific, it should be viewed in the context of all the procedural protections offered to parents. Id. at ¶¶ 28-29.

         ¶ 8 In Lassiter v. Department of Social Services, 452 U.S. 18 (1981), the United States Supreme Court held that the Due Process Clause does not require "the appointment of counsel in every parental termination proceeding." Id. at 31. After reviewing its precedents on the right to appointed counsel, the Court identified a "presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty." Id. at 26-27.

         ¶ 9 Accordingly, because in termination proceedings the parent's personal liberty is not at stake, the presumption against a right to appointed counsel is weighed against the sum total of the "three elements to be evaluated in deciding what [procedural] due process requires, viz., the private interests at stake, the government's interest, and the risk that the procedures used will lead to erroneous decisions." Id. at 27. The Supreme Court formulated these three elements in Eldridge, 424 U.S. at 334-35, and they are now commonly referred to as the Eldridge factors.

         ¶ 10 In Lassiter, the Supreme Court concluded that while in some termination proceedings the Eldridge factors could be weighted in such a manner that their sum total was greater than the presumption against the right to appointed counsel, this would not always be the case. Lassiter, 452 U.S. at 31-32. Therefore, rather than require that counsel be provided in all ...