In re the Petition of R.L.S., Appellant, for the Adoption of S.S.A.R., a Child, and Concerning K.L.R., Sr., and S.M.R., Appellees.
County District Court No. 17JA70 Honorable Gretchen B.
Junge, Office of Respondent Parents' Counsel, Grand
Junction, Colorado, for Appellant
E. Eggert, PC, Susan E. Eggert, Grand Junction, Colorado, for
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.
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
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.
Right to Counsel
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,
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 ...