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 childs 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. Eldridge, 424 U.S.
319, 334-45, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), factors and,
we also conclude that the judgment terminating fathers
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 fathers
parental rights and
decreeing the childs 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 childs maternal aunt and uncle filed
petitions for kinship adoption and to terminate fathers
parental rights. The childs 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 fathers request for a
GAL because father did not appear at the termination and
adoption hearing. After a brief hearing, the court terminated
fathers 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 fathers motion for
reconsideration. We ordered a limited remand to the juvenile
court for the purpose of hearing and ruling on fathers
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 fathers motion for appointment of counsel for the
purposes of appeal.
Right to Counsel
6] The parental right to raise ones child is a
fundamental liberty interest protected by the Due Process
Clause of the Fourteenth Amendment. See Santosky
v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599
(1982); see also Stanley v. Illinois, 405
U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (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, 120 S.Ct. 2054, 147 L.Ed.2d 49 (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, 296 P.3d
1026. 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, 101 S.Ct. 2153, 68 L.Ed.2d 640
(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, 101 S.Ct. 2153. 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, 101 S.Ct. 2153.
9] Accordingly, because in termination proceedings
the parents 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 governments
interest, and the risk that the procedures used will lead to
erroneous decisions." Id. at 27, 101 S.Ct.
2153. The Supreme Court formulated these three elements in
Eldridge, 424 U.S. at 334-35, 96 S.Ct. 893, and they
are now commonly referred to as the Eldridge
10] In Lassiter, the Supreme Court
concluded that while in ...