The PEOPLE of the State of Colorado, Petitioner-Appellee, No. 18CA1164
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[Copyrighted Material Omitted]
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City
and County of Denver Juvenile Court No. 17JV542, Honorable
Laurie A. Clark, Judge
Kristin
M. Bronson, City Attorney, Laura Grzetic Eibsen, Assistant
City Attorney, Denver, Colorado, for Petitioner-Appellee
Josi
McCauley, Guardian Ad Litem
The
Noble Law Firm, LLC, Antony Noble, Lakewood, Colorado, for
Respondent-Appellant
OPINION
ROMÁ
N, JUDGE
[¶1]
Mother, S.A.S., appeals the juvenile courts judgment
terminating her parent-child relationship with her child,
T.M.S. We are asked to decide what happens in a dependency
and neglect proceeding when the parents guardian ad litem
(GAL) presents argument and testimony against the parents
interest and over the parents objection. We conclude that
the juvenile court erred in not granting the parents motion
to remove the
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GAL and in permitting the GALs adverse closing argument.
Nonetheless, under the circumstances of this case, we further
conclude that these errors were harmless and, therefore,
affirm.
I.
Background
[¶2]
Mother has an intellectual disability. Shortly after the
child was born, hospital staff contacted the Denver
Department of Human Services to report that mothers low
functioning impairs her ability to provide proper care for
the child. The Department filed a petition in dependency or
neglect citing concerns that mothers inability to recognize
the childs basic needs, such as for feeding, diapering, and
swaddling, places him at risk of harm. The juvenile court
placed the child in a foster home when he was released from
the hospital, and he remained there throughout the
proceeding.
[¶3]
The juvenile court adjudicated the child dependent or
neglected and adopted a treatment plan for mother. One year
later, the juvenile court held a three-day evidentiary
hearing and terminated mothers parental rights. The childs
father confessed the motion to terminate his parental rights.
II.
Analysis
A.
Mothers GAL
[¶4]
Mother contends that the juvenile court erred when it denied
her motion to remove her GAL and allowed the GAL to give
closing argument supporting the termination of her parental
rights. We agree that the court erred. But, under the
circumstances, we conclude that the error was harmless.
1. The
Role of a Parents GAL Is to Assist the Parent and Protect
the Parents Best Interests
[¶5]
A juvenile court may appoint a GAL for a respondent parent
who has an intellectual or developmental disability. §
19-1-111(2)(c), C.R.S. 2018. Under the Childrens Code,
"guardian ad litem" means a person appointed by a
court "to act in the best interests of the person whom
the [GAL] is representing." § 19-1-103(59), C.R.S. 2018.
A GAL must comply with the chief justice directives (CJD) and
other practice standards incorporated by reference into the
GAL statute. § 19-1-111(6). An attorney who is appointed as a
GAL is subject to all of the rules and standards of the legal
profession. See Chief Justice Directive 04-05,
Appointment and Payment Procedures for Court-appointed
Counsel, Guardians ad litem, Child and Family
Investigators, and Court Visitors paid by the Judicial
Department, § VI(A) (amended July 2018).
[¶6]
The legislature has recognized that the differences between
the respective disabilities and legal incapacities of
children and mentally disabled adults require separate
standards regarding the appointment, duties, and rights of a
GAL for these categories of persons. See People
in Interest of M.M., 726 P.2d 1108, 1117 (Colo. 1986).
For example, a juvenile court must appoint a GAL for the
child in a dependency or neglect proceeding but has
discretion whether to appoint a GAL for a respondent parent
who has an intellectual or developmental disability. §
19-1-111(1), (2)(c). The childs GAL has a statutory right to
participate as a party in dependency or neglect proceedings,
but a parents GAL does not. § 19-1-111(3); cf.
People in Interest of A.R.W., 903 P.2d 10, 12
(Colo.App. 1994) (in contrast to role of childs GAL in
dependency and neglect proceedings or dissolution of marriage
actions, GAL for child in paternity action is neither a party
nor counsel for the child and has no right to control the
proceedings, defend the action, or appeal). Section
19-3-203(3), C.R.S. 2018, defines the duties of the childs
GAL, which include making recommendations to the court
concerning the childs welfare. Conversely, no statute
authorizes the parents GAL to make recommendations to the
court concerning the parents welfare.
[¶7]
Juvenile courts must "ensure that guardians ad
litem ... involved with cases under their jurisdiction
are representing the best interests of ... impaired
adults." CJD 04-05, § VIII(B).
[¶8]
To be sure, a respondent parent, the parents counsel, and
the parents GAL have distinct roles and responsibilities in
a dependency or neglect proceeding. "While it
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is the [parents counsels] duty to provide the parent with
legal advice on such decisions as whether to contest the
termination motion and whether to present particular defenses
to the motion, it is the role and responsibility of the
parent to make those decisions." M.M., 726 P.2d
at 1120.
[¶9]
Unlike the parent or parents counsel, the GAL does not
participate as a party or a partys advocate in dependency or
neglect proceedings. Cf. § 19-1-111(3);
A.R.W., 903 P.2d at 12. Instead, the GAL has an
assistive role: to facilitate communication between the
parent and counsel and help the parent participate in the
proceeding. A juvenile court must appoint a GAL for a parent
who "lacks the intellectual capacity to communicate with
counsel or is mentally or emotionally incapable of weighing
the advice of counsel on the particular course to pursue in
her own interest." M.M., 726 P.2d at 1120. But
a "client who is making decisions that [a] lawyer
considers to be ill-considered is not necessarily unable to
act in his [or her] own interest." So if
a parent, although mentally disabled to some degree,
understands the nature and significance of the proceeding, is
able to make decisions in her own behalf, and has the ability
to communicate with and act on the advice of counsel, then a
court might [properly] conclude ... that a guardian ad litem
could provide little, if any, service to the parent that
would not be forthcoming from counsel.
Id.
2. The
Juvenile Court Erred When It Denied Mothers Motion to Remove
Her GAL
[¶10]
Decisions regarding the appointment of a GAL for a parent lie
within the discretion of the juvenile court. People in
Interest of L.A.C., 97 P.3d 363, 366 (Colo.App. 2004). A
court abuses its discretion when its ruling rests on a
misunderstanding or misapplication of the law. Sinclair
Transp. Co. v. Sandberg, 2014 COA 75M, ¶ 26, 350 P.3d
915.
[¶11]
Mother was represented by two different attorneys during the
proceeding below. Mothers first attorney requested the
appointment of a GAL for mother at the temporary custody
hearing. She gave no reason for the request. The magistrate
granted the request "based on the information contained
in the [dependency or neglect] petition."
[¶12]
Mothers first attorney withdrew nine months later. At the
next hearing, mothers second attorney asked the juvenile
court to replace mothers GAL, asserting that mothers GAL
was acting outside her role as GAL by advocating against
mothers goal of reunifying with the child. She also said
that mothers relationship with the GAL had broken down to
the point that the GAL could no longer fulfill her role. The
juvenile court described its understanding of the GALs role
as follows:
[Mother] doesnt get to dictate what [her GAL] does just like
the child doesnt get to ...