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People ex rel. T.M.S.

Court of Appeals of Colorado, Fourth Division

August 29, 2019

The People of the State of Colorado, Petitioner-Appellee, In the Interest of T.M.S., a Child, and Concerning S.A.S., Respondent-Appellant.

          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

          ROMÁN JUDGE

         ¶ 1 Mother, S.A.S., appeals the juvenile court's 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 parent's guardian ad litem (GAL) presents argument and testimony against the parent's interest and over the parent's objection. We conclude that the juvenile court erred in not granting the parent's motion to remove the GAL and in permitting the GAL's 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 mother's low functioning impairs her ability to provide proper care for the child. The Department filed a petition in dependency or neglect citing concerns that mother's inability to recognize the child's 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 mother's parental rights. The child's father confessed the motion to terminate his parental rights.

         II. Analysis

         A. Mother's 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 Parent's GAL Is to Assist the Parent and Protect the Parent's 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 Children's 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 child's GAL has a statutory right to participate as a party in dependency or neglect proceedings, but a parent's 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 child's 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 child's GAL, which include making recommendations to the court concerning the child's welfare. Conversely, no statute authorizes the parent's GAL to make recommendations to the court concerning the parent's 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 parent's counsel, and the parent's GAL have distinct roles and responsibilities in a dependency or neglect proceeding. "While it is the [parent's counsel's] 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 parent's counsel, the GAL does not participate as a party or a party's 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 Mother's 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.

         ¶ 11 Mother was represented by two different attorneys during the proceeding below. Mother's 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 Mother's first attorney withdrew nine months later. At the next hearing, mother's second attorney asked the juvenile court to replace mother's GAL, asserting that mother's GAL was acting outside her role as GAL by advocating against mother's goal of reunifying with the child. She also said that mother's 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 GAL's role as follows:

[Mother] doesn't get to dictate what [her GAL] does just like the child doesn't get to dictate what [his GAL] does.
[Mother's GAL] can advocate differently [from mother's goals] if she believes that . . . such advocating would not be in her client's best interest, meaning that it could put [mother] at criminal negligence [sic] for child abuse because [mother] doesn't have the ability to do so, she absolutely should not be advocating for that. As matter of fact they [sic] would be against her role to do so. No different than if a [GAL were] representing a teenager, who said they wanted a return home, and [the GAL] believed that was not appropriate.
So [mother's GAL] has a du[a]l role. One role is to help [mother] understand the information that's being provided, and, secondly, to advocate . . . for . . . what that [GAL] believes is in the best interest of the adult, not what the adult wants, not what the adult believes is best, but what the [GAL] believes is best. And so if [mother] wants me to sift through all the professionals to find one that's going to agree with her, that's not happening.

         ¶ 13 Mother then filed a written motion to dismiss the GAL. She asserted the following grounds for dismissal:

(1) The GAL had improperly advocated for positions adverse to mother's fundamental right to raise her child. The GAL had requested a reduction of parenting time and supported a concurrent permanency ...

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