of S.S.A.R

Citations

• 2019 COA 112

Syllabus

The child's mother is deceased and the father was incarcerated in Las Vegas, Nevada. A court appointed the child's aunt and uncle guardians for the child in Utah. The aunt and uncle later filed petitions for kinship adoption and to terminate father's parental rights. Father, who was not represented by counsel, objected to the adoption via written correspondence 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. On appeal, father contended that he was denied his right to counsel because he was incarcerated out-of-state and had no ability to participate in the proceedings. The parental right to raise one's child is a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment. In Colorado, an indigent parent does not have a statutory right to court-appointed counsel in kinship adoption proceedings. The presumption against a right to counsel is weighed against (1) the private interests at stake, (2) the government's interest, and (3) the risk that the procedures used will lead to an erroneous decision. Here, although father did not formally request counsel, his petition to appoint a GAL indicated that he was a pretrial detainee, indigent, and unable to afford court costs associated with the case. The juvenile court should have considered father's communications as a request for the appointment of trial counsel, or at least asked father if he wanted counsel. In reviewing father's right to counsel, the Court of Appeals concluded that (1) his interests were strong (2) the state's interests in not appointing counsel were weak and (3) the risks of error were significant for father in defending his rights without the assistance of counsel. Therefore, the presumption against the right to co