People ex rel. R.D.

• Citation: 2012 COA 35,277 P.3d 889
• Decision Date: 01 March 2012
• Docket Number: No. 11CA1347.,11CA1347.
• Parties: The PEOPLE of the State of Colorado, Petitioner–Appellee, In the Interest of R.D., R.D., C.L., and D.L., Children, and Concerning K.L. and A.J.D., Respondents–Appellants.
• Court: Colorado Court of Appeals

277 P.3d 889

2012 COA 35

The PEOPLE of the State of Colorado, Petitioner–Appellee,

In the Interest of R.D., R.D., C.L., and D.L., Children,

and

Concerning K.L. and A.J.D., Respondents–Appellants.

No. 11CA1347.

Colorado Court of Appeals,

Div. I.

March 1, 2012.

William Louis, County Attorney, Laura C. Rhyne, Deputy County Attorney, Colorado Springs, Colorado, for Petitioner–Appellee.

Elizabeth Hoover, Guardian Ad Litem.

Davide C. Migliaccio, Colorado Springs, Colorado, for Respondent–Appellant K.L.

William G. Webb, P.C., William G. Webb, Colorado Springs, Colorado, for Respondent–Appellant A.J.D.

Opinion by Judge TAUBMAN.

¶ 1 In this dependency and neglect case, A.J.D. (father) appeals from the judgment terminating the parent-child relationship between him and his children, R.D. and R.D. Because we conclude that father was denied his statutory right to counsel at the hearing concerning the termination of his parental rights, and that this violation is not subject to harmless error review, we vacate the judgment terminating father's parental rights and remand the case for further proceedings.

¶ 2 K.L. (mother) also appeals from the judgment terminating the parent-child relationship between her and her children, R.D., R.D., C.L., and D.L. Because the evidence supports the trial court's termination of her parental rights, we affirm the judgment terminating her parental rights.

I. Background

¶ 3 The El Paso County Department of Human Services (Department) filed a dependency and neglect petition and assumed protective custody of the children after law enforcement officials assisting in the eviction of the family from its home for nonpayment of rent discovered unlivable conditions marked by the presence of multiple animals, a strong smell of feces, scattered clothes and debris throughout, mold on the windowsills and walls, and evidence of marijuana use. R.D., the youngest child and the only child then present, was noticeably thin, pale, and extremely unkempt.

¶ 4 Mother and father admitted to the petition and the children were adjudicated dependent and neglected. A treatment plan, adopted with the agreement of all parties, required mother and father to engage in consistent visitation, maintain safe and stable housing and income, address any issues identified by a global evaluation, participate and successfully complete all necessary family preservation and life skill services, cooperate with the Department and the court, and develop and sufficiently demonstrate parental protective capacity enabling the children to reside in a safe and emotionally healthy home environment.

¶ 5 A year later, the children's guardian ad litem (GAL) moved to terminate mother's and father's parental rights on the grounds that they had failed to reasonably comply with the terms of the treatment plan and that the plan had not rehabilitated them. The court continued the termination hearing after neither mother nor father appeared and ordered that they appear at the next hearing or be found in default.

¶ 6 Although mother was present at the rescheduled termination hearing held a month later, father was unable to attend. Father's counsel explained to the court that he had been detained at work. The court proceeded with the hearing and father's counsel actively participated on his behalf. Two hours later, however, when father had still not appeared, the court found him in default, granted the termination motion as it pertained to him, and ended his counsel's participation over counsel's objection. It then took additional testimony from the therapist who primarily treated mother and also provided couples therapy, and the family's two life skills workers.

¶ 7 When the court reconvened the termination hearing a week and a half later, both mother and father were present. Father, represented by substitute counsel because his attorney was unavailable, requested that the court reconsider its decision to find him in default. The court allowed father to participate and testify. However, when substitute counsel indicated that she was not fully prepared to proceed with the case, the court sua sponte permitted father's former counsel to withdraw based on father's failure to cooperate. Proceeding pro se, father briefly testified but did not present any other evidence, cross-examine the other witnesses testifying that day, including the caseworker, or offer a closing argument.

¶ 8 Ultimately, the court found that the criteria under section 19–3–604(1)(c), C.R.S.2011, for termination of parental rights had been proved by clear and convincing evidence as to both mother and father: the treatment plan was unsuccessful in rehabilitating both parents, both were unfit, and their conduct was unlikely to change within a reasonable period of time. It found that nothing father presented would change these findings. Its written order acknowledged that father had been permitted to appear pro se on the second day of the hearing, but did not mention the prior finding of default.

¶ 9 The trial court's judgment also terminated the parental rights of S.L., the father of C.L. and D.L. However, he does not appeal.

II. Father's Appeal

¶ 10 Father contends that the trial court violated his statutory and due process rights to counsel when it prohibited his attorney from participating on his behalf and entered default against him on the first day of the termination hearing and sua sponte allowed his counsel to withdraw on the second day of the hearing. We agree that his statutory right to counsel was violated and further conclude that such error requires vacating the termination judgment against him.

A. Statutory Right to Counsel in Termination Hearing

¶ 11 In all dependency and neglect proceedings, a parent possesses the legal right “to be represented by counsel at every stage of the proceedings.” § 19–3–202(1), C.R.S.2011. An indigent parent also possesses the right to seek court-appointed counsel to represent him or her. Id.; People in Interest of Z.P., 167 P.3d 211, 213 (Colo.App.2007) (upon timely request). A court must advise the parent of these rights at first appearance. § 19–3–202(1); Z.P., 167 P.3d at 213.

¶ 12 Once a motion for termination of the parent-child relationship is filed, if the parent is not already represented by counsel, the court again must advise the parent of his or her right to counsel. § 19–3–602(2), C.R.S.2011. Advisement of right to counsel may be done in open court or in writing. Id. The court may appoint counsel for the parent at this point if it finds representation by counsel “necessary to protect the interests of the child or other parties” to the proceeding. § 19–1–105(2), C.R.S.2011; see § 19–3–602(2).

¶ 13 These statutes create a parent's right to counsel in termination hearings. C.S. v. People, 83 P.3d 627, 636 (Colo.2004).

¶ 14 Although this right “is secured by statute and not constitutional mandate,” id., the United States Supreme Court and the Colorado Supreme Court have acknowledged that a parent's fundamental liberty interest in a termination proceeding further implicates constitutional concerns. Lassiter v. Dep't of Soc. Services, 452 U.S. 18, 31, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (due process may require the appointment of counsel in termination proceedings, determinable on a case-by-case basis); see Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (recognizing that “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State”); A.L.L. v. People in Interest of C.Z., 226 P.3d 1054, 1062 (Colo.2010) (parent's right to counsel in a dependency and neglect proceeding is statutory in nature, but termination proceedings “cue constitutional due process concerns”); see also People in Interest of L.B., 254 P.3d 1203, 1206 (Colo.App.2011) (due process requires that a parent receive the assistance of counsel when a proceeding could result in termination of parental rights).

¶ 15 We need not reach the constitutional question here, however, because we conclude the trial court violated father's statutory right to counsel by effectively dismissing father's counsel on the first day of his termination hearing. See People v. Lybarger, 700 P.2d 910, 915 (Colo.1985) (“a court should not decide a constitutional issue unless and until such issue is actually raised by a party to the controversy and the necessity for such decision is clear and inescapable”).

¶ 16 After commencing the termination hearing, in the absence of father but with his counsel present and participating, the trial court found father in default and granted the motion to terminate his parental rights. It also indicated on the first day of the hearing that it was dismissing his counsel, over her objection, stating: “You are free to leave or stay as you wish, [counsel]. I am not going to allow you to inquire any further.” For the remainder of the first day of the termination hearing, including during the testimony implicating father's fitness by the therapist and the family's two life skills workers, father was thus deprived of his right to assistance of counsel.

¶ 17 No statutory exception exists here to permit such a deprivation of this right. The trial court's means of effectively dismissing counsel in these circumstances, by entering default against father, was contrary to C.R.C.P. 55. See Rombough v. Mitchell, 140 P.3d 202, 204 (Colo.App.2006) (when a defendant answers and actively litigates but fails to appear for trial, the trial court may receive evidence in the defendant's absence and render judgment on the merits, but it may not enter an order of default); Kielsmier v. Foster, 669 P.2d 630, 632 (Colo.App.1983); cf. People in Interest of V.W., 958 P.2d 1132, 1134 (Colo.App.1998) (default judgment terminating father's parental rights upheld when father did not request an...