People in Interest of J.E.B.

• Decision Date: 25 March 1993
• Docket Number: No. 92CA0119,92CA0119
• Citation: 854 P.2d 1372
• Parties: The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of J.E.B., J.O.B., and C.B., Children, and Concerning S.B., Respondent-Appellant. . II
• Court: Colorado Court of Appeals

Page 1372

854 P.2d 1372

The PEOPLE of the State of Colorado, Petitioner-Appellee In the Interest of J.E.B., J.O.B., and C.B., Children, and Concerning S.B., Respondent-Appellant.

No. 92CA0119.

Colorado Court of Appeals Div. II.

March 25, 1993.

Rehearing Denied April 22, 1993.

Certiorari Denied July 6, 1993.

Kevin L. Hoyer, Akron, for petitioner-appellee.

Robert B. Smith, Sterling, Guardian Ad Litem.

Janet D. Zimmerman, Sterling, for respondent-appellant.

Opinion by Judge SMITH ^*.

S.B. (mother) appeals from the judgment terminating her parent-child legal relationship with her children, J.E.B., J.O.B., and C.B. We affirm.

This proceeding involved the mother and her husband, L.B., the father of the children. After the children were adjudicated dependent and neglected, a treatment plan was adopted. However, progress was such that a motion to terminate parental rights was filed in 1990. Notice of the motion and the hearing thereon was served on the mother's counsel.

During the hearing on the motion to terminate, the children's guardian ad litem participated in the questioning of witnesses and stated his agreement with the recommendations made by the Department of Social Services. The mother objected to the qualification of expert witnesses and much of the evidence as impermissible hearsay. When the father called the children's guardian ad litem to testify and the mother joined in the questions put to the guardian, the trial court stopped the examination.

At the conclusion of the hearing, the trial court entered judgment terminating the parent-child legal relationship.

I.

The mother contends that the trial court erred in limiting the examination of the children's guardian ad litem during the termination hearing. We disagree.

The Children's Code defines a guardian ad litem as

a person who is appointed by a court to act in the best interest of a person whom he is representing in proceedings under this title and who, if appointed to represent a person in a dependency and neglect proceeding under article 3 of this title, shall be an attorney-at-law licensed to practice in Colorado.

Section 19-1-103(14), C.R.S. (1992 Cum.Supp.).

Section 19-3-203(1), C.R.S. (1992 Cum.Supp.) of the Children's Code makes appointment of a guardian ad litem mandatory, and § 19-3-203(3), C.R.S. (1992 Cum.Supp.) sets forth the duties of a guardian ad litem as follows:

The guardian ad litem shall be charged in general with representation of the child's interests. To that end, he shall make such further investigations as he deems necessary to ascertain the facts and shall talk with or observe the child involved, examine and cross-examine witnesses in both the adjudicatory and dispositional hearings, introduce and examine his own witnesses, make recommendations to the court concerning the child's welfare, appeal matters to the court of appeals or the supreme court, and participate further in the proceedings to the degree necessary to adequately represent the child.

The Children's Code further provides for a guardian ad litem at the termination phase of a dependency and neglect proceeding:

A guardian ad litem, who shall be an attorney and who shall be the child's previously appointed guardian ad litem whenever possible, shall be appointed to represent the child's best interests in any hearing determining the involuntary termination of the parent-child legal relationship. Additionally, said attorney shall be experienced, whenever possible, in juvenile law. Such representation shall continue until an appropriate permanent placement of the child is effected or until the court's jurisdiction is terminated.

Section 19-3-602(3), C.R.S. (1992 Cum.Supp.).

These provisions define the role of a guardian ad litem as a representative of the best interests of the child but do not specify the precise method that should be utilized in performing this role. See generally Walton & Schmalberger, Standards of Practice for Guardians ad Litem, 21 Colo.Law. 1907 (September 1992).

The requirement that a guardian ad litem make recommendations to the court may be satisfied either (1) by presenting his or her opinions based upon the guardian's independent investigation, or (2) by advocating a specific result based upon the evidence which has been presented before the court, or (3) by some combination of these two approaches. Determination of the issue presented here, whether a guardian ad litem may be examined and cross-examined, depends on the manner in which the guardian chooses to proceed in fulfilling the statutory requirements of the position.

Insofar as the guardian ad litem chooses to present his or her recommendations as an opinion based on an independent investigation, the facts of which have not otherwise been introduced into evidence, the guardian functions as a witness in the proceedings and, thus, should be subject to examination and cross-examination as to the bases of his or her opinion and recommendation.

If, on the other hand, the guardian ad litem's recommendations are based upon the evidence received by the court from other sources, then they are analogous to arguments made by counsel as to how the evidence should be viewed by the trier of fact. Opinions and recommendations so based and presented are not those of a witness, but are merely arguments of counsel and examination and cross-examination concerning these should not be permitted. See Rules of Professional Conduct 3.7 and Comment thereto.

Here, the record demonstrates that the guardian ad litem had chosen to examine the witnesses called by others and to present his recommendations in the form of legal argument based upon the facts and opinions testified to by others. Thus, we agree with the trial court that this guardian ad litem should not be required to testify.

II.

We reject the mother's contention that she was not afforded due process of law in the termination proceedings. There was no inadequacy in the notice of the motion for termination, nor was the mother denied the effective assistance of counsel. She was, in fact, represented by court-appointed counsel at all stages of the proceedings. Similarly, we find no error in the evidentiary rulings.

A.

The mother argues that she was not served with notice of the grounds for the motion to terminate nor of the date, time, and place of the hearing. She further argues that the requirements of § 19-3-603, C.R.S. (1992 Cum.Supp.) were not met. There is no merit in these arguments.

There is no requirement in sta...