Right to counsel

Key_development Question_mark

Legislation, Abuse/Neglect/Dependency - Accused Parents

Colo. Rev. Stat. § 19-3-202(1) provides that for dependency/neglect proceedings,


At the first appearance of a respondent parent, guardian, or legal custodian, the court shall fully advise the respondent of the respondent's legal rights, including the right to a jury trial, the right to be represented by counsel at every stage of the proceedings, and the right to seek the appointment of counsel through the office of respondent parents' counsel established in section 13-92-103, if the respondent is unable to financially secure counsel on the respondent's own.


See also People ex rel. Z.P., 167 P.3d 211, 213 (Colo. App. 2007) (“An indigent parent has a statutory right to court-appointed counsel in a dependency and neglect proceeding.”).


In In re J.B, the court stated that because "[p]roceedings in dependency or neglect affect important rights . . . there must be substantial compliance with statutory requirements for the conduct of those proceedings." 702 P.2d 753 (Colo. App. 1985).  The court then found that the Legislature's use of the term "shall" indicated that, under the statutes at issue, the provision of counsel was mandatory upon the parent's request, and that the court's failure to provide counsel for a portion of the review proceedings in the instant case did not "constitute substantial compliance" with the statute.


As to waiver, although "[w]aiver of a statutory right to counsel must be voluntary", the right can be waived, including impliedly in extreme circumstances. People in Interest of M.G.O., 22CA1404 (Colo. App. Sept. 7, 2023) (unpublished) (citing People in Interest of M.G., 128 P.3d 332, 334 [Colo. App. 2005] and People in Interest of B.H., 488 P.3d 1026, 1040 [Colo. 2021]).  Waiver of counsel on appeal is a mixed question of law and fact. Id. at para. 13 (internal citations omitted).

In May 2023, Colorado enacted SB 39, which amended Colo. Rev. Stat. § 19-3-202(1) to require the court to appoint counsel for respondents who are incarcerated or involuntarily committed unless "the court determines the respondent is able to financially secure counsel on the respondent's own or the respondent chooses to proceed without counsel."  In its Legislative declaration, the general assembly acknowledged that “[t]he incarceration of a parent disproportionately affects children of color …” and emphasized that “decisions to terminate parental rights should be based on the needs of the child, and not solely on the status of the parent as incarcerated or the length of the sentence.” S.B. 39, 74th Gen. Assemb., Reg. Sess. (Colo. 2023).

Appointment of Counsel: categorical Qualified: no