Colorado court finds due process right to counsel in parental rights case

Key_development Question_mark

05/22/2014, Litigation, Termination of Parental Rights (Private) - Birth Parents

While Colorado has a statutory right to counsel in ordinary termination of parental rights proceedings (i.e., those started by the state), there is no statutory right to counsel in Colorado for the termination of parental rights of a nonconsenting parent that arises within a relinquishment proceeding initiated by the other parent. In In re Petition of R.A.M., -- P.3d  --, 2014 WL 2148793 (Colo. App. 2014), the court examined whether the nonconsenting father had a due process right to counsel. The court first weighed the mother's argument that the father had never requested counsel and not raised the question of the right to counsel. Rejecting this argument, the court noted that the father had said he "thought he'd have an attorney" and "didn't know his rights", and had asked during closing argument for time to get an attorney. This, the court held, sufficiently raised the issue of the right to appointed counsel.


Next, the court applied Lassiter and held that the father in question had a due process right to counsel for the relinquishment proceeding. While it found that the state's interest and the father's interest canceled each other out, it found the risk of error to be insupportably high for two reasons: 1) the relinquishment proceeding had insufficient procedural protections for parents; and 2) there were some complex legal issues at stake (such as whether the father had to be able to immediately assume custody and whether he was entitled to a paternity test).

Cite: In re Petition of R.A.M., ---P.3d ----, 2014 WL 2148793 (Colo. App. 2014).

Appointment of Counsel: discretionary Qualified: yes