The Colorado Court of Appeals issued its opinion in In re Petition of R.A.M. on Thursday, May 22, 2014.
Parental Rights—Termination—Due Process—Right to Counsel.
Mother filed a petition to relinquish her parental rights to the child and named father as the only potential father of the child. With her petition for relinquishment, mother also filed a petition to terminate father’s parental rights. Father was served the petition, summons, and notice to terminate in jail. Father responded to the petition by indicating that he did not wish to relinquish his rights. The court proceeded to hearing without advising father of his rights or considering his request for counsel, and began the hearing without father’s presence. After considering the matter, the court found by clear and convincing evidence that father was the child’s parent. The court agreed with the adoption agency’s interpretation of the relinquishment statute and found that the law required that father be able to assume legal and physical custody of the child “at the time of the hearing.” Because father was incarcerated and thus unable to assume legal and physical custody of the child that day, the court granted the petition and terminated father’s rights.
On appeal, father contended that the trial court violated his due process rights when it failed to appoint counsel for him at the termination hearing. The Court of Appeals agreed. First, father sufficiently expressed his desire for the assistance of counsel. Also, father had an important interest, the state’s interest was not weak, and the risk of error in this case was extremely high. Before the hearing, neither the petition to terminate his rights, nor the notice to terminate his rights or the summons advised father of the allegation to be proven at the hearing: that he cannot personally assume legal and physical custody of the child, taking into account the child’s age, needs, and individual circumstances. Therefore, taking into consideration all of these factors, father had a due process right to counsel. The court’s order denying father’s CRCP 60(b)(3) motion was reversed, the judgment terminating his parent–child legal relationship was vacated, and the case was remanded.
Summary and full case available here.