SUMMARY

July 25, 2019

2019COA112

No. 17CA1665, Adoption of S.S.A.R. — Family Law — Juvenile 

Court — Relinquishment and Adoption — Kinship Adoption; 

Constitutional Law — Due Process — Right to Counsel

In this kinship adoption case, a division of the court of appeals 

concludes, as a matter of first impression, that the factors set forth 

in Mathews v. Elridge, 424 U.S. 319 (1976), should be applied to 

determine whether a parent should be appointed counsel in the 

termination of parental rights proceeding. After applying those 

factors to the facts of this case, the division vacates the judgment 

terminating father’s parental rights and remands the case for 

further proceedings.

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
COLORADO COURT OF APPEALS 2019COA112

Court of Appeals No. 17CA1665

Mesa County District Court No. 17JA70

Honorable Gretchen B. Larson, Judge

In re the Petition of R.L.S.,

Appellant, 

for the Adoption of S.S.A.R., a Child,

and Concerning K.L.R., Sr., and S.M.R.,

Appellees.

JUDGMENT VACATED AND CASE 

REMANDED WITH DIRECTIONS

Division VI

Opinion by JUDGE FREYRE

Fox and Welling, JJ., concur

Announced July 25, 2019

Brad Junge, Office of Respondent Parents’ Counsel, Grand Junction, Colorado,

for Appellant

Susan E. Eggert, PC, Susan E. Eggert, Grand Junction, Colorado, for Appellees
1

¶ 1 In this kinship adoption proceeding, R.L.S. (father) appeals the 

judgment terminating his parental rights to S.S.A.R. (child) and 

decreeing the child’s adoption by K.L.R., Sr., and S.M.R. (aunt and 

uncle). Father contends that he was denied his right to counsel 

because he was incarcerated out-of-state and had no ability to 

participate in the proceedings.

¶ 2 As a matter of first impression, and under the circumstances

presented, we conclude that in determining whether a parent is 

entitled to appointed counsel requires application of the Mathews v. 

Elridge, 424 U.S. 319, 334-45 (1976), factors and, we also conclude 

that the judgment terminating father’s parental rights is void 

because the court entered it in violation of his due process right to 

appointed counsel. Consequently, we vacate the judgment 

terminating father’s parental rights and decreeing the child’s 

adoption and remand the case to the juvenile court for a new 

hearing. If the court finds that father is still indigent, it must 

appoint counsel.

I. Background

¶ 3 The child’s maternal aunt and uncle filed petitions for kinship 

adoption and to terminate father’s parental rights. The child’s 
2

mother was deceased, and father was incarcerated at the Clark 

County Detention Center in Las Vegas, Nevada. A court previously 

appointed the aunt and uncle guardians for the child in Utah. 

¶ 4 Father, who was not represented by counsel, objected, via 

written correspondence, to the adoption and requested the 

appointment of a guardian ad litem (GAL) for the child. The court 

took no action on father’s request for a GAL because father did not 

appear at the termination and adoption hearing. After a brief 

hearing, the court terminated father’s parental rights and entered a 

final decree of adoption. Father then filed a motion for 

reconsideration that argued, in part, that (1) the juvenile court 

abused its discretion in failing to appoint a GAL and (2) 

fundamental due process required that he have legal representation 

during the proceeding. 

¶ 5 Father, who was still incarcerated and appearing pro se, then 

filed a notice of appeal and a motion for the appointment of counsel 

in this court. As a result, the juvenile court took no action on 

father’s motion for reconsideration. We ordered a limited remand to 

the juvenile court for the purpose of hearing and ruling on father’s 

motion for counsel. The juvenile court held a hearing and 
3

concluded that it would have appointed counsel for father had he 

requested it during the pendency of the case. We then granted 

father’s motion for appointment of counsel for the purposes of 

appeal. 

II. Right to Counsel

A. Legal Framework

¶ 6 The parental right to raise one’s child is a fundamental liberty 

interest protected by the Due Process Clause of the Fourteenth 

Amendment. See Santosky v. Kramer, 455 U.S. 745 (1972); see also 

Stanley v. Illinois, 405 U.S. 645, 651 (1972). The Supreme Court 

has noted that “the interest of parents in the care, custody, and 

control of their children . . . is perhaps the oldest of the 

fundamental liberty interests recognized by this Court.” Troxel v. 

Granville, 530 U.S. 57, 65 (2000).

¶ 7 Because this right is fundamental, certain due process 

requirements must be met before it may be extinguished in 

involuntary child-custody proceedings. See L.L. v. People, 10 P.3d 

1271, 1276 (Colo. 2000). Due process, however, is flexible and calls 

only for such procedural protections as the situation

demands. A.M. v. A.C., 2013 CO 16, ¶ 28. Because due process is 
4

situation-specific, it should be viewed in the context of all the 

procedural protections offered to parents. Id. at ¶¶ 28-29.

¶ 8 In Lassiter v. Department of Social Services, 452 U.S. 18 

(1981), the United States Supreme Court held that the Due Process 

Clause does not require “the appointment of counsel in every 

parental termination proceeding.” Id. at 31. After reviewing its 

precedents on the right to appointed counsel, the Court identified a 

“presumption that an indigent litigant has a right to appointed 

counsel only when, if he loses, he may be deprived of his physical 

liberty.” Id. at 26-27.

¶ 9 Accordingly, because in termination proceedings the parent’s 

personal liberty is not at stake, the presumption against a right to 

appointed counsel is weighed against the sum total of the “three 

elements to be evaluated in deciding what [procedural] due process 

requires, viz., the private interests at stake, the government’s 

interest, and the risk that the procedures used will lead to 

erroneous decisions.” Id. at 27. The Supreme Court formulated 

these three elements in Eldridge, 424 U.S. at 334-35, and they are 

now commonly referred to as the Eldridge factors. 
5

¶ 10 In Lassiter, the Supreme Court concluded that while in some 

termination proceedings the Eldridge factors could be weighted in 

such a manner that their sum total was greater than the 

presumption against the right to appointed counsel, this would not 

always be the case. Lassiter, 452 U.S. at 31-32. Therefore, rather 

than require that counsel be provided in all such cases, the 

Supreme Court held that the determination must be made on a 

case-by-case basis. Id. at 26.

¶ 11 In Colorado, an indigent parent has a statutory right to 

court-appointed counsel in dependency and neglect proceedings. 

§ 19-3-202(1), C.R.S. 2018; People in Interest of L.A.C., 97 P.3d 363, 

367 (Colo. App. 2004). However, no such right exists in kinship 

adoption proceedings. Colorado appellate courts have followed

Lassiter and adopted the Eldridge factors in examining the due 

process right to counsel in stepparent adoption cases, In re C.A.O.,

192 P.3d 508, 510-12 (Colo. App. 2008), and relinquishment 

proceedings. In re R.A.M., 2014 COA 68, ¶ 35. And, other 

jurisdictions have recognized a right to counsel in adoption 

proceedings. See e.g., In re Fernandez, 399 N.W.2d 459, 461 (Mich. 

Ct. App. 1986) (“ While we are not willing at this point to create a 
6

rule which would require that probate courts must, in all cases, 

consider sua sponte the appointment of trial counsel in proceedings 

under the Adoption Code involving the termination of parental 

rights, we conclude that, given respondent's stated desire for 

counsel and his lack of funds, coupled with his inability to freely 

appear before the probate court and attend to the litigation, the trial 

court should have considered respondent's communications as a 

request for the appointment of trial counsel.”); In re Adoption of 

A.W.S., 339 P.3d 414, 418 (Mont. 2014) (”although 

Mother did not request counsel formally, we have recognized that 

pro se litigants are not required to use specific words when 

requesting counsel.”). Therefore, we apply the Eldridge factors in 

reviewing this termination proceeding under the kinship adoption 

statute.

B. Request for Counsel

¶ 12 The aunt and uncle contend that a parent must invoke the 

right to counsel and that father failed to do so. We are not 

persuaded.

¶ 13 In R.A.M., a division of this court held that a request for 

counsel under the Due Process Clause does not require a formal 
7

request using specific words. Id. at ¶ 27. The mother voluntarily 

relinquished custody of her child to an adoption agency and the 

court terminated the father’s parental rights under section 

19-5-105(3), C.R.S. 2018. The father, who was in custody, 

appeared at the termination proceeding and indicated that (1) he 

was not prepared to proceed; (2) he had thought he would no longer 

be incarcerated and would have an attorney for the hearing; and (3) 

he did not understand his rights. R.A.M., ¶ 6.

¶ 14 The court did not rule on his request to continue the hearing.

Nor did it ask father whether he wanted or could afford counsel. Id.

at ¶ 7. The division held that the father made an adequate request 

for counsel and, using a Lassiter analysis, had a due process right

to the appointment of counsel. Id. at ¶¶ 33, 38.

¶ 15 In this case, father did not expressly request counsel. Still, in 

his petition to appoint a GAL, father indicated that he was (1) a 

pretrial detainee; (2) indigent; and (3) unable to afford court costs 

associated with the case. He further stated that if he “was not 

incarcerated . . . he would have much greater ability to assure a full 

evaluation would be made and even compel discovery in a contested 

matter.” He said he “figuratively and literally has his hands tied.” 
8

¶ 16 Although father did not formally request counsel, we conclude 

that given his incarceration, indigency, and inability to freely 

appear before the court and attend to the litigation, the juvenile

court should have considered father’s communications as a request 

for the appointment of trial counsel or, at the very least, asked if 

father wanted counsel.

C. Right to Counsel

¶ 17 We now examine the Eldridge factors in the context of this 

case and conclude that father had a due process right to counsel.

¶ 18 In reviewing a parent’s due process right to counsel, a court 

must consider (1) whether the parent’s interest is extremely 

important; (2) whether the state shares with the parent an interest 

in a correct decision and has a relatively weak pecuniary interest; 

and (3) whether the complexity of the proceeding and the incapacity 

of the uncounseled parent could be great enough to make the risk 

of an erroneous deprivation of the parent’s rights unacceptably 

high. C.S. v. People in Interest of I.S., 83 P.3d 627, 636 (Colo. 2004)

(citing Lassiter, 452 U.S. at 31). In other words, “due process 

requires the appointment of counsel only where the parent’s 

interests are at [thei]r strongest, where the state’s interests are at 
9

their weakest, and the risks of error are at their peak.” Id. at 636-

67.

¶ 19 To assess the risk of an erroneous decision, the Court in

Lassiter listed several factors that bear on this question: (1) the 

possibility of self-incrimination; (2) whether expert testimony is 

presented at the hearing; (3) whether the decision involves complex 

points of law; and (4) the sufficiency of the evidence. Lassiter, 452 

U.S. at 32-33.

1. Father’s Interests

¶ 20 First, we consider father’s private interest. Because he had an 

important interest in the companionship, care, custody, and 

management of his child, he had a substantial interest in the 

accuracy of the termination proceeding. See L.L., 10 P.3d at 

1275-76. Given that father was incarcerated on criminal pretrial 

matters, he also faced some risk of self-incrimination. Accordingly, 

we conclude that father’s interests were at their strongest or very 

nearly so. 

2. State’s Interests

¶ 21 Second, we consider the strength of the State’s interests in not 

appointing counsel. The State, of course, had a legitimate 
10

pecuniary interest in not appointing counsel, but, as in Lassiter, we 

conclude that that interest is hardly significant enough to overcome 

an interest as important as a parent’s rights to his or her child. 

Here, the State’s interest in terminating father’s parental rights was 

certainly less urgent than it was in Lassiter because this proceeding 

was initiated and advanced by a private party rather than by the 

State. Regardless, the State still had an interest in the welfare of 

the child, and still “share[d] with the parent an interest in a correct 

decision,” which is more “likely to be obtained through the equal 

contest of opposed interests.” Lassiter, 452 U.S. at 28, 31. 

Therefore, we conclude that the State’s interests in not appointing 

counsel were quite weak, if not at their weakest.

3. Risk of Error

¶ 22 Third, we consider whether the risks of error were at their 

peak. Specifically, we consider “the risk that a parent will be 

erroneously deprived of his or her child because the parent is not 

represented by counsel.” Id. at 28. 

¶ 23 Parents are provided an array of protections in state-initiated 

dependency and neglect termination proceedings. These include:

• notice, § 19-3-602(1), C.R.S. 2018;
11

• right to a separate hearing, id.;

• appointment of counsel if indigent, § 19-3-202(1);

• appointment of an expert if indigent, § 19-3-607(1), C.R.S. 

2018;

• appointment of a guardian ad litem, § 19-3-602(3);

• right to cross-examine adverse parties and call witnesses,

A.M., ¶ 29; and

• the juvenile court’s consideration and elimination of less 

drastic alternatives to terminating parental rights, People in 

Interest of M.M., 726 P.2d 1108, 1123 (Colo. 1986).

¶ 24 However, Colorado law provides few procedural protections in 

kinship adoption proceedings. Under section 19-5-203(1)(j), C.R.S. 

2018 — the kinship adoption statute — a child is available for 

adoption upon (1) submission of an affidavit or sworn testimony of 

the adoptive relative that the birth parents have abandoned the 

child for a period of one year or more or (2) the birth parents have 

failed without cause to provide reasonable support for the child for 

a period of one year or more. As well, the relative seeking the 

kinship adoption must have had physical custody of the child for 

one year or more and the child must not be subject to a pending 
12

dependency and neglect proceeding. Id. And, once a petition for 

adoption is filed, the court only needs to provide notice to the birth 

parents and hold the hearing no sooner than thirty-five days after 

service of the notice is complete. Then it may enter the termination 

order and adoption decree after only a single hearing. Id.

¶ 25 Given the lack of protections in kinship adoption proceedings, 

there is considerable risk of error that can be further compounded

for the parent seeking to defend his or her parental rights without 

the assistance of counsel.

¶ 26 In this case, the risks of error were significant. Because this 

case involves privately initiated termination proceedings, father did 

not enjoy the additional protections provided in state-initiated

termination cases. Furthermore, father was incarcerated 

out-of-state throughout the proceedings. The record shows that 

this led to difficulties, if not a complete inability, to research 

Colorado law or to attend proceedings in person or telephonically. 

He was not able to present his own evidence or subject the aunt 

and uncle’s evidence to cross-examination. While no expert 

testimony or complicated evidence was brought before the court, it 

is possible that, had father been represented by counsel, such 
13

testimony may have been presented. It is also difficult to conclude 

that the case was simple and uncomplicated given father’s 

allegations that the aunt and uncle had previously abused and 

neglected children in their care, and his request that a GAL 

independently investigate the child’s best interests. 

¶ 27 Based on our application of the Lassiter test, we conclude that 

the presumption against the right to counsel was overcome in this 

case and that father had a due process right to counsel. We 

therefore vacate the judgment terminating father’s parental rights.

III. Appointment of a GAL

¶ 28 Because it may arise on remand, we address father’s 

contention that the juvenile court abused its discretion when it 

failed to appoint a GAL. He argues that the court erred in not 

making factual findings on whether the appointment of a GAL was 

in the child’s best interest.

¶ 29 Father requested the appointment of a GAL to make a “full 

investigation into child abuse and neglect” by the aunt and uncle. 

He alleged substance abuse in their home and argued that a 

guardianship or adoption by the child’s adult sister would be in the 

child’s best interest. As previously stated, the juvenile court never
14

ruled on the motion because father did not appear at the 

termination and adoption proceeding. 

¶ 30 A GAL is “a person appointed by a court to act in the best 

interests of a person whom the person appointed is representing in 

proceedings under [the Children’s Code].” § 19-1-103(59), C.R.S. 

2018. Section 19-1-111, C.R.S. 2018, mandates the appointment 

of a GAL in dependency and neglect cases, and section 

19-5-103(9)(a), C.R.S. 2018, permits the juvenile court to appoint a 

GAL under the relinquishment statute under certain 

circumstances. However, the Children’s Code is silent about the 

appointment of a GAL in kinship adoption proceedings under 

section 19-5-203.

¶ 31 Citing People in Interest of A.L.B., 994 P.2d 476 (Colo. App. 

1999), aunt and uncle respond that the failure to appoint a GAL 

was harmless because the evidence was overwhelming that father’s 

parental rights should be terminated and the appointment of a GAL 

would not have changed the outcome. We disagree, concluding that 

their reliance on A.L.B. is misguided. In A.L.B., the GAL completed 

an independent investigation and presented his opinions to the 

court, and the father was able to examine the GAL during the 
15

termination hearing. Id. at 480. On appeal, the father argued that 

his due process rights were violated because he could not call the 

potential adoptive parents as witnesses even though the GAL 

presented extensive information about them. A division of this 

court held that father failed to demonstrate how the lack of direct 

testimony from the adoptive parents was prejudicial. Id. That case 

does not discuss how the lack of appointment of a GAL was 

harmless. 

¶ 32 We also disagree with the aunt and uncle’s assertion that 

father waived his right to the appointment of a GAL because he 

failed to cite legal authority in his motion, obtain a ruling, or 

request a continuance to obtain a ruling. They argue that father, as 

a result, abandoned the motion.

¶ 33 As discussed above, father was unrepresented and indigent, 

lacked access to legal resources, and lacked the ability to appear in 

person at the proceedings. The juvenile court denied his request 

simply because he did not appear in court, which should have been 

of no surprise to the juvenile court as it knew that father was in 

custody out-of-state and not represented by counsel. Further, no 

statutes or case law directs a court to dismiss a motion for the 
16

appointment of a GAL solely because the requesting party failed to

appear. 

¶ 34 Under these circumstances, we conclude that father did not 

waive his request for a GAL. Although the appointment of a GAL is 

not statutorily required, nothing prohibits such appointment should 

a parent fail to appear. On remand, should father or another party 

request the appointment of a GAL, the juvenile court is directed to 

make findings as to whether such appointment is in the child’s best 

interest and, if not, why.

IV. Remaining Issues

¶ 35 Because we vacate the judgment and remand the case for 

further proceedings, we need not address father’s contention that 

the juvenile court failed to make sufficient findings terminating his

parental rights and granting the adoption decree.

V. Conclusion

¶ 36 We vacate the order terminating father’s parental rights and 

remand the case for further proceedings. On remand, the court 

shall determine whether father is currently indigent and appoint 

counsel for him as necessary. 

JUDGE FOX and JUDGE WELLING concur.