CO Code § 19-3-602 (2021)
2021 Colorado Code|Title 19 - Children's Code|Article 3 - Dependency and Neglect|Part 6 - Termination of the Parent-Child Legal Relationship|§ 19-3-602. Motion for Termination - Separate Hearing - Right to Counsel - No Jury Trial

  Termination of a parent-child legal relationship shall be considered only after the filing of a written motion alleging the factual grounds for termination, and termination of a parent-child legal relationship shall be considered at a separate hearing following an adjudication of a child as dependent or neglected. Such motion shall be filed at least thirty days before such hearing. In a county designated pursuant to section 19-1-123, if the child is under six years of age at the time a petition is filed in accordance with section 19-3-501 (2), the court shall hear the motion for termination within one hundred twenty days after such motion is filed, and shall not grant a delay unless good cause is shown and unless the court finds that the best interests of the child will be served by granting a delay in accordance with the requirements of section 19-3-104. (1.5)   Pursuant to the provisions of section 19-1-126, the motion for termination shall:   Include a statement indicating what continuing inquiries the county department of social services has made in determining whether the child who is the subject of the termination proceeding is an Indian child;  (I.5) Include a statement indicating that a grandparent, aunt, uncle, brother, or sister of the child must file a request for guardianship and legal custody of the child within twenty days of the filing of the motion;     Identify whether the child is an Indian child; and    Include the identity of the Indian child's tribe, if the child is identified as an Indian child.       If notices were sent to the parent or Indian custodian of the child and to the Indian child's tribe, pursuant to section 19-1-126, the postal receipts, or copies thereof, shall be attached to the motion for termination and filed with the court or filed within ten days after the filing of the motion for termination, as specified in section (1)(c).       After a motion for termination of a parent-child legal relationship is filed pursuant to this part 6, the parent or parents shall be advised of the right to counsel if not already represented by counsel of record; and counsel shall be appointed in accordance with the provisions of section 19-1-105. The parent or parents shall also be advised that a grandparent, aunt, uncle, brother, or sister of the child must file a request for guardianship and legal custody of the child within twenty days of the filing of the motion. Advisement of right to counsel and the time for a relative to file a request may be done in open court or in a writing served as provided by law for motions and notices in a proceeding under section 19-1-104 (1)(b).    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. If a respondent parent is a minor, a guardian ad litem shall be appointed and shall serve in addition to any counsel requested by the parent.    There shall be no right to a jury trial at proceedings held to consider the termination of a parent-child legal relationship.      History. Source: L. 87: Entire title R&RE, p. 788, § 1, effective October 1. L. 2002: (1.5) added, p. 787, § 7, effective May 30. L. 2003: (1) amended, p. 1226, § 2, effective August 6. L. 2005: (1.5)(a)(I.5) added and (2) amended pp. 94, 93, §§ 3, 2, effective March 31.    Editor's note:   This section was contained in a title that was repealed and reenacted in 1987. Provisions of this section, as it existed in 1987, are similar to those contained in 19-11-103 as said section existed in 1986, the year prior to the repeal and reenactment of this title.   Cross references:   For the legislative declaration contained in the 2002 act enacting subsection (1.5), see section 1 of chapter 217, Session Laws of Colorado 2002.   ANNOTATION   Law reviews. For article, “Representing the Mentally Retarded or Disabled Parent in a Colorado Dependent or Neglected Child Action”, see 11 Colo. Law. 693 (1982). For comment, “Lassiter v. Department of Social Services: Due Process Takes an Ad Hoc Turn -- What's a Parent to Do?”, see 59 Den. L.J. 591 (1982). For casenote, “People in Interest of A.M.D.: Are Parental Rights Terminated Too Easily in Colorado?”, see 55 U. Colo. L. Rev. 423 (1984). For article, “The Role of Parents' Counsel in Dependency and Neglect Proceedings -- Part I”, see 14 Colo. Law. 568 (1985). For article, “The Role of Children's Counsel in Contested Child Custody, Visitation and Support Cases”, see 15 Colo. Law. 224 (1986). For article, “Colorado Moves Toward Full Compliance With Federal Indian Child Welfare Act”, see 31 Colo. Law. 77 (Nov. 2002).   Annotator's note. The following annotations include cases decided under former provisions similar to this section.   Termination of parental rights is a drastic remedy. People in Interest of Baby Girl D., 44 Colo. App. 192, 610 P.2d 1086 (1980).   Such remedy will not be imposed unless all the conditions of this section are met. Where the state failed to file a written motion thirty days prior to the hearing, there was no compliance with the statute. People in Interest of C.L.S., 705 P.2d 1026 (Colo. App. 1985).   When the state seeks to terminate the relationship between a parent and child, it must comply with the due process clause, which requires a fundamentally fair procedure. People ex rel. T.D., 140 P.3d 205 (Colo. App. 2006), cert. denied, 549 U.S. 1020, 127 S. Ct. 564, 166 L. Ed. 2d 411, and 549 U.S. 1024, 127 S. Ct. 565, 166 L. Ed. 2d 419 (2006).   For procedural due process purposes, fairness is assessed by application of the three-factor test set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), which requires consideration of three distinct factors: (1) The private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the state interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. People ex rel. T.D., 140 P.3d 205 (Colo. App. 2006), cert. denied, 549 U.S. 1020, 127 S. Ct. 564, 166 L. Ed. 2d 411, and 549 U.S. 1024, 127 S. Ct. 565, 166 L. Ed. 2d 419 (2006).   Due process requires that respondent father be given notice of termination proceedings, an opportunity to be heard or defend, and to have the assistance of legal counsel. Because respondent had the opportunity to appear through court-appointed counsel, his absence was not prejudicial error. People in Interest of V.M.R., 768 P.2d 1268 (Colo. App. 1989).   Issue of notice and pleading of constitutional proportions. Even if an allegation in a mother's motion for a new trial after the termination of her parental rights in her child was inadequate to raise the issue of adequacy of notice and pleading in a juvenile proceeding, it is of constitutional proportions, and the court of appeals is obliged to address the issue on its merits. People in Interest of Baby Girl D., 44 Colo. App. 192, 610 P.2d 1086 (1980).   Due process requires notice of hearing. Despite the fact that this section contains no notice requirement, due process requires that a parent receive adequate notice of a termination hearing and an opportunity to protect his interests at the hearing. People in Interest of M.M., 726 P.2d 1108 (Colo. 1986).   Absence of notice provision in statute does not violate due process. Where parent had been given adequate notice of the hearing, the absence of a notice provision in the statute is not a violation of due process. People in Interest of M.M., 726 P.2d 1108 (Colo. 1986).   When basis for delay is apparent from the record and parents did not object, trial court's failure to make express findings that there was good cause for delay not error. People ex rel. T.E.H., 168 P.3d 5 (Colo. App. 2007); People ex rel. D.M., 186 P.3d 101 (Colo. App. 2008).   The statutory time in which to conduct a termination hearing is not jurisdictional; therefore, parents' failure to raise the issue in the trial court precludes relief on appeal. People ex rel. T.E.H., 168 P.3d 5 (Colo. App. 2007).   Failure to hold a hearing within 120 days does not warrant reversal because the statutory time in which to conduct a termination hearing is not jurisdictional. People ex rel. D.M., 186 P.3d 101 (Colo. App. 2008).   Section does not require court to appoint counsel, sua sponte, for any parent who does not have counsel at the time that a motion to terminate parental rights is filed. People in Interest of V.W., 958 P.2d 1132 (Colo. App. 1998).   In determining whether an indigent parent has the right to appointed counsel in a termination proceeding resulting from a dependency and neglect adjudication, a court is to consider whether (1) the parent's interest is an extremely important one; (2) the state shares with the parent an interest in a correct decision, has a relatively weak pecuniary interest, and, in some but not all cases, has a possibly stronger interest in informal procedures; and (3) the complexity of the proceeding and the incapacity of the uncounselled parent could be, but would not always be, great enough to make the risk of an erroneous deprivation of the parent's rights insupportably high. In re C.A.O., 192 P.3d 508 (Colo. App. 2008).   These factors should be considered to resolve parent's due process argument in a stepparent adoption proceeding. In re C.A.O., 192 P.3d 508 (Colo. App. 2008).   These factors should also be considered to resolve parent's due process argument in adoption proceedings when parent is incarcerated out of state and has no ability to participate in the proceedings. In re R.L.S., 2019 COA 112 , 451 P.3d 1249.   The decision whether due process calls for the appointment of counsel for indigent parents in stepparent adoption proceedings must be answered in the first instance by the trial court, subject to appellate review. In re C.A.O., 192 P.3d 508 (Colo. App. 2008).   Court erroneously denied father his statutory right to counsel by effectively dismissing counsel by entering a default judgment against father without father being present. The erroneous denial of father's statutory right to counsel during a substantial part of a parental rights termination hearing constituted reversible error per se under the circumstances presented. People ex rel. R.D., 2012 COA 35 , 277 P.3d 889.   Father not denied due process by the court's failure to appoint counsel for him when father concedes that he received written notice of the right to counsel both at the commencement of the dependency and neglect case and when the motion to terminate was filed and concedes that he earned too much money to qualify for state-paid counsel under judicial guidelines but complains that he should have received an application form to establish indigency after the motion to terminate was filed; rather, it was father's duty to request indigency status again, if he so desired. People ex rel. M.C., 94 P.3d 1220 (Colo. App. 2004).   Mother did not have a due process right to counsel during interview with expert witness in dependency and neglect proceedings. A party to a dependency and neglect proceeding is not entitled to the same due process rights as a defendant in a criminal proceeding. People in Interest of K.N.B.E., 2019 COA 157 , 457 P.3d 140.   Court must follow the prejudice test in Strickland v. Washington, 466 U.S. 668 (1984), for ineffective assistance of counsel claims in termination of parental rights proceedings. To establish prejudice from counsel's deficient performance in a dependency and neglect proceeding, a party must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. People in Interest of A.R., 2020 CO 10, 456 P.3d 1266; People in Interest of A.L.W, 2020 CO 11, 456 P.3d 1284.   This section does not violate the requirement of equal protection of the laws by requiring appointment of a guardian ad litem for a minor parent but not for a mentally disabled parent. People in Interest of M.M., 726 P.2d 1108 (Colo. 1986).   It was not a violation of father's equal protection right when sheriff failed to transport him at state expense to parental termination hearing. No group of individuals is entitled by law to be transported to these hearings. Indigent non-incarcerated individuals are thus not granted special preference over indigent incarcerated individuals. Hence, the trial court ruling does not create a classification nor have special impact on father. People in Interest of C.G., 885 P.2d 355 (Colo. App. 1994).   C.R.C.P. 56 is applicable in a termination of parental rights proceeding under the Colorado Children's Code. Because termination of the parent-child relationship is a drastic remedy that affects a parent's liberty interest, a court deciding a summary judgment motion seeking to terminate parental rights must apply the standard of clear and convincing evidence to the applicable statutory criteria. People in Interest of A.E., 914 P.2d 534 (Colo. App. 1996).   Service requirements of C.R.C.P. 5(d) apply to motion for termination of parental rights. People in Interest of M.M., 726 P.2d 1108 (Colo. 1986).   The context of subsection (3) requires that “minor” be defined as a person 18 years of age or older. Defining “minor” in subsection (3) as a person under the age of 21 would be inconsistent with § 13-22-101 and the definitions of “child” and “adult” in the Colorado Children's Code. People ex rel. L.A.C., 97 P.3d 363 (Colo. App. 2004).   The definition of a “minor” in § 2-4-401 (6) is not applicable in subsection (3) of this section because “the context otherwise requires”. People ex rel. L.A.C., 97 P.3d 363 (Colo. App. 2004).   In a dependency and neglect case under this article 3, a parent's parental rights may be terminated only through the Parent-Child Legal Relationship Termination Act of 1987, §§ 19-3-601 to 19-3-612 . People in Interest of E.M., 2016 COA 38 M, 417 P.3d 843 417 P.3d 843, aff'd sub nom. People in Interest of L.M., 2018 CO 34, 416 P.3d 875.   Applied in People in Interest of A.M.D., 648 P.2d 625 (Colo. 1982); People in Interest of C.A.K., 652 P.2d 603 (Colo. 1982); People in Interest of P.N., 663 P.2d 253 (Colo. 1983); People in Interest of M.H., 683 P.2d 807 (Colo. App. 1984); People in Interest of L.L., 715 P.2d 334 (Colo. 1986).