Discretionary appointment of counsel

The mechanisms through which guardianship of a minor[1] may be established include “appointment by a parent or guardian by will or written instrument or upon appointment by the court.” Colo. Rev. Stat. Ann. § 15-14-201.  Even where a parent or guardian appoints a guardian by signed document, the court must confirm the appointment. See Colo. Rev. Stat. § 15-14-202(6).  Prior to judicial confirmation of an appointment, the minor (or another person, as discussed below) may object or refuse to consent to a guardianship. See e.g., § 15-14-203(1).  In fact, consent is required for minors who are 12 years of age or older per § 15-14-202(2); see also § 15-14-203(2) (providing that such a minor “has the right to consent or refuse to consent to [the] appointment”).

Despite these provisions, there is no right to counsel for minors who object or fail to consent.  Rather, appointment is discretionary under Colo. Rev. Stat. § 15-14-205(3) (“If the court determines at any stage of the proceeding, before or after appointment, that the interests of the minor are or may be inadequately represented, it may appoint a lawyer to represent the minor, giving consideration to the choice of the minor if the minor has attained twelve years of age.”).

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[1] The Colorado probate code defines a “Minor” as “an unemancipated individual who has not attained eighteen years of age; except that in proceedings pursuant to section 15-14-204(2.5) only, ‘minor’ means an unmarried individual who has not attained twenty-one years of age.” Colo. Rev. Stat. Ann. § 15-14-102(8) (emphasis added). Section 15-14-204(2.5) states:

(a) For purposes of this subsection (2.5) only, “minor” means an unmarried individual who has not attained twenty-one years of age.
(b) The court may enter an order appointing a guardian of a minor, as defined in subsection (2.5)(a) of this section, and a determination of whether the minor shall be reunified with a parent or parents, when the requirements of subsection (2) of this section are met, the order is in the minor’s best interests, and:

(I) The minor has not attained twenty-one years of age;
(II) The minor is residing with and dependent upon a caregiver; and
(III) A request is made for findings from the court to establish the minor’s eligibility for classification as a special immigrant juvenile pursuant to 8 U.S.C. sec. 1101(a)(27)(J).

(c) If a request is made for findings establishing the minor’s eligibility for classification as a special immigrant juvenile under federal law and the court determines there is sufficient evidence to support the findings, the court shall enter an order, including factual findings and conclusions of law, determining that:

(I) The minor has been placed under the custody of an individual appointed by the court through the appointment of a guardian;
(II) Reunification of the minor with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis found pursuant to state law. For purposes of this subsection (2.5)(c)(II), “abandonment” includes, but is not limited to, the death of one or both parents.
(III) It is not in the best interests of the minor to be returned to the minor’s or parents’ previous country of nationality or country of last habitual residence.