Right to counsel

Generally: Right to counsel if indigent

Indigent parents have the right to counsel in abuse/neglect matters at every stage of the proceedings, which includes the termination of parental rights (TPR). See Colo. Rev. Stat. § 19-3-202(1).  And the court must advise the parent of their right to counsel at their first appearance. Id. (“At the first appearance of a respondent parent, guardian, or legal custodian, the court shall fully advise the respondent of the respondent’s legal rights, including the right to a jury trial, the right to be represented by counsel at every stage of the proceedings, and the right to seek the appointment of counsel through the office of respondent parents’ counsel established in section 13-92-103, if the respondent is unable to financially secure counsel on the respondent’s own.”).

Although the language “the right to be represented by counsel” cannot be assumed to create a right to appointed counsel, case law confirms that there is a right to counsel.  See e.g., People ex rel. Z.P., 167 P.3d 211, 213 (Colo. App. 2007) (“An indigent parent has a statutory right to court-appointed counsel in a dependency and neglect proceeding.”).  In In re J.B, the court stated that because “[p]roceedings in dependency or neglect affect important rights . . . there must be substantial compliance with statutory requirements for the conduct of those proceedings.” 702 P.2d 753 (Colo. App. 1985).  The court then found that the Legislature’s use of the term “shall” indicated that, under the statutes at issue, the provision of counsel was mandatory upon the parent’s request, and that the court’s failure to provide counsel for a portion of the review proceedings in the instant case did not “constitute substantial compliance” with the statute.

If for some reason the parent is not already represented by counsel at the time a motion for TPR is filed, the court must re-advise the parent of their right to counsel per Colo. Rev. Stat. § 19-3- 602(2):

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.

Waiver

Although “[w]aiver of a statutory right to counsel must be voluntary”, the right can be waived, including impliedly. People in Interest of M.G.O., 22CA1404 (Colo. App. Sept. 7, 2023) (unpublished) (citing People in Interest of M.G., 128 P.3d 332, 334 [Colo. App. 2005] and People in Interest of B.H., 488 P.3d 1026, 1040 [Colo. 2021]).  Waiver of counsel on appeal is a mixed question of law and fact. Id. at para. 13 (internal citations omitted).  However, where the right is not waived and there was a denial of counsel, the error is “reversible per se,” a standard somewhere between structural error and harmless error. Id. (citing People v. Interest of R.D., 277 P.3d 889 [Colo. App. 2012]).

Standard on appeal

In People in Interest of M.G.O., the appellate court applied the reversible per se standard to reverse a TPR judgement and remand the matter where the mother was unrepresented at the TPR hearing.  Though the trial court ordered appointed counsel for mother at her first appearance, mother repeatedly told the court that she desired new counsel in the months that followed, claiming she felt that she could work better with a woman attorney, and at one point requested to proceed to pro se, but only until she could obtain a new attorney.  Two months after the child was adjudicated dependent but before a motion for TPR was filed, mother’s attorney filed a motion to withdraw based on mother’s repeated requests, which the trial court granted without a hearing and without advising mother of her right to counsel under the statute.  The court directed mother to file an application for counsel along with a letter explaining how she would “be able to engage with an attorney [differently] this time.”  Although mother tried to comply with the court’s requested filings and continued to ask for new appointed counsel, the trial court determined her letter did not meet its requirements, and the TPR hearing was ultimately held in her absence and without counsel.  The appellate court found these actions insufficient to constitute waiver, reasoning that–even if the trial court had authority to require a filing in addition to the application for court-appointed counsel–the letter mother provided, if anything, demonstrated that she did not waive her right to counsel.  Furthermore, her request to proceed pro se was very clear in that she only wished to appear without counsel until a new attorney could be obtained.

Incarcerated parents: Right to counsel regardless of indigency

In May 2023, Colorado enacted SB 39, which amended Colo. Rev. Stat. § 19-3-202(1) to require the court to appoint counsel for respondents who are incarcerated or involuntarily committed unless “the court determines the respondent is able to financially secure counsel on the respondent’s own or the respondent chooses to proceed without counsel.”  In its Legislative declaration, the general assembly acknowledged that “[t]he incarceration of a parent disproportionately affects children of color …” and emphasized that “decisions to terminate parental rights should be based on the needs of the child, and not solely on the status of the parent as incarcerated or the length of the sentence.” S.B. 39, 74th Gen. Assemb., Reg. Sess. (Colo. 2023).

Parents and custodians of Indian children

In May 2025, the Colorado legislature enacted the HB 1204, the “Colorado Indian Child Welfare Act”, which requires the court to appoint counsel for an Indian child’s respondent parent or Indian custodian in a dependency and neglect action, regardless of indigency.  It would also require counsel for the parent or custodian in “any removal placement, or termination of parental rights proceeding, outside of a dependency and neglect proceeding” if indigent.

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Please note that per Colo. R. App. P. 35 unpublished opinions are not precedential.