Background
Shortly after A.C.S. was born, the child’s mother, A.S., and father jointly decided to leave the child in the primary care of the maternal grandparents. Almost five years later, the grandparents filed petitions for kinship adoption and to terminate both parents’ parental rights under section 19-5-203(1)(j), C.R.S. 2026. Mother was served with the petition while receiving treatment at an inpatient substance dependence treatment center. She did not appear at the termination hearing, where the grandparents and father testified that she remained in inpatient treatment.
After brief testimony, the Conejos County juvenile court found that mother and father had abandoned the child and terminated their parental rights. Mother promptly moved under C.R.C.P. 60(b) to set aside the judgment. She asserted that she had prepared written pleadings and a request for court-appointed counsel, gave those documents to her therapist with a request that they be submitted to the court, and reasonably believed they had been filed. The documents were not received and therefore were not considered by the juvenile court. The court denied the Rule 60(b) motion without addressing its merits and instructed mother that she had twenty-one days to appeal.
Mother appealed the judgment terminating her parent-child legal relationship with the child. She argued that the juvenile court erred by conducting the termination hearing in her absence and by failing to appoint an attorney. The appellees did not appear in the Court of Appeals, and mother proceeded pro se. The opinion was announced as not published pursuant to C.A.R. 35(e).
The Court’s Holding
Division I agreed that the juvenile court violated mother’s due process rights. Although her requests for counsel and a continuance were not received before the hearing, the court elected to apply the miscarriage-of-justice exception to the preservation requirement. It emphasized that this exception has a high bar and narrow scope, applying in limited circumstances where an unpreserved trial-court error deprives a parent of a meaningful opportunity to participate. The court characterized this as one of the rare civil cases involving unusual or special circumstances requiring review to prevent an unequivocal and manifest injustice.
The court and parties knew mother remained in inpatient treatment when the hearing occurred. The juvenile court’s suggestion that mother was “likely at the stage where she could call out to appear for court” had no record support. The court also relied on its failure to receive pleadings from mother, even though she had attempted to provide them but could not personally file them while in treatment. In those circumstances, the appellate court concluded, holding a perfunctory hearing in her absence wholly deprived her of an opportunity to participate.
Applying the three-factor framework from In re R.L.S., 2019 COA 112, ¶ 18, the court held that mother’s interest was extremely important, the State shared an interest in a correct decision while having a weak interest in avoiding appointed counsel in this privately initiated proceeding, and the risk of erroneous deprivation was unacceptably high. Mother could not present evidence or cross-examine the grandparents’ witnesses. Her participation was especially important because termination rested solely on abandonment, which requires an inquiry into parental intent. The error was not harmless. The court therefore vacated the judgment terminating mother’s parental rights and the decree of adoption, remanded for a new termination hearing, and directed the juvenile court to determine whether mother is currently indigent and, if so, appoint counsel. It did not address her separate challenge to the abandonment finding.
Key Takeaways
- The miscarriage-of-justice exception permitted review despite the juvenile court’s failure to receive mother’s requests, but the court stressed the exception’s narrow, circumstance-specific scope.
- Conducting a perfunctory termination hearing while mother was known to remain in inpatient treatment deprived her of a meaningful opportunity to participate.
- The R.L.S. factors supported appointment of counsel, particularly given the risks in kinship adoption proceedings and the intent-focused abandonment inquiry.
- The court vacated mother’s termination judgment and the adoption decree and ordered a new hearing; it did not decide whether the evidence supported abandonment.
Why It Matters
The decision underscores that notice alone does not ensure fundamentally fair termination procedures when the court knows a parent cannot attend or file pleadings because of inpatient treatment. It also explains how the due-process right-to-counsel analysis operates in privately initiated kinship adoption cases, where procedural protections may be limited and the State’s pecuniary interest is weak.
The remand instructions are concrete: the juvenile court must hold a new termination hearing, assess mother’s current indigency, and appoint counsel if she is indigent. The opinion leaves the underlying abandonment determination for the juvenile court and does not establish a universal rule that every missed filing or absent parent requires appellate review.