Colorado § 19-3-202 - Right to counsel and jury trial.

§ 19-3-202. Right to counsel and jury trial.

(1) 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. The court shall appoint counsel for a respondent who is incarcerated in a department of corrections facility, a private correctional facility under contract with the department of corrections, or a jail; held in federal custody; 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. The court shall fully explain to the respondent the informational notice of rights and remedies for families prepared pursuant to section 19-3-212 and shall recommend that the respondent discuss such notice with the respondent's counsel. Further, the court shall advise the respondent of the minimum and maximum time frames for the dependency and neglect process, including the minimum and maximum time frames for adjudication, disposition, and termination of parental rights for a child who is under six years of age at the time the petition is filed in a county designated pursuant to section 19-1-123. Nothing in this section limits the power of the court to appoint counsel prior to the filing of a petition for good cause.

(2) The petitioner, any respondent, the guardian ad litem for the child, or a child who is twelve years of age or older may demand a trial by jury of six persons at the adjudicatory hearing pursuant to section 19-3-505, or the court, on its own motion, may order such a jury to try any case at the adjudicatory hearing pursuant to section 19-3-505.

Source: L. 87: Entire title R&RE, p. 761, § 1, effective October 1. L. 2003: (1) amended, p. 1226, § 3, effective August 6. L. 2014: (1) amended, (SB 14-203), ch. 281, p. 1141, § 2, effective August 6. L. 2015: (1) amended, (HB 15-1149), ch. 116, p. 352, § 4, effective April 24. L. 2022: (2) amended, (HB 22-1038), ch. 92, p. 434, § 8, effective January 9, 2023. L. 2023: (1) amended, (SB 23-039), ch. 191, p. 953, § 3, effective January 1, 2024.

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 19-1-106 as said section existed in 1986, the year prior to the repeal and reenactment of this title.

Cross references: For the legislative declaration in HB 22-1038, see section 1 of chapter 92, Session Laws of Colorado 2022. For the legislative declaration in SB 23-039, see section 1 of chapter 191, Session Laws of Colorado 2023.

ANNOTATION

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

Parent has a statutory right to counsel at a statutorily prescribed proceeding for review of out-of-home placements of children. People in Interest of J.B., 702 P.2d 753 (Colo. App. 1985).

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.

The waiver of a statutory right to counsel in a termination proceeding must be voluntary, but it does not need to be knowing and intelligent. A person impliedly waives a statutory right to counsel through actions that clearly manifest an intent to relinquish the right. People in Interest of B.H., 2021 CO 39, 488 P.3d 1026.

A father who threatens to kill his first court-appointed attorney and fails to cooperate with his second court-appointed attorney impliedly waives his right to counsel. People in Interest of B.H., 2021 CO 39, 488 P.3d 1026.

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.

Respondents in a proceeding to terminate parental rights, having made a prior demand, were entitled to a jury trial at the adjudicatory hearing on remand. People in Interest of M.B., 188 Colo. 370, 535 P.2d 192 (1975).

Respondent father waived his right to a jury trial by failing to appear at first proceeding and needed to positively assert a demand for a jury trial in a subsequent proceeding in the same case. People in Int. of Kay.W., 2025 CO 48, 570 P.3d 1059.

Indigent parent is not entitled to appointment of expert witness prior to dependency and neglect hearing. People in Interest of S.B., 742 P.2d 935 (Colo. App. 1987).

Parent was entitled to court-appointed counsel at the remand and appellate stages of the proceedings. Parent's right to counsel in dependency and neglect proceedings at the trial court level and on appeal are statutory in nature. Father timely requested counsel at both stages, and the court determined that father was indigent. Trial court erred in declining to appoint counsel. People ex rel. A.H., 271 P.3d 1116 (Colo. App. 2011).

An appointed lawyer for an indigent parent during dependency and neglect proceedings cannot withdraw solely because the lawyer determines the appeal to be without merit. Rather the lawyer must nonetheless file petitions on appeal in accordance with appellate rules. A.L.L. v. People, 226 P.3d 1054 (Colo. 2010).

Although father did not formally request counsel, 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 — his petition for appointment of a guardian ad litem — as a request for the appointment of trial counsel or, at the very least, asked if father wanted counsel. In re R.L.S., 2019 COA 112, 451 P.3d 1249.

Failure to appoint counsel at initial detention hearing of dependency and neglect proceeding for mother who declined to invoke right to counsel at such hearing was not error requiring reversal of termination of parental rights. People in Interest of L.L., 715 P.2d 334 (Colo. 1986); People in Interest of V.W., 958 P.2d 1132 (Colo. App. 1998).

A person seeking court-appointed counsel bears the burden of establishing his or her indigency. Waters v. Dist. Ct., 935 P.2d 981 (Colo. 1997).

The trial court abused its discretion when it failed to consider any factors other than whether a respondent was automatically eligible under the guidelines and made no findings of fact regarding the point at which the respondent's indigency status and eligibility changed. Waters v. Dist. Ct., 935 P.2d 981 (Colo. 1997).

The court is required to consider the respondent's complete financial circumstances by allowing him an opportunity to establish that he lacks the necessary funds, on a practical basis, to retain competent counsel. Waters v. Dist. Ct., 935 P.2d 981 (Colo. 1997).

Attorney acting as court-appointed counsel pursuant to a valid court order is not required to submit evidence of the client's indigency status with her motion for payment of attorney fees and costs as appointed counsel. Waters v. Dist. Ct., 935 P.2d 981 (Colo. 1997).

The trial court abused its discretion by redetermining respondent's eligibility for court appointed counsel and finding him retroactively ineligible. The court could not change respondent's status without allowing him an opportunity to produce evidence of his total financial circumstances including his practical ability to retain competent counsel. Waters v. Dist. Ct., 935 P.2d 981 (Colo. 1997).

In determining whether to authorize payment of a fee in excess of established maximum total fee, a judge should consider whether special circumstances required additional time be spent on the case, including but not limited to a consideration of whether the case required extensive legal research or factual investigation. Waters v. Dist. Ct., 935 P.2d 981 (Colo. 1997).

An order for payment of fees in excess of the maximum must include a statement of reasons setting forth the specific special circumstances that justify the excess amount. Waters v. Dist. Ct., 935 P.2d 981 (Colo. 1997).

Until the client is found to be ineligible, a court-appointed attorney will be paid by the state and that the client will be required to reimburse the state if he subsequently is found to be ineligible for court-appointed counsel. Waters v. Dist. Ct., 935 P.2d 981 (Colo. 1997).

In general, a court-appointed attorney is to be awarded fees and costs at state expense for services rendered from the date of appointment to the date that the court enters an order finding the defendant to be ineligible. Waters v. Dist. Ct., 935 P.2d 981 (Colo. 1997).

However, the trial court retains discretion to determine that the state will pay attorney fees and costs only up to the time at which the client's indigency status changed if the court makes specific findings of fact regarding circumstances that justify such a disposition such as fraud or misrepresentation on the part of appointed counsel. Waters v. Dist. Ct., 935 P.2d 981 (Colo. 1997).

If the trial court determines that a person became ineligible at a previous date, the court shall order that the person reimburse the state in whole or in part for the expenses and costs it incurred on that person's behalf. Waters v. Dist. Ct., 935 P.2d 981 (Colo. 1997).

Costs may be awarded against the state where there is an express legislative provision for costs against the state or where the state is in the position of a party litigant against whom costs are otherwise legislatively authorized to be awarded. Waters v. Dist. Ct., 935 P.2d 981 (Colo. 1997).

Attorneys have standing to raise claims in the context of other proceedings, even though they are nonparties and other procedural avenues may be available to them to pursue their claims. People ex rel. J.L., 121 P.3d 315 (Colo. App. 2005).

Attorney, therefore, has standing to raise his or her claim that trial court erred by denying his or her motion to be relieved of appointment to represent mother. People ex rel. J.L., 121 P.3d 315 (Colo. App. 2005).

In general, attorney fees are not recoverable absent a specific contractual, statutory, or procedural rule providing otherwise. Waters v. Dist. Ct., 935 P.2d 981 (Colo. 1997).

And, even when attorney fees are expressly authorized, the court has required some indication of legislative intent to allow such an award against the government. Waters v. Dist. Ct., 935 P.2d 981 (Colo. 1997).

The right of a parent to be represented by counsel "at every stage of the proceedings" does not apply to the department of human services' administrative review, which does not include a child's parents. Mother's due process rights were protected by her opportunity to challenge the department's placement recommendation in court at a motions hearing and a termination of rights hearing, to which she did not avail herself. People in Interest of C.J., 2017 COA 157, 410 P.3d 839.

The right to counsel does not apply to interview with qualified expert witness retained pursuant to the Indian Child Welfare Act (ICWA). Mother did not have a due process right to counsel during the interview 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.