19-1-105. Right to counsel and jury trial.

Statute text

(1) All hearings, including adjudicatory hearings, shall be heard by a judge or magistrate without a jury, except as otherwise provided by this title.

(2) The right to counsel is provided in this title 19. Nothing in this title 19 prevents the court from appointing counsel in addition to a guardian ad litem for a child if it deems representation by counsel necessary to protect the interests of the child.

(3) In proceedings pursuant to the "School Attendance Law of 1963", article 33 of title 22, the court may appoint a guardian ad litem for the child, unless the child is already represented by counsel. If the court finds that it is in the best interest and welfare of the child, the court may appoint both counsel and a guardian ad litem. The court shall make information regarding the truancy process available to the child's parent or guardian ad litem.

History

Source: L. 87: Entire title R&RE, p. 700, 1, effective October 1. L. 91: (1) amended, p. 360, 25, effective April 9. L. 2003: (2) amended, p. 1320, 1, effective August 6. L. 2022: (2) amended and (3) added, (HB 22-1038), ch. 92, p. 432, 5, effective January 9, 2023.

Annotations

Editor's note: This section was contained in a title that was repealed and reenacted in 1987.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 and 19-1-107 as said sections existed in 1986, the year prior to the repeal and reenactment of this title.

Annotations

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

Annotations

 

ANNOTATION

Annotations

Law reviews. For note, "In re Gault and the Colorado Children's Code", see 44 Den. L.J. 644 (1967). 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 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, "Final Draft of Proposed GAL Standards of Practice", see 22 Colo. Law. 1907 (1993). For article, "House Bill 22-1038: Colorado Continues its History of Expanding Children's Voice and Representation in D&N Proceedings", see 52 Colo. Law. 34 (Apr. 2023).

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

State's interest in juvenile proceedings stems from its role as parens patriae, and that interest is of significance both in the context of delinquency cases, and in neglect and dependency matters. McCall v. District Court ex rel. County of Montezuma, 651 P.2d 392 (Colo. 1982).

Trial by jury in the adjudicative stage of a juvenile proceeding is not required by the due process clause of the fourteenth amendment. People in Interest of T.A.W., 38 Colo. App. 175, 556 P.2d 1225 (1976).

And six-member jury is sufficient. Due process of law does not mandate that a juvenile be tried by a 12-member jury in connection with an adjudicatory hearing under the Colorado Children's Code even though the code limits the jury to six members. A six-member jury satisfies due process requirements. People in Interest of T.A.W., 38 Colo. App. 175, 556 P.2d 1225 (1976).

Jury demand right extended to all parties of record to delinquency proceeding. The general assembly's selection of "any interested party" stands out as a purposeful choice to extend the right of jury demand to all parties of record to the delinquency proceeding. S.A.S. v. Dist. Court, 623 P.2d 58 (Colo. 1981).

And juvenile has no veto power over state's demand. There is no indication of an intent to bestow on the juvenile a veto power over the state's jury demand through a statutory right of jury waiver. S.A.S. v. Dist. Court, 623 P.2d 58 (Colo. 1981).

The putative father has a statutory right to a jury trial in determining the issue of paternity. People in Interest of L.B., 29 Colo. App. 101, 482 P.2d 1010 (1970), aff'd, 179 Colo. 11, 498 P.2d 1157 (1972).

There is no right to a jury trial in a support hearing such as set forth in article 7. People in Interest of L.B., 29 Colo. App. 101, 482 P.2d 1010 (1970), aff'd, 179 Colo. 11, 498 P.2d 1157 (1972).

Substantial compliance required. Proceedings in dependency or neglect affect important rights, so there must be substantial compliance with statutory requirements for conduct of those proceedings. People in Interest of A.M.D., 648 P.2d 625 (Colo. 1982); C.S. v. People, 83 P.3d 627 (Colo. 2004).

Substantial compliance must appear of record. These proceedings are statutory and as they affect substantial rights there must be a substantial compliance with the provisions of the legislative enactment. Such a compliance must appear of record. It cannot be ignored. Storey v. Shumaker, 131 Colo. 131, 279 P.2d 1057 (1955).

Any person proceeded against in court is entitled to counsel of his or her own choosing, and the selection of such counsel cannot be dictated by those who instigate the action. Selby v. Jacobucci, 142 Colo. 52, 349 P.2d 567 (1960).

In a proceeding following a complaint filed by parents of an allegedly delinquent minor 17 years of age, who had selected her own counsel to represent her, an order of the trial court incorporating the parents' request that such counsel be prohibited from appearing or representing such minor was in excess of its jurisdiction. Selby v. Jacobucci, 142 Colo. 52, 349 P.2d 567 (1960).

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).

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).

Due process requires the appointment of counsel only where the parent's interests are at their strongest, where the state's interests are at their weakest, and where the risks of error are at their peak, and because risk of error was low, state's interest in achieving permanency for children was high, and hearing was not characterized by troublesome points of law, either substantive or procedural, parent's fundamental right to assistance of counsel was not implicated and court was not required to give parent a detailed advisement regarding her decision to appear pro se. C.S. v. People, 83 P.3d 627 (Colo. 2004).

In a direct appeal from a judgment terminating parental rights, an appellate court may consider a claim of ineffective assistance of counsel based on counsel's performance at an adjudicatory hearing only when the party claiming ineffective assistance did not have a full and fair opportunity to assert such a claim immediately after his or her child was adjudicated dependent and neglected. People in Interest of A.R., 2020 CO 10, 456 P.3d 1266.

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.

Standing to appear of party entrusted with care of child. The Colorado Children's Code has not changed the basic law of the state that a grandparent to whom the child has been entrusted for care has status to appear and protest the actions of the court relative to the child. C.B. v. People in Interest of J.T.B., 30 Colo. App. 269, 493 P.2d 691 (1971).

Guardian includes persons vested by court with duty and authority to make major decisions affecting a child. S.A.S. v. Dist. Court, 623 P.2d 58 (Colo. 1981).

"Legal custodian" does not encompass a state agency or employee thereof to which a delinquent child has been committed. People v. McAnally, 192 Colo. 12, 554 P.2d 1100 (1976).

Legal custodian would be an interested party to a delinquency action. S.A.S. v. Dist. Court, 623 P.2d 58 (Colo. 1981).

State is a party of record to a delinquency proceeding. S.A.S. v. Dist. Court, 623 P.2d 58 (Colo. 1981).

Juvenile witness protected against self-incrimination. The fifth amendment, applicable to the states by operation of the fourteenth amendment, protects a child against self-incrimination under juvenile delinquency laws. The privilege of declining to testify is not a matter which lies within the exclusive discretion of a juvenile witness. The judge makes the decision based upon his understanding of the circumstances of the case. People v. Ledesma, 171 Colo. 407, 468 P.2d 27 (1970).

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).

Error for trial judge to refuse a jury trial and fail to notify defendants or parents or friends present, that a trial by jury might be had if they wished it. Kahm v. People, 83 Colo. 300, 264 P. 718 (1928).

Procedure of jury trial before referee improper. The trial court exceeded its jurisdiction in prescribing instead of a jury trial, and in lieu of a trial before a master or referee, a procedure whereby the parties were to have a "jury trial in all respects" but conducted by the referee, where it was agreed that the referee and the court would be bound by the jury verdict, although the jury was described as being "an advisory one". Maniatis v. Karakitsios, 161 Colo. 378, 422 P.2d 52 (1967).

Statute as basis for jurisdiction. People v. Flanigan, 191 Colo. 43, 536 P.2d 41 (1975).

Applied in Rose v. People, 111 Colo. 220, 139 P.2d 261 (1943); In re People in Interest of M.M., 184 Colo. 298, 520 P.2d 128 (1974); People in Interest of R.A.D., 196 Colo. 430, 586 P.2d 46 (1978); Lovato v. Dist. Court, 198 Colo. 419, 601 P.2d 1072 (1979); People in Interest of V.A.E.Y.H.D., 199 Colo. 148, 605 P.2d 916 (Colo. 1980); People in Interest of E.A., 638 P.2d 278 (Colo. 1981); People in Interest of R.M.S., 651 P.2d 377 (Colo. 1982).