A Montrose County judge terminated a woman’s legal rights over her child after improperly denying her request for an attorney, Colorado’s second-highest court decided on Thursday.
Under Colorado law, parents who are involved in child neglect cases have the right to legal representation at “every stage of the proceedings.” They can, however, choose to proceed by themselves.
A three-judge panel for the Court of Appeals acknowledged the mother, identified as M.O., was not happy with her appointed lawyer and wanted to go without representation in the near term. But M.O. did not give up her right to counsel altogether, and explicitly said she hoped she could work better with a new attorney.
“Even accepting that mother repeatedly expressed dissatisfaction with her lawyer,” wrote Judge Elizabeth L. Harris in the Sept. 7 opinion, “a parent’s mere disagreement with initial counsel and a request for new counsel months in advance of the termination hearing is not conduct that manifests an intent to relinquish the right to counsel.”
Montrose County opened a child neglect case against M.O. and her infant in May 2021, based on concerns about M.O.’s behavior and unsanitary home conditions. She received an appointed attorney, but repeatedly voiced her frustration with his assistance.
M.O. agreed to continue working with her lawyer, but in late 2021 he moved to withdraw. District Court Judge D. Cory Jackson allowed him to do so.
When M.O. asked for a new lawyer, Jackson said he would consider it, but M.O. needed to fill out an application and “indicate to me what things that you’re going to be able to do to engage with an attorney that will be different this time.”
M.O. completed the application and provided a statement to Jackson saying she would work better with a female attorney. Jackson denied the request for a new lawyer because M.O. did not fully explain “how she will engage with an attorney.”
The county moved to terminate M.O.’s parental rights. Jackson did not warn M.O. that she would now have to represent herself at the hearing. On the day of the hearing, M.O. did not show up and Jackson terminated her rights.
The appellate panel examined whether M.O. had voluntarily given up her right to counsel under state law, and determined she did not. While M.O. had issues with her original appointed lawyer, Harris noted that M.O. at various points anticipated she would have another attorney to work with — including in the statement Jackson had her write.
Regarding that statement, “it is not clear to us that the court had the authority to add a … requirement to the standard form for appointed counsel,” Harris observed.
Even if Jackson could make M.O. explain how she would get along better with another lawyer, it is not the case that a parent’s disagreement with her original attorney justifies self-representation on its own, the panel found.
“Otherwise, in every instance where the parent requests substitute counsel based on some disagreement with her first lawyer, she has waived her right to be represented,” Harris wrote.
The panel ordered Jackson to conduct a new termination hearing.
The case is People in the Interest of M.G.O.
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