Representing Respondent Parents Measuring the Impact of the Orpc
| Publication year | 2017 |
| Pages | 34 |
JUVENILE LAW
By RUCHI KAPOOR.
This article provides an overview of child welfare proceedings in Colorado and the role played by respondent parents’ counsel in those proceedings. The article also discusses recent efforts in Colorado to centralize oversight of respondent parent attorneys and the impact of the creation of the Office of Respondent Parents’ Counsel.
As Justice Stevens observed more than 30 years ago, depriving a parent of the right to raise his or her child is often “more grievous” than a prison sentence.[1] Indeed, the U.S. Supreme Court has recognized that the “Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”[2] This is the constitutional right at the heart of child welfare proceedings under CRS Title 19, Article 3.
Partially in recognition of this due process guarantee, the General Assembly created an independent state agency to oversee attorneys representing indigent parents in child welfare proceedings, effective July 1, 2016.[3]
This article provides a general overview of a child welfare case, discusses the creation of the Office of Respondent Parents’ Counsel (ORPC), and describes how the ORPC has improved representation for respondent parents in child welfare proceedings since taking oversight on July 1, 2016.
Overview of Child Welfare Proceedings
The accompanying flowchart illustrates the way a child welfare case moves through the court process.
Child welfare proceedings are initiated by reports of child abuse or neglect to county departments of human services (departments).[4] After investigation, the county department must assess the abuse or neglect involved and the appropriate response to the report, pursuant to rules adopted by the state board of social services.[5] If the county believes it is necessary for the protection of the subject child, the county is authorized to immediately remove the child from the home or to exercise protective supervision while the child remains in the home.[6]
If a child is removed from the home, the county department must inform the appropriate juvenile court and an emergency or shelter care hearing must be held within 72 hours.[7] At the shelter care hearing, after conducting its own investigation in court, the court may authorize the fling of a petition in dependency or neglect.[8] The petition must name as respondents “all persons alleged by the petition to have caused or permitted the abuse or neglect alleged in the petition,” and the court must then issue formal summonses to each named respondent.[9]
Because the shelter care hearing is often where parents make their first appearance in court, it is also where a parent’s right to counsel attaches.[10] After the initial hearing, the case proceeds to the adjudicatory phase, which can be set for either a court hearing or a jury trial.[11] At the adjudicatory hearing, the fact-finder considers whether the allegations of the petition are supported by a preponderance of the evidence.[12] If the court adjudicates the child or children dependent or neglected, it must enter a disposition that best serves the interests of the child and the public.[13] A disposition must include a treatment plan.[14] In the treatment plan, the court may place the child in the custody of the parents or relatives under necessary and appropriate conditions, or place custody with the department for placement in a foster care home or other facility, so long as those placements are in the best interests of the child or most appropriately meet the needs of the child, the family, and the community.[15] The court can also enter a finding that no appropriate treatment plan can be devised for a particular respondent.[16]
If a child is placed in the department’s custody in a foster care home as part of the treatment plan, the court is required to hold a permanency hearing to make determinations, among other things, about the procedural safeguards preserving parental rights applied in the case and the reasonable efforts made to reunify the child and the parents.[17] Thereafter, if necessary, the court is also authorized to schedule periodic reviews of the child’s out-of-home placement to determine the following:
■ whether the child’s safety is protected in the placement;
■ whether reasonable efforts have been made to find safe and permanent placement;
■ the continuing necessity for and appropriateness of placement;
■ the extent of parents’ progress toward alleviating or mitigating the causes necessitating placement in foster care; and
■ a likely date by which the child may be returned to and safely maintained at home, placed for adoption or legal guardianship, or placed in another permanent safe placement setting.[18]
Eventually, either the county department of human services or the guardian ad litem may file a written motion to terminate parental rights.[19] Parents do not have a right to a jury at the termination phase of the proceedings.[20]
Respondent Parent Representation in Colorado
Although child welfare proceedings implicate important fundamental liberty interests, the U.S. Supreme Court has held that the Constitution does not require the appointment of counsel in every case.[21] In Colorado, however, an indigent respondent parent has a statutory right to appointed counsel throughout all of the proceedings.[22]
State-paid respondent parents’ counsel (RPC) are generally appointed by the court at the initial shelter hearing, and the appointment continues through the life of the case—all the way through appeal.[23] Despite this statutory right, parent representation throughout the state has been inconsistent at best. Previously, RPC were private attorneys who contracted with the State Court Administrator’s Office (SCAO) through each judicial district. This contractual system resulted in a representation model that was relatively decentralized, with practice standards, training, oversight, and other available resources dependent on the individual jurisdictions’ ability to...
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