Colorado’s Supreme Court on Monday did not fault a Jefferson County judge for refusing to postpone a hearing in which she terminated a father’s parental rights, even as the man was unsuccessfully trying to connect to the proceedings virtually.

The justices noted that Colorado law permits judges to end the legal relationship between a parent and their child if the parent is unfit, unlikely to change their behavior and has not complied with their treatment plan. Given that the father, identified as R.B., failed to make progress in the case, the Supreme Court saw no indication R.B. would have affected the outcome had he been allowed to testify.

“Father has failed to show how his presence at the hearing could have changed the juvenile court’s determination,” wrote Justice William W. Hood III in the Dec. 12 opinion.

The court elected to review R.B.’s case after the state’s Court of Appeals reached a different conclusion, believing that District Court Judge Ann Gail Meinster abused her discretion by not pausing the termination hearing.

In February 2021, Meinster held a virtual hearing on Jeffco’s request to terminate R.B.’s legal rights over his child, E.B. Although R.B. was not present at the hearing, his attorney was. 

Midway through, R.B.’s father suggested R.B. was trying to join the proceedings. Meinster took a break to permit R.B.’s lawyer to contact him, to no avail. R.B.’s attorney explained to the judge that he and his client attempted to reach each other for the last two weeks, but had been unsuccessful. Further, R.B. had a phone that only functioned when connected to wireless Internet. The lawyer asked for a continuance of the hearing so that R.B. could attend and testify.

Instead, Meinster decided to keep going. At the end, R.B.’s lawyer informed Meinster that R.B. was reportedly trying to log in using the public WiFi at a gas station. Meinster, in response, said she could not find “a manifest injustice would occur” if she proceeded with the termination.

“Father’s had ample opportunity to prepare to join today. I’m sorry he wasn’t able to,” she said before terminating R.B.’s legal rights over E.B.

Then in January, a three-judge panel of the Court of Appeals reversed the termination order, disagreeing with Meinster’s handling of the postponement request.

This was “not a case in which father was unavailable to participate in the termination hearing. To the contrary, the record reveals that he was making efforts to secure Wi-Fi access so that he could participate in the hearing,” wrote Judge Craig R. Welling. “Yet, other than briefly pausing the hearing, the court didn’t facilitate father’s efforts to personally participate.”

Welling elaborated that both E.B. and R.B. had an interest in avoiding the wrongful termination of the father’s rights, which Meinster could have accomplished by allowing a short delay to accommodate R.B.’s participation.

After Jeffco appealed to the Supreme Court, the Office of Respondent Parents’ Counsel, which represents indigent parents in welfare proceedings, defended the Court of Appeals’ decision by pointing to the Supreme Court’s own precedent from 1986. At the time, the court defined a parent’s due process rights to include notice of the termination hearing and “an opportunity to protect her interests at the hearing itself.”

But some members of the current Supreme Court observed R.B.’s inability to join the virtual hearing was, in significant part, his own doing.

“It seems to me his choice to go to the gas station isn’t necessarily something that means due process wasn’t provided,” said Justice Melissa Hart during oral arguments in October.

The court’s ultimate opinion reversed the appellate panel, finding R.B. was not prejudiced, or harmed, from the failure to postpone the hearing. Coming into the hearing, R.B. had already admitted to using heroin and methamphetamine consistently, missed virtually all of his drug tests, failed to attend most substance abuse classes, and had stopped attending parental visits for more than half a year.

Given that background, the Supreme Court saw nothing to indicate Meinster’s termination decision would have been different if R.B. testified at the hearing.

Kristofr P. Morgan, R.B.’s attorney, said he was disappointed with the decision.

“My client simply wanted to participate in the termination hearing and was attempting to do so through the protocols set in place by the district court at the time,” Morgan said. “As a result, his voice was not heard in this obviously critical proceeding.” 

The case is People in the Interest of E.B.