Members of the Colorado Supreme Court appeared leery on Tuesday of concluding a father experienced a violation of his constitutional rights when a Jefferson County judge terminated the legal relationship with his child.

There was no dispute that the man, identified as R.B., had notice of the hearing and a lawyer who advocated on his behalf, which are the basic requirements for due process in child welfare cases.

But the question for the Supreme Court was whether R.B.’s failed attempts to connect to the virtual termination hearing in February 2021, and the judge’s refusal to postpone the hearing, ran afoul of due process.

Colorado’s second-highest court previously found the answer to be yes, ordering a reconsideration of the termination decision. Jefferson County then appealed, finding a sympathetic audience among many of the justices.

“There’s a hearing set. There’s notice provided well in advance. Everyone knows when the hearing’s going to take place,” said Justice Carlos A. Samour Jr. “Anybody could say, ‘I didn’t have access to a computer that day.’ Or ‘I was having technological issues so you’ll have to continue it, otherwise you’ll violate my due process rights.'”

Complicating matters was the fact that R.B. had done very little to engage with the welfare proceedings before the termination hearing. The day of the court appearance, after failing to get in touch with his lawyer, R.B. attempted to call in using a phone that only worked with wireless internet. R.B. initially called from a gas station, until he was asked to leave.

“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.

Although the court was skeptical of R.B.’s actions, the broader issue on appeal involves the degree of protection afforded to parents before an imposition of the “civil death penalty,” a phrase lawyers sometimes use to describe decisions terminating a parent’s legal rights over their children.

In R.B.’s case, the termination hearing occurred approximately 12 days after his release from jail. R.B. was not present at the start of the virtual hearing, but midway through, District Court Judge Ann Gail Meinster mentioned that R.B. may have been trying to log on. She called a recess, but R.B.’s lawyer was unable to reach him.

R.B.’s parents, who were at the hearing, reported that R.B. was trying to access a gas station’s Wi-Fi using his phone, but the facility had asked him to leave. The lawyer requested a continuance so his client could appear, but Meinster believed it would not be in the best interest of the child at the center of the case, E.B.

R.B. “had ample opportunity to prepare to join today. I’m sorry he wasn’t able to. But case law is clear,” she said. Meinster then terminated R.B.’s parental rights.

In January of this year, a three-judge panel for the Court of Appeals determined Meinster’s decision infringed on R.B.’s right to due process. It was in E.B.’s interest to avoid an erroneous termination of his legal relationship with his father, explained Judge Craig R. Welling. Moreover, delaying the proceedings would have been reasonable, as this was not a case in which R.B. was outright unavailable.

“To the contrary, the record reveals that he was making efforts to secure Wi-Fi access so that he could participate,” wrote Welling. “Yet, other than briefly pausing the hearing, the court didn’t facilitate father’s efforts to personally participate in this hearing. This is significant.”

During oral arguments before the Supreme Court, the Office of Respondent Parents’ Counsel, which represents indigent parents in welfare proceedings, drew the justices’ attention to a single line in a 1986 decision, People in the Interest of M.M. The Supreme Court defined due process for a parent to include notice of the termination hearing and “an opportunity to protect her interests at the hearing itself.”

Since that case, argued Zaven T. Saroyan with the ORPC, the Court of Appeals has largely ignored that provision, issuing multiple decisions requiring only that a parent have the opportunity to “be heard” and have “assistance of legal counsel.”

“The problem is that this court’s case of M.M. is being ignored,” Saroyan warned, advocating for a broader legal guarantee for parents to evaluate evidence and consult with their lawyers in termination cases.

But some members of the Supreme Court were unsure a delay in the termination proceedings to facilitate R.B.’s presence would have been reasonable or fruitful.

“The juvenile court took a recess,” said Justice Maria E. Berkenkotter. “What more here should the juvenile court have done? A longer recess? Take three recesses?”

“Suppose there had been a couple of days given and multiple people made an effort to reach out to him to no avail, and you’re back to square one,” added Justice William W. Hood III. “At that point, does the court commit a due process violation by proceeding in his absence?”

Saroyan clarified that he did not believe it is a constitutional problem when parents have the opportunity to participate, but refuse to take it. In R.B.’s scenario, he elaborated, E.B. was in stable foster care and there was little urgency to completing the termination hearing on that day.

Samour, who was a trial judge in Arapahoe County before joining the Supreme Court, bristled at the suggestion that a court docket could be rearranged on short notice.

“It’s not like a judge can go, ‘We’ll just do this two days from now.’ It’s not that easy,” he said.

Even in the absence of a due process violation, some justices signaled they were open to a more general review of Meinster’s handling of the case. Justice Richard L. Gabriel, in particular, expressed discomfort with how Meinster summarily found R.B. was not entitled to a postponement.

“It’s just like, ‘I don’t know what’s going on here, but we don’t have time. Let’s move.’ It’s not what she said, but that’s what it feels like,” Gabriel acknowledged. “What would have been the harm to explore a little bit how long dad would need?”

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