The People of the State of Colorado, Petitioner-Appellee, In the Interest of A.R., a Child, and Concerning D.R., Respondent-Appellant.
County District Court No. 16JV584 Honorable William D.
Cynthia Mitchell, County Attorney, David A. Roth, Special
Assistant County Attorney, Pueblo, Colorado, for
N.H. Ulrich, Guardian Ad Litem
Juvenile and Family Law, LLC, Melanie Jordan, Golden,
Colorado, for Respondent-Appellant
1 In this case, we analyze the important question of what
constitutes ineffective assistance of counsel in a
termination of parental rights proceeding and the proper
procedure for evaluating this claim.
2 Mother, D.R., appeals the judgment terminating her
parent-child legal relationship with the child, A.R. Although
the county attorney offered minimal evidence, mother's
trial counsel did little to test this evidence. Mother's
appellate attorney directs our attention to three proceedings
that reflect this.
3 First, at the adjudicatory hearing, the county attorney
presented no testimony. Instead, the county attorney asked
the court to adjudicate the child dependent or neglected
based on a written report of the investigation conducted by
the Pueblo County Department of Social Services. Mother did
not attend this hearing. Even so, mother's attorney
stated that it would be in her "best interests" to
have the court enter mother's no-fault admission to the
petition. The court then adjudicated the child dependent or
neglected without ensuring that mother knew and understood
the consequences of the adjudication.
4 Second, at the termination of parental rights hearing, the
juvenile court terminated mother's parental rights using
a procedure it termed "offer of proof." By this,
the court heard no testimony. Instead, it listened to the
county attorney's statements about how the caseworker
would testify if she were called as a witness. Mother's
attorney did not object to this procedure.
5 Third, at a hearing to discuss the child's placement
after the termination of parental rights hearing, the court
addressed maternal grandmother's request for custody of
the child. Afterward, the court issued a minute order
clarifying that had the "court known of extended
family," it was likely the court "would have
denied" the motion to terminate mother's parental
6 Mother, through appellate counsel, raises several arguments
in support of her appeal. She contends the juvenile court (1)
lacked personal jurisdiction over her because the court did
not enter a valid adjudication; and (2) erred in finding
there was no less drastic alternative to termination. She
also contends that she received ineffective assistance of
trial counsel during the adjudicatory and termination
hearings. We disagree with mother's first contention. But
we agree that mother alleges sufficient facts to show that
counsel's deficient performance rendered the termination
proceeding presumptively unfair and unreliable, and her less
drastic alternative argument is closely intertwined. We
therefore reverse the judgment and remand for a new
7 Like other divisions before us, we apply the two familiar
Strickland v. Washington, 466 U.S. 668 (1984),
prongs governing review of ineffective assistance claims in
dependency and neglect cases. See, e.g., People
in Interest of C.H., 166 P.3d 288, 291 (Colo.App. 2007)
(The Strickland prongs are that "(1)
counsel's performance was outside the wide range of
professionally competent assistance; and (2) the parent was
prejudiced by counsel's errors."); People in
Interest of D.G., 140 P.3d 299, 308 (Colo.App. 2006).
8 These prior divisions, however, did not analyze how to best
adapt Strickland's prejudice prong to dependency
and neglect cases. Rather, without discussion, they borrowed
the prejudice test from criminal cases and determined that to
demonstrate prejudice, the parent must show "there is a
reasonable probability that, but for counsel's deficient
performance, the outcome of the hearing would have been
different." D.G., 140 P.3d at 308. For the
reasons we articulate below, we part ways with these
divisions' prejudice inquiry and apply a prejudice
inquiry that better suits parents' right to counsel under
Colorado's statutory framework for termination of
parental rights proceedings.
9 Parents' fundamental liberty interest in the care,
custody, and management of their children under the Due
Process Clause of the Fourteenth Amendment requires states to
afford respondent parents fundamentally fair procedures when
seeking to terminate parental rights. Santosky v.
Kramer, 455 U.S. 745, 753-54 (1982).
10 In protecting this fundamental liberty interest, the
statutory right to counsel in a termination of parental
rights proceeding ensures that respondent parents receive
fundamentally fair procedures. See A.M. v. A.C.,
2013 CO 16, ¶¶ 27-30 (stating that the procedural
protections afforded to parents facing termination of the
parent-child legal relationship, which include the statutory
right to counsel, guarantee fundamental fairness at
11 Therefore, we conclude that the prejudice inquiry for
ineffective assistance claims in termination of parental
rights proceedings should focus on whether counsel's
deficient performance rendered the proceeding fundamentally
unfair or the result of the proceeding unreliable. See
Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
Dependency and Neglect Case
12 Because the Department offered no testimony at the
adjudicatory and termination of parental rights hearings, we
glean the following from statements made by the county
attorney and various pleadings filed in the case.
13 In July 2016, the child's paternal stepgrandmother
took the child to the emergency room to receive treatment for
scabies. Physicians determined that the severity of the
child's scabies was due to neglect and that the child had
a skull fracture. Although the skull fracture could have
resulted from an accident, mother could not recall any
incident that would have caused the fracture and explained
that she had allowed other family members to care for the
14 The paternal stepgrandmother also reported to the
Department that the child appeared to be developmentally
delayed, mother and the child's father were using drugs,
and the parents did not provide appropriate care for the
child while they had all stayed in her home a few months
earlier. As a result, the Department initiated this
dependency and neglect case. The juvenile court granted the
Department custody of the child, and the court ordered the
child placed with the paternal stepgrandmother.
15 At the adjudicatory hearing - to determine whether the
child was dependent or neglected - mother did not personally
appear, but her counsel was present. Mother's counsel
told the court, "I'm going to proceed in my
client's best interests . . . ." Then, instead of
presenting any testimony, the county attorney asked the court
"to rest upon" a written report of the
investigation conducted by the Department because the county
attorney had "issues regarding [its] witnesses."
The court did not advise mother of the right to
cross-examination regarding this report, see §
19-1-107(4), C.R.S. 2018, because she was not there.
16 Despite mother's absence, her counsel then stated that
it would be in mother's "best interests" to
have the court enter mother's no-fault admission to the
petition. The child's guardian ad litem (GAL) agreed with
this procedure, stating it was in the child's best
interests to "move forward." Based on this
information, the court then entered a no-fault adjudication,
without ensuring that mother knew and understood the
consequences of the adjudication.
17 Later, based on allegations that mother did not comply
with her treatment plan, the Department moved to terminate
the legal relationship between mother and the child. About
one month later, the child's maternal grandmother
expressed interest in participating in the case and raising
the child. She moved to intervene and requested an allocation
of parental responsibilities (APR) for the child.
Mother's counsel did not respond to either motion. He
also did not file a motion asking the court to place the
child with the maternal grandmother as a less drastic
alternative to termination. Instead, mother's counsel
filed a "notice of deposit" with an attached
handwritten letter from mother that requested that the
maternal grandmother have temporary custody of the child.
18 But the court did not grant the maternal grandmother's
motions. Instead, it issued an order stating that it would
treat the maternal grandmother as a possible placement for
the child after mother's rights were terminated, under
section 19-3-605, C.R.S. 2018, and proceeded to a termination
hearing without making the maternal grandmother a party to
19 Mother was not present at the termination hearing, but the
maternal grandmother was. Mother's attorney was under the
mistaken impression that the maternal grandmother had
successfully intervened and told the court that "where
I'm going to come from on behalf of my client is through
the Intervenor. I presume she'll be able to make a
statement." Mother's attorney then informed the
court that the maternal grandmother was a long-term
"placement for the child, and she doesn't need to
adopt the child to care for the child." The maternal
grandmother never spoke.
20 The county attorney then informed the court that
"I'm prepared to, if counsel would allow, to proceed
by offer of proof . . . ." By that, the county attorney
asked merely to inform the court about what he would offer as
evidence - if the court held a contested hearing - instead of
introducing testimony. Mother's attorney responded,
"I don't have any objection to that, Judge."
The court then permitted the county attorney to describe how
the caseworker would testify if the caseworker were called as
a witness. The county attorney also moved to admit exhibits,
including mother's substance abuse evaluation and letters
sent to mother.
21 Following the county attorney's offer of proof, the
court asked mother's attorney, "[I]s there anything
else you'd like to add?" Mother's attorney
responded "[n]o" and only added that he "would
stipulate" that his "client indicated to the Court
that the Indian Child Welfare Act did not apply." And
regarding the "other matters, the best interests,"
mother's attorney told the court, "I maintain the
same position that I don't agree with that but that's
for that other procedure that I think we're going to be
22 After the hearing, the court concluded that it would
"tentatively grant the request to terminate parental
rights." But it did not enter the judgment terminating
mother's rights because "if the Court decided to
place the child with . . . the grandparent in the case, that
would be a less drastic alternative to termination." The
court then set a review hearing to "hear how the
Department's going to deal with that issue involving the
grandparent," including visitation and contact with the
23 At the review hearing, the court heard different
proposals. Again, mother was not present. The Department
suggested granting APR to the paternal stepgrandmother, with
whom the child had been living since the beginning of the
case, and allowing visits with the maternal grandmother. But
the child's GAL believed that termination was necessary.
Mother's attorney then informed the court that his client
wanted the child placed with the maternal grandmother, but he
did not request an evidentiary hearing to determine whether
the child could be placed with the maternal grandmother as a
less drastic alternative to termination.
24 The court ended the hearing to allow the parties to meet
and find a resolution that would allow both the paternal
stepgrandmother and maternal grandmother to maintain contact
with the child. The court set another hearing without
entering a judgment terminating mother's parental rights.
25 At the next hearing, the county attorney requested that
the court enter a judgment terminating mother's rights.
Only then did mother's attorney request a hearing
regarding placing the child with the maternal grandmother.
The judge responded, "Well, I'm gonna deny a request
for a hearing. I already had the hearing." The court
then signed the order terminating mother's parental
rights, ordered that the maternal grandmother have visits
with the child, and set another hearing to discuss the
26 The juvenile court supplemented its termination judgment a
few months later, after a hearing to discuss the child's
placement, ruling as follows:
The order terminating the parental rights of Respondents is
currently on appeal. The Court may have dropped the ball on
this case early on. The child has extended family on both
sides. There is a less drastic alternative to termination.
Until the appeals court enters a ruling, this court will hold
off on issuing any orders as it relates to the permanent
placement of this child. Should the appeals court overturn
the termination order, the court will look at maintaining the
relationship between the minor child and his extended family.
minute order clarified that had the "court known of
extended family," it was likely the court "would
have denied" the motion to terminate mother's
27 We now turn to mother's contentions on appeal.
Jurisdiction to Terminate
28 Initially, we address whether the juvenile court had
personal jurisdiction to terminate the parent-child legal
relationship. We conclude that it did.
29 The child's status as dependent or neglected is
established at the adjudication stage of a dependency or
neglect proceeding, and "the resulting adjudication
provide[s] the jurisdictional bases for State intervention to
assist the parents and child in establishing a relationship
and home environment that will preserve the family
unit." People in Interest of A.M.D., 648 P.2d
625, 640 (Colo. 1982); see also People in Interest of
J.W. v. C.O., 2017 CO 105, ¶¶ 20, 31.
30 If there are procedural errors at the adjudication stage,
a parent may challenge these errors by filing a timely appeal
of the adjudication order after entry of the disposition.
§ 19-1-109(2)(c), C.R.S. 2018; C.A.R. 3.4(b). After a
court has acquired jurisdiction, procedural errors do not
divest the court of jurisdiction. See People in Interest
of Clinton, 762 P.2d 1381, 1387-88 (Colo. 1988).
31 Mother mounts two separate personal jurisdiction
challenges. She first contends that the court lacked personal
jurisdiction because the record does not show she was served
with the petition or waived service of the petition. We
conclude that the record supports a contrary conclusion.
Mother personally appeared with counsel at a hearing in July
2016. She did not assert a defect in service and waived
further advisement. Because mother appeared and did not
object to the juvenile court's jurisdiction over her, she
may not raise this issue on appeal. See Gognat v.
Ellsworth, 224 P.3d 1039, 1054 (Colo.App. 2009)
(recognizing that one who enters an appearance may not later
challenge personal jurisdiction), aff'd, 259
P.3d 497 (Colo. 2011).
32 Mother also contends that the court lacked personal
jurisdiction because the court did not enter a valid
adjudication. She points to three deficiencies: (1) there is
no indication she was advised of her rights before her
counsel agreed to the child's adjudication; (2) her trial
counsel's statement that an admission would be in her
"best interests" was not an effective admission;
and (3) the adjudicatory hearing was not held within sixty
days as required under section 19-3-505(3), C.R.S. 2018. But
these are procedural errors, and procedural errors at the
adjudication stage do not divest the court of personal
jurisdiction. See Clinton, 762 P.2d at 1387-88.
33 Mother or her counsel had an opportunity to contest these
procedural errors by filing a timely appeal from the
adjudication order after entry of the written disposition.
See § 19-1-109(2)(c). She or her counsel also
could have objected to the entry of adjudication at a later
hearing. Because they did neither, she may not raise these
issues on appeal from the termination judgment. People in
Interest of E.H., 837 P.2d 284, 287 (Colo.App. 1992).
34 We, therefore, conclude these purported errors did not
divest the juvenile court of jurisdiction, and the court had
personal jurisdiction to terminate mother's parental
Ineffective Assistance of Counsel
35 We next consider mother's claim, raised for the first
time on appeal, that she received ineffective assistance of
trial counsel at the adjudicatory and termination hearings.
To address these claims, we need to answer these questions:
1. Do respondent parents have a right to effective assistance
of counsel in a termination of parental rights hearing?
2. If so, may we consider such a claim when it is first
raised on appeal of a judgment terminating parental rights?
3. What test applies when a parent's appellate counsel
raises a claim of ineffective assistance of trial counsel in