The People of the State of Colorado, Petitioner-Appellee, In the Interest of A.R., a Child, and Concerning D.R., Respondent-Appellant.
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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.
FURMAN, JUDGE Roman and Lichtenstein, JJ., concur.
1] FURMAN , Judge.
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, 104
S.Ct. 2052, 80 L.Ed.2d 674 (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, 102 S.Ct.
1388, 71 L.Ed.2d 599 (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., 296 P.3d 1026, 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 termination hearings).
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, 113 S.Ct. 838, 122 L.Ed.2d 180 (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
explained that she had allowed other family members to care
for the child.
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 the case.
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 child.
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 step grandmother and maternal grandmother to
maintain contact with the child. The court set another
hearing without entering a judgment terminating mother's
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 child's placement.
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
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., 406 P.3d 853, 2017 CO 105, ¶¶
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
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 ...