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People ex rel. A.R.

Court of Appeals of Colorado, Fifth Division

December 13, 2018

The People of the State of Colorado, Petitioner-Appellee, In the Interest of A.R., a Child, and Concerning D.R., Respondent-Appellant.

          Pueblo County District Court No. 16JV584 Honorable William D. Alexander, Judge

          Cynthia Mitchell, County Attorney, David A. Roth, Special Assistant County Attorney, Pueblo, Colorado, for Petitioner-Appellee

          Anna N.H. Ulrich, Guardian Ad Litem

          Jordan Juvenile and Family Law, LLC, Melanie Jordan, Golden, Colorado, for Respondent-Appellant

          OPINION

          FURMAN, JUDGE

         ¶ 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 rights.

         ¶ 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 termination hearing.

         ¶ 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 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 (1993).

         I. The 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 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 scheduling."

         ¶ 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 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 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.

         A 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 parental rights.

         ¶ 27 We now turn to mother's contentions on appeal.

         II. 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 rights.

         III. 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 a ...

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