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People ex rel. C.B.

Court of Appeals of Colorado, Third Division

November 14, 2019

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

          Court of Appeals No. 18CA1013 Pueblo County District Court No. 17JV248 Honorable William D. Alexander, Judge

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

          Jennifer Zamarripa, Guardian Ad Litem Debra W. Dodd, Office of Respondent Parents' Counsel, Berthoud, Colorado, for Respondent-Appellant

          OPINION

          FURMAN JUDGE

         ¶ 1 In this dependency and neglect case, the juvenile court adjudicated the child, C.B., dependent and neglected by default after mother, A.A., failed to appear at an advisement of rights hearing. The juvenile court appointed an attorney for mother after it entered the default adjudication. This attorney withdrew shortly afterward.

         ¶ 2 Mother then filed a pro se motion to set aside the default adjudication. But, after conferring with her second appointed attorney, she agreed to withdraw this motion.

         ¶ 3 The juvenile court later entered a judgment terminating mother's parental rights.

         ¶ 4 On appeal, mother mounts several challenges to the judgment terminating her parental rights, two of which are central to her appeal.

         ¶ 5 First, she attacks the adjudication of her child by default, claiming that the juvenile court violated C.R.C.P. 55, and that she is entitled to relief under C.R.C.P. 60(b)(3). We note that mother appears to have waived her challenge to the default adjudication. But we conclude that because her challenge is to the adjudication, it is not timely under either section 19-1-109(2)(c), C.R.S. 2019, or C.A.R. 3.4(b)(1). Thus, we dismiss this portion of her appeal.

         ¶ 6 Second, mother contends her first appointed attorney rendered ineffective assistance by not challenging the default adjudication. Because mother withdrew her challenge to the default adjudication, we conclude that she cannot use the entry of default as a basis to complain about her first attorney's effectiveness. And because mother was appointed another attorney who represented her at the termination of parental rights hearing, and she does not contend that this attorney rendered ineffective assistance, we conclude that she is not entitled to relief from the judgment terminating her parental rights on this basis. See People in Interest of A.R., 2018 COA 176, ¶ 78 (recognizing a claim of ineffective assistance of termination counsel in the "narrow circumstance" where, because of counsel's deficient performance, the county department did not prove the "fact of adjudication" element in section 19-3-604(1), C.R.S. 2019) (cert. granted Mar. 4, 2019).

         ¶ 7 Mother also points out that the juvenile court erred by not making an Indian Child Welfare Act of 1978 (ICWA) inquiry at the hearing terminating her parental rights. Because, in supplemental briefing, mother concedes the child does not have any Indian heritage, we conclude that the juvenile court's inquiry error was harmless.

         I. The Default Judgment

         ¶ 8 The record establishes the following facts.

         ¶ 9 The Pueblo County Department of Human Services filed a petition in dependency or neglect after mother left the child with a friend. Mother had asked the friend to care for the child temporarily because ...


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