The People of the State of Colorado, Appellee, In the Interest of Z.M., G.F., and L.M., Children, and Concerning J.F., Appellant.
Paso County District Court No. 17JV537 Honorable Jessica L.
K. May, County Attorney, Melanie Douglas, Special Assistant
County Attorney, Gunnison, Colorado, for Appellee.
N.H. Ulrich, Guardian Ad Litem.
E. Baum, Office of Respondent Parents' Counsel, Ainsley
E. Bochniak, Office of Respondent Parents' Counsel,
Denver, Colorado, for Appellant.
1 In this dependency and neglect proceeding, J.F. (father)
appeals the termination of his parent-child legal
relationship with G.F. and Z.M. (the children). He argues that
the lack of a complete record on appeal denied him due
process and that the juvenile court erred when it determined
that there were no less drastic alternatives to termination.
2 C.A.R. 10(f)(2) provides:
If any material part of the trial court record is omitted or
missing from the record by error or accident or is misstated
therein after the record is transmitted to the appellate
court, the appellate court, on motion or of its own
initiative, may order that the supplemental record be
certified and transmitted.
3 We address a question of first impression in Colorado: What
is the meaning of the word "material" in C.A.R.
10(f)(2)? Because we conclude both that father failed to
demonstrate that the missing portions of the record were
material and that the record supports the juvenile
court's findings, we affirm.
4 The El Paso County Department of Human Services moved for
an adjudication that the children were dependent or neglected
by father. The court granted the motion, and the children
were placed with maternal aunt and uncle. The court also
adopted a treatment plan for father.
5 The guardian ad litem (GAL) later moved to terminate
father's parental rights, alleging that father had not
complied with his treatment plan. After a hearing, the
juvenile court granted the motion.
6 Father then appealed to this court. He designated
thirty-two hearing transcripts for the appeal. Several months
later, it was discovered that the record was missing six of
the requested hearing transcripts.
7 Father moved this court to supplement the record, and this
court granted the motion. The record was supplemented, but
father's counsel found that three transcripts remained
missing. Father's counsel again moved to supplement the
record and then amended that motion to request just two
8 The court denied father's second motion "with
leave to refile with a statement of materiality" under
C.A.R. 10(f)(2). A few days later, the Chief Judge of this
court entered a new order deferring a ruling on father's
request to supplement the record to the merits division and
directing father to "address C.A.R. 10(f)(2)'s
materiality standard in his opening brief." The parties
then completed appellate briefing.
9 After briefing was completed, a judge of this court ordered
the juvenile court to supplement the record with the
remaining transcripts. In response, the juvenile court
submitted an affidavit from the transcriptionist assigned to
the case. The affidavit stated that "there was no
recording for the hearing dates requested . . ., thus no
transcripts [could] be produced."
Motion to Supplement the Record
10 Father contends that this court violated his due process
rights and his right to effective assistance of counsel when
it ordered him to address his motion to supplement the record
in his opening brief and to file his opening brief without
access to those transcripts. To address this alleged error,
father asks that we "remand the ...