23CA2014 Peo in Interest of AT 07-11-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA2014
City and County of Denver Juvenile Court No. 22JV30831
Honorable Pax Moultrie, Judge
The People of the State of Colorado,
Appellee,
In the Interest of A.T., A.A., T.A., G.K.L.A., and A.K.L-L.A., Children,
and Concerning A.A. and T.T.,
Appellants.
JUDGMENT AND ORDER AFFIRMED
Division VI
Opinion by JUDGE FREYRE
Lipinsky and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 11, 2024
Kerry Tipper, City Attorney, Amy J. Packer, Assistant City Attorney, Tierney A.
Shea, Assistant City Attorney, Denver, Colorado, for Appellee
Debra W. Dodd, Guardian Ad Litem
Padilla Law, P.C., Beth Padilla, Mancos, Colorado, for Appellant A.A.
James West, Office of Respondent Parent’s Counsel, Longmont, Colorado, for
Appellant T.T.
1
¶ 1 In this dependency and neglect action, T.T. (mother) and A.A.
(father) appeal the judgment adjudicating A.K.A, G.K.A., A.S.A.,
T.A.A., and A.T. (the children) dependent and neglected. Mother
also appeals the dispositional order. We affirm.
I. Background
¶ 2 The Denver Department of Human Services (the Department)
received a referral while the family was staying in a shelter and
opened a voluntary, non-court case. Two months later, the
Department filed a petition in dependency and neglect, alleging that
the family was asked to leave the shelter and there were concerns
about physical abuse, domestic violence, and substance abuse.
The family was from Micronesia and was struggling with their
adjustment to the language and cultural norms of the United
States. Both parents denied the allegations in the petition and
requested a jury trial.
¶ 3 The juvenile court conducted a jury trial in this case eight
months after the Department filed the petition. At the trial, the
Department alleged and the jury found that:
• the children lacked proper parental care through father’s
actions or omissions;
2
• the children’s environment was injurious to their welfare;
• mother and father failed or refused to provide proper or
necessary subsistence, education, medical care, or any
other care for A.S.A., T.A.A., and A.T.; and
• the children were homeless or without proper care
through no fault of mother and father.
Although the Department alleged that (1) mother had mistreated or
abused A.T. and (2) the children lacked proper parental care
through mother’s actions or omissions, the jury disagreed.
¶ 4 Based on the jury’s verdicts, the juvenile court adjudicated the
children dependent and neglected. Following a contested
dispositional hearing, the juvenile court adopted treatment plans
for the parents.
II. Jury Instructions
¶ 5 Mother contends that the juvenile court erred by declining to
give the jury her tendered instruction based on the presumption
A. Standard of Review
¶ 6 A juvenile court must correctly instruct the jury on the law
applicable to a case, and if the juvenile court meets this obligation,
3
it has broad discretion over the style and form of instructions.
People in Interest of J.G., 2016 CO 39, ¶ 33. We review jury
instructions de novo to determine whether, taken as a whole, they
accurately informed the jury of the applicable law. Id. However, we
review a court’s decision to give or not give a particular instruction
for an abuse of discretion. Id. A ruling on jury instructions is an
abuse of discretion only when the ruling results in a misstatement
of the law or is manifestly arbitrary, unreasonable, or unfair. Id.
B. Additional Background
¶ 7 As relevant here, mother proposed an instruction stating that
the jury “must presume all of the Respondent Parents’ decisions for
the children were made in the children’s best interest unless you
conclude that the Petitioner has presented evidence to overcome
that presumption by a preponderance of the evidence.” Mother
cited Troxel as support for her proposed instruction.
¶ 8 The Department and the guardian ad litem (GAL) objected. At
a pretrial conference, mother argued — seemingly in response to
written objections not in the record — that the proposed instruction
should be permitted because “it [was] an accurate statement of the
law and [the Department’s] objection is that adjudication does not
4
ask the jury to determine if a parent is fit. The instruction actually
doesn’t contain the word fit, just simply states that until
adjudication occurs, parents are presumed to have that fitness and
to act in their children’s best interest.”
¶ 9 The juvenile court agreed the instruction was a correct
statement of the law but expressed concern about “confusion of the
issues and also perhaps a reading into the instruction that it
applies an additional element that has to be proven at trial.” The
juvenile court then declined to include the proposed instruction.
¶ 10 Mother also proposed amendments to the Department’s
proffered instruction about the burden of proof. The pattern
instruction states that “the plaintiff has the burden of proving its
claim(s) by a preponderance of the evidence” and “the defendant
has the burden of proving each of their affirmative defense(s) by a
preponderance of the evidence.” CJI—Civ. 3:1 (2023) (general
burden of proof instruction for civil cases). Mother argued that “any
reference to the fact that the parents have a burden of proof
improperly shifts the burden at trial” and would be confusing to the
jury. The juvenile court agreed, “[s]ince the burden remains on the
Petitioner and the Juvenile Rules do not require specific pleading of
5
defenses or affirmative defenses, the court finds it appropriate to
modify the pattern instruction regarding burden of proof to remove
reference to affirmative defenses or defenses to prevent any
confusion for the jury.”
C. Analysis
¶ 11 Mother contends that, like the presumption of innocence in a
criminal trial, parents are entitled to a presumption that their
“decisions are made in the best interests of the children.” She
reasons that an instruction regarding the presumption would have
been particularly important here because of the family’s cultural
background. Specifically, mother contends that, had her proposed
instruction been included, evidence of her and father’s discipline
choices would not have been as impactful on the jury and would
have helped the jury understand how cultural considerations
informed the parents’ disciplinary practices.
¶ 12 Mother also argues that the proposed instruction should have
been included because it properly stated the law and did not alter
the Department’s burden of proof. The juvenile court agreed that
the proposed instruction was a correct statement of the law from
Troxel. Nonetheless, the juvenile court excluded the proposed
6
instruction for other reasons. The court reasoned that the proposed
instruction altered the burden of proof because it required the
Department to prove “an additional element,” and it would confuse
the jury.
¶ 13 While we agree that mother’s tendered instruction correctly
stated the law, we nevertheless conclude that it duplicated other
instructions and was therefore unnecessary. The totality of the
instructions as given properly informed the jury of the Department’s
burden and complied with the statute. Therefore, we discern no
abuse of discretion. See J.G., ¶ 33.
1
¶ 14 Furthermore, mother’s concerns about the jury incorrectly
placing the burden of proof on the parents were addressed in other
jury instructions, including amendments to the instructions that
mother proposed and the juvenile court accepted. See People v.
Asberry, 172 P.3d 927, 933 (Colo. App. 2007) (“There is no
reversible error if the jury instructions, read as a whole, adequately
inform the jury of the law.”).
1
We need not, and do not, decide whether a juvenile court would
abuse its discretion by providing a jury instruction that explains the
Troxel presumption in an adjudicatory trial. See People in Interest
of N.G., 20212 COA 131, ¶¶ 35-36, 40.
7
¶ 15 We conclude that the juvenile court did not abuse its
discretion by declining to give mother’s proposed jury instruction.
III. Juror T
¶ 16 Father contends that the juvenile court erred by denying his
challenge for cause to Juror T. We discern no error.
A. Applicable Law and Standard of Review
¶ 17 A challenge for cause is entrusted to the sound discretion of
the juvenile court, and we will not disturb a court’s decision to deny
a challenge for cause absent an abuse of discretion. Day v.
Johnson, 232 P.3d 175, 178 (Colo. App. 2009). We defer to the
juvenile court’s assessment of a prospective juror’s responses
because the juvenile court is uniquely positioned to evaluate the
demeanor and body language of the prospective juror. Id.
¶ 18 Under C.R.C.P. 47(e)(6) and (7), a court may remove a juror for
cause based on an “unqualified opinion or belief as to the merits of
the action” or “the existence of a state of mind in the juror evincing
enmity against or bias to either party.” However, a court need not
excuse a juror for cause when, “after explanation and rehabilitative
efforts, the court believes that [the juror] can render a fair and
impartial verdict based on the instructions given by the judge and
8
the evidence presented at trial.” People v. Clemens, 2017 CO 89,
¶ 16.
B. Additional Background
¶ 19 Based solely on juror questionnaires, the parties agreed to
dismiss nineteen jurors for cause. Father challenged four more
jurors based on their responses which, he argued, indicated they
could not be fair. The juvenile court denied those challenges, but
encouraged the parties to “ask pointed questions” if those jurors
made it to the box during voir dire.
¶ 20 After voir dire, father challenged an additional six jurors,
including Juror T, for cause. Father raised concerns that these
jurors would place the burden of proof on the parents and be
unwilling to follow the law. In response, the juvenile court provided
additional instruction to the jurors, including that the Department
had the burden of proof, and asked them if, knowing the burden, it
would “still [be] a struggle for any of you if you don’t hear anything
from any of the parents?” No juror “indicated that is a struggle.”
Similarly, when the juvenile court asked if anyone was “unwilling to
follow the law regardless of whether you agree with that,” no juror
indicated an unwillingness to follow the law.
9
¶ 21 In declining to dismiss Juror T and five others for cause, the
juvenile court found that, after “hearing the answers and
considering all of the voir dire together . . . we’ve adequately
questioned the jurors as to all these things and so understanding
and noting the objection from parent counsel, I’m passing the panel
for cause.”
C. Analysis
¶ 22 Father points to Juror T’s agreement with another juror’s
response to counsel’s question, “even though [she] would be
instructed that the burden of proof is over here, [she] would say,
yeah, I need to see some more from these guys over here” and such
juror’s statement that she “would have a hard time not hearing
from” the parents. But Juror T also affirmed that she could follow
the law and did not have questions about how to do that. And
when, after further instruction, the juvenile court asked the jurors
about their willingness to follow the law regardless of whether they
agreed with it, Juror T did not indicate an unwillingness to do so.
¶ 23 While Juror T — and others — made somewhat conflicting
statements during voir dire, we must defer to the juvenile court’s
assessment of the prospective jurors’ responses. See Day, 232 P.3d
10
at 178; see also People v. Lefebre, 5 P.3d 295, 301 (Colo. 2000) (“A
prospective juror who makes a statement suggesting actual bias
may nonetheless sit on the jury if she agrees to set aside any
preconceived notions and make a decision based on the evidence
and the court’s instructions.”), overruled on other grounds by People
v. Novotny, 2014 CO 18. Under these circumstances, we perceive
no abuse of discretion by the juvenile court in denying the challenge
for cause to Juror T and allowing her to remain in the jury pool.
See Carrillo v. People, 974 P.2d 478, 485-86 (Colo. 1999) (The abuse
of discretion standard “recognizes the trial court’s unique role and
perspective in evaluating the demeanor and body language of live
witnesses, and it serves to discourage an appellate court from
second-guessing those judgments based on a cold record.”).
IV. Amendments to the Petition
¶ 24 Father next contends, somewhat paradoxically, that the
juvenile court erred by both (1) allowing the petition to be amended
before the adjudicatory trial and (2) not requiring the petition to be
amended after the adjudicatory trial. We disagree with both
contentions.
11
A. Relevant Law
¶ 25 A petition alleging dependency or neglect “shall set forth
plainly the facts which bring the child within the court’s
jurisdiction.” § 19-3-502(2), C.R.S. 2023. Because an adjudication
must be based on existing circumstances and relate to the status of
the child at the time of the adjudicatory hearing, the Children’s
Code anticipates that “additional or different” matters may be raised
by the evidence at an adjudicatory trial. See § 19-3-505(4)(a),
C.R.S. 2023; see also J.G., ¶ 38. In such circumstances, the
Children’s Code directs that a juvenile court “may proceed
immediately to consider the additional or different matters raised by
the evidence if the parties consent” and “[i]n such event, the court,
on the motion of any interested party or on its own motion, shall
order the petition to be amended to conform to the evidence.”
§ 19-3-505(4)(a), (b). If the amendment “results in a substantial
departure” from the original petition, the juvenile court must
continue the hearing. § 19-3-505(4)(c).
¶ 26 Colorado Rule of Civil Procedure 15(b) is analogous. It
provides that, “[i]f evidence is objected to at the trial on the ground
that it is not within the issues made by the pleadings, the court
12
may allow the pleadings to be amended and shall do so freely when
the presentation of the merits of the action will be subserved
thereby and the objecting party fails to satisfy the court that the
admission of such evidence would prejudice him in maintaining his
action or defense upon the merits.” C.R.C.P. 15(b)
¶ 27 Pleadings are to be construed so as to do substantial justice,
and their purpose is merely the giving of notice of the issues to be
litigated. Belfor USA Grp., Inc. v. Rocky Mountain Caulking &
Waterproofing, LLC, 159 P.3d 672, 678 (Colo. App. 2006). Thus,
amendment of the pleadings to conform to the evidence should be
granted liberally to allow litigation to be determined on the merits
and not be limited to the strict parameters of the pleadings. People
v. Mountain States Tel. & Tel. Co., 739 P.2d 850, 852 (Colo. 1987).
¶ 28 Whether to grant leave to amend a petition is entrusted to the
juvenile court’s discretion, and we will not disturb a decision to
grant leave to amend absent an abuse of that discretion. Polk v.
Denver Dist. Ct., 849 P.2d 23, 25 (Colo. 1993).
B. The Amended Petitions
¶ 29 The Department filed a first amended petition that added
allegations of dental neglect for two of the children. A few days
13
prior to the adjudicatory trial, which occurred eight months after
the initial filing, the Department submitted a second amended
petition that added allegations regarding continued “concerns . . .
related to the respondent parents’ drinking,” including that the
parents appeared under the influence of alcohol during meetings
with the caseworker and at a family time session where “father
admitted to being under the influence and had to be asked to
leave.”
¶ 30 Father argued that the juvenile court should not permit the
Department to file the second amended petition, stating (1) the
Department already used “its one amendment permitted” by
C.R.C.P. 15(a); (2) amending the petition three business days before
the start of the scheduled jury trial was insufficient notice; and (3)
the amendment was not timely because the family time incident
occurred a month before the Department sought leave to file the
second amended petition.
¶ 31 The juvenile court ordered that the second amended petition
be received after considering both C.R.C.P. 15(a) and section
19-3-505(4). In so doing, the juvenile court found “that allegations
in the Second Amended Petition are not a substantial departure
14
from the allegations in the original petition,” and that the “parties
have been on notice of the concerns about parental substance use,”
including through witness disclosures and a stipulation that
required both parents to engage in substance monitoring. Finally,
the juvenile court found that continuing the adjudicatory trial,
which had already been reset twice and which was occurring nine
months after the filing of the original petition, was not in the
children’s best interests.
¶ 32 Given the multiple ways that father was given notice of the
Department’s concerns about his substance use before the petition
was amended, and the significant passage of time between the filing
of the petition and the adjudicatory trial, we cannot say that the
juvenile court’s decision to allow the amendment was unreasonable
or unfair. The original petition and the second amended petition
recited the statutory grounds for determining dependency and
neglect as to all the children and stated plainly that the Department
had concerns about physical abuse, domestic violence, and
substance abuse. And father agreed to provide random urinalysis
— clean of all substances — as part of a family time stipulation four
months before the adjudicatory trial.
15
¶ 33 Notably, father appears to concede that the amendments were
not a substantial departure from the original petition because he
did not object on those grounds either before the juvenile court or
on appeal. See People in Interest of A.E.L., 181 P.3d 1186, 1193
(Colo. App. 2008) (affirming order allowing the filing of an amended
petition two days before the adjudicatory hearing where there was
no showing of a substantial departure from the original allegations).
¶ 34 Instead, father argues that C.R.C.P. 15(a) requires the juvenile
court to analyze and make specific findings that “justice so
requires” the amendment of a petition. We are not aware of, nor
does father provide, support for the proposition that a trial court
errs by not expressly incanting this language.
¶ 35 Lastly, father argues that the juvenile court’s decision to
authorize the filing of the second amended petition violated his right
to due process. Because he did not object to the filing on this
ground in the juvenile court, we decline to address it now. People in
Interest of M.B., 2020 COA 13, ¶ 14.
C. Amendments After the Adjudicatory Trial
¶ 36 Father also contends that the juvenile court erred by not
requiring the Department to further amend the petition after the
16
trial because the Department “presented evidence relating to three
topics that were not alleged in [any] petition.” We conclude that no
such amendment was required because the three topics that father
challenges were not presented to the jury, he did not object to
testimony related to those topics, and the juvenile court properly
instructed the jury.
¶ 37 First, father claims that the Department’s opening statement
improperly presented evidence of “inappropriate acts in front of
other families” at the shelter where father, mother, and the children
resided. Father objected during the opening statement on the
grounds that neither the original nor the second amended petitions
contained allegations of inappropriate contact between the parents.
The juvenile court ruled that testimony about the parents’ conduct
would be permitted “if it goes to the issues of why they were asked
to leave the shelter.” Nonetheless, the juvenile court instructed the
jury that “what is said in opening statements and all other
statements made by the attorneys are not evidence.” Absent a
showing to the contrary, we presume that the jury understood and
followed the juvenile court’s instructions. See Perez v. People, 2015
CO 45, ¶ 43.
17
¶ 38 Additionally, the juvenile court sustained father’s objection to
the shelter program supervisor’s testimony about “inappropriate
behavior” between mother and father. The juvenile court did not
allow specific testimony describing the alleged inappropriate
behavior.
¶ 39 Therefore, the jury never heard evidence of the “inappropriate
acts” that father now argues should not have been admitted.
¶ 40 Second, father contends that the juvenile court should not
have allowed the county attorney to argue that “evidence of father’s
warrants was in the petition.” But father does not provide, nor
could we locate, any reference in the record showing that the
county attorney referred to the warrants in the presence of the jury.
¶ 41 Third, father claims that his “rights to due process and a fair
proceeding were impacted” by a school official’s testimony
“regarding the children’s excessive absences.” A.T., A.S.A., and
T.A.A.’s school principal testified about the school’s efforts to help
the children come to school and provided specific numbers for their
absences and tardies. However, father did not object to this
testimony, either on the grounds that it was not included in the
original or second amended petitions or that it affected his due
18
process rights. Therefore, we will not consider this issue further.
People in Interest of T.E.R., 2013 COA 73, ¶ 30 (generally, issues not
raised in the trial court will not be considered on appeal).
V. Testimony and Evidence of Father’s Criminal Matters
¶ 42 Next, father contends that the juvenile court erred by
permitting evidence of his criminal history and custodial status.
We disagree.
A. Relevant Law and Standard of Review
¶ 43 Evidence of prior acts is only admissible in an adjudicatory
hearing under certain circumstances. While evidence of prior acts
is not admissible “to prove the character of a person in order to
show that he acted in conformity therewith,” a “parent’s past
conduct and current circumstances” are relevant to a prediction of
whether “it is likely or expected that the parent will fail to provide
proper care for the child in the future.” People in Interest of A.W.,
Interest of S.N., 2014 COA 116, ¶ 17).
¶ 44 Because a child’s situation “cannot be viewed in a vacuum,”
the evidence of whether a child is dependent or neglected at the
time of adjudication “must be considered in the context of the . . .
19
parent’s prior behavior.” People v. D.A.K., 198 Colo. 11, 15, 596
P.2d 747, 749-50 (1979). For that reason, a jury may properly use
a parent’s prior acts to predict whether a child would be dependent
or neglected in the future. See A.W., ¶¶ 22-23; see also People in
Interest of G.E.S., 2016 COA 183, ¶ 15 (a dependency and neglect
proceeding is preventative as well as remedial).
¶ 45 A child may not be found dependent and neglected “solely
because the child’s parent has criminal convictions or faces
criminal charges.” People in Interest of D.M.F.D., 2021 COA 95,
¶ 26. However, a parent’s convictions and pending charges may
support a determination that a child is dependent and neglected
when there is “a link between the convictions and pending charges
and the factors identified in section 19-3-102.” Id. at ¶ 24. For
these reasons, CRE 404(b) does not apply to evidence of prospective
harm to the child introduced at an adjudicatory hearing. A.W.,
¶ 23. Moreover, otherwise relevant evidence “may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice.” CRE 403. But “unfair prejudice” does not mean
prejudice from the legitimate probative force of evidence. People v.
Gibbens, 905 P.2d 604, 608 (Colo. 1995).
20
¶ 46 We review evidentiary rulings, including rulings allowing or
prohibiting witness testimony, for an abuse of discretion. People in
Interest of M.V., 2018 COA 163, ¶ 52, overruled on other grounds by
People in Interest of E.A.M. v. D.R.M., 2022 CO 42. An error is
harmless unless “it can be said with fair assurance that it
substantially influenced the outcome of the case or impaired the
basic fairness of the trial itself.” Id. at ¶ 66.
B. Criminal History
¶ 47 The juvenile court denied father’s request for a “blanket
prohibition” of testimony or other evidence related to his criminal
history and pending criminal charges. In so doing, the juvenile
court found that father’s Denver Police Department (DPD) and
Colorado Bureau of Investigation (CBI) records were admissible and
emphasized that CRE 403 required a showing that the probative
value of such evidence be “substantially outweighed” by the danger
of unfair prejudice. However, the juvenile court required a portion
of father’s DPD record to be redacted and required further
information about a portion of father’s CBI record before
determining whether it, too, should be redacted.
21
¶ 48 In addition to the DPD and CBI records, which the juvenile
court admitted without further objection, the jury heard evidence
that the Department considered father’s criminal history in its
assessment, including charges for child abuse and domestic
violence, and that father was denied housing because of a criminal
background check that noted “a fight in the past.” The jury also
heard from father’s probation officer, who testified that father was
on probation for a misdemeanor domestic violence incident and that
his probation was being revoked, in part, because he had multiple
additional police contacts and a new domestic violence charge.
Father did not object to this testimony. In fact, father elicited
testimony from the caseworker about the impact of “the prior
criminal histories of the parents.”
¶ 49 Because the jury was tasked with deciding whether father
could provide proper care for his children, we conclude that father’s
criminal history was relevant. And we note that the juvenile court
redacted information from the written criminal history documents
in response to father’s objections. Beyond asserting the general
prejudice inherent in such evidence, father does not explain why
the probative value of this evidence was outweighed by the danger
22
of unfair prejudice. Accordingly, we discern no abuse of discretion
in the juvenile court’s decision to admit evidence concerning
father’s criminal history.
C. Custodial Status
1. Additional Background
¶ 50 In its original petition, the Department alleged that father had
an open warrant. Throughout the proceeding, the parties noted
that father had active warrants.
¶ 51 At the end of the first day of the adjudicatory trial, and outside
the presence of the jury, father was taken into custody on two
warrants. The juvenile court ordered the jail staff to bring father to
court the next day in street clothes if he did not bond out.
¶ 52 At the beginning of the second day, father asked “that the
parties be precluded from mentioning that he’s in custody” because
the information was “not relevant to a child safety concern.”
Following argument from all parties, the juvenile court found that
multiple criminal charges were included in the original and second
amended petitions. The juvenile court next found that father’s
custodial status was “potentially relevant” because (1) one of the
charges for which he had been taken into custody related to one of
23
the children and (2) father’s custodial status may potentially go to
his availability to parent. The juvenile court noted that it also had
to consider whether the information was unduly prejudicial.
Although the juvenile court found it would “allow limited testimony”
regarding father’s custodial status, the jury did not hear any
information about father being in custody that day.
¶ 53 On the third day of the trial, the Department called father’s
probation officer to testify. Father asked that the probation officer
be precluded from mentioning that father was in custody because
his in-custody status was “highly prejudicial.” The juvenile court
found that, although “anything that’s negative is potentially
prejudicial,” father’s in-custody status had probative value and was
not unfairly prejudicial. The probation officer then testified that
father was on probation for a domestic violence misdemeanor;
father had at least three new probation violations; and a revocation
of his probation was pending. The probation officer did not testify
that father had been arrested pursuant to a warrant.
¶ 54 Father testified on the final day of the adjudicatory trial. On
direct examination, he testified that a consequence of not complying
with probation was going to jail. On cross-examination, the GAL
24
asked father if he was incarcerated that day. Father’s counsel
objected, “reiterating the objection that we have been making . . .
since [father] has been in custody.” The GAL argued that father’s
in-custody status went to his ability to care for the children. The
juvenile court agreed and overruled the objection but encouraged
father’s counsel to “do what you need to do on cross or redirect.”
Father went on to testify that he was incarcerated that day, but also
could be bonded out that day; that he made efforts to clear his
warrants before the hearing; and that his extended family was
raising the money to bond him out.
2. Analysis
¶ 55 Father argues that permitting testimony regarding his
custodial status deprived him of due process and a fair proceeding.
We note that he made no due process objection to the juvenile
court, nor does he explain on appeal how this testimony implicated
his due process rights. Therefore, we do not consider this argument
further. See M.B., ¶ 14; People v. Ujaama, 2012 COA 36, ¶ 37
(explaining that issues are unpreserved when the grounds raised on
appeal are different from those raised below). Nevertheless, we
discern no abuse of discretion by the juvenile court in admitting
25
this testimony because it was relevant to the jury’s determination of
whether it was “likely or expected that the parent will fail to provide
proper care for the child in the future.” People in Interest of A.W.,
2015 COA 144M, ¶ 21.
VI. Mother’s Disposition
¶ 56 Mother contends that the juvenile court erred by entering a
dispositional order that was not final for purposes of appeal and by
adopting an inappropriate treatment plan. We discern no basis for
reversal.
A. Additional Background
¶ 57 At the dispositional hearing, mother stated, “there are things
that [mother] is willing to agree to, and there are things that she
does contest” with regard to her treatment plan. The juvenile court
called for a recess to allow “the attorneys to talk to each other about
what modifications they might be requesting.”
¶ 58 When the juvenile court recalled the matter, father stated that
he was “not in disagreement with any of the objectives as a whole”
with regard to his treatment plan but that he wanted fourteen days
to suggest modifications.
26
¶ 59 Through counsel, mother made what she called a “similar
record.” Specifically, mother requested “the opportunity to kind of
tighten up some of the language and the [duplication] in the action
steps” to ensure that the plan was streamlined and not
overwhelming. Mother represented that she would provide
suggested modifications.
¶ 60 The juvenile court found that the Department’s proposed
treatment plan “can serve as an interim treatment plan” and
ordered the parties to file proposed amendments within fourteen
days. The juvenile court subsequently issued a written
dispositional order, adopting the treatment plan and finding that
the Department’s proposed plan was appropriate.
¶ 61 Mother failed to timely submit proposed amendments to the
treatment plan.
B. Analysis
¶ 62 First, we disagree with mother’s contention that the juvenile
court’s dispositional order created ambiguity about her ability to
appeal. Even though the juvenile court used the phrase “interim
treatment plan,” it’s “Adjudicatory and Dispositional Hearing Order
for Respondent Mother” was the first dispositional order. Indeed, it
27
is “the initial dispositional order adopting a treatment plan [that]
constitutes a ‘decree of disposition’ and renders the adjudication
and the initial dispositional order final for purposes of appeal.”
People in Interest of C.L.S., 934 P.2d 851, 854 (Colo. App. 1996)
(emphasis added) (citations omitted).
¶ 63 Next, we decline to address mother’s contention that the
treatment plan that the juvenile court adopted was not appropriate
or that the juvenile court failed to make specific findings about the
appropriateness of the plan because we conclude mother waived
these issues. Waiver is the intentional relinquishment of a known
right. People v. Rediger, 2018 CO 32, ¶ 39. When a party waives
an issue below, we do not review it on appeal. Id. at ¶ 40.
¶ 64 Here, when given the opportunity to provide suggestions or
modifications to the proposed treatment plan, mother never did so.
Nor did she object to the juvenile court’s order adopting the
Department’s proposed treatment plan as an “interim treatment
plan” or the subsequent written order adopting the Department’s
proposed treatment plan.
¶ 65 Similarly, mother never asked the juvenile court to make
specific findings regarding the appropriateness of each element of
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the treatment plan. Section 19-3-508(1), C.R.S. 2023, directs the
juvenile court to “approve an appropriate treatment plan,” and the
juvenile court appropriately found that the treatment plan was
“appropriate, related to the child’s needs, and reasonably calculated
to render [mother] fit” within a reasonable time.
VII. Ineffective Assistance of Counsel
¶ 66 Finally, mother claims that her counsel’s failure to object to
the dispositional order amounted to ineffective assistance of
counsel. We are not persuaded.
¶ 67 Divisions of this court have recognized that a parent’s
statutory right to counsel includes the right to effective assistance
of counsel. See People in Interest of A.R., 2018 COA 177, ¶ 37, aff’d
on other grounds sub nom. A.R. v. D.R., 2020 CO 10; People in
Interest of S.L., 2017 COA 160, ¶ 58; People in Interest of C.H., 166
P.3d 288, 290 (Colo. App. 2007).
¶ 68 To successfully make an ineffective assistance of counsel
claim, a parent must show that (1) counsel’s performance was
outside the wide range of professionally competent assistance and
(2) the parent was prejudiced by counsel’s errors. A.R., ¶ 48; C.H.,
166 P.3d at 291-92.
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¶ 69 An ineffective assistance of counsel claim must allege facts
with sufficient specificity to be successful, including, for example,
the expected names of witnesses to be called, the expected
substance of testimony, and a clear explanation of how that
testimony would demonstrate that trial counsel’s performance was
outside the wide range of professionally competent assistance. See
C.H., 166 P.3d at 291.
¶ 70 To show prejudice, the parent must show a reasonable
probability that the outcome of the proceeding would have been
different but for counsel’s deficient performance or unprofessional
errors. A.R., ¶ 60. If the parent’s allegations lack sufficient
specificity, we may summarily deny the ineffective assistance claim.
See C.H., 166 P.3d at 291. In other words, a remand for an
evidentiary hearing is only required if the parent’s allegations are
sufficiently specific and compelling to constitute a prima facie
showing of ineffective assistance of counsel. Id.
¶ 71 We will not remand the matter for an evidentiary hearing
because mother’s allegations lack specificity. See id. Even
assuming, without deciding, that counsel’s performance fell below
the range of professionally competent assistance, mother has not
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established that these alleged errors prejudiced her. As previously
discussed, mother did not file a timely objections to the proposed
treatment plan, and “treatment plans adopted at the dispositional
stage are interlocutory and can be changed after periodic review by
the court or by motion of a party” at any time during the
proceedings. H.T., ¶ 24.
VIII. Disposition
¶ 72 The adjudication judgment and dispositional order are
affirmed.
JUDGE LIPINSKY and JUDGE SCHUTZ concur.
