People ex rel. R.D

Opinion by

Judge TAUBMAN.

T1 In this dependency and neglect case, AJ.D. (father) appeals from the judgment terminating the parent-child relationship between him and his children, R.D. and R.D. Because we conclude that father was denied his statutory right to counsel at the hearing concerning the termination of his parental rights, and that this violation is not subject to harmless error review, we vacate the judgment terminating father's parental rights and remand the case for further proceedings.

12 KL. (mother) also appeals from the judgment terminating the parent-child relationship between her and her children, R.D., R.D., C.L., and D.L. Because the evidence supports the trial court's termination of her parental rights, we affirm the judgment terminating her parental rights.

I. Background

13 The El Paso County Department of Human Services (Department) filed a dependency and neglect petition and assumed protective custody of the children after law enforcement officials assisting in the eviction of the family from its home for nonpayment of rent discovered unlivable conditions marked by the presence of multiple animals, a strong smell of feces, scattered clothes and debris throughout, mold on the windowsills and walls, and evidence of marijuana use. RD., the youngest child and the only child then present, was noticeably thin, pale, and extremely unkempt.

T4 Mother and father admitted to the petition and the children were adjudicated dependent and neglected. A treatment plan, adopted with the agreement of all parties, required mother and father to engage in consistent visitation, maintain safe and stable housing and income, address any issues identified by a global evaluation, participate and successfully complete all necessary family preservation and life skill services, cooperate with the Department and the court, and develop and sufficiently demonstrate parental protective capacity enabling the children to reside in a safe and emotionally healthy home environment.

115 A year later, the children's guardian ad litem (GAL) moved to terminate mother's and father's parental rights on the grounds that they had failed to reasonably comply with the terms of the treatment plan and that the plan had not rehabilitated them. The court continued the termination hearing after neither mother nor father appeared and ordered that they appear at the next hearing or be found in default.

T6 Although mother was present at the rescheduled termination hearing held a month later, father was unable to attend. Father's counsel explained to the court that he had been detained at work. The court proceeded with the hearing and father's counsel actively participated on his behalf. Two hours later, however, when father had still not appeared, the court found him in default, granted the termination motion as it pertained to him, and ended his counsel's participation over counsel's objection. It then took additional testimony from the therapist who primarily treated mother and also provided couples therapy, and the family's two life skills workers.

T7 When the court reconvened the termination hearing a week and a half later, both mother and father were present. Father, represented by substitute counsel because his attorney was unavailable, requested that the court reconsider its decision to find him in default. The court allowed father to participate and testify. However, when substitute counsel indicated that she was not fully prepared to proceed with the case, the court sua sponte permitted father's former counsel to withdraw based on father's failure to cooperate. Proceeding pro se, father briefly testified but did not present any other evidence, cross-examine the other witnesses testifying that day, including the caseworker, or offer a closing argument.

T8 Ultimately, the court found that the criteria under section 19-3-604(1)(c), C.R.S. 2011, for termination of parental rights had been proved by clear and convincing evidence as to both mother and father: the treatment plan was unsuccessful in rehabilitating both parents, both were unfit, and their conduct was unlikely to change within a reasonable period of time. It found that nothing father presented would change these findings. Its written order acknowledged that father had been permitted to appear pro se on the see-ond day of the hearing, but did not mention the prior finding of default.

T9 The trial court's judgment also terminated the parental rights of S.L., the father of C.L. and D.L. However, he does not appeal.

II. Father's Appeal

110 Father contends that the trial court violated his statutory and due process rights to counsel when it prohibited his attorney from participating on his behalf and entered default against him on the first day of the termination hearing and sua sponte allowed his counsel to withdraw on the second day of the hearing. We agree that his statutory right to counsel was violated and further conclude that such error requires vacating the termination judgment against him.

A. Statutory Right to Counsel in Termination Hearing

{11 In all dependency and neglect proceedings, a parent possesses the legal right "to be represented by counsel at every stage of the proceedings." § 19-3-202(1), C.R.S.2011. An indigent parent also possesses the right to seek court-appointed counsel to represent him or her. Id.; People in Interest of Z.P., 167 P.3d 211, 213 (Colo.App.2007) (upon timely request). A court must advise the parent of these rights at first appearance. § 19-8-202(1); Z.P., 167 P.3d at 213.

T 12 Onee a motion for termination of the parent-child relationship is filed, if the parent is not already represented by counsel, the court again must advise the parent of his or her right to counsel. § 19-8-602(2), C.R.S. 2011. Advisement of right to counsel may be done in open court or in writing. Id. The court may appoint counsel for the parent at this point if it finds representation by counsel "necessary to protect the interests of the child or other parties" to the proceeding. § 19-1-105(2), C.RS.2011; see § 19-3-602(2).

1 18 These statutes create a parent's right to counsel in termination hearings. C.S. v. People, 83 P.3d 627, 636 (Colo.2004).

T14 Although this right "is secured by statute and not constitutional mandate," id., the United States Supreme Court and the Colorado Supreme Court have acknowledged that a parent's fundamental liberty interest in a termination proceeding further implicates constitutional concerns. Lassiter v. Dep't of Soc. Services, 452 U.S. 18, 31, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (due process may require the appointment of counsel in termination proceedings, determinable on a case-by-case basis); see Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (recognizing that "[the fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State"); A.L.L. v. People in Interest of C.Z., 226 P.3d 1054, 1062 (Colo.2010) (parent's right to counsel in a dependency and neglect proceeding is statutory in nature, but termination proceedings "cue constitutional due process concerns"); see also People in Interest of L.B., 254 P.3d 1203, 1206 (Colo.App.2011) (due process requires that a parent receive the assistance of counsel when a proceeding could result in termination of parental rights).

115 We need not reach the constitutional question here, however, because we conclude the trial court violated father's statutory right to counsel by effectively dismissing father's counsel on the first day of his termination hearing. See People v. Lybarger, 700 P.2d 910, 915 (Colo.1985) ("a court should not decide a constitutional issue unless and until such issue is actually raised by a party to the controversy and the necessity for such decision is clear and inescapable").

116 After commencing the termination hearing, in the absence of father but with his counsel present and participating, the trial court found father in default and granted the motion to terminate his parental rights. It also indicated on the first day of the hearing that it was dismissing his counsel, over her objection, stating: "You are free to leave or stay as you wish, [counsel]. I am not going to allow you to inquire any further." For the remainder of the first day of the termination hearing, including during the testimony implicating father's fitness by the therapist and the family's two life skills workers, father was thus deprived of his right to assistance of counsel.

T17 No statutory exception exists here to permit such a deprivation of this right. The trial court's means of effectively dismissing counsel in these circumstances, by entering default against father, was contrary to C.R.C.P. 55. See Rombough v. Mitchell, 140 P.3d 202, 204 (Colo.App.2006) (when a defendant answers and actively litigates but fails to appear for trial, the trial court may receive evidence in the defendant's absence and render judgment on the merits, but it may not enter an order of default); Kielsmier v. Foster, 669 P.2d 630, 632 (Colo.App.1983); cf. People in Interest of V.W., 958 P.2d 1132, 1134 (Colo.App.1998) (default judgment terminating father's parental rights upheld when father did not request an appointed attorney until after his parental rights had been terminated).

{ 18 The trial court's conduct further contravened the statutory scheme of title 19, article 3 described above, in which a parent in a dependency and neglect proceeding is afforded more due process protection than litigants in other civil contexts. See also People in Interest of C.G., 885 P.2d 355, 357 (Colo.App.1994) (parent's appearance at termination hearing was not required where he was represented by counsel at that hearing and able to present testimony by deposition or affidavit).

Nor did the trial court cure this error when the hearing reconvened. Its pri- or decision, on the record, to terminate father's rights and disallow counsel's active participation in the hearing may well have influenced whether father's substitute counsel believed she would be able to participate in the hearing on the second day. Indeed, she stated she was not prepared to proceed, except for the limited purpose of introducing father and assisting him to testify if needed. The trial court then sua sponte directed that father's counsel of record was "allow[ed] to withdraw based on [father]'s failure to cooperate." The trial court permitted father to testify and participate pro se in the proceeding and reserved deciding "whether anything [he] said would reverse the court's previous ruling" of default against him. Subsequent ly, the record is devoid of any participation by father's counsel and, apart from his own brief testimony, by father.

T20 Based on these relevant facts, we conclude that father was also deprived of assistance of counsel on the second day of his termination hearing.

4 21 Because no party contends that father waived his right to counsel, we also do not consider his failure to appear on the first day of the termination hearing, his failure to object to the effective withdrawal of his counsel, or his decision to testify as a voluntary waiver of his right to representation. See People in Interest of M.G., 128 P.3d 332, 334 (Colo.App.2005) (waiver of statutory right to counsel must be voluntary).

122 Accordingly, the trial court violated sections 19-3-202(1) and 19-3-602(2) when it deprived father of his right to the assistance of counsel during substantial parts of the termination hearing.

B. Deprivation of Counsel at Termination Hearing Not Subject to Harmless Error Analysis

123 Colorado appellate courts have not determined the appropriate standard of review for violation of the statutory right to counsel in dependency and neglect proceedings.¹ Because father, the Department, and the GAL did not address in the petition for review or the responses the standard of review that would apply in the event that we concluded that father's statutory right to counsel had been denied, we requested that the parties submit supplemental briefs on whether that standard should be structural error, harmless error, or some other standard.

1 24 Upon review of those supplemental briefs, we now conclude that the denial of father's statutory right to counsel was reversible error per se under the circumstances presented here.

125 Under Colorado law, error in a civil case is harmless if it did not affect a substantial right of a party. C.R.C.P. 61. "An error affects a substantial right only if 'it can be said with fair assurance that the error substantially influenced the outcome of the case or impaired the basic fairness of the trial itself"" Bly v. Story, 241 P.3d 529, 535 (Colo.2010) (quoting Banek v. Thomas, 733 P.2d 1171, 1178 (Colo.1986)).

26 We conclude that it is not appropriate to review the denial of a respondent parent's statutory right to counsel under a harmless error standard. This is so because the absence of counsel for a substantial part of a termination of parental rights hearing is not susceptible of analysis to determine whether the deprivation of counsel either significantly influenced the outcome of the case or impaired the basic fairness of the termination hearing. In an ordinary case, a court can normally review a trial error, such as the improper admission or exclusion of evidence, to determine whether such error impacted the outcome of the trial or affected its basic fairness.

T 27 In contrast, when the issue is a violation of a respondent parent's statutory right to counsel, it is much more difficult, if not impossible, to make such determinations. Onee a respondent parent's counsel has been dismissed, it is unreasonable to require or expect a self-represented parent to make an offer of proof explaining what information or evidence would have been presented had the attorney still been present. Further, while the record may demonstrate significant evidence of father's failure to comply with his treatment plan, as well as other deficiencies, it is impossible to know what difference the presence of his attorney might have made in cross-examining the GAL's witnesses, or presenting testimony on his behalf. Additionally, while father testified on his own behalf on the second day of the hearing, he did so without benefit of counsel, and without a proper awareness of what testimony might have been most helpful to his efforts to oppose the GAL's motion² to terminate his parental rights.

¶ 28 Thus, we conclude that the harmless error standard is not appropriate under these circumstances.

129 At the same time, we disagree with father's contention that we should follow those jurisdictions that have applied a strue-tural error standard in these cireumstances.

T 30 Some jurisdictions have found "structural" error, which is not susceptible to a harmless error analysis, in the context of parental termination proceedings. See In re Adoption of B.J.M., 42 Kan.App.2d 77, 209 P.3d 200, 207 (2009) (denial of due process by failing to provide for incarcerated father's presence at a stepparent adoption hearing); In re Torrance P., 298 Wis.2d 1, 724 N.W.2d 623, 635 (2006) (denial of statutory right to counsel in a termination of parental rights proceeding). However, neither the Colorado Supreme Court nor the United States Supreme Court has recognized the concept of structural error in civil cases. See Black v. Sw. Water Conservation Dist., 74 P.3d 462, 473 (Colo.App.2003); see also Washington v. Recuenco, 548 U.S. 212, 218-19, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006). "Only in rare cases has this Court held that an error is structural, and thus requires automatic reversal. In such cases, the error necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.'" Recuenco, 548 U.S. at 218-19, 126 S.Ct. 2546 (footnote omitted) (quoting Neder v. United States, 527 U.S. 1, 9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).

131 Because neither the United States Supreme Court nor the Colorado Supreme Court has extended the structural error analysis to civil cases, we do not do so here.

132 Nevertheless, we conclude that the erroneous denial of the respondent parent's right to counsel during a substantial part of a parental rights termination hearing requires application of an automatic reversible error standard. See Rivera v. Illinois, 556 U.S. 148, 161-62, 129 S.Ct. 1446, 173 L.Ed.2d 320 (2009) (absent a federal constitutional violation, states retain the prerogative to decide whether errors require automatic reversal or rank as harmless under state law).

1 33 We recognize that determining whether a parent has been deprived of his or her right to counsel during a "substantial" part of a parental rights termination hearing is not a precise calculation. However, courts regularly apply "substantial" standards in various contexts that permit case-by-case determinations. See, e.g., People v. Hall, 999 P.2d 207, 217 (Colo.2000) (under § 18-1-501(8), C.R.S. 2011, a person acts recklessly if his or her conduct creates a "substantial and unjustifia~ ble risk"); Woodsmall v. Reg'l Transp. Dist., 800 P.2d 63, 69 (Colo.1990) (interpreting Colorado Governmental Immunity Act notice of claim statute, § 24-10-109(1), C.R.S.2011, to require "substantial compliance"); Hall v. Frankel, 190 P.3d 852, 858 (Colo.App.2008) (under section 18-64-401, C.R.S.2011, a physician testifying as an expert must demonstrate a "substantial familiarity" with the subject medical specialty).

{ 34 Here, the record does not reveal the percentage of time during which father was unrepresented at the hearing. However, father was deprived of his right to counsel during a substantial part of the termination hearing, whether measured qualitatively or quantitatively. Qualitatively, father did not have counsel to represent him at all for his own case nor in response to the case against him presented by the GAL and the Department. Father testified briefly on his own behalf, but did so with the admonition that it would reserve deciding whether any of father's testimony would reverse the trial court's previous default ruling against him. Further, it is apparent from a review of the record that father was unfamiliar with judicial proceedings, including the opportunity to present witnesses on his own behalf, In addition, during the first day of the termination hearing, the therapist and two life skills workers testified against father after his counsel had been prohibited from inquiring further; thus, these witnesses were not subjected to cross-examination by father's attorney (or by father himself).

135 Quantitatively, the record shows that father was deprived of his right to counsel for a substantial portion of the termination hearing. In terms of transeript pages, father was unrepresented during more than eighty percent of the parental rights termination hearing. (We recognize, of course, that a significant portion of the hearing involved the case against mother, but if father had had counsel for the entire termination hearing, presumably his counsel would have been present for all of the proceedings involving termination of mother's parental rights.)

36 In these circumstances, we can safely conclude that father was deprived of his right to counsel for a substantial part of the parental rights termination hearing.

T37 A majority of other jurisdictions addressing the issue have concluded that the violation of a respondent parent's statutory or constitutional right to counsel in a termination of parental rights hearing is either reversible error per se or structural error. See In Interest of J.B., 624 So.2d 792, 792 (Fla.Dist.Ct.App.1993) (even though parent was represented by counsel at later proceedings, failure to advise parent of right to counsel at the original dependency adjudication proceeding "cannot be deemed harmless error since the dependency adjudication was used as a basis of the adjudication of the permanent termination of appellant's parental right"); In Interest of J.M.B., 296 Ga. App. 786, 676 S.E.2d 9, 12 (2009) (finding structural error, court holds that "the total and erroneous denial of appointed counsel during the termination hearing is presumptively harmful because it calls into question the very structural integrity of the fact-finding process"); State v. Doe, 123 Idaho 562, 850 P.2d 211, 215 (App.1993) (where mother did not have appointed counsel for first part of termination hearing, court declined to apply harmless error standard, noting that it need not decide whether any evidence from first part of hearing was improperly admitted or whether evidence from second part of hearing was sufficient to support court's termination order); R.V. v. Commonwealth, 242 S.W.3d 669, 673 (Ky.Ct.App.2007) (due process and state statute prohibit termination of parental rights unless parent has been represented by counsel at every critical stage of underlying dependency proceeding; exception applies when it can be shown that dependency proceeding without counsel had "no effect" on subsequent termination case); In re Keifer, 159 Mich.App. 288, 406 N.W.2d 217, 219 (1987) (where attorney for father not appointed until after evidentiary hearings, court rejected harmless error analysis, declaring it "inappropriate to address the issues of whether sufficient evidence was introduced to support the order terminating respondent's rights or whether adequate factual findings were placed on the record"); In re A.S.A., 258 Mont. 194, 852 P.2d 127, 129-30 (1993) (where counsel not appointed for parent until the end of the termination hearing, parent's constitutional right to due process was violated and district court's termination judgment was reversible error); In re Adoption of K.A.S., 499 N.W.2d 558, 567 (N.D.1993) (court held that trial court's failure to appoint counsel to represent father was not harmless error, but noted that it was skeptical that denial of counsel to an indigent parent in an adoption proceeding which results in termination of parental rights could ever be harmless); In re S.S., 90 P.3d 571, 575-76 (Okla.Civ.App.2004) (neither showing of prejudice nor harmless error applies when parent deprived of right to counsel in termination of parental rights proceeding); In re Adoption of R.I., 455 Pa. 29, 312 A.2d 601, 602 (1973) (appointing counsel for parent after the termination of parental rights hearing was insufficient, constituted a violation of due process rights, and warranted reversal); Torrance P., 724 N.W.2d at 635 (dismissing mother's attorney in termination of parental rights proceeding was prejudicial error per se and required reversal under structural error analysis); see also Williams v. Bentley, 26 A.D.3d 441, 809 N.Y.S.2d 205, 206-07 (N.Y.App.Div.2006) (in custody proceeding, deprivation of a party's fundamental right to counsel is a denial of due process and requires reversal, without regard to merits of unrepresented party's position); but see In re Ronald R., 37 Cal.App.4th 1186, 44 Cal.Rptr.2d 22, 20-30 (1995) (harmless error standard applies to violation of right to counsel when decision made to terminate reunification services and schedule permanency planning hearing); Hughes v. Div. of Family Servs., 836 A.2d 498 (Del.2003) (harmless error analysis applied under three-part due process analysis prescribed by Lassiter); In re P.D.L., 324 Mont. 327, 102 P.3d 1225, 1229 (2004) (court ruled father's Rule 60(b) motion was untimely since it was filed more than two years after he was aware his parental rights were about to be terminated; court also applied harmless error standard to lack of notice of right to counsel); In re J.R.G.F., 250 P.3d 1016 (Utah Ct.App.2011) (applying harmless error standard).

1 38 Significantly, one recent commentator has noted that "in situations where a parent is erroneously deprived of counsel at the final TPR [termination of parental rights] hearing, appellate courts have been steadfast in automatically reversing the TPR decision regardless of the merits of the case." Vivek S. Sankaran, No Harm, No Foul? Why Harmless Error Analysis Should Not Be Used to Review Wrongful Denials of Counsel to Parents in Child Welfare Cases, 68 S.C. L. Rev. 13, 33 (Autumn 2011). That commentator also noted that, in contrast, in cases involving deprivation of the right to counsel at hearings before the final termination of parental rights hearing, a large number of appellate courts have employed a harmless error test and have placed the burden on parents to demonstrate how the earlier appointment of counsel would have changed the outcome in the case. Id. at 15-16; see also Patricia Kussmann, Anmotation, Right of Indigent Parent to Appointed Counsel in Proceeding for Involuntary Termination of Parental Rights, 92 A.L.R.5th 379 (2001) (collecting cases).

" 39 In conclusion, we hold that given the importance of the statutory right to counsel in termination of parental rights hearings, the deprivation of that statutory right constitutes reversible error per se. However, our holding is limited in its scope. We do not address whether the deprivation of the right to counsel at an earlier stage of a dependen-ey and neglect proceeding is subject to harmless error analysis. See, e.g., People in Interest of J.B., 702 P.2d 753, 755 (Colo.App.1985) (without discussing whether harmless error standard of review applies, court reversed termination of parental rights when indigent mother's attorney was discharged after denial of department's termination hearing and not reappointed until twenty-one months later, when second motion to terminate parental rights was filed). Nor do we consider whether a brief absence of counsel during a termination of parental rights hearing constitutes reversible error per se. Here, however, where father was deprived of his right to counsel for a substantial portion of the termination of parental rights hearing, application of the reversal per se standard is warranted.³

III. Mother's Appeal

140 Mother contends that the judgment terminating her parental rights is not supported by clear and convincing evidence. We disagree.⁴

%41 To terminate parental rights under section 19-8-604(1)(c), the court must find, by clear and convincing evidence, that (1) an appropriate, court-approved treatment plan has not been complied with by the parent or has not been successful in rehabilitating the parent; (2) the parent is unfit; and (3) the parent's conduct or condition is unlikely to change within a reasonable time. People in Interest of A.J.L., 243 P.3d 244, 251 (Colo.2010).

In addition, the court must consider and eliminate less drastic alternatives before it terminates the parent-child legal relationship. People in Interest of M.M., 726 P.2d 1108, 1122 (Colo.1986); People in Interest of N.A.T., 134 P.3d 535, 538 (Colo.App.2006). It must also inquire into the child's best interests by giving primary consideration to the child's physical, mental, and emotional conditions and needs. § 19-83-6048), C.R.S.2011; People in Interest of C.H., 166 P.3d 288, 289 (Colo.App.2007).

143 "The credibility of the witnesses and the sufficiency, probative effect, and weight of the evidence, as well as the inferences and conclusions to be drawn from it, are within the discretion of the trial court." People in Interest of D.B-J., 89 P.3d 530, 532 (Colo.App.2004). Accordingly, the court's findings and conclusions will not be disturbed on review if the record supports them. People in Interest of C.A.K., 652 P.2d 603, 613 (Colo.1982).

$44 Clear and convincing evidence is evidence persuading the fact finder that the contention is highly probable, and, although the standard requires proof by more than a "preponderance of the evidence," it is more easily met than the "beyond a reasonable doubt" standard used in eriminal proceedings. A.J.L., 243 P.3d at 251.

A. Compliance with the Treatment Plan

$45 Mother argues that she complied with the treatment plan in a number of ways: showing growth in her ability to empathize with the children, progressing in her counseling, being properly prepared for and consistently visiting the children, maintaining contact with the treatment team throughout the case, continuing to work on and revise her clarification letters to the children, accepting accountability for the cireumstances that had necessitated the Department's intervention, and demonstrating appropriate parental protective capacity. She also testified that she has a strong bond with the children. The court acknowledged mother's efforts, recognizing that she loved her children, wished that she could provide for their needs, and had attempted to comply with the treatment plan. However, it concluded that she had not reasonably complied and that she continued to demonstrate the same behaviors identified in the treatment plan, including a "strange absence of emotional attachment."

1 46 The overwhelming evidence supported these findings. The caseworker testified that mother did not display consistent empathy for the children, that she had been unable to obtain or maintain safe and stable housing, that her employment had been erratic, and that she did not accept full accountability for the situation leading to the children's placement out of the home. The caseworker specifically noted that C.L. and D.L., mother's older children, assumed a parental role in their visits with mother, and that visits with R.D. had to be discontinued because the anxiety and trauma they induced caused R.D. to engage in self-harming behavior. The anxiety and trauma R.D. experienced in connection with the visits was due in part to the sexual abuse C.L. allegedly perpetrated on her approximately three years before and mother's inaction when R.D. told her about it.

T47 Several experts, including the therapists for R.D. and mother, opined that mother's refusal to accept full responsibility for both the abuse and neglect of the children rendered her attempts at clarification wholly inadequate. Mother's therapist also felt that her empathy for the children was waning, at best, and prevented her from safely parenting them.

148 A parent is responsible for assuring compliance with and the suceess of the treatment plan. See People in Interest of J.A.S., 160 P.3d 257, 260 (Colo.App.2007). Partial compliance, or even substantial compliance, with a treatment plan may not be sufficient to correct or improve a parent's conduct or condition. See People in Interest of S.M.A.M.A., 172 P.3d 958, 962 (Colo.App.2007).

" 49 Based on this record, we conclude that the GAL and the Department, which supported the termination motion, met the clear and convincing standard and proved that mother did not substantially or successfully comply with most aspects of the treatment plan. Therefore, we will not disturb the court's findings in that regard. See C.A.K., 652 P.2d at 613.

B. Unfit and Unlikely to Change Within a Reasonable Time

150 We also conclude that the evidence of mother's continued instability and her failure to gain the insight and skills necessary to remediate the conditions that caused the children's removal and prevented her from meeting their basic needs proved that she was unfit. See People in Interest of D.P., 160 P.3d 351, 353 (Colo.App.2007) (an unfit parent is one whose condition or conduct renders him or her unable to give a child reasonable parental care).

151 Further, despite mother's claims of progress, the evidence showed that her issues were chronic, and both mother's therapist and the caseworker testified that she would not be able to safely parent within a reasonable time. See K.D. v. People, 139 P.3d 695, 700 (Colo.2006) (in determining whether a parent can become fit within a reasonable time, the court may consider whether any changes occurred during the dependency and neglect proceeding, the parent's social history, and the chronic or long-term nature of the parent's conduct or condition).

C. Less Drastic Alternatives and Best Interests

152 Finally, the record establishes, by clear and convincing evidence, that the children, who had been out of the home for approximately nineteen months, urgently needed permanence. RD. and RD. had been placed in the same foster home, where they were doing well and had become very bonded to the foster parents, who wanted to adopt them. As for C.L. and D.L., the caseworker testified that their prolonged proceedings had taken a toll on both of them. D.L.'s therapist also testified that D.L. was experiencing depression, which she attributed, in large part, to his being in "limbo." Thus, the permanence each of the children required could only be achieved through a termination of mother's parental rights. See People in Interest of T.E.M., 124 P.3d 905, 910 (Colo.App.2005) (long-term or permanent placement may not be appropriate if it does not provide adequate permanence or otherwise meet a child's needs).

153 Because mother underwent little change during the course of this case and showed no likelihood of being able to provide adequate care to the children, termination of her parental rights was in their best interests. Accordingly, we conclude that the termination of mother's parental rights was supported by clear and convincing evidence.

11 54 The judgment is affirmed as to mother and vacated as to father, and the case is remanded for further proceedings concerning father.

Judge ROMAN concurs. Judge BOORAS concurs in part and dissents in part.

1 . However, we note that in the recent case, In re C.L.S., 252 P.3d 556, 559 (Colo.App.2011), a division of this court held in an adoption proceeding that a default judgment terminating an alleged father's parental rights must be vacated because mother's fraudulent misrepresentations to the adoption agency and the court deprived the father of notice and an opportunity to be heard. The division held that the judgment was void and ordered that it be set aside.

2 . Although the GAL filed the motion to terminate and directed examination of witnesses at trial, the Department participated in cross-examination of witnesses and, at the conclusion of the hearing, agreed with the GAL's position on termination.

3 . In some circumstances, distinguishable from those presented here, a harmless error standard may apply in dependency and neglect cases. See, e.g., People in Interest of A.M., — P.3d —, 2010 WL 5621076 (Colo.App.2010) cert. granted 2011 WL 3276665 (Aug. 1, 2011).

4 . A trial court may terminate the parental rights of one parent but not the other. People in Interest of J.L.M., 143 P.3d 1125, 1126-27 (Colo.App.2006).