in the Interest of S.B

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
January 2, 2020
2020COA5
No. 19CA0198, People in the Interest of S.B. — Juvenile Court
— Dependency and Neglect — Termination of the Parent-Child
Legal Relationship; Attorneys and Clients — Ineffective
Assistance of Counsel
A division of the court of appeals considers whether the
juvenile court erred in terminating father’s parental rights.
In separate opinions, Judges Hawthorne, Furman and Navarro
conclude that the court did not err. Judge Hawthorne, writing for
the majority, concludes that under People in Interest of A.G., 262
P.3d 646 (Colo. 2011), a parent’s ineffective assistance of counsel
claim in a termination proceeding requires demonstrating
“outcome-determinative” prejudice pursuant to Strickland v.
Washington, 466 U.S. 668, 687 (1984). Judge Furman specially
concurs, pointing out the shortcomings of applying the criminal
“outcome-determinative” prejudice inquiry to civil termination of
parental rights proceedings. Judge Navarro specially concurs that
father failed to demonstrate prejudice under either analysis.
COLORADO COURT OF APPEALS 2020COA5
Court of Appeals No. 19CA0198
Montrose County District Court No. 17JV83
Honorable D. Cory Jackson, Judge
The People of the State of Colorado,
Appellee,
In the Interest of S.B., a Child,
and Concerning R.B.,
Appellant.
JUDGMENT AFFIRMED
Division IV
Opinion by JUDGE HAWTHORNE
Furman, J., specially concurs
Navarro, J., specially concurs
Announced January 2, 2020
Julie R. Andress, Assistant County Attorney, Montrose, Colorado, for Appellee
Barbra J. Remmenga, Guardian Ad Litem
Michael Kovaka, Littleton, Colorado, for Appellant
¶1 In this dependency and neglect proceeding, R.B. (father)
appeals the judgment terminating his parental rights to S.B. (the
child). We affirm.
I. Factual Background and Procedural History
¶2 In August 2017, law enforcement officials placed the child in
protective custody because during a drug raid they found the child
alone in unsafe conditions where he and father lived. The Montrose
County Department of Health and Human Services (Department)
initiated a dependency and neglect proceeding, and the juvenile
court granted custody of the child to the Department. The
Department placed the child in the care of his paternal great aunt
and uncle, whom the court appointed as special respondents in the
case. The child’s mother had died earlier that year.
¶3 In September 2017, father admitted that the child was
dependent and neglected and the court adopted a treatment plan
for father.
¶4 Father was later arrested on several offenses, and under a plea
agreement was sentenced to six years in the custody of the
Department of Corrections in March 2018.
1
¶5 In August 2018, the Department moved to terminate father’s
parent-child legal relationship with the child. The court held a
termination hearing and terminated father’s parental rights.
II. The Juvenile Court’s Errors Under ICWA Were Harmless
¶6 Father contends that the juvenile court failed to comply with
the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C.
§§ 1901-1963 (2018), in two ways: (1) it failed to make proper ICWA
inquiries during the termination proceeding and (2) it and the
Department failed to send proper notice of the termination
proceeding to the Jena Band of the Choctaw Tribe. We conclude
the errors in the court’s inquiry and notice procedures under ICWA
were harmless.
A. Standard of Review and Applicable Law
¶7 We review de novo whether ICWA’s requirements applied to
the proceeding and were satisfied. People in Interest of M.V., 2018
COA 163, ¶ 32; People in Interest of T.M.W., 208 P.3d 272, 274
(Colo. App. 2009).
¶8 Colorado’s ICWA-implementing legislation provides that in
dependency and neglect proceedings, the petitioning party must
make continuing inquiries to determine whether the child is an
2
Indian child. § 19-1-126(1)(a), C.R.S. 2018;1 see also B.H. v. People
in Interest of X.H., 138 P.3d 299, 302 (Colo. 2006).
¶9 The federal guidelines implementing ICWA impose a duty of
inquiry and notice on trial courts. 25 C.F.R. § 23.107(a) (2019);
Bureau of Indian Affairs, Guidelines for Implementing the Indian
Child Welfare Act (Dec. 2016), https://perma.cc/3TCH-8HQM; see
also Notice of Guidelines, 81 Fed. Reg. 96,476 (Dec. 30, 2016). The
court must ask each participant on the record at the beginning of
every emergency, voluntary, or involuntary child custody proceeding
whether the participant knows or has reason to know that the child
is an Indian child. 25 C.F.R. § 23.107(a); see People in Interest of
L.L., 2017 COA 38, ¶ 19. A proceeding to terminate parental rights
is a separate child custody proceeding under ICWA. See 25 U.S.C.
§ 1903(1) (2018); see also § 19-1-126(1); People in Interest of C.A.,
2017 COA 135, ¶ 10.
¶ 10 When there is reason to know or believe that a child involved
in a custody proceeding is an Indian child, the petitioning party
must send notice of the proceeding to the potentially concerned
1 The statute in effect at the time.
3
tribe or tribes. B.H., 138 P.3d at 302; see 25 U.S.C. § 1912(a)
(2018); § 19-1-126(1)(b). A court “has reason to know” a child is an
Indian child if, in relevant part, “[a]ny participant in the proceeding,
officer of the court involved in the proceeding, Indian Tribe, Indian
organization, or agency informs the court that the child is an Indian
child . . . [or] informs the court that it has discovered information
indicating that the child is an Indian child[.]” 25 C.F.R. § 23.107(c).
State courts and agencies are encouraged to interpret these factors
expansively. M.V., ¶ 43. If the tribe’s identity or location can’t be
determined, notice must be given to the Bureau of Indian Affairs.
B.H., 138 P.3d at 302; see 25 U.S.C. § 1912(a).
B. Additional Facts
¶ 11 Prior to the dependency and neglect adjudication, the court
asked father on two occasions whether the child had Indian
heritage. Father said that the child didn’t and that he was unaware
of any Indian heritage from the child’s mother.
¶ 12 At the adjudication hearing, the Department notified the court
that it was inquiring into the child’s possible Indian heritage from
his mother.
4
¶ 13 Months later at a review hearing, the Department updated the
court on its efforts to determine the child’s possible Indian heritage.
Its counsel said that the Department had communicated with the
child’s maternal grandfather, who said that he was a registered
member of a Choctaw tribe. Counsel said that the Department had
sent notices to the three federally recognized Choctaw tribes, and
that two had responded that the grandfather wasn’t a member or
eligible to be one. The Department hadn’t heard back from the
third tribe, the Jena Band, and hadn’t been able to contact the tribe
by telephone.
¶ 14 In July 2018, the court held a “permanency planning hearing.”
It adopted the Department’s primary termination and adoption
plan. The court found that “ICWA continues not to be an issue,”
and that it “does not know or have reason to know that [the child] is
[an] Indian child.”
¶ 15 On August 1, 2018, the Department moved to terminate
father’s parent-child legal relationship with the child. In the
motion, the Department stated that it
made appropriate inquiries to determine that
[the child is] not subject to [ICWA]. . . .
Inquiries were made into the [m]other’s
5
heritage and the Choctaw Tribes were noticed.
The People do not know or have reason to
know or believe that the child is an Indian
Child under the meaning of [ICWA].
¶ 16 On August 15, 2018, in a “pre-hearing” order, the court stated
that it “hereby inquires of [father] whether [he] or the child[] are
members of a Native American Indian tribe or are eligible for
membership in a Native American Indian tribe. [Father] shall file a
report indicating whether ICWA is a[n] issue in this case within
[seven] days.” Father didn’t respond.
¶ 17 Eight days before the termination hearing on November 6,
2018, the Department filed a “Notice Regarding [ICWA].” In the
notice the Department detailed its efforts to inquire into the child’s
possible Indian heritage, including what counsel had already
provided at the review hearing. The Department also sent
information to the Bureau of Indian Affairs, but the Bureau had
responded that it couldn’t identify a tribe. The Jena Band of the
Choctaw Tribe still hadn’t responded to the notice or to the
Department’s follow-up efforts.
¶ 18 The notice also said that the Department had called
grandfather in July 2018 prior to the termination motion, and he
6
had “confirmed that the tribe he is enrolled in is the ‘Metis’ tribe,” a
federally unrecognized tribe. Thus, the Department concluded that
it didn’t believe or have reason to know that the child was an Indian
child for ICWA purposes.
C. Analysis
¶ 19 We agree that the court’s inquiry and notice procedures under
ICWA were insufficient.
¶ 20 “The trial court must ask each participant on the record at the
beginning of each emergency, voluntary, or involuntary child
custody proceeding ‘whether the participant knows or has reason to
know that the child is an Indian child.’” People in Interest of K.G.,
2017 COA 153, ¶ 21 (quoting 25 C.F.R. § 23.107(a)). Yet the court
inquired only of father. See K.G., ¶ 25 (“Nor did the court make the
required inquiry on the record as to any of the three parents, the
guardian ad litem, or the Department.”); see also People in Interest
of J.L., 2018 COA 11, ¶ 20 (“A written advisement form provided to
one participant falls far short of meeting this requirement.”).
¶ 21 And at the time the Department sought termination, based on
the existing record, the court had “reason to know” the child may
have Indian heritage and should have required the Department to
7
send notice to the Jena Band. See M.V., ¶ 44 (parent indicating
that children had Indian heritage and were eligible for membership
in a federally recognized tribe was “sufficient to give the court
reason to know the children were Indian children”); L.L., ¶ 39 (“If a
Tribe does not respond to the notice . . . the Department must
continue to send the Tribe notices of subsequent proceedings for
which notice is required, such as a termination of parental rights
proceeding.”).
¶ 22 But these errors were harmless. Grandfather’s claim to be a
registered member of a Choctaw tribe was the sole basis for
believing or having reason to know that the child possibly had
Indian heritage. So when grandfather later clarified that he was
enrolled in a federally unrecognized tribe, further notice wasn’t
required and the previous errors were harmless. See People in
Interest of Z.C., 2019 COA 71M, ¶ 22 (“And because the [tribe] was
able to determine that the child was not a member of or eligible for
membership in the tribe (albeit in a letter that was not before the
juvenile court at the time of the hearing), the error in the juvenile
court’s finding that the [tribe] received proper notice is harmless.”);
People in Interest of S.R.M., 153 P.3d 438, 441 (Colo. App. 2006).
8
III. Ineffective Assistance
¶ 23 Father contends that his trial counsel rendered ineffective
assistance by (1) failing to communicate with him; (2) failing to
secure his testimony for the termination hearing or later written
closing argument, instead proceeding by an “offer of proof”; and (3)
not “fully understand[ing] the facts of the case or [father’s] position
on central issues.” We disagree.
A. Standard of Review and Applicable Law
¶ 24 We consider ineffective assistance claims raised for the first
time on appeal. See People in Interest of A.R., 2018 COA 176, ¶ 35
(cert. granted Mar. 4, 2019).
¶ 25 In Colorado, a respondent parent’s right to appointed counsel
in a termination proceeding is secured by statute and not
constitutional mandate. C.S. v. People in Interest of I.S., 83 P.3d
627, 636 (Colo. 2004). Divisions of this court have recognized that
a parent’s statutory right to counsel includes the right to effective
assistance of counsel. People in Interest of S.L., 2017 COA 160,
¶ 58. These divisions have evaluated ineffective assistance of
counsel claims by applying the test used in criminal cases — the
Strickland test. People in Interest of C.H., 166 P.3d 288, 290-91
9
(Colo. App. 2007) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). Under Strickland, the parent must show two things:
(1) counsel’s performance was outside the wide range of
professionally competent assistance and (2) counsel’s errors
prejudiced the parent. Id. at 291. Prejudice requires showing “a
reasonable probability that, but for counsel’s alleged deficiencies,
the outcome of the termination proceeding would have been
different.” S.L., ¶ 59. In evaluating counsel’s performance, courts
must indulge a strong presumption that counsel’s actions might be
considered sound trial strategy. People v. Phipps, 2016 COA 190M,
¶ 17.
¶ 26 But a division of this court recently departed from the
Strickland outcome-determinative prejudice test and adopted a
“fundamental fairness” test. See A.R., ¶ 46 (“We . . . depart from
other divisions of this court that have exclusively applied the . . .
outcome-determinative test, without considering fundamental
fairness, to determine whether a parent was prejudiced by counsel’s
deficient performance in a termination of parental rights
proceeding.”). Under this approach, counsel’s performance may
10
also be prejudicial where a judgment is unreliable or fundamentally
unfair. See id. at ¶¶ 57, 61.
¶ 27 Chief Justice Directive 16-02, Court Appointments Through
the Office of Respondent Parents’ Counsel (amended July 1, 2017),
provides the practice standards for respondent parent counsel in
dependency and neglect cases. Specifically, respondent parent
counsel is required to “[a]dvocate for the client’s goals and empower
the client to direct the representation and make informed
decisions,” “[m]eet and communicate regularly with the client well
before court proceedings,” “[p]resent and cross-examine witnesses,
prepare and present exhibits,” and “[r]equest the opportunity to
make opening and closing arguments.” Id. at attach. A, pp. 1-3.
¶ 28 If the parent’s allegations aren’t sufficiently specific or fail to
make a prima facie showing of ineffective assistance, the claim may
be denied without further inquiry. S.L., ¶ 60 (citing C.H., 166 P.3d
at 291). And the failure to establish either Strickland prong defeats
an ineffective assistance claim. Id. (citing People in Interest of D.G.,
140 P.3d 299, 308 (Colo. App. 2006)).
11
B. Additional Facts
¶ 29 Shortly before the termination hearing, the court granted
father’s request to attend the termination hearing via telephone
because he was incarcerated. At the termination hearing, father’s
counsel told the court that father wouldn’t be able to attend the
hearing by telephone and suggested that the hearing be continued
because “I know [father] does want to testify and I think he should
be allowed to testify in this trial.” The court partially granted
counsel’s request, continuing the closing arguments and allowing
father to file “an affidavit, if any, with the court on or before
November 26, 2018.” It gave the parties until December 7, 2018, to
file written closing arguments.
¶ 30 On November 26, father’s counsel asked the court to extend
the time to file father’s affidavit. The court granted the request, but
counsel never filed an affidavit.
¶ 31 On December 7, 2018, father’s counsel filed a written closing
argument, stating, in part, that “[c]ounsel unsuccessfully attempted
to schedule a phone call with [father] . . . . Thus, any information
counsel includes regarding [father’s] position is essentially an offer
of proof.”
12
C. Analysis
¶ 32 Father argues that the judgment terminating his parental
rights must be vacated because counsel’s failure to communicate
with him “rendered him unable to essentially offer anything more
than an ‘offer of proof’ at the termination stage of [his] case,” which
“deprived [him] of the equal contest of opposed interests required
for fundamentally fair proceedings.” Father doesn’t allege how or
why the result of the proceeding would have been any different had
counsel communicated with him, but instead relies solely on the
fundamental fairness test adopted in A.R., ¶¶ 57-68.
¶ 33 Because father “has failed to allege facts that would prove
prejudice,” we conclude that his ineffective assistance of counsel
claim fails. People in Interest of A.G., 262 P.3d 646, 652 (Colo.
2011); see S.L., ¶ 65.
¶ 34 In reaching this conclusion, we decline to apply A.R.’s
fundamental fairness test for establishing prejudice in ineffective
assistance of counsel claims, which is contrary to every other
division that has addressed the Strickland prejudice prong in
termination of parental rights cases. See In re Estate of Becker, 32
P.3d 557, 563 (Colo. App. 2000) (“[D]ivisions of this court generally
13
have given considerable deference to the decisions of other
[divisions] . . . .”), aff’d sub nom. In re Estate of DeWitt, 54 P.3d 849
(Colo. 2002). And we discern no compelling reason to dilute the
prejudice test in termination of parental rights cases in favor of
A.R.’s fundamental fairness test given the latter has its own
problems. It is “a requirement whose meaning can be as opaque as
its importance is lofty.” A.M. v. A.C., 2013 CO 16, ¶ 28 (quoting
Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 24 (1981)). Because of
its uncertainty and lack of clear benchmarks, we conclude that
fundamental fairness isn’t a viable alternative to outcome-
determinative prejudice.
¶ 35 But we need not delve into the fundamental fairness test’s
specific shortcomings because ultimately, even if we were to agree
with A.R.’s reasoning, see A.R., ¶¶ 46-55 (“Fundamental fairness as
a focus of Strickland’s prejudice inquiry is also simply more suited
to the highly discretionary nature of termination proceedings.”),
we’re bound by supreme court precedent. And the supreme court
defines “prejudice” in an ineffective assistance of counsel claim in
parental termination cases as requiring some evidence showing
14
“that the result of the termination hearing may have been different”
absent counsel’s unprofessional errors. A.G., 262 P.3d at 652.
¶ 36 In A.G., our supreme court reviewed a parent’s ineffective
assistance of counsel claim based on trial counsel’s failure to timely
request that the trial judge recuse himself in a parental termination
proceeding. The court “decline[d] to decide whether Strickland
applies to a claim of ineffective assistance in a termination hearing,”
but it held “that if such a claim is cognizable, at the very least, an
allegation of prejudice would be required.” Id. at 651. And it
described prejudice by quoting from Strickland: “The reviewing
court looks at whether ‘there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.’” Id. (quoting Strickland, 466 U.S. at
694).
¶ 37 The court then analyzed the parent’s claim and found that the
parent “failed to allege facts that would prove prejudice” because
the allegation “[didn’t] contain any facts to support a conclusion
that the judge was actually biased.” Id. at 652. It also found that
the claim “[a]t most . . . alleged that there may have been an
appearance of impropriety[.]” Id.
15
¶ 38 The supreme court then addressed the deficiency in the
division’s analysis:
The court of appeals maintained that [the
parent] suffered prejudice in that, had the
recusal motion [] been timely, [the parent]
would have been entitled to a different
termination hearing before a different judge.
This conclusion fails to focus on the key
concern of the prejudice prong: whether the
result of the proceeding would have been
different. The court of appeals did not
conclude, and there has been no evidence
presented, that the result of the termination
hearing may have been different if the judge
had recused himself.
Id. The court concluded that “[w]ithout an assertion of prejudice,
counsel’s failure to move for disqualification cannot be the basis of
a valid claim for ineffective assistance of counsel.” Id.
¶ 39 Thus, we conclude that A.G. requires that a cognizable
ineffective assistance of counsel claim in a termination proceeding
must, “at the very least,” allege “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 651 (quoting
Strickland, 466 U.S. at 694).
¶ 40 Father doesn’t allege with any specificity how counsel’s
performance prejudiced him. He doesn’t allege what evidence
16
counsel should have elicited in his testimony that would have
resulted in the proceeding’s outcome being different had he
testified. See People in Interest of V.M.R., 768 P.2d 1268, 1270-71
(Colo. App. 1989) (deciding that parent’s absence from termination
hearing was not prejudicial where parent was represented by
counsel and personal presence would have had little effect on the
proceeding). And he doesn’t allege how counsel’s further
communication with him or fuller understanding of the facts and
father’s position on central issues would have caused the result of
the proceeding to have been different.
¶ 41 Without such an assertion of prejudice, counsel’s conduct
can’t be the basis of a valid claim for ineffective assistance of
counsel. A.G., 262 P.3d at 652; S.L., ¶ 60.
IV. Conclusion
¶ 42 The judgment is affirmed.
JUDGE FURMAN specially concurs.
JUDGE NAVARRO specially concurs.
17
JUDGE FURMAN, specially concurring.
¶ 43 While I agree that father did not allege with enough specificity
how counsel’s deficient performance prejudiced him, I write
separately to address the majority’s view that we should apply
Strickland’s criminal prejudice inquiry to an ineffective assistance of
counsel claim in a civil dependency and neglect case. I would follow
the division in A.R. and apply fundamental fairness as the standard
by which we evaluate prejudice in parents’ ineffective assistance of
counsel claims. See People in Interest of A.R., 2018 COA 176,
¶¶ 64-65 (cert. granted Mar. 4, 2019).
¶ 44 The majority concludes that the supreme court’s holding in
People in Interest of A.G., 262 P.3d 646, 651 (Colo. 2011), requires,
at a minimum, that we apply Strickland’s “outcome-determinative”
prejudice inquiry to respondent parents’ ineffective assistance of
counsel claims. I respectfully disagree. True, the court applied this
inquiry to such a claim. Id. But, as I read A.G., this was by
example because the court in A.G. explicitly declined to “decide
whether Strickland applies to a claim of ineffective assistance in a
termination hearing.” Id. If I am misreading A.G., I respectfully ask
our supreme court, for the reasons that follow, to reconsider its
18
holding regarding the prejudice inquiry. The division in A.R. did not
directly address the shortcomings of making such an inquiry, so I
do so here.
¶ 45 The United States Supreme Court in Strickland v. Washington
set out the now-familiar test for evaluating a criminal defendant’s
ineffective assistance of counsel claim. 466 U.S. 668 (1984). A
defendant making this claim must first show “that counsel’s
performance was deficient. This requires showing that counsel
made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.
at 687. A defendant then must show “that the deficient
performance prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.” Id. The court explained that
“the question is whether there is a reasonable probability that,
absent the errors, the factfinder would have had a reasonable doubt
respecting guilt.” Id. at 695. This is referred to as the “outcome-
determinative” test.
¶ 46 Without analysis, divisions of this court have adopted the
Strickland outcome-determinative test to evaluate ineffective
19
assistance claims in civil termination of parental rights proceedings.
See People in Interest of V.M.R., 768 P.2d 1268, 1270 (Colo. App.
1989) (adopting, without analysis, the outcome-determinative test
for prejudice in ineffective assistance of counsel claims); see also
People in Interest of C.H., 166 P.3d 288, 291 (Colo. App. 2007)
(same); People in Interest of D.G., 140 P.3d 299, 308 (Colo. App.
2006) (same). Under this test, a parent bringing an ineffective
assistance claim must show “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.
¶ 47 But the United States Supreme Court cautioned against
applying Strickland’s prejudice inquiry in a mechanical fashion.
Weaver v. Massachusetts, 582 U.S. ___, ___, 137 S. Ct. 1899, 1911
(2017) (citing Strickland, 466 U.S. at 694, 696). The Court
recognized that under Strickland,
• “the concept of prejudice is defined in different ways
depending on the context in which it appears”;
• “the prejudice inquiry is not meant to be applied in a
‘mechanical’ fashion”; and
20
• “when a court is evaluating an ineffective-assistance
claim, the ultimate inquiry must concentrate on the
‘fundamental fairness of the proceeding.’”
Id. (quoting Strickland, 466 U.S. at 696).
¶ 48 I believe that evaluating ineffective assistance of counsel
claims in civil termination of parental rights proceedings calls for a
more flexible prejudice inquiry — one that concentrates on the
“fundamental fairness” of the proceeding. I reach this conclusion
for two reasons: (1) there are essential differences between criminal
trials and civil termination of parental rights proceedings; and (2)
since the landmark decision in Santosky v. Kramer, 455 U.S. 745
(1982), the United States Supreme Court and our supreme court
have consistently used “fundamental fairness” as the benchmark
for evaluating the adequacy of procedures afforded to parents in
termination of parental rights proceedings. I believe errors of
counsel should be measured by their effect on whether a parent
received a fundamentally fair termination of parental rights hearing.
See A.R., ¶ 57. I will refer to this as the “fundamental fairness” test.
I. Essential Differences
21
¶ 49 Criminal trials and civil termination of parental rights
hearings require the fact finder to answer profoundly different
questions.
¶ 50 In criminal trials, the judge or jury must decide whether the
prosecution proved that the defendant committed the charged crime
at a specific time and place. See In re Winship, 397 U.S. 358, 364
(1970). If it finds the prosecution proved this beyond a reasonable
doubt, it must find the defendant guilty. Leonard v. People, 149
Colo. 360, 372, 369 P.2d 54, 61 (1962). In other words, it does not
have discretion to find otherwise. Id.
¶ 51 Unlike criminal trials, a typical civil termination of parental
rights hearing requires the judge to conduct a multifactorial,
totality-of-the-circumstances evaluation of a parent’s fitness, or
whether a parent is likely to become fit within a reasonable time,
based primarily on the parent’s compliance with an appropriate
treatment plan over many months. § 19-3-604(1)(c)(I)-(III), C.R.S.
2019. Colorado’s complex statutory scheme provides a
nonexhaustive list of factors the judge may consider when
conducting this evaluation. See § 19-3-604(2). But that does not
end the judge’s analysis.
22
¶ 52 Even if the judge determines that the Department or guardian
ad litem proved parental unfitness and other criteria by clear and
convincing evidence, the judge retains discretion to decide whether
to terminate parental rights. See § 19-3-604(1) (“The court may
order a termination of the parent-child legal relationship upon the
finding by clear and convincing evidence of any one of the following:
. . . .”) (emphasis added). By using the word “may,” the General
Assembly gave the judge discretion to deny termination even when
the statutory criteria are met.
¶ 53 Factors that may influence the judge’s decision to terminate
parental rights include whether a less drastic alternative exists and
the “physical, mental, and emotional conditions and needs of the
child.” § 19-3-604(3); People in Interest of M.M., 726 P.2d 1108,
1122 (Colo. 1986). Unlike in a criminal case, in which the fact
finder must choose between only two possible outcomes — guilty or
not guilty of a specifically defined offense at a fixed point in time —
the juvenile court’s decision is not a binary choice of whether a
parent is fit or unfit, able or unable to care for a child on the final
day of the termination hearing. Instead, for example, a juvenile
court may conclude that, even though termination is one legally
23
available option, an allocation of parental responsibilities to a
relative would better serve a particular child’s needs.
¶ 54 These differences between criminal trials and civil termination
hearings bear on the propriety of applying the outcome-
determinative test in each context. In criminal trials, a defendant
mounting an ineffective assistance claim must show that errors of
counsel “actually had an adverse effect on the defense.” Strickland,
466 U.S. at 693. An outcome-determinative test in a criminal case,
then, can properly focus on “whether there is a reasonable
probability that, absent the errors, the factfinder would have had a
reasonable doubt respecting guilt.” Id. at 695.
¶ 55 In contrast, the prejudicial effect of counsel’s errors on the
judge’s parental fitness determination is difficult, if not impossible,
to quantify because a cold record seldom shows how any one or
more of the factors may have dealt the deciding blow in the fitness
determination. And, even if we could quantify this, the fitness
determination is not the only factor the judge must consider. Thus,
weighing the prejudicial effect of counsel’s errors on the decision to
terminate parental rights only results in speculation.
24
¶ 56 Two hypothetical cases illustrate these key differences and
show why I believe an ineffective assistance of counsel claim in a
civil termination of parental rights proceeding should not include an
outcome-determinative inquiry.
¶ 57 Imagine that the prosecution charges a defendant with second
degree burglary. At trial, defense counsel fails to call two of the
defendant’s friends, who would have credibly testified that the
defendant was with them in another town on the day of the
burglary. Without this evidence, the jury finds the defendant guilty,
and he is convicted of the offense.
¶ 58 Now imagine the defendant brings an ineffective assistance of
counsel claim. He must show that (1) his counsel’s performance
was outside the wide range of professionally competent assistance
and (2) he was prejudiced by counsel’s errors. Strickland, 466 U.S.
at 687. To satisfy the “prejudice” prong, the defendant must show
there is “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Id. at 694.
¶ 59 The hypothetical defendant can show that had his lawyer
called his friends as witnesses, there is a reasonable probability the
25
jury would not have found that he committed the burglary. See
§ 18-4-204, C.R.S. 2019; Leonard, 149 Colo. at 372, 369 P.2d at 61.
That is, the postconviction court can assess how the friends’
testimony would have affected the verdict because it would have
shown the defendant was not at the scene of the crime.
¶ 60 Contrast this hypothetical with a civil termination of parental
rights proceeding.
¶ 61 Imagine a mother struggles with substance abuse. Her young
child has been placed out of her home for a year, and she is now
facing termination of her parental rights. At the termination
hearing, the judge hears testimony from mother’s caseworker that
mother has attended some, but not all, of her required substance
abuse treatment sessions; that she has maintained sobriety for
some of the time her child has been placed outside the home; and
that she has missed visits with her child. The caseworker offers her
expert opinion that terminating mother’s parental rights is in the
best interests of the child.
¶ 62 Now imagine that mother’s counsel failed to call her substance
abuse therapist as a witness at the termination hearing. The
therapist would have credibly testified that mother was the most
26
successful client he had ever worked with, that she has been sober
for six months, and that she will almost certainly maintain sobriety
going forward. Without this evidence, the judge terminates
mother’s parental rights, finding, among other things, that the
Department of Human Services and the child’s guardian ad litem
proved by clear and convincing evidence that mother did not
reasonably comply with her treatment plan, that she is unfit, and
that she is unlikely to become fit within a reasonable time. See §
19-3-604(1)(c)(I)-(III).
¶ 63 Now suppose that mother brings an ineffective assistance of
counsel claim on direct appeal.
¶ 64 I believe that mother would be hard pressed to show that the
outcome would have been different. Under the outcome-
determinative test, she may be able to show that her therapist’s
testimony would have been highly relevant to whether she
reasonably complied with her treatment. But an appellate court
could only speculate on what effect this evidence might have had on
the outcome. This is so because we have no way to determine
whether the judge would have maintained his or her evaluation of
mother’s fitness or whether mother would become fit within a
27
reasonable time based on other factors, such as mother’s missed
visits. And fitness is not the outcome. The outcome is the
judgment terminating parental rights. Parental fitness is only one
factor the judge must consider when deciding whether to terminate
parental rights. The judge must also consider facts external to the
parent, including the physical, mental, and emotional conditions
and needs of the child and whether there are any less drastic
alternatives. § 19-3-604(3); M.M., 726 P.2d at 1122.
¶ 65 Our supreme court has made clear that an appellate court
may not substitute its own judgment for that of the juvenile court.
People in Interest of A.J.L., 243 P.3d 244, 249-50, 253 (Colo. 2010)
(citing People in Interest of C.A.K., 652 P.2d 603, 613 (Colo. 1982)).
But, in my view, this kind of second-guessing is precisely what the
outcome-determinative test requires appellate courts to do in
termination of parental rights cases. See D.G., 140 P.3d at 308
(explaining that, to establish prejudice under Strickland “a parent
must show that there is a reasonable probability that, but for
counsel’s deficient performance, the outcome of the hearing would
have been different”).
28
¶ 66 In sum, it is difficult, if not impossible, for a parent to show —
and an appellate court to assess — prejudice under a mechanical
application of Strickland’s outcome-determinative test. See Susan
Calkins, Ineffective Assistance of Counsel in Parental-Rights
Termination Cases: The Challenge for Appellate Courts, 6 J. App.
Prac. & Process 179, 215 (2004) (“In almost all of the cases in which
Strickland is applied, either expressly or impliedly, the courts
decline to find ineffectiveness.”).
¶ 67 For this reason, I believe that applying the outcome-
determinative test in the parental rights context is at odds with the
legislature’s guarantee that respondent parents shall have the “right
to be represented by counsel at every stage of the proceedings.”
§ 19-3-202(1), C.R.S. 2019. If Colorado courts mechanically apply
an outcome-determinative test, which poses an almost
insurmountable hurdle for parents alleging ineffective assistance of
counsel, I fail to see how parents’ statutory right to effective counsel
can be protected. See In re Geist, 796 P.2d 1193, 1200 (Or. 1990)
(“The statutory right to adequate trial counsel may prove illusory if
there is no procedure for review of claims of inadequate counsel.”).
29
¶ 68 In my view, it makes little sense to stretch Strickland beyond
its Sixth Amendment, criminal, origins.
II. Fundamental Fairness
¶ 69 Instead, I believe the prejudice inquiry must concentrate on
the “fundamental fairness” of the proceeding. See A.R., ¶ 56. The
fundamental fairness test asks whether deficient performance by a
respondent parent’s counsel “rendered the proceeding
fundamentally unfair or the result of the proceeding unreliable.” Id.
at ¶ 11. In my view, this test better comports with the flexible,
discretionary nature of dependency and neglect proceedings. See
§ 19-3-604(1). After all, dependency and neglect proceedings are
civil cases, not criminal cases, implicating parents’ due process
rights to the care, custody, and control of their child. And
fundamental fairness has long been the benchmark by which the
United States Supreme Court and our supreme court have
evaluated the adequacy of procedural protections afforded to
parents in termination of parental rights proceedings. See
Santosky, 455 U.S. at 753-54; People in Interest of A.M.D., 648 P.2d
625, 636 (Colo. 1982) (adopting clear and convincing evidence as
the standard of proof in termination of parental rights hearings
30
because Santosky requires “that the State’s procedure must be
fundamentally fair”); see also People in Interest of J.W. v. C.O., 2017
CO 105, ¶¶ 34-35 (considering whether “the trial court’s failure to
enter a written adjudication order” before terminating parental
rights impaired “the fundamental fairness of the proceedings”); A.M.
v. A.C., 2013 CO 16, ¶ 38 (“[F]ull participation by foster parent
intervenors does not undermine the fundamental fairness of the
termination hearing.”); B.B. v. People, 785 P.2d 132, 136-37 (Colo.
1990) (explaining that the purpose of the “complex statutory
scheme” governing termination proceedings is to “accord
fundamental fairness to all parties”).
¶ 70 The majority concludes that the fundamental fairness test is
“opaque” and has problems with “uncertainty and lack of clear
benchmarks.” Supra ¶ 34 (quoting A.M., ¶ 28). I respectfully
disagree.
¶ 71 A.R. outlined two concrete ways a parent may answer a
prejudice inquiry. See A.R., ¶¶ 64-65.
¶ 72 First, a parent could claim that his counsel’s deficient
performance impaired a significant procedural safeguard, such as
the right to notice, the right to a separate hearing, the right to proof
31
by clear and convincing evidence, and the right to appeal. Id. at
¶ 64; see A.M., ¶¶ 29, 38 (recognizing the significant protections
Colorado law provides to respondent parents under the
“fundamental fairness” standard). To illustrate, a parent could
allege that his counsel rendered deficient performance by not
objecting to the Department of Human Services explaining what
evidence it would offer to the court without actually presenting that
evidence at a termination of parental rights hearing. (This
unfortunately common procedure is often called an “offer of proof.”
See A.R., ¶¶ 89-96 (discussing “offer of proof”).) The parent could
show prejudice by claiming he was denied the right to proof by clear
and convincing evidence at the termination of parental rights
proceeding, as required under section 19-3-604(1) and A.M.D., 648
P.2d at 636.
¶ 73 Second, a parent could claim that her counsel’s deficient
performance prevented the juvenile court from receiving essential
information favorable to the parent relating to section 19-3-604’s
termination criteria. A.R., ¶ 65. To illustrate, our earlier
hypothetical mother could allege that her counsel rendered deficient
performance by failing to call her therapist as a witness. Recall that
32
the therapist would have credibly testified that mother successfully
engaged in her treatment plan and was sober for the six months
before the termination of parental rights hearing. The hypothetical
mother could show prejudice by claiming that the therapist’s
testimony would have provided essential information relating to her
compliance with her treatment plan and fitness to parent. See §
19-3-604(1)(c)(I), (II); A.R., ¶ 65. If she makes such a showing, the
juvenile court, on remand, would evaluate its termination judgment
after hearing the therapist’s testimony.
¶ 74 For all these reasons, I believe that fundamental fairness is
the better test for evaluating whether errors by a parent’s counsel
under Colorado’s complex statutory scheme deprived the parent of
a fundamentally fair termination of parental rights hearing.
¶ 75 I now turn to the present case.
¶ 76 Father contends on appeal that his counsel rendered
ineffective assistance for the following reasons:
• His attorney did not arrange for father’s attendance at
the termination hearing by telephone.
• His attorney did not arrange for father to testify.
33
• His attorney was unclear about many of the facts central
to father’s case.
• His attorney was uncertain about father’s
communications with his son.
• His attorney did not know whether father’s condition had
improved during the proceedings.
¶ 77 Applying the fundamental fairness test, I would conclude
father has not alleged with enough specificity how counsel’s
deficient performance prejudiced him. I reach this conclusion for
two reasons: (1) father does not allege that his counsel’s deficient
performance impaired a significant procedural safeguard and (2) he
does not claim that his counsel’s deficient performance prevented
the court from receiving essential information favorable to him
relating to section 19-3-604’s termination criteria. See A.R., ¶ 66.
¶ 78 I conclude with one last observation. Permitting a parent to
bring an ineffective assistance claim on direct appeal is the most
expedient way to handle these claims, because it allows a reviewing
court to consider all errors that could potentially disrupt the finality
of a termination judgment in one step. See Calkins, 6 J. App. Prac.
34
& Process at 207 (“A direct appeal is likely to be faster than either a
post-judgment motion or a habeas proceeding in most cases.”).
35
JUDGE NAVARRO, specially concurring.
¶ 79 I join Judge Hawthorne’s opinion in full. I write separately to
say that I also agree with Judge Furman that father’s assertion of
prejudice from his counsel’s allegedly deficient performance fails the
fundamental fairness test adopted in People in Interest of A.R., 2018
COA 176, ¶ 35 (cert. granted Mar. 4, 2019). Accordingly, under
either test for assessing prejudice from his counsel’s performance,
father’s claim does not succeed.
36