in Interest of Z.M

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
2020COA3
No. 18CA2158, People in Interest of Z.M. — Appellate
Procedure — Record on Appeal — Supplementing the Record on
Appeal After Record is Transmitted
In this dependency and neglect proceeding, a division of the
court of appeals addresses a question of first impression in
Colorado: What is the meaning of the word “material” in C.A.R.
10(f)(2)? Father argues that all documents, transcripts, and other
materials related to the proceeding that is the subject of the appeal
are necessarily material for purposes of the appellate record. The
division rejects this argument, concluding that the Colorado
Appellate Rules and Colorado case law necessarily contemplate a
narrower definition.
COLORADO COURT OF APPEALS 2020COA3
Court of Appeals No. 18CA2158
El Paso County District Court No. 17JV537
Honorable Jessica L. Curtis, Judge
The People of the State of Colorado,
Appellee,
In the Interest of Z.M., G.F., and L.M., Children,
and Concerning J.F.,
Appellant.
JUDGMENT AFFIRMED
Division VI
Opinion by JUDGE BERGER
Terry and Welling, JJ., concur
Announced January 2, 2020
Diana K. May, County Attorney, Melanie Douglas, Special Assistant County
Attorney, Gunnison, Colorado, for Appellee
Anna N.H. Ulrich, Guardian Ad Litem
Steven E. Baum, Office of Respondent Parents’ Counsel, Ainsley E. Bochniak,
Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant
¶1 In this dependency and neglect proceeding, J.F. (father)
appeals the termination of his parent-child legal relationship with
G.F. and Z.M. (the children).1 He argues that the lack of a complete
record on appeal denied him due process and that the juvenile
court erred when it determined that there were no less drastic
alternatives to termination.
¶2 C.A.R. 10(f)(2) provides:
If any material part of the trial court record is
omitted or missing from the record by error or
accident or is misstated therein after the
record is transmitted to the appellate court,
the appellate court, on motion or of its own
initiative, may order that the supplemental
record be certified and transmitted.
¶3 We address a question of first impression in Colorado: What is
the meaning of the word “material” in C.A.R. 10(f)(2)? Because we
conclude both that father failed to demonstrate that the missing
portions of the record were material and that the record supports
the juvenile court’s findings, we affirm.
1 Parental rights to another child, L.M., were also at issue in this
case. But L.M. is not J.F.’s child, and there are no issues with
respect to L.M. before us.
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I. Background
¶4 The El Paso County Department of Human Services moved for
an adjudication that the children were dependent or neglected by
father. The court granted the motion, and the children were placed
with maternal aunt and uncle. The court also adopted a treatment
plan for father.
¶5 The guardian ad litem (GAL) later moved to terminate father’s
parental rights, alleging that father had not complied with his
treatment plan. After a hearing, the juvenile court granted the
motion.
¶6 Father then appealed to this court. He designated thirty-two
hearing transcripts for the appeal. Several months later, it was
discovered that the record was missing six of the requested hearing
transcripts.
¶7 Father moved this court to supplement the record, and this
court granted the motion. The record was supplemented, but
father’s counsel found that three transcripts remained missing.
Father’s counsel again moved to supplement the record and then
amended that motion to request just two transcripts.
2
¶8 The court denied father’s second motion “with leave to refile
with a statement of materiality” under C.A.R. 10(f)(2). A few days
later, the Chief Judge of this court entered a new order deferring a
ruling on father’s request to supplement the record to the merits
division and directing father to “address C.A.R. 10(f)(2)’s materiality
standard in his opening brief.” The parties then completed
appellate briefing.
¶9 After briefing was completed, a judge of this court ordered the
juvenile court to supplement the record with the remaining
transcripts. In response, the juvenile court submitted an affidavit
from the transcriptionist assigned to the case. The affidavit stated
that “there was no recording for the hearing dates requested . . . ,
thus no transcripts [could] be produced.”
II. Motion to Supplement the Record
¶ 10 Father contends that this court violated his due process rights
and his right to effective assistance of counsel when it ordered him
to address his motion to supplement the record in his opening brief
and to file his opening brief without access to those transcripts. To
address this alleged error, father asks that we “remand the case to
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give the district court the opportunity to complete the record on
appeal.”
¶ 11 We reject this claim, as well as father’s request for remand, for
two reasons. First, this court has the discretion to limit the record
on appeal to its material portions, and father has not demonstrated
that the missing transcripts were material. Second, father has not
demonstrated that he was denied due process or the right to
effective assistance of counsel.
A. Father Has Not Demonstrated that the Missing Transcripts
Were Material
¶ 12 Father, championing a broad definition of materiality,
contends that the missing transcripts necessarily contained
information material to his appeal. We disagree because, although
the Colorado Appellate Rules do not define materiality, those rules
and Colorado case law contemplate a narrower definition.
¶ 13 In a dependency and neglect appeal, a respondent parent
must, upon request, be provided a “transcript of the trial proceeding
for the appeal.” § 19-3-609(2), C.R.S. 2019; see People in Interest of
M.N., 950 P.2d 674, 676 (Colo. App. 1997) (the free transcript is of
the termination hearing). More specifically, C.A.R. 3.4(d)(1) states
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that the record on appeal must include the trial court file and all
exhibits. The record may also include “any transcripts designated
and ordered by the parties . . . .” Id.
¶ 14 C.A.R. 10(f)(2) grants the appellate court express discretion to
limit the record on appeal based on materiality: “If any material part
of the trial court record is omitted or missing from the record by
error or accident . . . after the record is transmitted to the appellate
court, the appellate court, on motion or of its own initiative, may
order that the supplemental record be certified and transmitted.”
(Emphasis added.)
¶ 15 To obtain a new trial on the basis of an incomplete record
(relief that father does not seek here), a civil appellant must (1)
make a specific allegation of error; (2) show that the record defect
materially affects the appellate court’s ability to review the alleged
error; and (3) show that a C.A.R. 10(e) proceeding has failed or
would fail to produce an adequate substitute for the record defect.
Knoll v. Allstate Fire & Cas. Ins., 216 P.3d 615, 617-18 (Colo. App.
2009) (applying then C.A.R. 10(c), now C.A.R. 10(e)). Federal courts
have adopted an analogous standard. E.g., Bergerco, U.S.A. v.
Shipping Corp. of India, Ltd., 896 F.2d 1210, 1217 (9th Cir. 1990).
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¶ 16 Father asserts that “any memorialized hearings, exhibits,
videos, etc. are material to the appeal because counsel must review
such materials to determine if they give rise to legal issues.” Under
father’s definition, every document and transcript of proceedings is
material. Adoption of this definition necessarily abrogates the
materiality considerations required under C.A.R. 10(f)(2), which
refers to “any material part of the trial court record.” (Emphasis
added.) Moreover, by requiring appellants seeking a new trial on
the basis of an incomplete record to connect the defect in the record
to a specific error, Colorado and federal courts have explicitly
rejected father’s position that “materiality must . . . refer to the
appeal generally and not to any particular legal issue.” Thus, the
appellate rules and case law necessarily contemplate a narrower
definition of materiality.
¶ 17 Father fails to explain how the two missing transcripts are
material under any reasonable definition of the term. Accordingly,
father has not sufficiently demonstrated that the missing
transcripts are material.
B. Father Makes No Colorable Due Process or Ineffective
Assistance Claim
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¶ 18 Without any supporting authority, father asserts that this
court violated his rights to due process when it ordered him to
address the materiality of the missing transcripts in his opening
brief. Although father makes no ineffective assistance of counsel
claim, he further asserts that the lack of these transcripts
prevented his counsel from providing effective assistance on appeal
and rendered the process fundamentally unfair. We reject each
contention.
¶ 19 We review de novo whether father’s right to due process was
violated. People in Interest of C.J., 2017 COA 157, ¶ 25.
¶ 20 In termination proceedings, a parent’s rights must be
protected “with fundamentally fair procedures.” L.L. v. People, 10
P.3d 1271, 1276 (Colo. 2000) (quoting Santosky v. Kramer, 455 U.S.
745, 745 (1982)). “These procedures include a parent receiving
notice of the hearing, advice of counsel, and a meaningful
opportunity to be heard and defend.” People in Interest of Z.P.S.,
2016 COA 20, ¶ 40. The record here shows that father was afforded
a treatment plan, notice of the proceedings, a hearing on the
termination motion before an impartial judge, and the assistance of
counsel.
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¶ 21 Due process is not violated when a parent has access to a
record of sufficient completeness to permit proper appellate
consideration of the parent’s claims. See M.L.B. v. S.L.J., 519 U.S.
102, 128 (1996). The record in this case included the case file and
all but two of the thirty-two requested transcripts, including full
transcripts of the termination hearing.
¶ 22 We note that, although it is impossible to know precisely what
occurred in the hearings that were not transcribed, both hearings’
proceedings were memorialized in minute orders. At the first
hearing for which there is no transcript, according to the minute
order and father’s opening brief, the court transferred custody of
the children to the aunt and uncle with whom they were already
staying. At the second hearing for which there is no transcript,
according to the minute order, the court ordered the GAL to file a
motion for an allocation of parental rights. On that same date, the
court entered an order requiring mother to leave the aunt and
uncle’s home for the safety of the children. Father has not
explained why the transcripts of these hearings are material to his
claim on appeal.
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¶ 23 More importantly, the juvenile court did not rely on either of
the untranscribed hearings in its termination order. As shown in
Part III below, the court had ample information to determine
father’s one claim on appeal. Accordingly, the record was
sufficiently complete.
¶ 24 Moreover, there has been no showing that the unavailability of
the complete record under C.A.R. 3.4 resulted in deficient
performance by appellate counsel. See People in Interest of N.A.T.,
134 P.3d 535, 539 (Colo. App. 2006).
¶ 25 Finally, though not controlling because dependency and
neglect proceedings are civil in nature, see, e.g., People in Interest of
Z.P., 167 P.3d 211, 214 (Colo. App. 2007), Colorado criminal case
law further supports our conclusion. To prevail on a claim that the
lack of a complete record offended a criminal appellant’s due
process rights, the appellant “must always demonstrate specific
prejudice resulting from the state of that record.” People v.
Rodriguez, 914 P.2d 230, 300-01 (Colo. 1996). Similarly, to show
that the incomplete record rendered counsel unable to provide
effective assistance, the appellant must “identify . . . how the
incomplete record prejudiced his counsel’s ability to raise any issue
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on appeal.” Id. at 300. In this case, father has failed to identify any
prejudice resulting from the state of the record.
¶ 26 Accordingly, we reject father’s due process claim and decline
to remand to the juvenile court for further proceedings to settle the
record.
III. Less Drastic Alternatives
¶ 27 Father also contends that the juvenile court reversibly erred
when it found that there was no less drastic alternative to
termination. Specifically, father asserts that the court lacked
sufficient evidence to conclude that an ongoing relationship with
father was not in the children’s best interests. He further asserts
that an allocation of parental responsibilities to the aunt and uncle
with whom the children were placed was an appropriate less drastic
alternative. We disagree.
A. Law and Standard of Review
¶ 28 To terminate parental rights, a court must find by clear and
convincing evidence that (1) the child has been adjudicated
dependent or neglected; (2) the parent did not comply with or was
not successfully rehabilitated by an appropriate, court-approved
treatment plan; (3) the parent is unfit; and (4) the parent’s conduct
10
or condition is unlikely to change within a reasonable time. § 19-3-
604(1)(c), C.R.S. 2019; People in Interest of B.C., 122 P.3d 1067,
1071 (Colo. App. 2005).
¶ 29 Implicit in the statutory criteria for termination is the
requirement that the court consider and eliminate less drastic
alternatives. People in Interest of M.M., 726 P.2d 1108, 1122 (Colo.
1986). In considering less drastic alternatives, the court must give
primary consideration to the child’s physical, mental, and emotional
conditions and needs. People in Interest of J.L.M., 143 P.3d 1125,
1126 (Colo. App. 2006).
¶ 30 Determining whether to order permanent placement as an
alternative to termination depends on the child’s best interests.
People in Interest of D.P., 160 P.3d 351, 356 (Colo. App. 2007).
Permanent placement is not a viable less drastic alternative if the
child needs a stable, permanent home that can only be assured by
adoption. People in Interest of S.N-V., 300 P.3d 911, 920 (Colo. App.
2011); see People in Interest of A.R., 2012 COA 195M, ¶ 41.
¶ 31 The court may also consider whether the placement favors
adoption rather than an allocation of parental responsibilities. See
S.N-V., 300 P.3d at 920.
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¶ 32 If the record supports the court’s findings and conclusions
that no less drastic alternatives existed and that termination of
parental rights was in the child’s best interests, we may not disturb
the court’s determination. See People in Interest of M.B., 70 P.3d
618, 627 (Colo. App. 2003).
B. Analysis
¶ 33 The juvenile court concluded that father did not comply with
his treatment plan and was unfit. These findings are supported by
the record.
¶ 34 Father’s treatment plan required him to (1) communicate with
the Department; (2) eliminate his substance abuse and take
sobriety tests; (3) learn and demonstrate effective parenting skills
and parental protective capacity, including attending visits and
ensuring the children’s attendance at school; (4) have stable
housing and a legal income; (5) comply with probation or parole
requirements; (6) address domestic violence; and (7) participate in a
mental health evaluation. Father did not comply with these
requirements.
¶ 35 To be sure, there were significant barriers to father’s
compliance with some objectives. Father was incarcerated for
12
significant portions of the case. His incarceration was due, in part,
to new criminal charges. In addition, father had a protection order
that prevented him from seeing the children. Indeed, he testified
that he had not seen the children for two years. Nevertheless,
father never inquired of the caseworker about any support for
developing parenting skills in the absence of contact with the
children.
¶ 36 The Department made reasonable efforts to accommodate
father. For example, after father completed a substance abuse
evaluation, the caseworker testified that she found a therapist who
could work with father’s scheduling needs; but he did not engage in
substance abuse therapy or provide any sobriety test results.
Similarly, after father completed a domestic violence evaluation, the
Department found a domestic violence therapy provider who could
work with father’s scheduling requests, but father never attended
therapy. Father never completed a mental health evaluation, let
alone mental health therapy.
¶ 37 In addition, Father did not maintain sufficient contact with the
Department. He refused to inform the caseworker where he lived or
worked, and he never provided proof of his employment or income.
13
Father never offered to provide for the financial needs of the
children at any point throughout this case. Indeed, the record
shows that he never asked the Department about his children at
all.
¶ 38 When asked if father could become fit in a reasonable time,
the caseworker testified that she did not believe he could.
¶ 39 The juvenile court, explicitly taking the children’s physical,
mental, and emotional conditions and needs into account, also
found that there were no less drastic alternatives to termination.
Again, the record supports this finding.
¶ 40 The caseworker testified that termination of father’s parental
rights best served the physical, emotional, and mental health needs
of the children and that there were no less drastic alternatives to
termination. She testified that the children wanted to know “where
they are going to be” and that they have “been on edge long
enough.”
¶ 41 A therapist testified that the children’s fears of domestic
violence have “improved greatly” after being placed with maternal
aunt and uncle. The therapist recommended that they stay in their
current placement.
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¶ 42 Given this record, we conclude that the juvenile court did not
err in finding that there were no less drastic alternatives to
termination in this case and that termination was in the children’s
best interests.
IV. Conclusion
¶ 43 The judgment is affirmed.
JUDGE TERRY and JUDGE WELLING concur.
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