2018 COA 177
Colo. Ct. App.2018Background
- Child was placed with paternal stepgrandmother after medical findings (scabies, skull fracture) prompted a dependency and neglect investigation.
- At adjudication mother did not appear; county relied on a written investigation report and mother’s counsel told the court it was in mother’s “best interests” to enter a no-fault admission; the court adjudicated the child dependent/neglected without ensuring mother’s knowing, voluntary admission or requiring live proof.
- Maternal grandmother moved to intervene and sought allocation of parental responsibilities (APR); mother’s counsel did not timely respond or move to place the child with her as a less drastic alternative.
- At the termination hearing the county proceeded by an “offer of proof” (no live testimony); mother was absent, maternal grandmother did not testify, and mother’s counsel did not object to the offer-of-proof procedure or adequately advocate for the less-drastic placement.
- The juvenile court entered judgment terminating mother’s parental rights; later the court indicated it likely would have denied termination had it known of extended family and noted a possible less drastic alternative.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Personal jurisdiction / validity of adjudication | Mother: adjudication invalid because she was not advised of rights, did not knowingly admit, and counsel acquiesced; therefore court lacked jurisdiction to terminate | State: procedural defects at adjudication are reviewable by appeal from adjudication; procedural errors do not divest juvenile court of jurisdiction once it has acted | Court: Juvenile court had personal jurisdiction; procedural adjudicatory defects do not automatically strip jurisdiction where parent appeared and failed to timely challenge earlier adjudication on appeal |
| Right to effective counsel and applicable test | Mother: statutory right to counsel includes effective assistance; Strickland outcome test should not govern prejudice in termination cases | State: prior COA precedent applied Strickland’s outcome-determinative prejudice test from criminal cases | Court: Statutory right to counsel includes effective assistance; prejudice should be assessed by whether deficient performance rendered proceeding fundamentally unfair or unreliable (Lockhart/Santosky focus), not solely by outcome-determinative Strickland test |
| When claim may be raised | Mother: appellate counsel raised claim on direct appeal from termination | State: typically ineffective-assistance claims can be raised on appeal but procedures vary | Court: Claims may be considered on direct appeal from termination to resolve finality and permanency concerns; sufficient factual allegations must be pleaded in opening brief to allow remand for factual development |
| Application to facts — was trial counsel ineffective here? | Mother: counsel failed to advocate at adjudication, accepted no-fault admission in mother’s absence, agreed to offer-of-proof at termination, and failed to litigate less-drastic placement | State: county offered minimal evidence but court ultimately followed statutory factors | Held: Mother showed sufficient facts to establish counsel’s performance was professionally deficient and, because counsel failed to subject the case to meaningful adversarial testing (Cronic), the termination proceeding was presumptively unfair and unreliable; judgment reversed and remanded for new proceedings (with consideration of maternal grandmother as less drastic alternative) |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective assistance test for counsel)
- Santosky v. Kramer, 455 U.S. 745 (parents have fundamental liberty interest; termination requires fundamentally fair procedures)
- Lockhart v. Fretwell, 506 U.S. 364 (prejudice inquiry may focus on whether proceeding was fundamentally unfair or result unreliable)
- United States v. Cronic, 466 U.S. 648 (failure to subject opposing case to meaningful adversarial testing is presumptively prejudicial)
- Lassiter v. Department of Social Services, 452 U.S. 18 (adversary testing is central to accurate results in parental-rights contexts)
- Evitts v. Lucey, 469 U.S. 387 (ineffective counsel leaves a party no better than unrepresented)
- People v. Fry, 92 P.3d 970 (live testimony under oath is more reliable than unsworn proffers)