2019 COA 168
Colo. Ct. App.2019Background
- Pueblo County Department filed dependency and neglect petition after mother left child with a friend because of methamphetamine use and loss of housing/employment.
- Mother was ordered to appear for an advisement hearing (Apr. 24, 2017) but was not served with the petition or advisement of rights; her request to appear by phone was denied and she did not appear.
- The juvenile court adjudicated the child dependent and neglected by default at that hearing; mother had no counsel at that time.
- Seven weeks later the court appointed counsel; first appointed attorney advised mother to stipulate and later withdrew; mother filed a pro se motion to set aside the default but later, after conferring with a second appointed attorney, agreed to withdraw that motion and pursue her treatment plan.
- More than a year after the default adjudication, the juvenile court terminated mother's parental rights. On appeal mother challenged (1) the default adjudication (C.R.C.P.55/C.R.C.P.60(b)(3)), (2) ineffective assistance by her first appointed counsel, and (3) lack of an ICWA inquiry.
- The Court of Appeals dismissed the adjudication challenge as untimely under § 19-1-109(2)(c) and C.A.R. 3.4(b)(1), rejected the ineffective-assistance claim (no prejudice; mother had later counsel at termination and had withdrawn the set-aside), and deemed the ICWA inquiry error harmless because mother conceded no Indian heritage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of challenge to default adjudication | Mother: default adjudication violated C.R.C.P.55 and is void; appellate time limits should not bar review; alternatively C.R.C.P.60(b)(3) relief | State: challenges to adjudication must be appealed within 21 days after initial dispositional order under § 19-1-109(2)(c) and C.A.R.3.4; mother did not file required motion in trial court | Dismissed as untimely; appellate court lacked jurisdiction to review adjudication |
| Ineffective assistance by first appointed counsel | Mother: counsel failed to attack default, disclosed private advice in open court, and withdrew without notice | State: mother withdrew her motion to set aside after consulting second counsel; she was represented at the termination hearing by different counsel and does not claim that counsel was ineffective; no prejudice shown | Claim fails; mother cannot use withdrawn set-aside to prove prejudice; termination judgment affirmed |
| ICWA inquiry error | Mother: court failed to make the statutory on-the-record ICWA inquiry | State: any failure is harmless if child is not an Indian child | Harmless error; mother conceded child has no Indian heritage |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective-assistance standard)
- People in Interest of E.H., 837 P.2d 284 (timeliness requirement for appeals of adjudication in juvenile cases)
- People in Interest of C.L.S., 934 P.2d 851 (adjudication finality and appealability at dispositional order)
- In re C.A.B.L., 221 P.3d 433 (timely notice of appeal is jurisdictional)
- Barnett v. Elite Props. of Am., Inc., 252 P.3d 14 (appellate courts will not consider bald legal propositions without development)
- In re C.L.S., 252 P.3d 556 (discussion of void-judgment relief and related procedural requirements)