in Interest of Z.M, 2020 COA 3

Background

Juvenile proceedings: El Paso County sought dependency/neglect findings as to two children; the court adjudicated dependency/neglect and later a GAL moved to terminate father J.F.’s parental rights; the juvenile court granted termination and father appealed.
Appellate record dispute: Father designated 32 hearing transcripts; when the record was transmitted several transcripts (initially six, later three, then two) were missing and father moved to supplement under C.A.R. 10(f)(2).
Appellate court action: The court required father to show the missing portions were “material” in his opening brief; later a judge ordered the juvenile court to attempt supplementation, and the juvenile court’s transcriptionist affidavit stated no recordings existed for the missing hearing dates.
Father’s procedural/due-process claim: Father argued the lack of those transcripts denied him due process and effective appellate assistance and sought remand for completion of the record.
Merits of termination: The juvenile court found father failed to comply with his court-ordered treatment plan, was unfit, and that no less drastic alternative (e.g., allocation of parental responsibilities or permanent placement short of termination) would meet the children’s needs; the record included caseworker and therapist testimony supporting termination and continued placement with maternal aunt and uncle.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Scope of "material" in C.A.R. 10(f)(2)	"Material" should include all documents/transcripts related to the appealed proceeding (broad definition).	Appellate rules and precedent contemplate a narrower, issue-specific materiality; not every item is automatically material.	Court rejects broad definition; materiality is narrower and tied to specific appellate review needs.
Whether missing transcripts warranted supplementation/remand	Missing transcripts were necessarily material and required remand to complete record.	Father did not show the missing transcripts were material or that remand was needed; appellate court may limit record to material parts.	Father failed to demonstrate materiality; remand to complete record denied.
Due process / ineffective assistance from briefing order and missing record	Ordering father to brief materiality without transcripts and filing without them denied due process and effective counsel.	Record (case file and full termination-hearing transcript) was sufficiently complete; father had notice, counsel, hearing, and no showing of prejudice.	No due-process or ineffective-assistance violation shown; briefing order and record sufficed.
Whether juvenile court erred in rejecting less drastic alternatives	Allocation to aunt/uncle or other permanent placement was a viable less-drastic alternative.	Father failed to comply with treatment plan, had barriers (incarceration, protection order), provided no evidence of fitness or plan; placement with aunt/uncle best met children’s needs.	Court finds termination supported by clear-and-convincing evidence and no less-drastic alternative existed; judgment affirmed.

Key Cases Cited

Knoll v. Allstate Fire & Cas. Ins., 216 P.3d 615 (Colo. App. 2009) (standards for relief based on incomplete record/new trial and C.A.R. 10 procedures)
Bergerco, U.S.A. v. Shipping Corp. of India, Ltd., 896 F.2d 1210 (9th Cir. 1990) (federal analog on record completeness and appellate review)
M.L.B. v. S.L.J., 519 U.S. 102 (1996) (due process requires a record sufficiently complete for meaningful appellate review)
Santosky v. Kramer, 455 U.S. 745 (1982) (parental rights require fundamentally fair procedures)
People v. Rodriguez, 914 P.2d 230 (Colo. 1996) (criminal-appellate precedent on proving specific prejudice from incomplete record)
People in Interest of B.C., 122 P.3d 1067 (Colo. App. 2005) (statutory elements for termination of parental rights)
People in Interest of M.M., 726 P.2d 1108 (Colo. 1986) (requirement that courts consider and eliminate less drastic alternatives)