2020 COA 5
Colo. Ct. App.2020Background
- In Aug. 2017 the child was removed after a drug raid; father admitted the child was dependent and neglected in Sept. 2017; the mother had died earlier that year.
- Father was incarcerated (six-year DOC sentence in Mar. 2018); in Aug. 2018 the Department moved to terminate father’s parental rights; the juvenile court terminated rights after a Nov. 2018 hearing.
- The Department investigated possible Choctaw heritage based on the maternal grandfather; it sent notices to three Choctaw tribes; the Jena Band did not respond and the Bureau of Indian Affairs could not identify a tribe.
- The juvenile court asked father about Indian heritage on the record but did not make the broader on-the-record inquiry of all participants; the court and Department therefore committed ICWA inquiry/notice errors.
- Grandfather later indicated he is enrolled in a federally unrecognized "Metis" tribe; the court concluded ICWA errors were harmless on that basis.
- Father appealed asserting (1) ICWA inquiry/notice error and (2) ineffective assistance of appointed counsel (failure to communicate, secure father’s testimony or file his affidavit); the court of appeals affirmed.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| ICWA inquiry/notice compliance | Department and court made sufficient inquiries and notices; no ICWA entitlement shown | Court and Department failed to ask all participants on the record and should have sent notice to the Jena Band | Court erred in inquiry/notice but errors were harmless because grandfather later clarified he was enrolled only in a federally unrecognized tribe |
| Ineffective assistance of counsel (standard & application) | Prejudice must meet Strickland/A.G. outcome-determinative test; father failed to allege that counsel’s errors would have changed the result | Counsel failed to communicate, secure testimony, or file father’s affidavit; father relied on a broader "fundamental fairness" harm | Majority applied A.G./Strickland showing outcome-determinative prejudice and found no prejudice; one justice preferred the "fundamental fairness" test but concurred that father failed to show prejudice under either test |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (establishes two-part ineffective-assistance test requiring deficient performance and prejudice)
- People in Interest of A.G., 262 P.3d 646 (Colo. 2011) (Colorado Supreme Court requires a showing of a reasonable probability that, but for counsel’s errors, the result would have been different)
- Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) (termination of parental rights requires procedures that are fundamentally fair)
- B.H. v. People in Interest of X.H., 138 P.3d 299 (Colo. App. 2006) (ICWA notice and inquiry duties in dependency proceedings)
- People in Interest of C.H., 166 P.3d 288 (Colo. App. 2007) (applies Strickland framework to termination proceedings)
- People in Interest of V.M.R., 768 P.2d 1268 (Colo. App. 1989) (early adoption of outcome-determinative test in parental-termination context)
- People in Interest of A.M.D., 648 P.3d 625 (Colo. 1982) (adopts clear-and-convincing standard and emphasizes fundamental fairness in termination proceedings)