People in the Interest of Z.M., G.F., and L.M., Children, and Concerning J.F., Appellant.
No. 18CA2158
Colorado Court of Appeals
January 2, 2020
2020COA3
JUDGE BERGER
Division VI
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
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
¶ 2
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
¶ 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.
¶ 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
¶ 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.”
¶ 14
¶ 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
¶ 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
¶ 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.
¶ 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.
¶ 24 Moreover, there has been no showing that the unavailability of the complete record under
¶ 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
¶ 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
¶ 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.
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
¶ 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.
¶ 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.
IV. Conclusion
¶ 43 The judgment is affirmed.
JUDGE TERRY and JUDGE WELLING concur.
JUDGE BERGER