In the Interest of C.H., a Child, and
Concerning M.J.H., a/k/a M.J.S., Respondent-Appellant.
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George H. Hass, County Attorney, William G. Ressue, Assistant County Attorney, Fort Collins, Colorado, for Petitioner-Appellee.
Sarah A. Hubbard, Fort Collins, Colorado, for Respondent-Appellant.
Opinion by Judge RUSSEL.
M.J.S. appeals from a judgment terminating the parent-child legal relationship between her and her child, C.H. We remand for further proceedings.
M.J.S. argues that the evidence was insufficient to support an order of termination. We disagree.
A trial court may terminate a parent-child legal relationship under § 19-3-604(1)(c), C.R.S.2006, if it finds that the following facts have been proved by clear and convincing evidence: (1) the child has been adjudicated dependent or neglected; (2) an appropriate treatment plan, approved by the trial court, has not been complied with by the parent or has not been successful in rehabilitating the parent; (3) the parent is unfit; and (4) the parent's conduct or condition is unlikely to change within a reasonable time. People in Interest of A.M.D.,
As finder of fact, the trial court must determine the credibility of the witnesses and the probative effect and weight of evidence,
as well as the inferences and conclusions to be drawn from the evidence. The trial court's findings will not be disturbed on review if the record supports them. People in Interest of C.A.K.,
Here, the necessary facts were proved by clear and convincing evidence:
1. It was undisputed that the child had been adjudicated dependent or neglected.
2. The trial court found, on supporting evidence, that M.J.S. had failed to attend scheduled visitations with sufficient regularity. In light of this finding, M.J.S. cannot be said to have complied with the treatment plan. See People in Interest of M.T.,
3. The state's witnesses testified that M.J.S.'s inconsistent and unpredictable behavior had a negative effect on the child. The witnesses also testified that M.J.S. was unable or unwilling to recognize the child's sexualized behaviors and therefore could not parent all her children successfully. This evidence supports the court's finding that M.J.S. was unfit as to the child. See People in Interest of D.L.C.,
4. The trial court found, on supporting evidence, that M.J.S. exhibited the same problems with consistency and predictability that she had displayed before the intervention. This finding supports the conclusion that M.J.S.'s conduct and condition were unlikely to change within a reasonable time. See § 19-3-703, C.R.S.2006 (creating a twelve-month deadline on permanency placements for children who are under six years of age when they are first placed out of the home); People in Interest of D.L.C., supra,
5. Neither the paternal grandmother nor the paternal aunt sought permanent placement of the child. M.J.S. did not want the child to be placed with the maternal grandparents, and no other relatives were suggested as potential alternatives. Therefore, the record supports the trial court's determination that there were no less drastic alternatives to termination.
6. The evidence indicates that the child was adoptable and that her greatest need was a permanent home with consistent, predictable, and nurturing caregivers. In light of M.J.S.'s inconsistency, this evidence supports the trial court's conclusion that termination was in the child's best interests.
Because the record supports the trial court's findings, we conclude that the order of termination was based on sufficient evidence.
M.J.S. contends that the order of termination must be reversed because she did not receive the effective assistance of counsel. We conclude that the matter must be remanded for an evidentiary hearing.
A parent's right to appointed counsel in termination proceedings is secured by statute, and not by constitutional mandate. People in Interest of A.J.,
When evaluating a claim of ineffective assistance of counsel in termination proceedings, Colorado courts employ the same test that governs claims of ineffective assistance
of counsel in criminal cases. People in Interest of A.J., supra; People in Interest of T.D., supra; People in Interest of V.M.R.,
In criminal cases, ineffective assistance claims are litigated in collateral proceedings according to special rules of procedure. See Crim. P. 35(c). Termination cases are different. Because Colorado law provides no specific mechanism for challenging the effectiveness of counsel in a termination case, a parent must employ one of the general procedures available in civil cases, such as direct appeal. See, e.g., People in Interest of A.J., supra; People in Interest of T.D., supra; People in Interest of V.M.R., supra; see also E.T. v. State,
Certain problems may arise if an ineffective assistance claim is presented for the first time on direct appeal. The chief problem is that the record may not contain sufficient information to enable the appellate court to resolve the parent's contentions. See S. Calkins, Ineffective Assistance of Counsel in Parental-Rights Termination Cases: The Challenge for Appellate Courts, 6 J.App. Prac. & Process 179, 209 (2004) ("[I]n some cases it will be impossible to determine the merits of an ineffectiveness claim from the appeal record."); see also Ardolino v. People, supra,
When the record is insufficient, appellate courts generally remand the case to the trial court for further findings and conclusions. See State ex rel. Children, Youth & Families Dep't v. Tammy S.,
A remand is required only if the parent's allegations are sufficiently specific and compelling to constitute a prima facie showing of ineffective assistance of counsel. State ex rel. Children, Youth & Families Dep't v. David F.,
If the parent's allegations lack sufficient specificity, the ineffective assistance claim may be denied without further inquiry. Cf. People v. Osorio, ___ P.3d ___, ___
M.J.S. contends that her therapist should have been called to testify as a witness during the termination hearing. She asserts that, rather than making an informed strategic
decision, her former attorney simply failed to call the therapist. And she asserts that the trial court would have reached a different decision had the therapist been called to testify.
At our request, M.J.S.'s appellate attorney has submitted an offer of proof in support of this allegation. (We extended this opportunity only because this is the first time that a Colorado appellate court has explained the degree of specificity required when an ineffective assistance claim is raised on appeal from a termination proceeding. We note that, in future cases, parents and their attorneys will be expected to present their allegations, with the requisite specificity, in the petition on appeal.) The offer of proof asserts the following:
⢠The therapist (who is mentioned by name) has treated M.J.S. since 2004. He is a well-respected psychotherapist who has extensive expertise in the area of child development.
⢠Had the therapist been called as witness, he would have testified as follows: (1) M.J.S. has made such strides in overcoming her self-destructive behavior that she is capable of providing appropriate parenting for all her children; (2) M.J.S. demonstrated good parenting skills during therapy sessions with the child; and (3) the department of human services changed the child's caseworkers, therapists, volunteers, and foster homes with inappropriate frequency, and this disruption was more likely to have caused the child's behavioral problems than was M.J.S.'s parenting.
⢠M.J.S.'s former attorney did not present any witness to establish M.J.S.'s progress in therapy or her ability to parent. Nor did she present any witness to explain why the child's behavioral problems were the result of conditions other than M.J.S.'s parenting.
This allegation warrants further inquiry by the trial court. The allegation cannot be rejected summarily because it is specific and because the proffered evidence, if true and if credited by the trial court, could plausibly establish both prongs of an ineffective assistance claim. Nor can the allegation be resolved on the existing record. We therefore conclude that the case must be remanded so that the trial court may address this allegation in the first instance.
M.J.S. alleges several other acts and omissions on the part of her former attorney. In light of our decision to remand this case, we need not address the remaining allegations in detail. We note that these allegations are specific and supported by an offer of proof, and we direct the trial court to address them on remand.
We remand this case for further proceedings as follows:
1. Within thirty days of our remand, the trial court shall hold a hearing at which M.J.S. may produce evidence and argument in support of her ineffective assistance claim. The county attorney may produce evidence (including the testimony of M.J.S.'s former attorney) and argument in opposition.
2. At the conclusion of the hearing, after resolving issues of credibility and making findings of historical fact, the trial court must determine (1) whether M.J.S.'s former attorney acted outside the wide range of professionally competent assistance required in termination proceedings, and (2) whether there is a reasonable probability that the alleged shortcomings, alone or in combination, affected the outcome of the termination proceeding.
3. Within ten days after the hearing, the clerk of the district court shall recertify the appeal to this court and submit a supplemental record consisting of (1) a transcript of the evidence and arguments presented at the hearing, along with any oral findings and conclusions made by the trial court, and (2) the trial court's signed and dated order resolving M.J.S.'s claim of ineffective assistance of counsel.
4. After the supplemental record has been filed, the parties shall have ten days within which to file simultaneous supplemental briefs addressing the
propriety of the hearing and the trial court's findings and conclusions.
The case is remanded for further proceedings consistent with this opinion.
Judge DAILEY and JUDGE GRAHAM concur.