in Interest of C.B

2019 COA 168

• Court: Colorado Court of Appeals
• Decided: November 14, 2019
• Docket: 18CA1013, People
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY November 14, 2019

2019COA168

No. 18CA1013, People in Interest of C.B. — Juvenile Court — Dependency and Neglect — Termination of the Parent-Child Legal Relationship; Appellate Procedure — Appeals from Proceedings in Dependency or Neglect — Time for Appeal

In this appeal of a judgment terminating parental rights,

mother challenges the adjudication of her child by default entered

after she failed to appear at an advisement of rights hearing. She

claims that the juvenile court violated C.R.C.P. 55, and that she is

entitled to relief under C.R.C.P. 60(b)(3). Because mother’s

challenge is to the adjudication, the division concludes that it is not

timely under either section 19-1-109(2)(c), C.R.S. 2019, or C.A.R.

3.4(b)(1). Thus, the division dismisses this portion of mother’s

appeal.

Mother also challenges her trial counsel’s effectiveness,

claiming her first appointed attorney rendered ineffective assistance by not attacking the default adjudication. Because mother was

appointed another attorney who represented her at the termination

of parental rights hearing, and she does not contend that this

attorney rendered ineffective assistance, the division concludes that

mother is not entitled to relief from the judgment terminating her

parental rights on this basis. Thus, the division affirms the

judgment terminating mother’s parental rights COLORADO COURT OF APPEALS 2019COA168

Court of Appeals No. 18CA1013 Pueblo County District Court No. 17JV248 Honorable William D. Alexander, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of C.B., a Child,

and Concerning A.A.,

Respondent-Appellant.

APPEAL DISMISSED IN PART AND JUDGMENT AFFIRMED

Division III Opinion by JUDGE FURMAN Webb and Brown, JJ., concur

Announced November 14, 2019

Cynthia Mitchell, County Attorney, David A. Roth, Special Assistant County Attorney, Pueblo, Colorado, for Petitioner-Appellee

Jennifer Zamarripa, Guardian Ad Litem

Debra W. Dodd, Office of Respondent Parents’ Counsel, Berthoud, Colorado, for Respondent-Appellant ¶1 In this dependency and neglect case, the juvenile court

adjudicated the child, C.B., dependent and neglected by default

after mother, A.A., failed to appear at an advisement of rights

hearing. The juvenile court appointed an attorney for mother after

it entered the default adjudication. This attorney withdrew shortly

afterward.

¶2 Mother then filed a pro se motion to set aside the default

adjudication. But, after conferring with her second appointed

attorney, she agreed to withdraw this motion.

¶3 The juvenile court later entered a judgment terminating

mother’s parental rights.

¶4 On appeal, mother mounts several challenges to the judgment

terminating her parental rights, two of which are central to her

¶5 First, she attacks the adjudication of her child by default,

claiming that the juvenile court violated C.R.C.P. 55, and that she is

entitled to relief under C.R.C.P. 60(b)(3). We note that mother

appears to have waived her challenge to the default adjudication.

But we conclude that because her challenge is to the adjudication,

1 it is not timely under either section 19-1-109(2)(c), C.R.S. 2019, or

C.A.R. 3.4(b)(1). Thus, we dismiss this portion of her appeal.

¶6 Second, mother contends her first appointed attorney

rendered ineffective assistance by not challenging the default

adjudication. Because mother withdrew her challenge to the

default adjudication, we conclude that she cannot use the entry of

default as a basis to complain about her first attorney’s

effectiveness. And because mother was appointed another attorney

who represented her at the termination of parental rights hearing,

and she does not contend that this attorney rendered ineffective

assistance, we conclude that she is not entitled to relief from the

judgment terminating her parental rights on this basis. See People

in Interest of A.R., 2018 COA 176, ¶ 78 (recognizing a claim of

ineffective assistance of termination counsel in the “narrow

circumstance” where, because of counsel’s deficient performance,

the county department did not prove the “fact of adjudication”

element in section 19-3-604(1), C.R.S. 2019) (cert. granted Mar. 4,

2019).

¶7 Mother also points out that the juvenile court erred by not

making an Indian Child Welfare Act of 1978 (ICWA) inquiry at the

2 hearing terminating her parental rights. Because, in supplemental

briefing, mother concedes the child does not have any Indian

heritage, we conclude that the juvenile court’s inquiry error was

harmless.

I. The Default Judgment

¶8 The record establishes the following facts.

¶9 The Pueblo County Department of Human Services filed a

petition in dependency or neglect after mother left the child with a

friend. Mother had asked the friend to care for the child

temporarily because mother was using methamphetamine and had

lost her home and job.

¶ 10 Although mother had not been served with notice of the

dependency or neglect proceeding, the juvenile court ordered her to

appear for advisement on April 24, 2017. (Mother appeared before

the juvenile court in an unrelated matter on April 20, 2017.) A

minute order indicates mother received a copy of the Department’s

“report of investigation” and an application for court-appointed

counsel, but not a copy of the petition in dependency or neglect, a

summons, or an advisement of her rights in the dependency or

neglect action.

3 ¶ 11 Mother returned to Utah, where she had originally tried to

place the child with friends or family. She asked the court to allow

her to appear at the advisement hearing by telephone. The juvenile

court denied her request. When mother did not appear at the

advisement hearing, the Department asked the juvenile court to

adjudicate the child dependent or neglected by default. The

juvenile court agreed. We note the following concerning this April

24, 2017, hearing:

• Mother had not been served.

• Mother had not been advised of her rights.

• Mother had not been notified that the juvenile court

would address adjudication rather than advisement at

this hearing.

• Mother had not been notified that the Department would

seek a default judgment.

• Mother had not been appointed counsel.

¶ 12 Seven weeks later, the juvenile court appointed counsel for

mother. At a July 2017 hearing, this counsel reported that mother

had agreed to file a written stipulation to adjudication because he

had advised her that it would be “very difficult to get out of a default

4 judgment this old.” (The record does not include a written

stipulation.) This attorney withdrew after the July hearing.

¶ 13 In August 2017, mother filed a pro se motion to set aside the

default judgment. The motion stated that mother (1) had not been

properly served or advised and (2) could document a legal

temporary guardianship of the child with the friend. The juvenile

court did not rule on the motion.

¶ 14 In September 2017, the court appointed a second attorney to

represent mother. In November 2017, after conferring with her

second attorney, mother agreed to withdraw her motion to set aside

the default judgment and work on her treatment plan.

¶ 15 The juvenile court terminated mother’s parental rights more

than one year after entering the default adjudication.

II. The Adjudication

¶ 16 Mother first challenges the adjudication.

A. Mother’s Challenge is Untimely

¶ 17 Mother contends that the juvenile court erred by adjudicating

the child dependent or neglected by default when she did not

appear at the advisement hearing. Although we have grave

concerns about the process by which the juvenile court entered

5 adjudication, we conclude that we must dismiss this portion of

mother’s appeal.

¶ 18 Challenges to the propriety of a judgment of adjudication must

be raised in a timely appeal from the adjudicatory stage of a

dependency and neglect proceeding. People in Interest of E.H., 837

P.2d 284, 287 (Colo. App. 1992). A judgment of adjudication

becomes final and appealable on entry of the initial dispositional

order. § 19-1-109(2)(c); People in Interest of C.L.S., 934 P.2d 851,

854 (Colo. App. 1996). A respondent parent has twenty-one days to

file an appeal of a judgment of adjudication after entry of an initial

dispositional order. C.A.R. 3.4(b)(1). This expedited timeframe

allows a reviewing court to timely address the propriety of an

adjudication and mitigates delay in achieving permanency for

children. See, e.g., § 19-1-109(1); see also People in Interest of P.N.,

663 P.2d 253, 258 (Colo. 1983) (“There must be finality to litigation

involving children.”).

¶ 19 Mother concedes that she did not appeal the judgment of

adjudication within the time for appeal established by C.A.R. 3.4.

But she contends that we may review this judgment because (1) it

was entered in violation of C.R.C.P. 55 and, as a result, it was void;

6 and (2) the limitations period does not apply to void judgments. We

disagree.

¶ 20 The timely filing of a notice of appeal is a jurisdictional

prerequisite to appellate review. In re C.A.B.L., 221 P.3d 433, 438

(Colo. App. 2009). Mother cites no authority to support her

contention that the limitations period of C.A.R. 3.4 does not apply

to allegedly void judgments, and we are aware of none.

¶ 21 Apparently recognizing this fatal flaw, mother asks us to

review the adjudicatory order under C.R.C.P. 60(b)(3). True

enough, when a trial court motion alleges that a judgment is void,

either the judgment is void or it is not, and if it is void, relief must

be afforded accordingly. See In re C.L.S., 252 P.3d 556, 561 (Colo.

App. 2011) (citing In re Marriage of Stroud, 631 P.2d 168, 170 n.5

(Colo. 1981)). But mother did not file such a motion in the trial

court. And she cites no authority that an appellate court can act

under this rule. See Barnett v. Elite Props. of Am., Inc., 252 P.3d 14,

19 (Colo. App. 2010) (“We will not consider a bald legal proposition

presented without argument or development.”). In any event, the

absence of an analogous rule in the Colorado Appellate Rules

strongly suggests otherwise.

7 ¶ 22 Finally, mother broadly contends that the allegedly erroneous

default adjudication “requires reversal of [both] the adjudication

and subsequent termination.” But on appeal she does not directly

challenge any of the criteria for termination — including sufficiency

of proof that the child was adjudicated dependent or neglected. See

§ 19-3-604(1); A.R., ¶¶ 33, 78. Instead, her argument focuses solely

on the validity of the judgment of adjudication by default. Because

her challenge to the adjudication is untimely, we cannot consider

whether or how a flawed adjudication might have affected the later

termination.

¶ 23 And because her appeal is untimely, we lack jurisdiction to

reach the merits of the adjudication. See People in Interest of A.E.,

994 P.2d 465, 467 (Colo. App. 1999) (“S.E.’s appeal is untimely and

this court lacks jurisdiction to entertain it.”). We also note that by

agreeing to withdraw her pro se motion to set aside the default

adjudication, after conferring with her second appointed attorney,

she appears to have waived any challenge to the judgment by

default. But we do not reach that issue because, as noted above,

we lack jurisdiction to reach the merits of the adjudication.

¶ 24 Thus, we dismiss this portion of her appeal.

8 B. Ineffective Assistance of Counsel

¶ 25 Mother next challenges the effectiveness of her first appointed

counsel primarily because he did not challenge the default

adjudication. She also points out that he revealed his private

advice to her regarding the default adjudication in open court, told

the court she stipulated to the adjudication, and withdrew his

representation without notice to her. We perceive no basis for

reversal.

¶ 26 To establish a claim of ineffective assistance of counsel, a

parent must show that (1) counsel’s performance was outside the

wide range of professionally competent assistance and (2) counsel’s

errors prejudiced the parent. A.R., ¶ 7; see also Strickland v.

Washington, 466 U.S. 668, 687 (1984). If the parent fails to

establish either prong of this test, the claim fails. See People in

Interest of C.H., 166 P.3d 288, 291 (Colo. App. 2007) (stating that a

claim of ineffective assistance fails unless parent’s allegations, if

true, would establish both prongs of the Strickland test).

¶ 27 As noted, after conferring with her second appointed counsel,

mother withdrew her motion to set aside the default adjudication

and agreed to work on her treatment plan. Because she withdrew

9 her challenge to the default adjudication, we conclude that she

cannot use the entry of default as a basis to complain about her

first attorney’s effectiveness.

¶ 28 And, mother was appointed another attorney who represented

her at the termination of parental rights hearing. Because she does

not contend that this attorney rendered ineffective assistance, we

conclude that she is not entitled to relief from the judgment

terminating her parental rights on this basis. See A.R., ¶ 78

(recognizing a claim of ineffective assistance of termination counsel

in the “narrow circumstance” where, because of counsel’s deficient

performance at the adjudicatory stage, the county department did

not prove the “fact of adjudication” element in section 19-3-604(1),

C.R.S. 2019).

C. Compliance with the Indian Child Welfare Act

¶ 29 In her opening brief, mother also contends that the juvenile

court did not comply with the inquiry requirements of ICWA,

because it did not inquire on the record whether she knew or had

reason to know or believe that the child was an Indian child.

¶ 30 A division of this court ordered mother to submit a

supplemental brief addressing (1) whether she had reason to know

10 or believe the child is an Indian child and (2) whether the juvenile

court’s alleged failure to comply with ICWA constituted harmless

error.

¶ 31 Mother concedes that she does not have any Indian heritage.

Thus, the juvenile court’s inquiry error was harmless. We reject

mother’s contention that the error in this case was not harmless

because a similar error in another case might lead to tragic

consequences.

III. Conclusion

¶ 32 The appeal is dismissed in part, and the judgment terminating

mother’s parental rights is affirmed.

JUDGE WEBB and JUDGE BROWN concur.