in the Interest of S.B

2020 COA 5

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 January 2, 2020

2020COA5

No. 19CA0198, People in the Interest of S.B. — Juvenile Court — Dependency and Neglect — Termination of the Parent-Child Legal Relationship; Attorneys and Clients — Ineffective Assistance of Counsel

A division of the court of appeals considers whether the

juvenile court erred in terminating father’s parental rights.

In separate opinions, Judges Hawthorne, Furman and Navarro

conclude that the court did not err. Judge Hawthorne, writing for

the majority, concludes that under People in Interest of A.G., 262

P.3d 646 (Colo. 2011), a parent’s ineffective assistance of counsel

claim in a termination proceeding requires demonstrating

“outcome-determinative” prejudice pursuant to Strickland v.

Washington, 466 U.S. 668, 687 (1984). Judge Furman specially

concurs, pointing out the shortcomings of applying the criminal

“outcome-determinative” prejudice inquiry to civil termination of parental rights proceedings. Judge Navarro specially concurs that

father failed to demonstrate prejudice under either analysis. COLORADO COURT OF APPEALS 2020COA5

Court of Appeals No. 19CA0198 Montrose County District Court No. 17JV83 Honorable D. Cory Jackson, Judge

The People of the State of Colorado,

Appellee,

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

and Concerning R.B.,

Appellant.

JUDGMENT AFFIRMED

Division IV Opinion by JUDGE HAWTHORNE Furman, J., specially concurs Navarro, J., specially concurs

Announced January 2, 2020

Julie R. Andress, Assistant County Attorney, Montrose, Colorado, for Appellee

Barbra J. Remmenga, Guardian Ad Litem

Michael Kovaka, Littleton, Colorado, for Appellant ¶1 In this dependency and neglect proceeding, R.B. (father)

appeals the judgment terminating his parental rights to S.B. (the

child). We affirm.

I. Factual Background and Procedural History

¶2 In August 2017, law enforcement officials placed the child in

protective custody because during a drug raid they found the child

alone in unsafe conditions where he and father lived. The Montrose

County Department of Health and Human Services (Department)

initiated a dependency and neglect proceeding, and the juvenile

court granted custody of the child to the Department. The

Department placed the child in the care of his paternal great aunt

and uncle, whom the court appointed as special respondents in the

case. The child’s mother had died earlier that year.

¶3 In September 2017, father admitted that the child was

dependent and neglected and the court adopted a treatment plan

for father.

¶4 Father was later arrested on several offenses, and under a plea

agreement was sentenced to six years in the custody of the

Department of Corrections in March 2018.

1 ¶5 In August 2018, the Department moved to terminate father’s

parent-child legal relationship with the child. The court held a

termination hearing and terminated father’s parental rights.

II. The Juvenile Court’s Errors Under ICWA Were Harmless

¶6 Father contends that the juvenile court failed to comply with

the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C.

§§ 1901-1963 (2018), in two ways: (1) it failed to make proper ICWA

inquiries during the termination proceeding and (2) it and the

Department failed to send proper notice of the termination

proceeding to the Jena Band of the Choctaw Tribe. We conclude

the errors in the court’s inquiry and notice procedures under ICWA

were harmless.

A. Standard of Review and Applicable Law

¶7 We review de novo whether ICWA’s requirements applied to

the proceeding and were satisfied. People in Interest of M.V., 2018

COA 163, ¶ 32; People in Interest of T.M.W., 208 P.3d 272, 274

(Colo. App. 2009).

¶8 Colorado’s ICWA-implementing legislation provides that in

dependency and neglect proceedings, the petitioning party must

make continuing inquiries to determine whether the child is an

2 Indian child. § 19-1-126(1)(a), C.R.S. 2018;1 see also B.H. v. People

in Interest of X.H., 138 P.3d 299, 302 (Colo. 2006).

¶9 The federal guidelines implementing ICWA impose a duty of

inquiry and notice on trial courts. 25 C.F.R. § 23.107(a) (2019);

Bureau of Indian Affairs, Guidelines for Implementing the Indian

Child Welfare Act (Dec. 2016), https://perma.cc/3TCH-8HQM; see

also Notice of Guidelines, 81 Fed. Reg. 96,476 (Dec. 30, 2016). The

court must ask each participant on the record at the beginning of

every emergency, voluntary, or involuntary child custody proceeding

whether the participant knows or has reason to know that the child

is an Indian child. 25 C.F.R. § 23.107(a); see People in Interest of

L.L., 2017 COA 38, ¶ 19. A proceeding to terminate parental rights

is a separate child custody proceeding under ICWA. See 25 U.S.C.

§ 1903(1) (2018); see also § 19-1-126(1); People in Interest of C.A.,

2017 COA 135, ¶ 10.

¶ 10 When there is reason to know or believe that a child involved

in a custody proceeding is an Indian child, the petitioning party

must send notice of the proceeding to the potentially concerned

1 The statute in effect at the time.

3 tribe or tribes. B.H., 138 P.3d at 302; see 25 U.S.C. § 1912(a)

(2018); § 19-1-126(1)(b). A court “has reason to know” a child is an

Indian child if, in relevant part, “[a]ny participant in the proceeding,

officer of the court involved in the proceeding, Indian Tribe, Indian

organization, or agency informs the court that the child is an Indian

child . . . [or] informs the court that it has discovered information

indicating that the child is an Indian child[.]” 25 C.F.R. § 23.107(c).

State courts and agencies are encouraged to interpret these factors

expansively. M.V., ¶ 43. If the tribe’s identity or location can’t be

determined, notice must be given to the Bureau of Indian Affairs.

B.H., 138 P.3d at 302; see 25 U.S.C. § 1912(a).

B. Additional Facts

¶ 11 Prior to the dependency and neglect adjudication, the court

asked father on two occasions whether the child had Indian

heritage. Father said that the child didn’t and that he was unaware

of any Indian heritage from the child’s mother.

¶ 12 At the adjudication hearing, the Department notified the court

that it was inquiring into the child’s possible Indian heritage from

his mother.

4 ¶ 13 Months later at a review hearing, the Department updated the

court on its efforts to determine the child’s possible Indian heritage.

Its counsel said that the Department had communicated with the

child’s maternal grandfather, who said that he was a registered

member of a Choctaw tribe. Counsel said that the Department had

sent notices to the three federally recognized Choctaw tribes, and

that two had responded that the grandfather wasn’t a member or

eligible to be one. The Department hadn’t heard back from the

third tribe, the Jena Band, and hadn’t been able to contact the tribe

by telephone.

¶ 14 In July 2018, the court held a “permanency planning hearing.”

It adopted the Department’s primary termination and adoption

plan. The court found that “ICWA continues not to be an issue,”

and that it “does not know or have reason to know that [the child] is

[an] Indian child.”

¶ 15 On August 1, 2018, the Department moved to terminate

father’s parent-child legal relationship with the child. In the

motion, the Department stated that it

made appropriate inquiries to determine that [the child is] not subject to [ICWA]. . . . Inquiries were made into the [m]other’s

5 heritage and the Choctaw Tribes were noticed. The People do not know or have reason to know or believe that the child is an Indian Child under the meaning of [ICWA].

¶ 16 On August 15, 2018, in a “pre-hearing” order, the court stated

that it “hereby inquires of [father] whether [he] or the child[] are

members of a Native American Indian tribe or are eligible for

membership in a Native American Indian tribe. [Father] shall file a

report indicating whether ICWA is a[n] issue in this case within

[seven] days.” Father didn’t respond.

¶ 17 Eight days before the termination hearing on November 6,

2018, the Department filed a “Notice Regarding [ICWA].” In the

notice the Department detailed its efforts to inquire into the child’s

possible Indian heritage, including what counsel had already

provided at the review hearing. The Department also sent

information to the Bureau of Indian Affairs, but the Bureau had

responded that it couldn’t identify a tribe. The Jena Band of the

Choctaw Tribe still hadn’t responded to the notice or to the

Department’s follow-up efforts.

¶ 18 The notice also said that the Department had called

grandfather in July 2018 prior to the termination motion, and he

6 had “confirmed that the tribe he is enrolled in is the ‘Metis’ tribe,” a

federally unrecognized tribe. Thus, the Department concluded that

it didn’t believe or have reason to know that the child was an Indian

child for ICWA purposes.

C. Analysis

¶ 19 We agree that the court’s inquiry and notice procedures under

ICWA were insufficient.

¶ 20 “The trial court must ask each participant on the record at the

beginning of each emergency, voluntary, or involuntary child

custody proceeding ‘whether the participant knows or has reason to

know that the child is an Indian child.’” People in Interest of K.G.,

2017 COA 153, ¶ 21 (quoting 25 C.F.R. § 23.107(a)). Yet the court

inquired only of father. See K.G., ¶ 25 (“Nor did the court make the

required inquiry on the record as to any of the three parents, the

guardian ad litem, or the Department.”); see also People in Interest

of J.L., 2018 COA 11, ¶ 20 (“A written advisement form provided to

one participant falls far short of meeting this requirement.”).

¶ 21 And at the time the Department sought termination, based on

the existing record, the court had “reason to know” the child may

have Indian heritage and should have required the Department to

7 send notice to the Jena Band. See M.V., ¶ 44 (parent indicating

that children had Indian heritage and were eligible for membership

in a federally recognized tribe was “sufficient to give the court

reason to know the children were Indian children”); L.L., ¶ 39 (“If a

Tribe does not respond to the notice . . . the Department must

continue to send the Tribe notices of subsequent proceedings for

which notice is required, such as a termination of parental rights

proceeding.”).

¶ 22 But these errors were harmless. Grandfather’s claim to be a

registered member of a Choctaw tribe was the sole basis for

believing or having reason to know that the child possibly had

Indian heritage. So when grandfather later clarified that he was

enrolled in a federally unrecognized tribe, further notice wasn’t

required and the previous errors were harmless. See People in

Interest of Z.C., 2019 COA 71M, ¶ 22 (“And because the [tribe] was

able to determine that the child was not a member of or eligible for

membership in the tribe (albeit in a letter that was not before the

juvenile court at the time of the hearing), the error in the juvenile

court’s finding that the [tribe] received proper notice is harmless.”);

People in Interest of S.R.M., 153 P.3d 438, 441 (Colo. App. 2006).

8 III. Ineffective Assistance

¶ 23 Father contends that his trial counsel rendered ineffective

assistance by (1) failing to communicate with him; (2) failing to

secure his testimony for the termination hearing or later written

closing argument, instead proceeding by an “offer of proof”; and (3)

not “fully understand[ing] the facts of the case or [father’s] position

on central issues.” We disagree.

¶ 24 We consider ineffective assistance claims raised for the first

time on appeal. See People in Interest of A.R., 2018 COA 176, ¶ 35

(cert. granted Mar. 4, 2019).

¶ 25 In Colorado, a respondent parent’s right to appointed counsel

in a termination proceeding is secured by statute and not

constitutional mandate. C.S. v. People in Interest of I.S., 83 P.3d

627, 636 (Colo. 2004). Divisions of this court have recognized that

a parent’s statutory right to counsel includes the right to effective

assistance of counsel. People in Interest of S.L., 2017 COA 160,

¶ 58. These divisions have evaluated ineffective assistance of

counsel claims by applying the test used in criminal cases — the

Strickland test. People in Interest of C.H., 166 P.3d 288, 290-91

9 (Colo. App. 2007) (citing Strickland v. Washington, 466 U.S. 668,

687 (1984)). Under Strickland, the parent must show two things:

(1) counsel’s performance was outside the wide range of

professionally competent assistance and (2) counsel’s errors

prejudiced the parent. Id. at 291. Prejudice requires showing “a

reasonable probability that, but for counsel’s alleged deficiencies,

the outcome of the termination proceeding would have been

different.” S.L., ¶ 59. In evaluating counsel’s performance, courts

must indulge a strong presumption that counsel’s actions might be

considered sound trial strategy. People v. Phipps, 2016 COA 190M,

¶ 17.

¶ 26 But a division of this court recently departed from the

Strickland outcome-determinative prejudice test and adopted a

“fundamental fairness” test. See A.R., ¶ 46 (“We . . . depart from

other divisions of this court that have exclusively applied the . . .

outcome-determinative test, without considering fundamental

fairness, to determine whether a parent was prejudiced by counsel’s

deficient performance in a termination of parental rights

proceeding.”). Under this approach, counsel’s performance may

10 also be prejudicial where a judgment is unreliable or fundamentally

unfair. See id. at ¶¶ 57, 61.

¶ 27 Chief Justice Directive 16-02, Court Appointments Through

the Office of Respondent Parents’ Counsel (amended July 1, 2017),

provides the practice standards for respondent parent counsel in

dependency and neglect cases. Specifically, respondent parent

counsel is required to “[a]dvocate for the client’s goals and empower

the client to direct the representation and make informed

decisions,” “[m]eet and communicate regularly with the client well

before court proceedings,” “[p]resent and cross-examine witnesses,

prepare and present exhibits,” and “[r]equest the opportunity to

make opening and closing arguments.” Id. at attach. A, pp. 1-3.

¶ 28 If the parent’s allegations aren’t sufficiently specific or fail to

make a prima facie showing of ineffective assistance, the claim may

be denied without further inquiry. S.L., ¶ 60 (citing C.H., 166 P.3d

at 291). And the failure to establish either Strickland prong defeats

an ineffective assistance claim. Id. (citing People in Interest of D.G.,

140 P.3d 299, 308 (Colo. App. 2006)).

11 B. Additional Facts

¶ 29 Shortly before the termination hearing, the court granted

father’s request to attend the termination hearing via telephone

because he was incarcerated. At the termination hearing, father’s

counsel told the court that father wouldn’t be able to attend the

hearing by telephone and suggested that the hearing be continued

because “I know [father] does want to testify and I think he should

be allowed to testify in this trial.” The court partially granted

counsel’s request, continuing the closing arguments and allowing

father to file “an affidavit, if any, with the court on or before

November 26, 2018.” It gave the parties until December 7, 2018, to

file written closing arguments.

¶ 30 On November 26, father’s counsel asked the court to extend

the time to file father’s affidavit. The court granted the request, but

counsel never filed an affidavit.

¶ 31 On December 7, 2018, father’s counsel filed a written closing

argument, stating, in part, that “[c]ounsel unsuccessfully attempted

to schedule a phone call with [father] . . . . Thus, any information

counsel includes regarding [father’s] position is essentially an offer

of proof.”

12 C. Analysis

¶ 32 Father argues that the judgment terminating his parental

rights must be vacated because counsel’s failure to communicate

with him “rendered him unable to essentially offer anything more

than an ‘offer of proof’ at the termination stage of [his] case,” which

“deprived [him] of the equal contest of opposed interests required

for fundamentally fair proceedings.” Father doesn’t allege how or

why the result of the proceeding would have been any different had

counsel communicated with him, but instead relies solely on the

fundamental fairness test adopted in A.R., ¶¶ 57-68.

¶ 33 Because father “has failed to allege facts that would prove

prejudice,” we conclude that his ineffective assistance of counsel

claim fails. People in Interest of A.G., 262 P.3d 646, 652 (Colo.

2011); see S.L., ¶ 65.

¶ 34 In reaching this conclusion, we decline to apply A.R.’s

fundamental fairness test for establishing prejudice in ineffective

assistance of counsel claims, which is contrary to every other

division that has addressed the Strickland prejudice prong in

termination of parental rights cases. See In re Estate of Becker, 32

P.3d 557, 563 (Colo. App. 2000) (“[D]ivisions of this court generally

13 have given considerable deference to the decisions of other

[divisions] . . . .”), aff’d sub nom. In re Estate of DeWitt, 54 P.3d 849

(Colo. 2002). And we discern no compelling reason to dilute the

prejudice test in termination of parental rights cases in favor of

A.R.’s fundamental fairness test given the latter has its own

problems. It is “a requirement whose meaning can be as opaque as

its importance is lofty.” A.M. v. A.C., 2013 CO 16, ¶ 28 (quoting

Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 24 (1981)). Because of

its uncertainty and lack of clear benchmarks, we conclude that

fundamental fairness isn’t a viable alternative to outcome-

determinative prejudice.

¶ 35 But we need not delve into the fundamental fairness test’s

specific shortcomings because ultimately, even if we were to agree

with A.R.’s reasoning, see A.R., ¶¶ 46-55 (“Fundamental fairness as

a focus of Strickland’s prejudice inquiry is also simply more suited

to the highly discretionary nature of termination proceedings.”),

we’re bound by supreme court precedent. And the supreme court

defines “prejudice” in an ineffective assistance of counsel claim in

parental termination cases as requiring some evidence showing

14 “that the result of the termination hearing may have been different”

absent counsel’s unprofessional errors. A.G., 262 P.3d at 652.

¶ 36 In A.G., our supreme court reviewed a parent’s ineffective

assistance of counsel claim based on trial counsel’s failure to timely

request that the trial judge recuse himself in a parental termination

proceeding. The court “decline[d] to decide whether Strickland

applies to a claim of ineffective assistance in a termination hearing,”

but it held “that if such a claim is cognizable, at the very least, an

allegation of prejudice would be required.” Id. at 651. And it

described prejudice by quoting from Strickland: “The reviewing

court looks at whether ‘there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding

would have been different.’” Id. (quoting Strickland, 466 U.S. at

694).

¶ 37 The court then analyzed the parent’s claim and found that the

parent “failed to allege facts that would prove prejudice” because

the allegation “[didn’t] contain any facts to support a conclusion

that the judge was actually biased.” Id. at 652. It also found that

the claim “[a]t most . . . alleged that there may have been an

appearance of impropriety[.]” Id.

15 ¶ 38 The supreme court then addressed the deficiency in the

division’s analysis:

The court of appeals maintained that [the parent] suffered prejudice in that, had the recusal motion [] been timely, [the parent] would have been entitled to a different termination hearing before a different judge. This conclusion fails to focus on the key concern of the prejudice prong: whether the result of the proceeding would have been different. The court of appeals did not conclude, and there has been no evidence presented, that the result of the termination hearing may have been different if the judge had recused himself.

Id. The court concluded that “[w]ithout an assertion of prejudice,

counsel’s failure to move for disqualification cannot be the basis of

a valid claim for ineffective assistance of counsel.” Id.

¶ 39 Thus, we conclude that A.G. requires that a cognizable

ineffective assistance of counsel claim in a termination proceeding

must, “at the very least,” allege “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 651 (quoting

Strickland, 466 U.S. at 694).

¶ 40 Father doesn’t allege with any specificity how counsel’s

performance prejudiced him. He doesn’t allege what evidence

16 counsel should have elicited in his testimony that would have

resulted in the proceeding’s outcome being different had he

testified. See People in Interest of V.M.R., 768 P.2d 1268, 1270-71

(Colo. App. 1989) (deciding that parent’s absence from termination

hearing was not prejudicial where parent was represented by

counsel and personal presence would have had little effect on the

proceeding). And he doesn’t allege how counsel’s further

communication with him or fuller understanding of the facts and

father’s position on central issues would have caused the result of

the proceeding to have been different.

¶ 41 Without such an assertion of prejudice, counsel’s conduct

can’t be the basis of a valid claim for ineffective assistance of

counsel. A.G., 262 P.3d at 652; S.L., ¶ 60.

IV. Conclusion

¶ 42 The judgment is affirmed.

JUDGE FURMAN specially concurs.

JUDGE NAVARRO specially concurs.

17 JUDGE FURMAN, specially concurring.

¶ 43 While I agree that father did not allege with enough specificity

how counsel’s deficient performance prejudiced him, I write

separately to address the majority’s view that we should apply

Strickland’s criminal prejudice inquiry to an ineffective assistance of

counsel claim in a civil dependency and neglect case. I would follow

the division in A.R. and apply fundamental fairness as the standard

by which we evaluate prejudice in parents’ ineffective assistance of

counsel claims. See People in Interest of A.R., 2018 COA 176,

¶¶ 64-65 (cert. granted Mar. 4, 2019).

¶ 44 The majority concludes that the supreme court’s holding in

People in Interest of A.G., 262 P.3d 646, 651 (Colo. 2011), requires,

at a minimum, that we apply Strickland’s “outcome-determinative”

prejudice inquiry to respondent parents’ ineffective assistance of

counsel claims. I respectfully disagree. True, the court applied this

inquiry to such a claim. Id. But, as I read A.G., this was by

example because the court in A.G. explicitly declined to “decide

whether Strickland applies to a claim of ineffective assistance in a

termination hearing.” Id. If I am misreading A.G., I respectfully ask

our supreme court, for the reasons that follow, to reconsider its

18 holding regarding the prejudice inquiry. The division in A.R. did not

directly address the shortcomings of making such an inquiry, so I

do so here.

¶ 45 The United States Supreme Court in Strickland v. Washington

set out the now-familiar test for evaluating a criminal defendant’s

ineffective assistance of counsel claim. 466 U.S. 668 (1984). A

defendant making this claim must first show “that counsel’s

performance was deficient. This requires showing that counsel

made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.

at 687. A defendant then must show “that the deficient

performance prejudiced the defense. This requires showing that

counsel’s errors were so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable.” Id. The court explained that

“the question is whether there is a reasonable probability that,

absent the errors, the factfinder would have had a reasonable doubt

respecting guilt.” Id. at 695. This is referred to as the “outcome-

determinative” test.

¶ 46 Without analysis, divisions of this court have adopted the

Strickland outcome-determinative test to evaluate ineffective

19 assistance claims in civil termination of parental rights proceedings.

See People in Interest of V.M.R., 768 P.2d 1268, 1270 (Colo. App.

1989) (adopting, without analysis, the outcome-determinative test

for prejudice in ineffective assistance of counsel claims); see also

People in Interest of C.H., 166 P.3d 288, 291 (Colo. App. 2007)

(same); People in Interest of D.G., 140 P.3d 299, 308 (Colo. App.

2006) (same). Under this test, a parent bringing an ineffective

assistance claim must show “a reasonable probability that, but for

counsel’s deficient performance, the outcome of the hearing would

have been different.” D.G., 140 P.3d at 308.

¶ 47 But the United States Supreme Court cautioned against

applying Strickland’s prejudice inquiry in a mechanical fashion.

Weaver v. Massachusetts, 582 U.S. ___, ___, 137 S. Ct. 1899, 1911

(2017) (citing Strickland, 466 U.S. at 694, 696). The Court

recognized that under Strickland,

• “the concept of prejudice is defined in different ways

depending on the context in which it appears”;

• “the prejudice inquiry is not meant to be applied in a

‘mechanical’ fashion”; and

20 • “when a court is evaluating an ineffective-assistance

claim, the ultimate inquiry must concentrate on the

‘fundamental fairness of the proceeding.’”

Id. (quoting Strickland, 466 U.S. at 696).

¶ 48 I believe that evaluating ineffective assistance of counsel

claims in civil termination of parental rights proceedings calls for a

more flexible prejudice inquiry — one that concentrates on the

“fundamental fairness” of the proceeding. I reach this conclusion

for two reasons: (1) there are essential differences between criminal

trials and civil termination of parental rights proceedings; and (2)

since the landmark decision in Santosky v. Kramer, 455 U.S. 745

(1982), the United States Supreme Court and our supreme court

have consistently used “fundamental fairness” as the benchmark

for evaluating the adequacy of procedures afforded to parents in

termination of parental rights proceedings. I believe errors of

counsel should be measured by their effect on whether a parent

received a fundamentally fair termination of parental rights hearing.

See A.R., ¶ 57. I will refer to this as the “fundamental fairness” test.

I. Essential Differences

21 ¶ 49 Criminal trials and civil termination of parental rights

hearings require the fact finder to answer profoundly different

questions.

¶ 50 In criminal trials, the judge or jury must decide whether the

prosecution proved that the defendant committed the charged crime

at a specific time and place. See In re Winship, 397 U.S. 358, 364

(1970). If it finds the prosecution proved this beyond a reasonable

doubt, it must find the defendant guilty. Leonard v. People, 149

Colo. 360, 372, 369 P.2d 54, 61 (1962). In other words, it does not

have discretion to find otherwise. Id.

¶ 51 Unlike criminal trials, a typical civil termination of parental

rights hearing requires the judge to conduct a multifactorial,

totality-of-the-circumstances evaluation of a parent’s fitness, or

whether a parent is likely to become fit within a reasonable time,

based primarily on the parent’s compliance with an appropriate

treatment plan over many months. § 19-3-604(1)(c)(I)-(III), C.R.S.

2019. Colorado’s complex statutory scheme provides a

nonexhaustive list of factors the judge may consider when

conducting this evaluation. See § 19-3-604(2). But that does not

end the judge’s analysis.

22 ¶ 52 Even if the judge determines that the Department or guardian

ad litem proved parental unfitness and other criteria by clear and

convincing evidence, the judge retains discretion to decide whether

to terminate parental rights. See § 19-3-604(1) (“The court may

order a termination of the parent-child legal relationship upon the

finding by clear and convincing evidence of any one of the following:

. . . .”) (emphasis added). By using the word “may,” the General

Assembly gave the judge discretion to deny termination even when

the statutory criteria are met.

¶ 53 Factors that may influence the judge’s decision to terminate

parental rights include whether a less drastic alternative exists and

the “physical, mental, and emotional conditions and needs of the

child.” § 19-3-604(3); People in Interest of M.M., 726 P.2d 1108,

1122 (Colo. 1986). Unlike in a criminal case, in which the fact

finder must choose between only two possible outcomes — guilty or

not guilty of a specifically defined offense at a fixed point in time —

the juvenile court’s decision is not a binary choice of whether a

parent is fit or unfit, able or unable to care for a child on the final

day of the termination hearing. Instead, for example, a juvenile

court may conclude that, even though termination is one legally

23 available option, an allocation of parental responsibilities to a

relative would better serve a particular child’s needs.

¶ 54 These differences between criminal trials and civil termination

hearings bear on the propriety of applying the outcome-

determinative test in each context. In criminal trials, a defendant

mounting an ineffective assistance claim must show that errors of

counsel “actually had an adverse effect on the defense.” Strickland,

466 U.S. at 693. An outcome-determinative test in a criminal case,

then, can properly focus on “whether there is a reasonable

probability that, absent the errors, the factfinder would have had a

reasonable doubt respecting guilt.” Id. at 695.

¶ 55 In contrast, the prejudicial effect of counsel’s errors on the

judge’s parental fitness determination is difficult, if not impossible,

to quantify because a cold record seldom shows how any one or

more of the factors may have dealt the deciding blow in the fitness

determination. And, even if we could quantify this, the fitness

determination is not the only factor the judge must consider. Thus,

weighing the prejudicial effect of counsel’s errors on the decision to

terminate parental rights only results in speculation.

24 ¶ 56 Two hypothetical cases illustrate these key differences and

show why I believe an ineffective assistance of counsel claim in a

civil termination of parental rights proceeding should not include an

outcome-determinative inquiry.

¶ 57 Imagine that the prosecution charges a defendant with second

degree burglary. At trial, defense counsel fails to call two of the

defendant’s friends, who would have credibly testified that the

defendant was with them in another town on the day of the

burglary. Without this evidence, the jury finds the defendant guilty,

and he is convicted of the offense.

¶ 58 Now imagine the defendant brings an ineffective assistance of

counsel claim. He must show that (1) his counsel’s performance

was outside the wide range of professionally competent assistance

and (2) he was prejudiced by counsel’s errors. Strickland, 466 U.S.

at 687. To satisfy the “prejudice” prong, the defendant must show

there is “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.” Id. at 694.

¶ 59 The hypothetical defendant can show that had his lawyer

called his friends as witnesses, there is a reasonable probability the

25 jury would not have found that he committed the burglary. See

§ 18-4-204, C.R.S. 2019; Leonard, 149 Colo. at 372, 369 P.2d at 61.

That is, the postconviction court can assess how the friends’

testimony would have affected the verdict because it would have

shown the defendant was not at the scene of the crime.

¶ 60 Contrast this hypothetical with a civil termination of parental

rights proceeding.

¶ 61 Imagine a mother struggles with substance abuse. Her young

child has been placed out of her home for a year, and she is now

facing termination of her parental rights. At the termination

hearing, the judge hears testimony from mother’s caseworker that

mother has attended some, but not all, of her required substance

abuse treatment sessions; that she has maintained sobriety for

some of the time her child has been placed outside the home; and

that she has missed visits with her child. The caseworker offers her

expert opinion that terminating mother’s parental rights is in the

best interests of the child.

¶ 62 Now imagine that mother’s counsel failed to call her substance

abuse therapist as a witness at the termination hearing. The

therapist would have credibly testified that mother was the most

26 successful client he had ever worked with, that she has been sober

for six months, and that she will almost certainly maintain sobriety

going forward. Without this evidence, the judge terminates

mother’s parental rights, finding, among other things, that the

Department of Human Services and the child’s guardian ad litem

proved by clear and convincing evidence that mother did not

reasonably comply with her treatment plan, that she is unfit, and

that she is unlikely to become fit within a reasonable time. See §

19-3-604(1)(c)(I)-(III).

¶ 63 Now suppose that mother brings an ineffective assistance of

counsel claim on direct appeal.

¶ 64 I believe that mother would be hard pressed to show that the

outcome would have been different. Under the outcome-

determinative test, she may be able to show that her therapist’s

testimony would have been highly relevant to whether she

reasonably complied with her treatment. But an appellate court

could only speculate on what effect this evidence might have had on

the outcome. This is so because we have no way to determine

whether the judge would have maintained his or her evaluation of

mother’s fitness or whether mother would become fit within a

27 reasonable time based on other factors, such as mother’s missed

visits. And fitness is not the outcome. The outcome is the

judgment terminating parental rights. Parental fitness is only one

factor the judge must consider when deciding whether to terminate

parental rights. The judge must also consider facts external to the

parent, including the physical, mental, and emotional conditions

and needs of the child and whether there are any less drastic

alternatives. § 19-3-604(3); M.M., 726 P.2d at 1122.

¶ 65 Our supreme court has made clear that an appellate court

may not substitute its own judgment for that of the juvenile court.

People in Interest of A.J.L., 243 P.3d 244, 249-50, 253 (Colo. 2010)

(citing People in Interest of C.A.K., 652 P.2d 603, 613 (Colo. 1982)).

But, in my view, this kind of second-guessing is precisely what the

outcome-determinative test requires appellate courts to do in

termination of parental rights cases. See D.G., 140 P.3d at 308

(explaining that, to establish prejudice under Strickland “a parent

must show that there is a reasonable probability that, but for

counsel’s deficient performance, the outcome of the hearing would

have been different”).

28 ¶ 66 In sum, it is difficult, if not impossible, for a parent to show —

and an appellate court to assess — prejudice under a mechanical

application of Strickland’s outcome-determinative test. See Susan

Calkins, Ineffective Assistance of Counsel in Parental-Rights

Termination Cases: The Challenge for Appellate Courts, 6 J. App.

Prac. & Process 179, 215 (2004) (“In almost all of the cases in which

Strickland is applied, either expressly or impliedly, the courts

decline to find ineffectiveness.”).

¶ 67 For this reason, I believe that applying the outcome-

determinative test in the parental rights context is at odds with the

legislature’s guarantee that respondent parents shall have the “right

to be represented by counsel at every stage of the proceedings.”

§ 19-3-202(1), C.R.S. 2019. If Colorado courts mechanically apply

an outcome-determinative test, which poses an almost

insurmountable hurdle for parents alleging ineffective assistance of

counsel, I fail to see how parents’ statutory right to effective counsel

can be protected. See In re Geist, 796 P.2d 1193, 1200 (Or. 1990)

(“The statutory right to adequate trial counsel may prove illusory if

there is no procedure for review of claims of inadequate counsel.”).

29 ¶ 68 In my view, it makes little sense to stretch Strickland beyond

its Sixth Amendment, criminal, origins.

II. Fundamental Fairness

¶ 69 Instead, I believe the prejudice inquiry must concentrate on

the “fundamental fairness” of the proceeding. See A.R., ¶ 56. The

fundamental fairness test asks whether deficient performance by a

respondent parent’s counsel “rendered the proceeding

fundamentally unfair or the result of the proceeding unreliable.” Id.

at ¶ 11. In my view, this test better comports with the flexible,

discretionary nature of dependency and neglect proceedings. See

§ 19-3-604(1). After all, dependency and neglect proceedings are

civil cases, not criminal cases, implicating parents’ due process

rights to the care, custody, and control of their child. And

fundamental fairness has long been the benchmark by which the

United States Supreme Court and our supreme court have

evaluated the adequacy of procedural protections afforded to

parents in termination of parental rights proceedings. See

Santosky, 455 U.S. at 753-54; People in Interest of A.M.D., 648 P.2d

625, 636 (Colo. 1982) (adopting clear and convincing evidence as

the standard of proof in termination of parental rights hearings

30 because Santosky requires “that the State’s procedure must be

fundamentally fair”); see also People in Interest of J.W. v. C.O., 2017

CO 105, ¶¶ 34-35 (considering whether “the trial court’s failure to

enter a written adjudication order” before terminating parental

rights impaired “the fundamental fairness of the proceedings”); A.M.

v. A.C., 2013 CO 16, ¶ 38 (“[F]ull participation by foster parent

intervenors does not undermine the fundamental fairness of the

termination hearing.”); B.B. v. People, 785 P.2d 132, 136-37 (Colo.

1990) (explaining that the purpose of the “complex statutory

scheme” governing termination proceedings is to “accord

fundamental fairness to all parties”).

¶ 70 The majority concludes that the fundamental fairness test is

“opaque” and has problems with “uncertainty and lack of clear

benchmarks.” Supra ¶ 34 (quoting A.M., ¶ 28). I respectfully

disagree.

¶ 71 A.R. outlined two concrete ways a parent may answer a

prejudice inquiry. See A.R., ¶¶ 64-65.

¶ 72 First, a parent could claim that his counsel’s deficient

performance impaired a significant procedural safeguard, such as

the right to notice, the right to a separate hearing, the right to proof

31 by clear and convincing evidence, and the right to appeal. Id. at

¶ 64; see A.M., ¶¶ 29, 38 (recognizing the significant protections

Colorado law provides to respondent parents under the

“fundamental fairness” standard). To illustrate, a parent could

allege that his counsel rendered deficient performance by not

objecting to the Department of Human Services explaining what

evidence it would offer to the court without actually presenting that

evidence at a termination of parental rights hearing. (This

unfortunately common procedure is often called an “offer of proof.”

See A.R., ¶¶ 89-96 (discussing “offer of proof”).) The parent could

show prejudice by claiming he was denied the right to proof by clear

and convincing evidence at the termination of parental rights

proceeding, as required under section 19-3-604(1) and A.M.D., 648

P.2d at 636.

¶ 73 Second, a parent could claim that her counsel’s deficient

performance prevented the juvenile court from receiving essential

information favorable to the parent relating to section 19-3-604’s

termination criteria. A.R., ¶ 65. To illustrate, our earlier

hypothetical mother could allege that her counsel rendered deficient

performance by failing to call her therapist as a witness. Recall that

32 the therapist would have credibly testified that mother successfully

engaged in her treatment plan and was sober for the six months

before the termination of parental rights hearing. The hypothetical

mother could show prejudice by claiming that the therapist’s

testimony would have provided essential information relating to her

compliance with her treatment plan and fitness to parent. See §

19-3-604(1)(c)(I), (II); A.R., ¶ 65. If she makes such a showing, the

juvenile court, on remand, would evaluate its termination judgment

after hearing the therapist’s testimony.

¶ 74 For all these reasons, I believe that fundamental fairness is

the better test for evaluating whether errors by a parent’s counsel

under Colorado’s complex statutory scheme deprived the parent of

a fundamentally fair termination of parental rights hearing.

¶ 75 I now turn to the present case.

¶ 76 Father contends on appeal that his counsel rendered

ineffective assistance for the following reasons:

• His attorney did not arrange for father’s attendance at

the termination hearing by telephone.

• His attorney did not arrange for father to testify.

33 • His attorney was unclear about many of the facts central

to father’s case.

• His attorney was uncertain about father’s

communications with his son.

• His attorney did not know whether father’s condition had

improved during the proceedings.

¶ 77 Applying the fundamental fairness test, I would conclude

father has not alleged with enough specificity how counsel’s

deficient performance prejudiced him. I reach this conclusion for

two reasons: (1) father does not allege that his counsel’s deficient

performance impaired a significant procedural safeguard and (2) he

does not claim that his counsel’s deficient performance prevented

the court from receiving essential information favorable to him

relating to section 19-3-604’s termination criteria. See A.R., ¶ 66.

¶ 78 I conclude with one last observation. Permitting a parent to

bring an ineffective assistance claim on direct appeal is the most

expedient way to handle these claims, because it allows a reviewing

court to consider all errors that could potentially disrupt the finality

of a termination judgment in one step. See Calkins, 6 J. App. Prac.

34 & Process at 207 (“A direct appeal is likely to be faster than either a

post-judgment motion or a habeas proceeding in most cases.”).

35 JUDGE NAVARRO, specially concurring.

¶ 79 I join Judge Hawthorne’s opinion in full. I write separately to

say that I also agree with Judge Furman that father’s assertion of

prejudice from his counsel’s allegedly deficient performance fails the

fundamental fairness test adopted in People in Interest of A.R., 2018

COA 176, ¶ 35 (cert. granted Mar. 4, 2019). Accordingly, under

either test for assessing prejudice from his counsel’s performance,

father’s claim does not succeed.