Peo in Interest of BR

• Court: Colorado Court of Appeals
• Decided: May 29, 2025
• Docket: 24CA2257
• Status: Unpublished

Opinion

24CA2257 Peo in Interest of BR 05-29-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA2257 Arapahoe County District Court No. 22JV464 Honorable Shay K. Whitaker, Judge

The People of the State of Colorado,

Appellee,

In the Interest of B.R. and H.R., Children,

and Concerning A.K.M.B.,

Appellant.

JUDGMENT AFFIRMED

Division VI Opinion by JUDGE YUN Tow and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 29, 2025

Ron Carl, County Attorney, Sarah Simchowitz, Assistant County Attorney, Aurora, Colorado, for Appellee

Sheena Knight, Guardian Ad Litem

Michael Kovaka, Office of Respondent Parents’ Counsel, Littleton, Colorado, for Appellant ¶1 A.K.M.B. (mother) appeals the judgment terminating her

parent-child legal relationships with B.R. and H.R. (the children).

We affirm.

I. Background

¶2 In September 2022, the Arapahoe County Department of

Human Services received a report concerning a domestic violence

incident involving mother and father. Mother agreed to a safety

plan, which stipulated that she and the children would stay with a

relative while father would not be allowed unsupervised contact

with the children. Mother did not abide by the plan, so the

Department removed the children from her care and filed a petition

in dependency or neglect.

¶3 A few months later, mother admitted to the allegations in the

petition. The juvenile court adjudicated the children dependent and

neglected and adopted a treatment plan for mother. In December

2023, the Department moved to terminate mother’s parental rights,

alleging, among other things, that she had not participated in the

case and the Department had not had any contact with her.

Mother’s counsel also moved to withdraw because she had not had

any contact with mother. However, after mother reengaged in the

1 case around March 2024, her counsel re-entered an appearance,

and the Department withdrew its termination motion.

¶4 At a review hearing a few months later, the Department

indicated that it intended to refile the termination motion because

mother had again stopped participating in the case. Likewise,

mother’s counsel said that she planned to file another motion to

withdraw. Later that same day, the Department moved to

terminate, and counsel moved to withdraw. The juvenile court

scheduled a termination hearing for September 2024 and granted

counsel’s motion to withdraw a few days later.

¶5 At the termination hearing, mother did not appear. The

Department presented testimony from the ongoing caseworker, who

reported, among other things, that the Department had minimal

contact with mother throughout the case and had not heard from

her since June 2024. After hearing the evidence, the juvenile court

granted the Department’s motion and terminated the parent-child

legal relationships between mother and the children.

II. Ineffective Assistance of Counsel

¶6 Mother asserts that her attorney provided ineffective

assistance of counsel by failing to properly serve her with the

2 motion to withdraw. Because mother has not sufficiently alleged a

prima facie case of ineffective assistance of counsel, we discern no

basis for a remand.

A. Applicable Law and Standard of Review

¶7 A parent has a statutory right to counsel in a dependency and

neglect proceeding. § 19-3-202(1), C.R.S. 2024. A parent’s

statutory right to counsel includes the right to the effective

assistance of counsel. See A.R. v. D.R., 2020 CO 10, ¶ 47.

¶8 We employ the same test that we use to evaluate an ineffective

assistance of counsel claim in a criminal case. See id. at ¶¶ 48, 60

(citing Strickland v. Washington, 466 U.S. 668 (1984)). Under this

test, the parent must establish that (1) counsel’s performance was

outside the wide range of professionally competent assistance; and

(2) the parent was prejudiced by counsel’s deficient performance —

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

unprofessional errors, the proceeding’s outcome would have been

different. Id. “If the parent fails to establish either prong of this

test, the claim fails.” People in Interest of C.B., 2019 COA 168, ¶ 26.

¶9 An appellate court is required to remand for an evidentiary

hearing if the parent’s allegations are sufficiently specific and

3 compelling to constitute a prima facie showing of ineffective

assistance of counsel. A.R., ¶ 63. However, if the parent’s

allegations lack sufficient specificity, the appellate court may

summarily deny the ineffective assistance claim. Id.; see also

People v. Duran, 2015 COA 141, ¶ 9 (a court may summarily deny

ineffective assistance claims if (1) the allegations are bare and

conclusory; (2) the allegations, even if true, do not warrant relief; or

(3) the record directly refutes the claim).

B. Analysis

¶ 10 Mother alleges that her counsel was ineffective because

counsel served her with the motion to withdraw by email, even

though she did not consent in writing to service by email, which

violated C.R.C.P. 5. She also contends that, because counsel

withdrew from the case without proper service, her interests went

unprotected at the termination hearing. We are not persuaded.

¶ 11 The Colorado Rules of Juvenile Procedure in effect during this

case did not provide a process for an attorney to withdraw. When

neither the Colorado Rules of Juvenile Procedure nor the Colorado

Children’s Code expressly govern a procedure, then the Colorado

Rules of Civil Procedure apply. See C.R.J.P. 1. Under C.R.C.P. 121,

4 section 1-1(2)(b), an attorney may withdraw from a case with the

court’s approval after the attorney files a motion with the court and

serves it on the client. C.R.C.P. 5 provides four methods by which a

party may serve a motion, including, as relevant here, by

(1) “[m]ailing a copy to the last known address of the person

served,” C.R.C.P. 5(b)(2)(B); and (2) “electronic means” if “consented

to in writing by the person served,” C.R.C.P. 5(b)(2)(D).

¶ 12 In this case, it is undisputed that mother’s counsel served

mother with the motion to withdraw by email and that mother did

not specifically consent in writing to service by email. See

Brightstar LLC v. Jordan, 2024 COA 39, ¶ 44 (holding that

C.R.C.P. 5 allows parties to be served by email if they have provided

an email address in their pleadings or other papers). Mother

maintains that counsel was required to serve her at her last known

address under C.R.C.P. 5(b)(2)(B) to comply with the Rules of Civil

Procedure. Although the Department and guardian ad litem (GAL)

concede that mother did not specifically consent to service by email,

they maintain that mother’s ineffective assistance claim still fails

because the juvenile court entered a case management order that

allowed counsel to serve motions by email.

5 ¶ 13 Although counsel did not strictly comply with C.R.C.P. 5(b),

under the circumstances presented here, we agree with the

Department and GAL that mother has not sufficiently alleged that

counsel’s actions fell below an objectively reasonable standard. See

Strickland, 466 U.S. at 688. As noted, counsel complied with the

juvenile court’s case management order, which allowed service by

email. And although the record reveals two previous physical

addresses for mother, mother’s whereabouts were uncertain, in

part, because she had not engaged with the Department during the

three months preceding the termination hearing. Thus, it was not

objectively unreasonable for counsel to attempt to serve mother by

email, considering that it was more likely to give mother actual

notice of counsel’s intent to withdraw. Cf. Synan v. Haya, 15 P.3d

1117, 1120 (Colo. App. 2000) (service by publication may not satisfy

due process when other methods “would be more likely to give the

party actual notice”).

¶ 14 Moreover, mother does not allege that counsel sent the motion

to the wrong email address or that she did not receive the motion

via email. Indeed, counsel served mother with the first motion to

withdraw at the same email address. And nothing in the record

6 indicates that mother had not received that motion or that counsel

otherwise had information that the email was undelivered. Cf.

Home Improvement, Inc. v. Villar, 2022 COA 129, ¶ 18 (after the

party received returned mail marked as undeliverable, it was no

longer reasonable for it to attempt service by sending mail to that

address).

¶ 15 In sum, mother has not sufficiently alleged deficient

performance to establish her ineffective assistance of counsel claim.

We therefore decline to remand the matter to the juvenile court for

an evidentiary hearing.

III. Due Process

¶ 16 Mother also contends that her due process rights were

violated. But she presents her argument in a single sentence that

does not identify any supporting facts or make any specific

argument. Because mother does not develop her due process

argument, we decline to address it. See People in Interest of D.B-J.,

89 P.3d 530, 531 (Colo. App. 2004); see also People v. Lopez, 2022

COA 70M, ¶ 40 (it is not the job of an appellate court to make or

develop a party’s argument if the party has not endeavored to do so

itself).

7 IV. Disposition

¶ 17 The judgment is affirmed.

JUDGE TOW and JUDGE SULLIVAN concur.