Peo in Interest of CV

Opinion

26CA0034 Peo in Interest of CV 07-30-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 26CA0034 Pueblo County District Court No. 24JV30342 Honorable Willaim Alexander, Judge

The People of the State of Colorado,

Appellee,

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

and Concerning T.V.,

Appellant.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division IV Opinion by JUDGE LUM Welling and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 30, 2026

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

Jenna L. Mazzucca, Guardian Ad Litem

Harald Van Gaasbeek, Office of Respondent Parents’ Counsel, Fort Collins, Colorado, for Appellant ¶1 In this dependency or neglect proceeding, T.V. (father) appeals

the judgment allocating parental responsibilities (APR) for C.V. (the

child) to J.V. (mother) and maternal grandmother. We affirm in

part, reverse in part, and remand the case to the juvenile court with

instructions.

I. Background

¶2 After the child’s birth, the Pueblo County Department of

Human Services (the Department) filed a petition in dependency or

neglect, alleging concerns about the parents’ abilities to care for the

child because when the parents’ other child died one year prior, he

had exhibited signs of physical abuse and medical neglect. The

Department further noted that father was incarcerated on related

pending charges.

¶3 The juvenile court granted temporary custody to maternal

grandmother, under the Department’s protective supervision, and

allowed mother to reside in maternal grandmother’s home so long

as all her contact with the child was supervised.

¶4 Five months later (but before any adjudication had taken

place), the Department moved the juvenile court to approve its

1 proposed treatment plan for father. That same day, the juvenile

court granted the Department’s motion and adopted the plan.

¶5 Two weeks later, the juvenile court held a review hearing.

Father’s counsel appeared, but father did not because the jail didn’t

honor the writ. At the review hearing, the Department verbally

moved for an APR between mother and maternal grandmother.

Mother entered a no-fault admission and agreed to the proposed

APR. Father’s counsel requested that the court proceed “without an

adjudication to [father]” and grant father fourteen days to object to

the proposed APR because counsel hadn’t been able to discuss the

terms with father. However, based on counsel’s prior conversations

with father, she “believe[d] that he [was] in agreement with [the]

plan.” See § 19-1-104(6)(a)(II), C.R.S. 2025 (allowing the juvenile

court to allocate parental responsibilities when “[a]t least one

parent . . . has an adjudication” and the parent “who do[es] not

have an adjudication . . . consent[s] to jurisdiction”). The court

agreed to allocate parental responsibilities between mother and

maternal grandmother, indicated that it was not ordering parenting

time for father, and ordered father’s counsel to file any objections

within fourteen days.

2 ¶6 Five weeks later, the Department filed a proposed order which

included findings that (1) the child was dependent and neglected

“as it relates to [mother]”; (2) father had not complied with the

“treatment plan ordered by the [c]ourt following adjudication”; and

(3) father was “unfit as that term is defined by the Colorado

Children’s Code.” Four days later, without any further hearing or

affording father the previously ordered objection period, the juvenile

court approved and adopted the proposed order without

amendment.

II. Due Process

¶7 Father contends that the juvenile court deprived him of due

process by making the above listed findings without affording him

the opportunity to challenge the allegations at a trial or present

evidence in his favor. As to the juvenile court’s findings regarding

father’s fitness, adjudicatory status, and noncompliance with any

treatment plan, we agree.

A. Preservation

¶8 The child’s guardian ad litem (GAL) urges us not to address

this claim because father did not object to the court’s findings or

request a hearing. But father correctly asserts that he had no

3 opportunity to preserve his contention because his treatment plan

compliance and fitness were not discussed during the review

hearing. It was not until the Department filed its proposed order

that father had notice of the proposed findings. And the court

issued its order four days later instead of giving father fourteen

days to object.1 Thus, the only way for father to object to the

court’s findings would have been to file a post-trial motion. But an

appellant isn’t required to file a post-trial motion with the juvenile

court, and failing to do so does not preclude the appellant from

raising an issue on appeal. See C.R.C.P. 59(b). Accordingly, we will

review father’s assertion of error regarding the juvenile court’s

findings and conclusions, and we will consider it.

1 The record is ambiguous as to whether father’s fourteen-day

objection period started from the hearing or from the date the Department filed the proposed order, but we will review father’s contention either way. Father couldn’t have objected to these findings within fourteen days of the hearing because he had no notice that the Department or the court planned to include the findings in the order. And four days wasn’t a sufficient length of time for father to object to the proposed order. See C.R.C.P. 121 § 1-16(1) (giving a party seven days to object to the form of a proposed order); People in Interest of K.J.B., 2014 COA 168, ¶ 9 (“Generally, the Colorado Rules of Civil Procedure apply to those juvenile matters that are not governed by the Colorado Rules of Juvenile Procedure or the Children's Code.”); C.R.J.P. 1.

4 B. Applicable Law

¶9 When a court decision essentially eliminates or weakens

familial bonds by terminating parental rights or denying custody,

parents must first receive fundamentally fair procedures. Santosky

v. Kramer, 455 U.S. 745, 753-54 (1982); People in Interest of D.I.S.,

249 P.3d 775, 781-82 (Colo. 2011). Thus, in termination

proceedings, due process requires that a parent be given “notice of

the allegations in the termination motion, the opportunity to be

heard, the opportunity to have counsel if indigent, and the

opportunity to call witnesses and engage in cross examination.”

People in Interest of E.B., 2022 CO 55, ¶ 16 (quoting People in

Interest of A.M. v. T.M., 2021 CO 14, ¶ 18). Arguably, not all of

these protections apply in an APR proceeding because a parent

retains other rights, including the right to petition to regain custody

or to increase parenting time. See, e.g., People in Interest of L.B.,

254 P.3d 1203, 1206 (Colo. App. 2011).

¶ 10 Here, however, we do not need to decide the full extent of what

due process protections apply at an APR proceeding because it is

well-settled that, at a minimum, due process requires that a party

be provided with notice and a meaningful opportunity to be heard.

5 See In re Marriage of Hatton, 160 P.3d 326, 329 (Colo. App. 2007);

In re Marriage of Smith, 7 P.3d 1012, 1017 (Colo. App. 1999).

¶ 11 We review procedural due process claims de novo. People in

Interest of R.J.B., 2021 COA 4, ¶ 26. But a parent may not obtain

relief on a due process claim absent a showing of harm or prejudice.

People in Interest of J.A.S., 160 P.3d 257, 262 (Colo. App. 2007).

C. Analysis

¶ 12 In its written order, the juvenile court found that (1) father had

not complied with the treatment and monitoring required by his

treatment plan adopted “following adjudication”; (2) the

Department’s reasonable efforts “ha[d] been unable to rehabilitate

[father] such that he would be capable of providing adequate

parenting to the child within a reasonable time”; and (3) father was

unfit. For the following reasons we conclude that the court erred in

making these findings.

¶ 13 First, we are not aware of any legal authority that would allow

the juvenile court to adopt a treatment plan for a parent before

adjudicating the child dependent or neglected under the

circumstances of this case. See § 19-3-508(1)(e)(I), C.R.S. 2025

(requiring the juvenile court, except in certain cases not applicable

6 here, to approve an appropriate treatment plan after adjudication).

Hence, because the juvenile court didn’t find the child to be

dependent or neglected as to father, any order adopting or requiring

father to comply with a treatment plan was improper. See People in

Interest of S.G.L., 214 P.3d 580, 583 (Colo. App. 2009) (“Because

section 19-3-508(1)(e)(I) presupposes an adjudication of the child

relative to each parent . . . the court does not have the power to

impose a treatment plan on a parent when the child has not been

found to be dependent and neglected by that parent.” (citation

omitted)). And, consequently, the juvenile court erred by finding

that father failed to comply with his improperly ordered treatment

plan.

¶ 14 Second, the juvenile court erred by determining that father

was unfit and that the Department’s “reasonable efforts” had been

unable to “rehabilitate” him without affording him any opportunity

to be heard on that issue. See E.B., ¶ 16; Hatton, 160 P.3d at 329.

The Department and GAL urge us to deny father’s request for relief

because of a lack of prejudice. See J.A.S., 160 P.3d at 262. In

support, they essentially assert that, because of father’s

incarceration, “he could not provide care for the child,” and he had

7 no evidence to provide “that would have contradicted the [juvenile]

court’s finding regarding fitness.” Therefore, they urge, he “fail[ed]

to show how the . . . proceedings would have resulted in a different

outcome had there been an evidentiary hearing.” But a court

cannot base a finding of unfitness solely on a parent’s

incarceration. See K.D. v. People, 139 P.3d 695, 700-01 (Colo.

2006). Moreover, the argument presented by the Department and

GAL would require us to speculate as to what the juvenile court

would have found following an evidentiary hearing — at which the

Department would have had the burden to prove father’s

unfitness — which we decline to do.2

¶ 15 We similarly reject the Department’s and the GAL’s arguments

that father isn’t prejudiced by the court’s errors because the court

ordered an APR instead of terminating father’s rights. While father

may be able to seek a modification of the APR in the future, the

court’s erroneous unfitness finding means that he would not be

2 We recognize that father has been charged with child abuse

resulting in the death of another child, and we understand why the Department and the juvenile court would be concerned about those charges. But a criminal charge, in and of itself, isn’t evidence on which the juvenile court can rely to base an unfitness finding. See Jordan v. People, 419 P.2d 656, 662 (Colo. 1966).

8 entitled to his constitutional presumption that his actions are in the

child’s best interests or to have his requests accorded special weight

against those of maternal grandmother. See Troxel v. Granville, 530

U.S. 57, 68-70 (2000) (recognizing that a parent who is adequately

caring for his or her child — a fit parent — is presumed to act in the

child’s best interests and requiring the trial court to accord “special

weight to the [fit] parent’s own determination” regarding the child’s

best interests before granting an APR to a nonparent).

¶ 16 We must therefore reverse the portions of the judgment

containing the erroneous findings and remand to the juvenile court

to remove them. Specifically, the juvenile court must remove

paragraph nine of the findings and orders:

Reasonable efforts by child caring agencies have been unable to rehabilitate the Respondent, [father], such that he would be capable of providing adequate parenting to the child within a reasonable time relative to the child’s needs. The Court finds [father] to be unfit as that term is defined by the Colorado Children’s Code.

¶ 17 The court must also remove the first sentence of paragraph

ten of the findings and orders: “This Court found the Respondent

Father unfit and noted their non-compliance with Court Ordered

9 treatment and monitoring (see attached treatment plan ordered by

the Court following adjudication).”

¶ 18 Except for the findings described above, the APR order shall

remain in full force and effect.

III. Ineffective Assistance of Counsel

¶ 19 Father next contends that he received ineffective assistance of

counsel. We discern no basis for a remand.

A. Applicable Law

¶ 20 A parent has a statutory right to counsel in a dependency or

neglect proceeding. § 19-3-202(1), C.R.S. 2025. A parent’s

statutory right to counsel includes the right to effective assistance

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

¶ 21 To successfully assert a claim for ineffective assistance of

counsel, a parent must show that (1) counsel’s performance was

outside the wide range of professionally competent assistance, and

(2) the parent was prejudiced by counsel’s errors. Id. at ¶ 48. For

the performance prong, a parent must prove that counsel’s

representation “fell below an objective standard of reasonableness.”

Strickland v. Washington, 466 U.S. 668, 688 (1984); see A.R.,

¶¶ 48, 60 (the Strickland standard applies to claims of ineffective

10 assistance of counsel in dependency or neglect proceedings). To

show prejudice, the parent must show a reasonable probability

that, but for counsel’s deficient performance or unprofessional

errors, the outcome of the proceeding would have been different.

A.R., ¶ 60. “If the parent fails to establish either prong of this test,

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

¶ 22 Because claims of ineffective assistance of counsel in

dependency or neglect cases can be raised for the first time on

appeal, the record may be insufficiently developed to allow us to

resolve the parent’s contentions without a remand to the district

court for further proceedings. A.R., ¶ 63. To justify such a remand,

however, the parent must allege facts with sufficient specificity to

constitute a prima facie showing of ineffective assistance of counsel.

Id. If the parent’s allegations lack sufficient specificity, we may

summarily deny the ineffective assistance claim. See People in

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

B. Analysis

¶ 23 Father first argues that his counsel performed deficiently by

failing to (1) advise him of the APR in order to ascertain his position;

(2) advocate for him during the review hearing; and (3) provide him

11 with a copy of the APR order after its entry and advise him of his

rights.

¶ 24 We will assume, without deciding, that counsel’s performance

in this regard fell below the range of professionally competent

assistance. However, to the extent father asserts that the court’s

findings resulted in the erroneous entry of an APR or his inability to

object to its substantive terms, he hasn’t shown that the result of

the proceeding would have been different in the absence of

counsel’s failures. See A.R., ¶ 60. Father doesn’t explain what his

position on the APR would have been or how it differed from the

APR order entered by the court (other than including the findings

discussed in Part II above). See C.H., 166 P.3d at 291. Moreover,

father was able to file this appeal to lodge his objections to the

findings described above. These ineffective assistance of counsel

claims must therefore fail. See C.B., ¶ 26.

¶ 25 Father also asserts that his counsel failed to (1) request an

appropriate treatment plan for him based on his incarceration and

(2) ensure that the Department made reasonable efforts. Given that

we have reversed and remanded for the court to strike the findings

12 regarding the treatment plan and reasonable efforts, any prejudice

has been cured, and we need not address these arguments.

IV. Disposition

¶ 26 The judgment is affirmed in part and reversed in part, and the

case is remanded to the juvenile court for further proceedings

consistent with this opinion. All portions of the APR order not

affected by this opinion remain in full force and effect.

JUDGE WELLING and JUDGE SCHOCK concur.