25CA1638 Peo in Interest of MBAH 04-16-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA1638 City and County of Denver Juvenile Court No. 24JV30918 Honorable Lisa Gomez, Judge
The People of the State of Colorado,
Appellee,
In the Interest of M.B.A.H., a Child,
and Concerning M.O.H. III a/k/a M.E.H.,
Appellant.
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE BROWN Freyre and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 16, 2026
Miko Brown, City Attorney, Amy J. Packer, Assistant City Attorney, Denver, Colorado, for Appellee
Josi McCauley, Guardian Ad Litem
Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant ¶1 In this dependency and neglect action, M.O.H. III, aka M.E.H.,
(father) appeals the judgment entered on a jury verdict adjudicating
M.B.A.H. (the child) dependent or neglected. Father also appeals
the juvenile court’s dispositional order adopting a treatment plan
for him. We affirm.
I. Background
¶2 Denver Human Services (the Department) received a referral
raising concerns that the child was born premature and exposed to
substances. The Department opened a voluntary case while the
child was in the neonatal intensive care unit. When the child’s
medical team began discussing discharge two months later, the
Department filed a petition in dependency or neglect, alleging that
mother’s and father’s mental health and substance dependence
prevented the child from being released into their care.
¶3 Mother admitted the petition and does not participate in this
appeal. Father requested an adjudicatory jury trial. After a
three-day trial, the jury returned special verdicts finding that the
child was dependent or neglected under sections 19-3-102(1)(b), (c),
and (d), C.R.S. 2025. The juvenile court adjudicated the child
1 dependent and neglected and, after two treatment plan hearings,
adopted a treatment plan for father.
II. Jury Instructions
¶4 Father contends that the juvenile court erred by instructing
the jury (1) regarding affirmative defenses and (2) that it could
consider “any behaviors observed in open court” as evidence.
¶5 Father concedes that he did not preserve either of these
issues. Nevertheless, he urges us to address them under the
miscarriage of justice exception to the preservation requirement.
See People in Interest of E.S., 2021 COA 79, ¶ 14. If an unpreserved
error involves a miscarriage of justice, we may consider it for the
first time on appeal. In re R.G.B., 98 P.3d 958, 959 (Colo. App.
2004). But the miscarriage of justice exception has a high bar and
a narrow scope. People in Interest of M.B., 2020 COA 13, ¶¶ 23-24.
We have recognized the exception only in “rare cases, involving
unusual or special circumstances, . . . to prevent an unequivocal
and manifest injustice.” In re E.R.S., 2019 COA 40, ¶ 38.
¶6 Father does not provide any explanation why the miscarriage
of justice exception should apply to the unpreserved instructional
issues he raises. We therefore will not consider these claims. See
2 People in Interest of S.Z.S., 2022 COA 105, ¶ 29 (we will not consider
an argument when a parent “develops no legal or factual argument
in support of th[e] assertion”).
III. Ineffective Assistance of Counsel
¶7 Father contends that his counsel provided ineffective
assistance at the adjudicatory jury trial. We conclude that this
claim does not warrant reversal.
A. Applicable Law
¶8 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. A.R. v. D.R., 2020
CO 10, ¶ 48; People in Interest of C.H., 166 P.3d 288, 291-92 (Colo.
App. 2007).
¶9 For the performance prong, a defendant 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., ¶¶ 2, 60 (the Strickland standard applies to claims
of ineffective assistance of counsel in dependency or neglect
proceedings). In conducting the reasonableness inquiry, a court
3 must make “every effort . . . to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at
the time.” Strickland, 466 U.S. at 689. In addition, “a court must
indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Id.
¶ 10 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., ¶¶ 2, 60.
¶ 11 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. Id. at ¶ 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. For example, if a parent alleges that
counsel performed deficiently by failing to call or cross-examine
witnesses, the parent must identify the witnesses, describe the
4 expected substance of their testimony, and provide a clear
explanation of how that testimony would have affected the outcome
of the proceeding. See C.H., 166 P.3d at 291. If the parent’s
allegations lack sufficient specificity, we may summarily deny the
ineffective assistance claim. Id.
B. Analysis
¶ 12 Father contends that his counsel performed deficiently by
failing to (1) “provide a meaningful rebuttal” to the petition;
(2) cross-examine several witnesses; (3) object to jury instructions
that father claims were erroneous; and (4) work with father to
properly prepare for the trial. We are not persuaded that these
claims require reversal.
1. Counsel’s Rebuttal to the Petition
¶ 13 First, father contends that his counsel performed deficiently
by failing to meaningfully defend against the petition. At the
adjudicatory jury trial, the Department alleged that the child met
four of the statutory definitions for a neglected or dependent child.
Counsel’s presentation of the case centered on father’s love for his
child and the fear that father experienced for the child’s well-being.
In closing argument, counsel asked the jury to find that father was
5 not at fault for the child’s medically fragile condition. Father claims
that counsel’s approach “offered no tangible denial of the
allegations in the petition” because “an adjudication in dependency
and neglect does not require a finding of parental fault.”
¶ 14 While it is true that a child can be found dependent or
neglected without an explicit finding of parental fault, a finding of
fault is required for sections 19-3-102(1)(b) and (d), both of which
were alleged by the Department and found by the jury. We also
note that the jury was asked whether the child was “without proper
care through no fault of [father]” and whether the child was “not
living at home with [father] through no fault of [father],” and the
jury answered both questions, “No.” Thus, the adjudication was not
a “no fault” adjudication arguably suggested by counsel.
Importantly, father does not allege that counsel could have, but
failed to, present a different defense to the remaining allegations,
such as disputing the factual allegations in the petition that the
child was born premature, tested positive for cocaine, and required
extensive medical attention that father refused to authorize. Thus,
father has failed to sufficiently allege that counsel performed
deficiently on this basis. See A.R., ¶ 63.
6 2. Cross-Examination
¶ 15 Second, father contends that his counsel performed deficiently
by declining to cross-examine several key witnesses. True, counsel
did not cross-examine the Department’s caseworkers or the family
time supervisor. But father does not assert what, if anything,
counsel should have reasonably expected to elicit from those
witnesses to support father’s position. See People v. Osorio, 170
P.3d 796, 800-01 (Colo. App. 2007) (allegation that counsel failed to
cross-examine certain witnesses was properly denied without a
hearing where defendant did not explain what cross-examination
“would have revealed”). Thus, father has failed to sufficiently allege
that counsel performed deficiently on this basis. See A.R., ¶ 63.
3. Jury Instructions
¶ 16 Third, father contends that his counsel performed deficiently
by failing to object to two jury instructions. The first, based on
Colorado’s model civil jury instruction CJI-Civ. 3:1 (2025),
instructed the jury on the burden of proof and explained that the
defendant had the burden to prove an affirmative defense. Father
asserts that including the part of the instruction addressing an
affirmative defense, which was not at issue in the case, “likely
7 suggested” to the jury that father bore some burden of proof at the
hearing. But father does not identify, and we cannot locate,
anything in the record demonstrating that the instruction had this
effect. Indeed, while the jury asked many questions during its
deliberation, there is no indication that it was confused about
which party bore the burden to prove the allegations in the petition.
¶ 17 The second challenged instruction arose from a juror question
regarding whether the jurors were permitted to consider father’s
“outbursts” in making their decision. Father’s counsel told the
court, “I have no legal argument to make that would preclude those
statements from being considered by the jury within the context of
their judging this case.” The court subsequently modified an
instruction based on CJI-Civ. 3:8 (2025) to provide, in relevant part,
that “the evidence in the case consists of sworn testimony of all the
witnesses, an exhibit which has been received in evidence, and any
behaviors observed in open court.” (Emphasis added.)
¶ 18 Father contends that “there were ample grounds for counsel to
object.” In support of his argument, father cites only criminal
cases, with no explanation of why the principles guiding a
prohibition in the criminal context — where the question for the
8 jury is whether a crime occurred in the past — should apply in an
adjudicatory hearing — where the jury must determine whether a
child is dependent or neglected at the time of the hearing. See K.D.
v. People, 139 P.3d 695, 699 (Colo. 2006) (an order of adjudication
relates “to the status of the child as of the date of the adjudication”).
A dependency and neglect action is not a criminal proceeding or
even a “quasi-criminal” proceeding. People in Interest of A.E.L., 181
P.3d 1186, 1192 (Colo. App. 2008); see People in Interest of M.W.,
2022 COA 72, ¶ 44 (case law makes clear that “dependency and
neglect proceedings are not criminal in nature”).
¶ 19 Even assuming that the principles animating the cited
criminal cases apply here and that the juvenile court erred by
instructing the jury that it could consider what it observed about
father in court as evidence, we conclude that father has failed to
sufficiently allege that, but for counsel’s unprofessional errors, the
outcome of the proceeding would have been different. See A.R.,
¶¶ 2, 60. Father alleges only that the erroneous instruction “invited
jurors to base their verdict on their personal opinions of [f]ather’s
courtroom conduct rather than on admissible evidence concerning
9 the [c]hild’s status.” But the admissible evidence that the child was
dependent or neglected was overwhelming.
¶ 20 A caseworker testified that when the Department became
involved, the child was hospitalized, supported by oxygen and tube
feeding. The child’s treating physician testified that the child was
born thirteen weeks premature, required intensive critical care, and
had a blood infection that required multiple transfusions, and that
his umbilical cord tested positive for cocaine. The child developed
brain bleeding and a fungal urinary tract infection and experienced
multiple hernias. Given the child’s condition at discharge, he would
require many follow-up doctor’s visits and significant special care,
including administration of oxygen and tube feeding.
¶ 21 A caseworker also testified that father exhibited concerning
behaviors at the hospital. He required a security escort to visit the
child and reportedly stuck his finger down the child’s throat during
one visit. Father also refused or delayed providing consent to
medically necessary procedures for the child, including a blood
transfusion and hernia surgery. A caseworker testified that, for
weeks, father did not cooperate with the department and was
10 aggressive with the caseworker, which frustrated the Department’s
initial efforts to assess father’s protective capacities.
¶ 22 Given this and other evidence presented at the adjudicatory
trial, father’s cursory assertion that “there is reasonable probability
that the outcome of the adjudication trial would have been
different” but for counsel’s alleged ineffective assistance is
insufficient to meet his burden to plead prejudice. See A.B., ¶ 63.
4. Preparation for Trial and Discovery
¶ 23 Finally, father contends that his counsel failed to cooperate
with him and did not make discovery available to him before the
hearing. Father similarly asserted during the adjudicatory trial that
he had not seen the child’s records. In response, counsel reported
to the court that he gave father the records that were provided to
him in discovery. At the dispositional hearing, father again raised a
concern about not having the child’s medical records, which
comprised more than 8,000 pages. Counsel represented that the
records had been provided, and father asserted that he wanted
them printed out. The juvenile court determined that counsel was
not required to provide father with printed copies of discovery.
11 ¶ 24 On appeal, father does not challenge the court’s ruling that his
counsel was not obligated to provide printed discovery. Based on
that ruling, we conclude that counsel’s decision to give father digital
copies of discovery fell “within the wide range of reasonable
professional assistance.” See Strickland, 466 U.S. at 689.
Moreover, father does not explain how receiving those records in
printed format would have altered the outcome of the proceeding.
See A.R., ¶¶ 60, 63.
¶ 25 We conclude that father has not made a prima facie showing
of ineffective assistance of counsel, and we decline to remand the
matter for an evidentiary hearing.
IV. Father’s Treatment Plan
¶ 26 Father next contends that the juvenile court erred by issuing
inconsistent oral dispositional orders during two contested
treatment plan hearings and failing to clarify in its written
dispositional order which orders controlled. We acknowledge that
the court’s written dispositional order did not set forth the specific
objectives the court adopted during the treatment plan hearings
and that the better practice would be for it to do so. Nonetheless,
we do not discern any reversible error.
12 A. Standard of Review and Applicable Law
¶ 27 When a child is adjudicated dependent or neglected, the
juvenile court must enter a dispositional order. Unless the
proposed disposition is termination of the parent-child legal
relationship, the court “shall approve an appropriate treatment
plan.” § 19-3-508(1)(e)(I), C.R.S. 2025.
¶ 28 We review a treatment plan adopted by the juvenile court for
an abuse of discretion. M.W., ¶ 32. A court abuses its discretion
when its order is manifestly arbitrary, unreasonable, or unfair, or if
it misapplies the law. Id. at ¶ 12.
B. Additional Background
¶ 29 One month after the adjudicatory hearing, the court held a
dispositional hearing. Before the hearing, the Department filed a
report that included a proposed treatment plan with objectives
requiring father to address his mental health and any substance
dependence, cooperate with the Department and other
professionals, provide a stable environment for the child, and
maintain a supportive and safe relationship with the child.
¶ 30 At the dispositional hearing, the Department made an oral
motion to modify the mental health objective to add a requirement
13 that father complete a psychological evaluation; father objected.
Father and the court proposed various changes to objectives
requiring father to cooperate with professionals and develop a
supportive and safe relationship with the child; the Department and
the child’s guardian ad litem agreed to those changes. Father did
not object to the proposed objective that he provide a stable
environment for the child. At father’s request, the court set an
evidentiary hearing on the mental health and substance use
objectives and issued oral orders adopting the modifications made
to the other objectives. The court did not issue a written order
related to the first hearing.
¶ 31 When the parties returned a month later for the contested
hearing, the juvenile court’s understanding was that father “was
objecting to every component of his treatment plan.” Because no
updated treatment plan had been filed after the first hearing, the
Department again requested the court add a requirement that
father complete a psychological evaluation. After hearing from
father — who declined to be sworn in or testify but nonetheless
conversed with the court — and after considering other witness
testimony, the court issued an oral order explaining the necessity of
14 each treatment plan objective proposed by the Department. The
court also approved the following:
• a requirement that father complete a psychological evaluation;
• a requirement that the Department “identify a person of color
for that evaluation, somebody who is culturally competent”;
and
• leave for father to request a hearing if he declined to consent
to recommended procedures for the child.
¶ 32 Almost two months later, the juvenile court issued the
“Adjudicatory and Dispositional Hearing Order” form proposed by
the Department. Despite the volume of evidence and argument
received by the juvenile court relative to father’s treatment plan, the
written order is sparse. It does not incorporate any of the court’s
findings around the appropriateness of each element, even by
reference. Instead, it states that “the treatment plan for [father] as
set forth in [the Department’s] report prepared for this hearing,
including any modifications made in open court, is hereby adopted
as an order of this Court.”
15 C. Analysis
¶ 33 Father argues that the written dispositional order is confusing
because it ignores the fact that two treatment plan hearings were
held resulting in two sets of “modifications made in open court.”
The Department contends that there is no confusion about father’s
treatment plan and refers us to the treatment plan it filed with the
court as part of its report for the permanency planning hearing.
But that document does not incorporate all the changes made by
the court during the second treatment plan hearing, only the
addition of a psychological evaluation as requested by the
Department. Although the court’s written order is not a model of
clarity, we discern no reversible error.
¶ 34 Father does not allege, and we do not conclude, that the order
itself is arbitrary, unreasonable, or unfair. The written dispositional
order issued by the court only mentions the second treatment plan
hearing. During that hearing, father apparently rescinded the
agreements he made at the first hearing. And the court made new
oral findings and orders as though the modifications made during
the first hearing were no longer in effect.
16 ¶ 35 Generally, when a conflict exists between oral and written
orders, the written order controls. People In Interest of S.R.N.J-S.,
2020 CAO 12, ¶ 16. Thus, the court’s written dispositional order —
referencing only the second treatment plan hearing — controls. See
id.; see also People In Interest of Z.P.S., 2016 COA 20, ¶¶ 26-27 (a
court may modify a dispositional order or a treatment plan’s
requirements as the case progresses).
¶ 36 Father urges us to reverse the dispositional order and remand
the matter with instructions that the court issue a new
dispositional order that clearly defines the terms of his treatment
plan. The juvenile court certainly has the discretion to issue a new
written order clearly setting forth the terms of the treatment plan,
and it appears that doing so would benefit all the parties in this
case. Even so, we conclude that the existing order does not
constitute an abuse of discretion.
V. Disposition
¶ 37 The judgment is affirmed.
JUDGE FREYRE and JUDGE SCHUTZ concur.