Peo in Interest of ZGC

• Court: Colorado Court of Appeals
• Decided: May 8, 2025
• Docket: 24CA2078
• Status: Unpublished

Opinion

24CA2078 Peo in Interest of ZGC 05-08-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA2078 Arapahoe County District Court No. 23JV145 Honorable Shay K. Whitaker, Judge

The People of the State of Colorado,

Appellee,

In the Interest of Z.G.C., a Child,

and Concerning E.C.,

Appellant.

JUDGMENT AFFIRMED

Division V Opinion by JUDGE SULLIVAN Freyre and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 8, 2025

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

Sheena Knight, Guardian Ad Litem

Harald Van Gaasbeek, Office of Respondent Parents' Counsel, Fort Collins, Colorado, for Appellant ¶1 E.C. (mother) appeals the judgment terminating her parent-

child legal relationship with Z.G.C. (the child). We affirm.

I. Background

¶2 In January 2023, the Arapahoe County Department of Human

Services received a report that the child was born exposed to illicit

substances. Mother agreed to a safety plan but failed to comply

with it, prompting the Department to file a petition in dependency

or neglect. Mother admitted to the allegations, the juvenile court

adjudicated the child dependent or neglected, and the court

adopted a treatment plan for mother.

¶3 In February 2024, the Department moved to terminate

mother’s parental rights. The juvenile court held an evidentiary

hearing in October 2024. At the hearing, mother asserted, among

other things, that she had a qualifying disability under the

Americans with Disabilities Act (ADA) and was therefore entitled to

reasonable accommodations. The court rejected mother’s ADA

argument and terminated her parental rights under section 19-3-

604(1)(c), C.R.S. 2024.

1 II. Appointment of a Guardian ad Litem

¶4 Mother first contends that the juvenile court erred by not

appointing a guardian ad litem (GAL) to assist her under section

19-1-111(2)(c), C.R.S. 2024. Because mother abandoned any

request for a GAL in the juvenile court, we decline to address her

appellate contention.

¶5 At the April 2023 shelter hearing, mother appeared by video

but disconnected during the caseworker’s testimony. After mother’s

attorney spoke with her off-the-record, the attorney reported that

mother wouldn’t be reconnecting. The juvenile court then asked

mother’s counsel whether “the assistance of a [GAL] would be

helpful for [m]other.” Counsel responded, “Yes.”

¶6 The juvenile court asked an attorney in the courtroom whether

she would like to take the appointment, but she declined and

suggested another attorney. The court then stated that “we will

reach out” to the other attorney to see “if she can take the case.”

But nothing in the record shows that the court ever contacted the

other attorney or formally appointed her as mother’s GAL. The

parties never again addressed whether mother needed a GAL, nor

did the court appoint one.

2 ¶7 We conclude that mother abandoned her request for a GAL by

never reraising the issue at any point after the shelter hearing. See

Herrera v. Anderson, 736 P.2d 416, 418 (Colo. App. 1987) (A party

“must pursue his request to its disposition before he can

complain.”); see also People v. Tallent, 2021 CO 68, ¶ 11 (Appellate

courts have “an independent, affirmative duty to determine whether

a claim is preserved . . . regardless of the positions taken by the

parties.”). When a party abandons an argument in the juvenile

court, we won’t address it on appeal. See In re Marriage of Corak,

2014 COA 147, ¶ 23; accord People in Interest of M.B., 70 P.3d 618,

625 (Colo. App. 2003).

III. Reasonable Efforts

¶8 Mother next asserts that the Department didn’t make

reasonable accommodations for her disability under the ADA, and

as a result, the juvenile court erred by finding that the Department

made reasonable efforts to rehabilitate her. We disagree.

¶9 Before a juvenile court may find a parent unfit under section

19-3-604(1)(c), the department must make reasonable efforts to

rehabilitate the parent and reunify the family. §§ 19-1-103(114),

19-3-208, 19-3-604(2)(h), C.R.S. 2024. Because a department has

3 a duty to make reasonable accommodations when providing

rehabilitative services to a parent with an ADA-qualifying disability,

the court must consider reasonable accommodations in deciding

whether the department satisfied its reasonable efforts obligation.

People in Interest of S.K., 2019 COA 36, ¶¶ 25, 34; see also § 19-3-

208(2)(g) (requiring that services comply with the ADA).

¶ 10 Whether a department satisfied its obligation to make

reasonable efforts presents a mixed question of fact and law. People

in Interest of A.S.L., 2022 COA 146, ¶ 8. We review the juvenile

court’s factual findings for clear error, but we review de novo the

court’s legal determination based on those findings. Id.

¶ 11 A parent is responsible for disclosing to the department and

the juvenile court information about a disability. See S.K., ¶ 21. In

this case, mother made no claim that she might be a person with a

qualifying disability under the ADA until the pretrial conference

about one week before the termination hearing. Cf. People in

Interest of S.Z.S., 2022 COA 133, ¶ 16 (noting that a parent should

raise an ADA issue before a dispositional hearing, so that the

department can provide accommodations in the proposed treatment

plan). At that time, mother’s counsel mentioned the issue but

4 conceded that he lacked sufficient information to request

accommodations.

¶ 12 Mother’s counsel then asserted, for the first time in closing

argument, that mother had a disability and needed

accommodations. See People in Interest of C.Z., 2015 COA 87, ¶ 9

(recognizing that a parent may preserve an ADA issue by raising it

for the first time in closing argument). But see S.Z.S., ¶ 17 (Waiting

until the termination hearing to raise an ADA issue is “problematic”

because it prevents the department from making “reasonable

accommodations to rehabilitate the parent during the case.”).

Specifically, counsel pointed to mother’s testimony that she had

suffered brain damage from two separate car accidents over the

previous five years. Mother said that she now had problems with

her memory and speech. Counsel argued that mother had told the

caseworker about the car accidents.

¶ 13 The juvenile court rejected mother’s ADA argument. Among

other things, the court found that (1) the caseworker hadn’t

observed slurring or memory issues from mother; (2) mother had

never provided any formal diagnosis; (3) mother had never asked

the Department to provide her any specific accommodations; and

5 (4) even if mother needed accommodations, the Department had

satisfied its obligation by sending mother reminders for her

appointments.

¶ 14 The record supports the juvenile court’s findings. As to

mother’s purported disability, the caseworker testified that mother

never disclosed that she suffered brain damage. The caseworker

also said that she didn’t observe mother slurring her words or being

forgetful, and none of the treatment providers, including the family

time supervisor, ever expressed any concerns to her. And mother

admitted that she never provided any information about her

diagnosis to the Department. As to accommodations, the

caseworker reported that mother never asked for any sort of

accommodation. Still, the caseworker noted that she always

attempted to remind mother about her appointments by calling and

texting her.

¶ 15 On appeal, mother asserts that her disability was obvious

because the juvenile court tried to appoint a GAL at the shelter

hearing, as noted in Part II above. See S.K., ¶ 22 (noting that, if a

disability is “obvious,” a department should accommodate the

6 disability, even if the parent doesn’t tell the department about it).

We aren’t persuaded.

¶ 16 Section 19-1-111(2)(c) allows a juvenile court to appoint a GAL

for a parent “who has been determined to have . . . an intellectual

and developmental disability by a court of competent jurisdiction.”

Mother contends that the court, by agreeing to appoint a GAL, must

have found that she had a qualifying disability. But the court made

no such finding. And a court has discretion to appoint a GAL, even

if the parent doesn’t satisfy the statutory criteria in section 19-1-

111(2)(c). See People in Interest of M.M., 726 P.2d 1108, 1118 (Colo.

1986) (interpreting a previous statute allowing for the appointment

of a GAL in a dependency or neglect case). In other words, the

court’s attempt to appoint a GAL doesn’t conclusively establish that

mother had a qualifying disability under section 19-1-111(2)(c).

¶ 17 To be sure, the juvenile court’s attempt to appoint a GAL

might have given the Department some reason to know that mother

had a disability, but we still can’t say that her disability was

obvious. As discussed in Part II, mother never reraised the issue of

appointing a GAL, and the court never appointed one. Likewise,

mother never claimed that she had a disability until the termination

7 hearing. The record shows that the Department never observed any

behavior to suggest that mother had a disability. And mother didn’t

participate in a dual diagnostic evaluation, which could have

revealed more information about a possible disability. Given all

this, we reject mother’s assertion that her disability was obvious.

¶ 18 Mother also contends that the juvenile court erred by finding

that the Department made reasonable accommodations, arguing

that sending reminders to her about her appointments was

insufficient to satisfy the ADA. She contends that the Department

should have provided her with various “apps,” created a calendar

for her, or given her an electronic organizer. But mother never

asked the Department to provide her with these accommodations,

and we can’t reweigh the evidence or substitute our judgment for

the juvenile court on whether an accommodation was reasonable

under the circumstances. See S.Z.S., ¶¶ 16, 29; see also S.K.,

¶¶ 21, 35 (“What constitutes a reasonable accommodation will be

based on an individual assessment.”).

¶ 19 Accordingly, because the record supports the juvenile court’s

findings, we discern no error in its conclusion that the Department

made reasonable efforts. See A.S.L., ¶ 8.

8 IV. Ineffective Assistance of Counsel

¶ 20 Mother argues that her counsel provided ineffective assistance

by failing to (1) reassert her request for a GAL and (2) notify the

Department and the juvenile court about her disability and request

ADA accommodations before the termination hearing. We discern

no basis for a remand.

¶ 21 In evaluating a claim of ineffective assistance of counsel in

termination proceedings, we apply the same test that we would

when evaluating an ineffective assistance of counsel claim in a

criminal case. See A.R. v. D.R., 2020 CO 10, ¶¶ 48, 60. 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, a reasonable probability exists that but for counsel’s

unprofessional errors, the proceeding’s outcome would have been

different. Id. at ¶ 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 An appellate court must remand for an evidentiary hearing if

the parent’s allegations are sufficiently specific and compelling to

9 constitute a prima facie showing of ineffective assistance of counsel.

A.R., ¶ 63. But if the parent’s allegations lack sufficient specificity,

the appellate court may summarily deny their ineffective assistance

of counsel claim. Id.

¶ 23 Even assuming, without deciding, that counsel’s performance

was deficient, we conclude that mother has failed to sufficiently

allege prejudice. Mother asserts that she was prejudiced because

(1) her communication with her attorney would have improved if

she had been appointed a GAL and (2) she would have received the

appropriate reasonable accommodations for her disability. We

reject the first because mother doesn’t explain how better

communication with her attorney would have changed the case’s

outcome. As for the second, we have already rejected mother’s

underlying claim that she didn’t receive reasonable

accommodations, so mother can’t establish the prejudice prong on

this basis. Cf. People v. Osorio, 170 P.3d 796, 801 (Colo. App. 2007)

(because a division of this court determined that the failure to give a

limiting instruction was harmless on direct appeal, the defendant

couldn’t establish that he was prejudiced by counsel’s error in

failing to request such an instruction).

10 ¶ 24 We therefore conclude that mother hasn’t raised sufficiently

specific and compelling allegations to constitute a prima facie

showing of ineffective assistance of counsel. See A.R., ¶ 63; see

also People v. Sherman, 172 P.3d 911, 914 (Colo. App. 2006) (noting

that a claim that is too speculative won’t satisfy the prejudice

prong). Thus, we decline to disturb the termination judgment.

V. Disposition

¶ 25 We affirm the judgment.

JUDGE FREYRE and JUDGE SCHOCK concur.