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 December 28, 2017
2017COA160
No. 16CA2238, People in Interest of S.L. — Juvenile Court — Dependency and Neglect — In Camera Interview — Due Process
This case presents an issue of first impression, namely
whether a parent is entitled to have his or her counsel present
when a trial court conducts an in camera interview of children in a
dependency and neglect proceeding. In Part III.A.2.a of the opinion,
a division of the court of appeals concludes that whether to grant
such a request is within a trial court’s sound discretion, based
upon a number of case-specific considerations. Applying these
factors and the principles discussed in People in Interest of H.K.W.,
2017 COA 70, the division concludes that the trial court did not
abuse its discretion in (1) the decision to conduct an in camera
interview of the children; (2) the manner and contents of the
interview; or (3) the weight it accorded the information obtained during the interview in making its findings in support of its
termination order.
The division also concludes that the trial court did not abuse
its discretion in finding that the Rio Blanco County Department of
Human Services (Department) used reasonable efforts to reunify the
parents with their children. Further, the division rejects father’s
ineffective assistance of counsel claim. Finally, the division
concludes that the trial court did not abuse its discretion in
permitting the Department’s expert witnesses to testify at the
termination hearing notwithstanding certain deficiencies in the
Department’s C.R.C.P. 26 disclosures.
The division, therefore, affirms the trial court’s termination
order. COLORADO COURT OF APPEALS 2017COA160
Court of Appeals No. 16CA2238 Rio Blanco County District Court No. 15JV3 Honorable John F. Neiley, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of S.L. and A.L., Children,
and Concerning L.L. and K.L.,
Respondent-Appellants.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE WELLING Dailey and Vogt*, JJ., concur
Announced December 28, 2017
Kent A. Borchard, County Attorney, Meeker, Colorado, for Petitioner-Appellee
Anna N.H. Ulrich, Guardian Ad Litem
Patrick R. Henson, Respondent Parents’ Counsel, Longmont, Colorado, for Respondent-Appellant L.L.
Pamela K. Streng, Georgetown, Colorado, for Respondent-Appellant K.L.
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2017. ¶1 In this dependency and neglect proceeding, K.L. (mother) and
L.L. (father) appeal from the judgment terminating their
parent-child legal relationships with S.L. and A.L. (the children).
Among the issues raised on appeal is an issue of first impression,
namely whether a parent is entitled to have his or her counsel
present when a trial court conducts an in camera interview of a
child in a dependency and neglect proceeding. In Part III.A.2.a, we
conclude that whether to grant such a request is within a trial
court’s sound discretion, based upon a number of case-specific
considerations. Based on our resolution of this issue and the other
claims raised on appeal, we affirm.
I. Background
¶2 The parents came to the attention of the Rio Blanco County
Department of Human Services (Department) as a result of
concerns about the welfare of the children due to the condition of
the family home, the parents’ use of methamphetamine, and
criminal cases involving the parents. In January 2015, the parents
voluntarily entered into an agreement for services with the
Department whereby they retained physical custody of the children
1 and committed to individual and substance abuse counseling and
monitoring.
¶3 In April 2015, after four months of voluntary services and
following reports of continued methamphetamine use, the
Department filed a petition in dependency or neglect for the
children. The petition alleged that the parents had used illegal
drugs which affected their ability to appropriately parent the
children and they had also failed to provide the children with
appropriate and safe housing.
¶4 The parents subsequently entered admissions to the allegation
that the children lacked proper parental care. The court
adjudicated the children dependent and neglected and
subsequently adopted treatment plans for the parents.
¶5 Later, the Department moved to terminate the parent-child
legal relationships with the children. After considering the evidence
presented at a three-day hearing, the trial court terminated both
mother’s and father’s parental rights.
¶6 The parents separately appeal the trial court’s decision. We
first address the parents’ contentions that the Department failed to
use reasonable efforts to reunify them with their children. Next, we
2 address the separate contentions father raises on appeal. We
conclude that none of the contentions merit reversal of the trial
court’s judgment.
II. Reasonable Efforts
¶7 The parents contend that the Department failed to make
reasonable efforts to reunify them with their children. Father
argues that (1) he should have been provided inpatient treatment
for his drug problem; (2) he was not provided with sufficient time to
complete the services required by his treatment plan; and (3) the
Department failed to accommodate his scheduling needs with
regard to the drug testing and visitation. Mother argues that the
Department (1) did not provide her with sufficient time to complete
essential services required by her treatment plan; (2) failed to
provide proper referrals and case management services; and (3) did
not provide reasonable monitored sobriety testing. We are not
persuaded that the trial court erred in finding that the Department
had made reasonable efforts to ensure the parents would be
successful in completing their treatment plans.
3 A. Governing Law
¶8 A court may terminate the parent-child legal relationship
pursuant to section 19-3-604(1)(c), C.R.S. 2017, if clear and
convincing evidence establishes that (1) an appropriate treatment
plan, approved by the trial court, has not been complied with by the
parent or has not been successful in rehabilitating the parent; (2)
the parent is unfit; and (3) the conduct or condition of the parent is
unlikely to change within a reasonable time. People in Interest of
A.J.L., 243 P.3d 244, 251 (Colo. 2010).
¶9 The state must make reasonable efforts to prevent out-of-
home placement of an abused or neglected child and to reunite the
family. §§ 19-1-103(89), 19-3-100.5(1), C.R.S. 2017; see also
People in Interest of S.M.A.M.A., 172 P.3d 958, 963 (Colo. App.
2007). Such reasonable efforts must include screening,
assessments, the development of an appropriate treatment plan, the
provision of information and referrals to available public and private
assistance resources, placement services, and visitation services, all
as determined necessary and appropriate in a particular case.
§§ 19-3-100.5(5), -208(2)(b), C.R.S. 2017; People in Interest of A.D.,
2017 COA 61, ¶ 32.
4 ¶ 10 A treatment plan is appropriate if it “is reasonably calculated
to render the [parent] fit to provide adequate parenting to the child
within a reasonable time and . . . relates to the child’s needs.” § 19-
1-103(10); see also People in Interest of K.B., 2016 COA 21, ¶ 13.
The appropriateness of a parent’s treatment plan is “measured by
its likelihood of success in reuniting the family and by the extent to
which its requirements were realistic in light of the facts existing at
the time it was adopted.” People in Interest of J.M.B., 60 P.3d 790,
792 (Colo. App. 2002).
¶ 11 It is the parent’s responsibility to comply with the treatment
plan. Id. at 791. Absolute compliance is not required. People in
Interest of C.L.I., 710 P.2d 1183, 1185 (Colo. App. 1985). However,
partial compliance, or even substantial compliance, may not be
sufficient to render the parent fit. People in Interest of D.L.C., 70
P.3d 584, 588 (Colo. App. 2003).
¶ 12 “The credibility of witnesses, the sufficiency, probative effect
and weight of the evidence, and the inferences and conclusions to
be drawn therefrom are all within the province of the [trial]
court . . . .” E.S.V. v. People, 2016 CO 40, ¶ 24. We will not disturb
5 the trial court’s findings unless they are so clearly erroneous as to
find no support in the record. Id.
B. Analysis
1. The Parents’ Treatment Plans
¶ 13 The parents’ treatment plans were essentially identical and
required the following action steps:
The parents will cooperate with all medical, psychiatric, and
parenting evaluations and provide honest reporting of
problems with the family unit.
The parents will attend their treatment sessions and will
not be tardy, cancel, or reschedule more than one session
in a one-month period.
The parents will address current and past substance abuse
issues and will be able to identify the reasons and
motivation behind their substance abuse.
The parents will submit up to three random and observed
drug screens per week.
The parents will participate in weekly, supervised visits with
the children and will comply with the parameters for
6 visitation. Visitations will progress to unsupervised and
overnight status.
The parents will attend Alcoholics Anonymous/Narcotics
Anonymous (AA/NA) meetings a minimum of once per week.
The parents will make relationship choices that prioritize
the safety and well-being of their children.
The parents will demonstrate the ability to provide sufficient
financial and household management resources to support
their children.
The parents will verbalize and demonstrate their
understanding of criteria that must be maintained for the
family to become reunified.
¶ 14 Approximately six months before the termination hearing, the
Department modified mother’s treatment plan at mother’s request
to clarify certain objectives. The modified treatment plan continued
to emphasize mother’s need to address substance abuse issues and
included a provision regarding relapse prevention skills. It also
included a component requiring mother to reduce her anxiety by
participating in specialized therapy, learning to identify her triggers,
and increasing her coping skills. Finally, it provided that mother
7 would participate in bimonthly couple’s therapy to improve her
communications skills with father.
2. Services Offered to the Parents
¶ 15 Pursuant to the parents’ voluntary agreement and treatment
plans, the Department provided numerous services to the parents,
including substance abuse therapy, therapeutic visitation
supervision, drug abuse monitoring, and a parental capacity
evaluation. The Department also provided counseling for the
children.
¶ 16 As the trial court noted, the Department used drug testing to
determine if the parents were complying with the treatment plans’
objectives regarding substance abuse. Drug testing was
accomplished by having the parents submit to random drug tests
up to three days per week. On a designated day, the parents would
check whether they had to go in for testing, which would be
performed within a specified time frame.
¶ 17 Records kept by the Department showed that during an
eighteen-month period, father was to be drug tested eighty-six
times; he failed to submit samples fifty-one times, and for the
thirty-five samples he submitted, thirty-two were negative and three
8 were positive. During that same period, mother was to be drug
tested one hundred and thirty-one times; she failed to submit
samples seventy-five times, and for the fifty-six samples she
submitted, forty-five were negative and eleven were positive.
¶ 18 As the trial court found, the parents’ failure to comply with the
drug testing requirements demonstrated a lack of compliance with
this part of the treatment plans. Similarly, as discussed below, the
parents’ arrests for possession of methamphetamine during the
pendency of the case showed a continued failure to address their
substance abuse issues.
¶ 19 Shortly before the termination petition was filed, the parents
were arrested on charges of possession with intent to distribute
methamphetamine. Approximately twenty-two grams of
methamphetamine were discovered in the parents’ business
premises. Mother pleaded guilty to two counts of possession (level
four drug felonies) and one count of possession with intent to
distribute (a level three drug felony). In November 2016, mother
was sentenced to four years in the custody of the Colorado
Department of Corrections (DOC). Father pleaded guilty to
possession with intent to distribute (a level three drug felony). In
9 December 2016, he was sentenced to three years in DOC custody.
The Department also provided individual therapy to both parents.
The record shows that father attended thirty-five out of forty
scheduled therapy sessions. Father’s therapist reported that father
did not demonstrate significant progress toward his treatment
goals, which included submitting to drug tests, going to AA/NA
meetings, and completing relapse prevention homework. The
therapist opined that father lacked the ability to make the
necessary changes to overcome his problems.
¶ 20 Mother’s therapist, who also treated father, reported that
mother did not take accountability for even the smallest actions.
This contributed to her inability to progress therapeutically. She
felt that mother merely showed up to appease the court and did not
meaningfully attempt to change her behavior. The therapist also
testified that mother did not complete any relapse prevention
homework. And, although mother was given a medication referral
for anxiety, she did not take steps to contact a doctor to obtain
anxiety medication.
¶ 21 The Department also sought to improve the parents’
interactional skills with the children through counseling and visits
10 with the children. The parents’ visitation supervisor and family
therapist, Elaine Johnson-Williams, oversaw forty-six visits, totaling
sixty hours, and testified that the parents repeatedly violated rules
regarding how the visits were to take place. Johnson-Williams also
opined that the parents did not develop healthy parenting skills,
and they did not improve enough to progress from individual
therapy to family therapy, and that the children needed
permanency which the parents could not provide.
¶ 22 The Department also had a “Capacity to Parent Assessment”
performed on the parents. The assessors opined that father did not
“demonstrate the necessary skill development and parenting
training required to manage various developmental stages and
provide the children with consistent and appropriate parenting.”
They also opined that father “demonstrated below average parenting
knowledge and an inability to assess misbehavior from a broad
prospective, including consideration of underlying issues that may
cause the child’s misbehavior.” The assessors reached nearly
identical conclusions as to mother.
11 3. The Parents’ Objections
a. Insufficient Time to Complete Action Steps
¶ 23 The parents contend that the Department failed to provide
them with sufficient time to complete the services required by their
treatment plans. In particular, father asserts that the Department
filed its motion to terminate only seventy-seven days after the
treatment plans were adopted. He contends that seventy-seven
days was an insufficient period in which to achieve compliance with
the treatment plans.
¶ 24 As noted, however, the parents began a voluntary program
with the Department in January 2015, and those voluntary services
covered many of the issues that became part of the treatment plans,
including the parents’ substance abuse issues. Thus, the parents
received services for approximately nine months before the motion
to terminate was filed. In addition, the termination hearing was not
held until more than a year after the motion to terminate was filed.
During that period, the parents were provided services and had the
opportunity to comply with their treatment plans.
12 ¶ 25 Therefore, we conclude that the trial court did not err in
concluding that the parents were provided sufficient time to
establish compliance with their treatment plans.
b. Visitation/Drug Testing/Referrals
¶ 26 The parents also contend that the Department did not
accommodate their drug testing needs to allow them to succeed on
this component of their treatment plans. Father asserts that the
Department failed to modify the drug testing schedule to
accommodate his work schedule. He also asserts that because he
had worked out of state, the Department should have allowed him
to perform the drug tests where he was working. Similarly, father
contends that the visits with the children were scheduled in the
middle of the week, hindering his ability to attend those visits.
¶ 27 Mother objects to the manner in which the drug testing was
conducted and to the presumption that any missed tests were
treated as positive. But we conclude that the method employed in
conducting the tests, although not perfect, was reasonably
structured to monitor compliance. In addition, there was evidence
that the Department sought to accommodate the parents’ needs by
coordinating the drug testing with the visits. There was also
13 evidence that the parents could have sought modifications in the
testing procedures but failed to do so.
¶ 28 Father’s caseworker testified that she attempted to work with
father to arrange for alternative drug testing when he was out of
town for work. Moreover, she testified that father did not maintain
consistent communication with the Department and that he did not
provide her with the necessary information so that she could
facilitate the testing.
¶ 29 And, despite father’s assertions, the record shows that the
Department oversaw forty-six supervised visits between the parents
and the children. Thus, although father was unable to make
certain visits when he was working out of the area, he still was able
to attend a number of the scheduled visits with his children.
¶ 30 Mother also contends that the Department failed to provide
proper referrals and case management services pursuant to her
treatment plan. However, it is apparent that mother, at times, had
either failed to schedule or failed to attend appointments with
recommended providers. And, as indicated above, the Department
made numerous services available to mother.
14 ¶ 31 Therefore, we conclude that the Department worked to provide
the parents with necessary and needed services. The parents,
however, did not always partake in the services offered, follow
through with the recommended services, or communicate effectively
with the Department so that alternatives could be provided to
accommodate their circumstances.
c. Inpatient Drug Treatment
¶ 32 Father argues that he should have been provided inpatient
treatment for his drug problem. However, despite a suggestion by a
substitute judge in August 2015 that the parents might benefit
from inpatient treatment, neither father nor his counsel indicated
that his treatment plan was inappropriate because it did not
include such services. Instead, at that time, father’s counsel agreed
with the court that the treatment plan was achievable, appropriate,
and in the best interests of the children. And, although father
subsequently indicated that he would be open to inpatient
treatment as an alternative to setting a termination hearing date,
there were questions about whether he would be eligible to
participate in an inpatient treatment program because of his
pending criminal case.
15 ¶ 33 Therefore, we conclude that the trial court did not err by
finding that the Department used reasonable efforts
notwithstanding the fact that it did not include inpatient treatment
as part of the treatment plan or subsequently amend the treatment
plan to require inpatient treatment.
d. Conclusion
¶ 34 In summary, we conclude that the record shows that the
Department made reasonable accommodations to meet the needs of
the parents. We also conclude that the record sufficiently supports
the trial court’s findings, by clear and convincing evidence, that
termination was appropriate. These findings support the
conclusions that (1) an appropriate treatment plan, approved by the
court, had not been complied with by the parents or had not been
successful in rehabilitating them; (2) the parents were unfit; and (3)
the conduct or condition of the parents was unlikely to change
within a reasonable time. See § 19-3-604(1)(c); A.J.L., 243 P.3d at
251.
III. Father’s Separate Appellate Issues
¶ 35 Father raises three other issues in his appeal. First, he
contends that the trial court’s decision to interview the children in
16 chambers fundamentally and seriously affected the basic fairness
and integrity of the proceedings and violated his due process rights.
Father also contends that he was provided ineffective assistance of
counsel because his trial counsel failed to meet discovery and
disclosure deadlines for an expert witness. Finally, father contends
that the trial court abused its discretion and violated his due
process rights by allowing five of the Department’s witnesses to
testify as experts despite the Department’s failure to comply with
C.R.C.P. 26(a). We address and reject each of these contentions.
A. In Camera Interview of Children
1. Factual Background
¶ 36 In March 2016, the trial court adopted a permanency plan,
with the primary goal being adoption and a concurrent goal of
returning home. In April 2016, the guardian ad litem (GAL) filed a
motion for an in camera interview of the children pursuant to
section 19-3-702(3.7), C.R.S. 2017, which requires the court to
consult with children in an age-appropriate manner regarding their
permanency plans. When the GAL filed her motion, the children,
who are twins, were nine years old.
17 ¶ 37 In support of her motion, the GAL also referenced section 19-
1-106(5), C.R.S. 2017, which provides that a child may be heard
separately when deemed necessary by the court, and section 14-10-
126(1), C.R.S. 2017, of the Uniform Dissolution of Marriage Act
(UDMA), which allows the court to conduct in camera interviews
with children to determine their wishes regarding allocation of
parental responsibilities. The GAL also attached a memorandum
from a third party (the Rocky Mountain Children’s Law Center) that
advocated for in camera interviews with children in dependency and
neglect cases.
¶ 38 In response, father objected to the in camera interviews due to
the age of the children and his concern about potential trauma to
them. Father argued further that, if the trial court was going to
proceed with the interviews, the children should be interviewed
separately and the interviews should be conducted in the presence
of counsel and be recorded so that the parties could obtain a
transcript. Mother also objected to the in camera interviews based
on the age of the children and because they were represented by a
GAL who could advocate for their positions.
18 ¶ 39 The trial court granted the GAL’s motion for an in camera
interview of the children. The court ruled that the children would
be interviewed together and would be the only ones present during
the interview, but that the interview would be recorded and that all
parties could request a copy of the transcript. In June 2016, more
than five months before the termination hearing, the court
interviewed the children in chambers; and the interview was
recorded and transcribed. A copy of the transcript of the interview
was provided to the parties in advance of the termination hearing.
The trial court subsequently noted in its termination order that it
had considered the children’s wishes based on that interview.
2. Legal Framework and Analysis
¶ 40 The issue of whether a trial court may conduct an in camera
interview of a child in a dependency and neglect proceeding was
recently addressed by a division of this court in a published order.
See People in Interest of H.K.W., 2017 COA 70. In that order, the
division addressed whether such a procedure was proper in the
context of determining an allocation of parental responsibilities.
¶ 41 The division noted that under the Children’s Code the trial
court must allocate parental responsibilities based on the best
19 interests of the child and the public. Id. at ¶ 12; see §§ 19-1-
104(4), (6); 19-3-508(1)(a), C.R.S. 2017. Similarly under the UDMA,
the trial court must consider the best interests of the child in
making an allocation of parental responsibilities. See § 14-10-
124(1.5), C.R.S. 2017.
¶ 42 The division also noted that although the Children’s Code does
not specifically provide for a trial court to conduct an in camera
interview with a child, it does allow for a child to “be heard
separately when deemed necessary.” H.K.W., ¶ 14 (quoting § 19-1-
106(5)). The division further noted that the UDMA provides that a
“court may interview the child in chambers to ascertain the child’s
wishes as to the allocation of parental responsibilities.” Id. at ¶ 15
(quoting § 14-10-126(1)). Based on those two provisions, the
division concluded that a trial court may conduct an in camera
interview of a child to determine the child’s best interests in
allocating parental responsibilities in a dependency and neglect
proceeding. Id. at ¶ 17.
¶ 43 The division then determined whether the court was required
to create a record of the interview given that the Children’s Code is
silent on the issue. Id. at ¶ 19. Again, relying on the UDMA, the
20 division noted that the UDMA requires a trial court to create a
record of the interview and provides that it “shall be made part of
the record in the case.” Id. (quoting § 14-10-126(1)). The division
was also persuaded by cases from other jurisdictions that imposed
such a requirement, noting that a record ensures support for any
findings regarding the interview and allows for meaningful appellate
review of the evidence relied on by the trial court. Id. at ¶¶ 20-22.
¶ 44 The division further concluded that a record of the in camera
interview must be made available, upon request, to parents when a
parent needs to (1) determine whether the trial court’s findings are
supported by the record and (2) contest information supplied by the
child during the interview. Id. at ¶ 27.
¶ 45 With these concepts in mind, we turn to father’s specific
objections.
a. The Trial Court Did Not Abuse its Discretion by Excluding Counsel from the Interview
¶ 46 First, father argues that the trial court reversibly erred in
denying his request to permit counsel to be present during the
interview. We are not persuaded.
21 ¶ 47 Initially, we note that the division in H.K.W. did not address
whether counsel must be permitted to be present during the trial
court’s in camera interview of a child. And courts in other
jurisdictions are divided on whether counsel must be permitted to
be present during the in camera interview. The jurisdictions
requiring counsel’s presence on request have done so on the ground
that the parents’ due process right of confrontation would be
violated if counsel were not permitted to be present. See, e.g.,
Maricopa Cty. Juvenile Action No. JD-561, 638 P.2d 692, 695 (Ariz.
1981) (termination proceeding is adversarial in nature and the
parents must be given the opportunity to challenge the testimony of
their children); In Interest of Brooks, 379 N.E.2d 872, 881 (Ill. App.
Ct. 1978) (parents’ right to confront all witnesses against them was
violated when the court allowed child to testify outside their
presence in the court’s chambers). Other courts have not found
that the Confrontation Clause requires the presence of counsel and
have held that the trial court has discretion to determine whether
counsel should be permitted to be present during the in camera
interview. See, e.g., In re James A., 505 A.2d 1386, 1391 n.2 (R.I.
1986) (trial court has discretion over whether counsel may be
22 present during an in camera interview); Hasse v. Hasse, 460 S.E.2d
585, 682 (Va. Ct. App. 1995) (no bright-line rule that counsel must
be present during an in camera interview of a child in divorce
proceeding).
¶ 48 A division of this court has held that the Sixth Amendment’s
right of confrontation does not extend to dependency and neglect
cases. People in Interest of S.X.M., 271 P.3d 1124, 1127 (Colo. App.
2011). The trial court’s decision whether to terminate parental
rights, like the allocation of parental responsibilities considered in
H.K.W., must be based on the best interests of the child. See People
in Interest of D.P., 160 P.3d 351, 356 (Colo. App. 2007); see also §
19-3-604(3) (court must give primary consideration to the physical,
mental, and emotional needs of the children).
¶ 49 Therefore, based on the reasoning in H.K.W., and the foregoing
cases, we are not persuaded that counsel must be permitted to be
present during an in camera interview of a child in a dependency
and neglect proceeding. Rather, we conclude that this
determination is best left to the discretion of the trial court on a
case-by-case basis. In making this determination, the trial court
should consider, among other things, the age and maturity of the
23 child, the nature of the information to be obtained from the child,
the relationship between the parents, the child’s relationship with
the parents, any potential harm to the child, and ultimately any
impact on the court’s ability to obtain information from the child.
See Hasse, 460 S.E.2d at 590. In addition, although not requested
here, in the interests of fairness and to allow for the development of
a full record, the trial court should allow the parents or trial
counsel to submit questions to the child, which the court may ask
in its discretion. See James A., 505 A.2d at 1391. Further, the
interview, regardless of whether counsel is present, must be on the
record, and, if timely requested by any party and the trial court
anticipates relying on information from the interview in ruling on a
termination motion, a transcript of the interview must be made
available to the parties in advance of a termination hearing (as the
trial court did here). See H.K.W., ¶¶ 26-28; In re T.N.-S., 347 P.3d
1263, 1271 (Mont. 2015) (“Due process considerations may require
disclosure in certain instances, particularly where the district court
relies on information from the interviews in reaching its
determination.”); see also § 19-1-106(3) (“A verbatim record shall be
taken of all proceedings.”). Finally, in considering the weight to
24 accord the information obtained from a child during an interview,
the trial court should be mindful that the information did not pass
through the crucible of cross-examination.
¶ 50 Next we turn to the question whether the trial court abused its
discretion in denying father’s request for his counsel to be present
during the interview. We conclude that it did not abuse its
discretion (and that even if it did, any error was harmless).
¶ 51 In a written order, the trial court granted the GAL’s motion to
interview the children outside of the presence of counsel. But that
written order did not contain any findings as to why it was denying
father’s request for his counsel to be present for the interview.
Nevertheless, where, as here, an abuse of discretion standard
applies, “the test is not ‘whether we would have reached a different
result but, rather, whether the trial court’s decision fell within a
range of reasonable options.’” People in Interest of T.B., 2016 COA
151M, ¶ 60 (cert. granted Aug. 21, 2017) (quoting People v. Rhea,
2014 COA 60, ¶ 58). And given the circumstances here, including
the young age of the children (nine years old at the time of the
interview), the acknowledgement by the GAL and both parents that
because of their tender age this was going to be a difficult process
25 for them, and, as acknowledged by father, the presence of counsel
may be a “hindrance” to the objective of the interview, we conclude
that trial court’s decision to exclude counsel from its on-the-record
interview of the children fell squarely within a range of reasonable
options. Accordingly, we discern no abuse of discretion. Id. at ¶¶
60-61.
¶ 52 Moreover, even if the trial court’s failure to make any factual
findings was arguably an abuse of discretion, see People v. Hardin,
2016 COA 175, ¶ 30 (“A court’s failure to exercise discretion can be
an abuse of discretion.”), we conclude that the error was harmless
in light of the limited weight the trial court gave the information
obtained from the interview in its termination order. The trial court
did not rely on the interview to resolve any contested historical
facts, such as the events that led to the Department’s involvement
with the family or whether the parents had complied with their
treatment plans. Instead, the trial court’s reliance on the interview
was limited to the wishes of the children. Indeed, in its twenty-one
page termination order, the trial court made the following three
references to its interview of the children:
26 “The [c]hildren did not participate in the hearing, but the
[c]ourt previously conducted an informal, in chambers
interview with the [c]hildren. A transcript of that interview
was provided to all the parties. In entering this Order, the
[c]ourt has therefore considered the [c]hildren’s wishes.”
“In their interview with the [c]ourt, the [c]hildren expressed
that they liked their current placement and had a desire to
achieve permanency with that family.”
“The [c]hildren report that it has been ‘a long time’ since
they were placed in the home. They both expressed a wish
to be adopted by their foster parents. The [c]hildren are
doing generally well at school although both are struggling
with homework.”
And the trial court’s findings regarding these issues were supported
by the testimony of witnesses who testified at the termination
hearing (i.e., evidence separate and apart from the court’s interview
of the children).
¶ 53 Thus, even if the exclusion of counsel without making any
findings was an abuse of discretion, we conclude that doing so was
harmless. Accordingly, we conclude that the exclusion of father’s
27 counsel from the interview of the children does not warrant
reversal.
b. The Trial Court Did Not Abuse its Discretion by Declining to Conduct Separate Interviews
¶ 54 Next, father contends that the trial court erred in not
conducting separate interviews of the children. We are not
persuaded. As we indicated above, the procedures for conducting
an in camera interview are best left to the discretion of the trial
court. Nothing indicates that the trial court abused its discretion
by not conducting separate interviews of the children, particularily
in light of the young age of the twins. Nor do we discern any way in
which conducting this interview jointly was prejudicial.
c. The Content of the Interview Does Not Require Reversal
¶ 55 Father contends that certain answers the trial judge gave to
the children’s questions regarding his favorite game, liar’s dice, and
his favorite action as a judge, performing adoptions, were improper.
We do not share father’s concerns that the content of the interview
requires reversal. First, the court’s statements were made after the
children hald already shared with the court that they were happy in
their current placement and that they wanted to “stay.” Moreover,
28 the trial judge’s answers were obviously aimed at maintaining a
rapport with the children. Nevertheless, in so concluding, we note
that a judge must maintain impartiality to avoid the appearance of
favoring a particular outcome. That said, it does not appear that
the judge’s answers influenced the answers given by the children,
and we do not perceive any prejudice to father.
3. Conclusion: The Trial Court Did Not Abuse Its Discretion With Respect to the Interview of the Children
¶ 56 For the reasons discussed above, we conclude that father’s
due process rights were not violated by the trial court’s exclusion of
his counsel from the in camera interview, by not conducting
separate interviews of the children, or by the nature of the
interview. Thus, although the trial court did not have the benefit of
this opinion or the decision in H.K.W., we conclude that the trial
court acted within its discretion in granting the GAL’s request to
interview the children, and that it did not abuse its discretion in the
procedures that it followed nor in the weight it accorded to the
information elicited.
29 B. Ineffective Assistance of Counsel
¶ 57 Father next contends that he was provided ineffective
assistance of counsel because his trial counsel failed to meet
discovery and disclosure deadlines for an expert witness. We
conclude that the record fails to demonstrate the necessary
prejudice to establish a claim based on ineffective assistance.
1. Governing Law
¶ 58 A parent’s right to appointed counsel in termination
proceedings is secured by statute, and not by constitutional
mandate. People in Interest of A.J., 143 P.3d 1143, 1148 (Colo. App.
2006). Nevertheless, when evaluating a claim of ineffective
assistance of counsel in termination proceedings, Colorado courts
employ the same test that governs claims of ineffective assistance of
counsel in criminal cases. People in Interest of C.H., 166 P.3d 288,
290-91 (Colo. App. 2007) (citing Strickland v. Washington, 466 U.S.
668, 687 (1984); Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003)).
¶ 59 Based on this test, the parent must show that counsel’s
performance was (1) outside the wide range of professionally
competent assistance and (2) so prejudicial that it deprived the
parent of a fair hearing. People in Interest of D.G., 140 P.3d 299,
30 308 (Colo. App. 2006). Prejudice is shown by demonstrating a
reasonable probability that, but for counsel’s alleged deficiencies,
the outcome of the termination proceeding would have been
different. Id.
¶ 60 If the parent’s allegations lack sufficient specificity or fail to
make a prima facie showing of ineffective assistance, the parent’s
claim may be denied without further inquiry. C.H., 166 P.3d at
291. And the failure to establish one prong of the two-part test
defeats a claim for ineffective assistance. See D.G., 140 P.3d at
308.
2. Analysis
¶ 61 In response to father’s argument, the People assert that the
record demonstrates that the parents’ retained expert, Michael
Costello, was unable to file an expert report with the court because
of a lack of cooperation by the parents. The People also assert that
any prejudice to father was alleviated by the trial court allowing
Costello to testify as a lay witness at the hearing. Because we are
persuaded by the People’s latter contention, we need not reach the
first.
31 ¶ 62 Although father’s retained expert was not allowed to testify as
an expert at the hearing, he was allowed to testify as a lay witness.
At the hearing, he conveyed his observations of a visitation the
parents had with the children a couple of weeks prior to the
termination hearing.
¶ 63 Costello’s observations were conflicting. He testified that he
found the volume of father’s voice to be distracting and that the
children seemed to raise their energy level in response. Conversely,
he opined that father expressed his affection verbally with the
children and shared some physical touch with them that was
appropriate for the activity. Similarly, he described mother’s
method of affection toward the children and noted that she engaged
in more physical touch. He also discussed in some detail the
activities that the family engaged in during the visit.
¶ 64 Although Costello was not able to express an expert opinion
regarding whether termination was appropriate, he was able to
testify regarding the interactions between the parents and the
children. Even if we agree that father’s counsel was deficient in not
ensuring that the retained expert had prepared an expert report in
time for the termination hearing so that he could have testified as
32 an expert, it is not apparent that the trial court would have ruled
differently given Costello’s testimony. And, as the trial court noted
in its termination order, the parents continued to have substance
abuse problems and almost all of the experts who testified agreed
that termination was appropriate.
¶ 65 Based on the foregoing, we conclude that father has failed to
demonstrate a reasonable probability that, but for counsel’s alleged
deficiencies, the outcome of the termination proceeding would have
been different. See D.G., 140 P.3d at 308.
C. Department’s Expert Witnesses
¶ 66 Father further contends that the trial court abused its
discretion and violated his due process rights in allowing five of the
Department’s witnesses to testify as experts despite the Department
failing to comply with C.R.C.P. 26(a). We are not persuaded.
¶ 67 C.R.C.P. 26(a) specifies that a party shall provide, without
awaiting a discovery request, certain information to other parties.
C.R.C.P. 26(a)(2) governs expert disclosures and provides that a
party shall disclose to other parties the identity of any expert who
may present evidence at trial together with an identification of the
33 person’s fields of expertise. See C.R.C.P. 26(a)(2)(A). The rule also
specifies disclosures for retained experts and other experts. See
C.R.C.P. 26(a)(2)(B)(I)-(II). Although the provisions of C.R.C.P. 26,
including its expert witness disclosure requirements, are
inapplicable to juvenile proceedings unless ordered by the court or
stipulated to by the parties, C.R.C.P. 26(a); see also People in
Interest of K.T., 129 P.3d 1080, 1082 (Colo. App. 2005), the trial
court ordered that they would govern in this case.
¶ 68 The admission of expert testimony is subject to review for an
abuse of discretion. See People in Interest of A.E.L., 181 P.3d 1186,
1193 (Colo. App. 2008). An abuse of discretion occurs only when
the trial court’s decision is manifestly arbitrary, unreasonable, or
unfair. See People in Interest of S.G., 91 P.3d 443, 450 (Colo. App.
2004).
¶ 69 At the termination hearing, father’s counsel objected to the
testimony of three of the People’s experts (Chris Young, Kimberly
Maestas Cannon, and Johnson-Williams) because the People had
failed to disclose, with specificity, the prior cases in which the
experts had testified, including case names, case numbers, and
34 dates. The trial court, however, did not find that father had
incurred any prejudice and allowed all three experts to testify
regarding the reports they had prepared for the case, which had
been disclosed to father before the hearing.
¶ 70 Father also objected to the expert testimony of three expert
witnesses, including one of the experts objected to above, because
the People failed to specify a particular area of expertise for two
experts (Cannon and Diaz) and another expert (Thayn) was listed as
a licensed counselor when she was only a candidate to become a
licensed counselor. With regard to two of the experts (Diaz and
Thayn), the trial court limited their testimony to what they had
disclosed in their reports. As to the other expert (Cannon), the trial
court, despite some deficiencies in the disclosure, found that her
report had been adequately disclosed and qualified her as an expert
in the areas sought by the People.
¶ 71 We discern no abuse of discretion by the trial court with
respect to any of the Department’s experts. We reach this
conclusion for two reasons.
¶ 72 First, father never argued to the trial court how he was
prejudiced by the defects in the Department’s expert disclosures.
35 To be sure, a failure to properly disclose an expert’s prior testimony
may be prejudicial as an “expert’s past testimony may be useful
when the opposing party seeks to impeach that expert during
cross-examination . . . .” Trattler v. Citron, 182 P.3d 674, 682 (Colo.
2008). Similarly, a lack of pretrial specificity as to an area of
expertise may hinder cross-examination of an expert. But father
never articulated such a basis as a rationale for barring the experts
from testifying. Indeed, when he objected at the termination
hearing, he cited nothing other than the Department’s technical
noncompliance with the rule as the rationale for barring the
testimony. Nor did he request a continuance. We discern no abuse
of discretion in the trial court permitting the testimony under these
circumstances. See Ajay Sports, Inc. v. Casazza, 1 P.3d 267, 275
(Colo. App. 2000) (no abuse of discretion in permitting an expert to
testify notwithstanding a deficiency in the disclosure of prior
testimony where the objecting party “does not specify what
additional information he could have elicited on cross-examination
or how the absence of such information caused him prejudice,”
“[n]or did he ask for a continuance”).
36 ¶ 73 Second, the deficiencies in the disclosures identified by father
on appeal go primarily to the experts’ qualifications to offer expert
testimony. But the parties stipulated in the trial management order
that “[a]ll experts endorsed by any party are qualified as experts in
their listed areas of expertise without the necessity of further
testimony.” In addition, the parties stipulated that “[a]ll exhibits
timely endorsed by any Party are admissible as to foundation,
authentication, and relevance.”1 Thus, in light of the pretrial
stipulation, we discern no abuse of discretion in the trial court
permitting the experts to testify notwithstanding the deficiencies in
the Department’s disclosures.
1 During a trial readiness conference held the day after the stipulation was reached, the Department objected to father’s expert testifying as an expert at the termination hearing because the expert had not prepared and provided a report setting forth his opinions. See Part III.B. Father contends that the Department’s objection to his expert vitiated the parties’ stipulation. We are not persuaded. Father’s endorsement of his expert, which was appended to the stipulation, said that his expert’s “report and statement of opinions are forthcoming,” but such report had not been prepared and was not forthcoming. That was the basis on which the trial court ruled that father’s witness’ testimony would be limited to lay testimony. In contrast, the Department’s expert reports had been disclosed and were included as exhibits subject to the parties’ stipulation. Moreover, unlike the Department, father’s counsel did not identify any deficiencies in the Department’s expert disclosures during the trial readiness conference.
37 ¶ 74 As the trial court noted, the reports by the various experts had
been adequately disclosed to father. Thus, despite inadequacies in
the C.R.C.P. 26 disclosures regarding the prior cases in which the
experts had previously testified and the listed areas of expertise for
the experts, the bases for the experts’ testimony at the hearing had
been disclosed to father. Therefore, we conclude that the trial court
did not abuse its discretion in concluding that father was not
prejudiced by the inadequate C.R.C.P. 26(a) disclosures.
Accordingly, the judgment will not be reversed on this basis.
IV. Conclusion
¶ 75 The trial court’s judgment terminating the parent-child legal
relationships between the children and mother and father is
affirmed.
JUDGE DAILEY and JUDGE VOGT concur.