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

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.,

, 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

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.,

, 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.,

(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.,

.

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.,

.

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.,

(Colo. App. 2002).

¶ 11 It is the parent’s responsibility to comply with the treatment

plan.

. Absolute compliance is not required. People in

Interest of C.L.I.,

(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.,

(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,

. We will not disturb

5 the trial court’s findings unless they are so clearly erroneous as to

find no support in the record.

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.,

. 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,

(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,

(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.,

, 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,

(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.,

(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.,

, 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,

. 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.,

. 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.,

(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.,

, ¶ 60 (cert. granted Aug. 21, 2017) (quoting People v. Rhea,

). 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,

(“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.,

, 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.,

,

290-91 (Colo. App. 2007) (citing Strickland v. Washington,

(1984); Ardolino v. People,

(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.,

,

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.

¶ 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.,

.

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.,

.

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.

1. Governing Law

¶ 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.,

(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.,

(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.,

(Colo. App.

2004).

2. Analysis

¶ 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,

(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,

(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.

38