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 13, 2018

No. 17CA2038, People in Interest of A.R. — Juvenile Court — Dependency and Neglect — Termination of Parent-Child Legal Relationship; Attorneys and Clients — Ineffective Assistance of Counsel

In this dependency and neglect proceeding, a division of the

court of appeals considers what constitutes ineffective assistance of

counsel in a termination of parental rights proceeding and the

proper procedure for evaluating this claim.

The division applies the familiar test for ineffective assistance

of counsel claims articulated in Strickland v. Washington,

(1984), but departs from the outcome-determinative prejudice

inquiry applied by previous divisions of this court. Because the

Supreme Court requires states to afford respondent parents

fundamentally fair procedures when seeking to terminate parental

rights, as stated in Santosky v. Kramer,

(1982), and the statutory right to counsel ensures that respondent

parents receive fundamentally fair procedures, we conclude the

prejudice inquiry should focus on whether counsel’s deficient

performance rendered the proceeding fundamentally unfair or the

result of the proceeding unreliable, see Lockhart v. Fretwell,

(1993).

Applying this prejudice inquiry, the division holds that mother

has made a sufficient showing of ineffective assistance of trial

counsel based on her counsel failing to subject the case to

meaningful adversarial testing. See United States v. Cronic,

(1984). Accordingly, the division reverses the

judgment terminating her parental rights and remands the case to

the juvenile court for further proceedings. COLORADO COURT OF APPEALS

Court of Appeals No. 17CA2038 Pueblo County District Court No. 16JV584 Honorable William D. Alexander, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of A.R., a Child,

and Concerning D.R.,

Respondent-Appellant.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division V Opinion by JUDGE FURMAN Román and Lichtenstein, JJ., concur

Announced December 13, 2018

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

Anna N.H. Ulrich, Guardian Ad Litem

Jordan Juvenile and Family Law, LLC, Melanie Jordan, Golden, Colorado, for Respondent-Appellant ¶1 In this case, we analyze the important question of what

constitutes ineffective assistance of counsel in a termination of

parental rights proceeding and the proper procedure for evaluating

this claim.

¶2 Mother, D.R., appeals the judgment terminating her parent-

child legal relationship with the child, A.R. Although the county

attorney offered minimal evidence, mother’s trial counsel did little to

test this evidence. Mother’s appellate attorney directs our attention

to three proceedings that reflect this.

¶3 First, at the adjudicatory hearing, the county attorney

presented no testimony. Instead, the county attorney asked the

court to adjudicate the child dependent or neglected based on a

written report of the investigation conducted by the Pueblo County

Department of Social Services. Mother did not attend this hearing.

Even so, mother’s attorney stated that it would be in her “best

interests” to have the court enter mother’s no-fault admission to the

petition. The court then adjudicated the child dependent or

neglected without ensuring that mother knew and understood the

consequences of the adjudication.

1 ¶4 Second, at the termination of parental rights hearing, the

juvenile court terminated mother’s parental rights using a

procedure it termed “offer of proof.” By this, the court heard no

testimony. Instead, it listened to the county attorney’s statements

about how the caseworker would testify if she were called as a

witness. Mother’s attorney did not object to this procedure.

¶5 Third, at a hearing to discuss the child’s placement after the

termination of parental rights hearing, the court addressed

maternal grandmother’s request for custody of the child. Afterward,

the court issued a minute order clarifying that had the “court

known of extended family,” it was likely the court “would have

denied” the motion to terminate mother’s parental rights.

¶6 Mother, through appellate counsel, raises several arguments

in support of her appeal. She contends the juvenile court (1) lacked

personal jurisdiction over her because the court did not enter a

valid adjudication; and (2) erred in finding there was no less drastic

alternative to termination. She also contends that she received

ineffective assistance of trial counsel during the adjudicatory and

termination hearings. We disagree with mother’s first contention.

But we agree that mother alleges sufficient facts to show that

2 counsel’s deficient performance rendered the termination

proceeding presumptively unfair and unreliable, and her less

drastic alternative argument is closely intertwined. We therefore

reverse the judgment and remand for a new termination hearing.

¶7 Like other divisions before us, we apply the two familiar

Strickland v. Washington,

(1984), prongs governing

review of ineffective assistance claims in dependency and neglect

cases. See, e.g., People in Interest of C.H.,

, 291 (Colo.

App. 2007) (The Strickland prongs are that “(1) counsel’s

performance was outside the wide range of professionally competent

assistance; and (2) the parent was prejudiced by counsel’s errors.”);

People in Interest of D.G.,

(Colo. App. 2006).

¶8 These prior divisions, however, did not analyze how to best

adapt Strickland’s prejudice prong to dependency and neglect cases.

Rather, without discussion, they borrowed the prejudice test from

criminal cases and determined that to demonstrate prejudice, the

parent must show “there is a reasonable probability that, but for

counsel’s deficient performance, the outcome of the hearing would

have been different.” D.G.,

. For the reasons we

articulate below, we part ways with these divisions’ prejudice

3 inquiry and apply a prejudice inquiry that better suits parents’ right

to counsel under Colorado’s statutory framework for termination of

parental rights proceedings.

¶9 Parents’ fundamental liberty interest in the care, custody, and

management of their children under the Due Process Clause of the

Fourteenth Amendment requires states to afford respondent

parents fundamentally fair procedures when seeking to terminate

parental rights. Santosky v. Kramer,

(1982).

¶ 10 In protecting this fundamental liberty interest, the statutory

right to counsel in a termination of parental rights proceeding

ensures that respondent parents receive fundamentally fair

procedures. See A.M. v. A.C.,

(stating that

the procedural protections afforded to parents facing termination of

the parent-child legal relationship, which include the statutory right

to counsel, guarantee fundamental fairness at termination

hearings).

¶ 11 Therefore, we conclude that the prejudice inquiry for

ineffective assistance claims in termination of parental rights

proceedings should focus on whether counsel’s deficient

performance rendered the proceeding fundamentally unfair or the

4 result of the proceeding unreliable. See Lockhart v. Fretwell,

(1993).

I. The Dependency and Neglect Case

¶ 12 Because the Department offered no testimony at the

adjudicatory and termination of parental rights hearings, we glean

the following from statements made by the county attorney and

various pleadings filed in the case.

¶ 13 In July 2016, the child’s paternal stepgrandmother took the

child to the emergency room to receive treatment for scabies.

Physicians determined that the severity of the child’s scabies was

due to neglect and that the child had a skull fracture. Although the

skull fracture could have resulted from an accident, mother could

not recall any incident that would have caused the fracture and

explained that she had allowed other family members to care for the

child.

¶ 14 The paternal stepgrandmother also reported to the

Department that the child appeared to be developmentally delayed,

mother and the child’s father were using drugs, and the parents did

not provide appropriate care for the child while they had all stayed

in her home a few months earlier. As a result, the Department

5 initiated this dependency and neglect case. The juvenile court

granted the Department custody of the child, and the court ordered

the child placed with the paternal stepgrandmother.

¶ 15 At the adjudicatory hearing — to determine whether the child

was dependent or neglected — mother did not personally appear,

but her counsel was present. Mother’s counsel told the court, “I’m

going to proceed in my client’s best interests . . . .” Then, instead of

presenting any testimony, the county attorney asked the court “to

rest upon” a written report of the investigation conducted by the

Department because the county attorney had “issues regarding [its]

witnesses.” The court did not advise mother of the right to

cross-examination regarding this report, see § 19-1-107(4), C.R.S.

2018, because she was not there.

¶ 16 Despite mother’s absence, her counsel then stated that it

would be in mother’s “best interests” to have the court enter

mother’s no-fault admission to the petition. The child’s guardian ad

litem (GAL) agreed with this procedure, stating it was in the child’s

best interests to “move forward.” Based on this information, the

court then entered a no-fault adjudication, without ensuring that

mother knew and understood the consequences of the adjudication.

6 ¶ 17 Later, based on allegations that mother did not comply with

her treatment plan, the Department moved to terminate the legal

relationship between mother and the child. About one month later,

the child’s maternal grandmother expressed interest in participating

in the case and raising the child. She moved to intervene and

requested an allocation of parental responsibilities (APR) for the

child. Mother’s counsel did not respond to either motion. He also

did not file a motion asking the court to place the child with the

maternal grandmother as a less drastic alternative to termination.

Instead, mother’s counsel filed a “notice of deposit” with an

attached handwritten letter from mother that requested that the

maternal grandmother have temporary custody of the child.

¶ 18 But the court did not grant the maternal grandmother’s

motions. Instead, it issued an order stating that it would treat the

maternal grandmother as a possible placement for the child after

mother’s rights were terminated, under section 19-3-605, C.R.S.

2018, and proceeded to a termination hearing without making the

maternal grandmother a party to the case.

¶ 19 Mother was not present at the termination hearing, but the

maternal grandmother was. Mother’s attorney was under the

7 mistaken impression that the maternal grandmother had

successfully intervened and told the court that “where I’m going to

come from on behalf of my client is through the Intervenor. I

presume she’ll be able to make a statement.” Mother’s attorney

then informed the court that the maternal grandmother was a

long-term “placement for the child, and she doesn’t need to adopt

the child to care for the child.” The maternal grandmother never

spoke.

¶ 20 The county attorney then informed the court that “I’m

prepared to, if counsel would allow, to proceed by offer of

proof . . . .” By that, the county attorney asked merely to inform the

court about what he would offer as evidence — if the court held a

contested hearing — instead of introducing testimony. Mother’s

attorney responded, “I don’t have any objection to that, Judge.” The

court then permitted the county attorney to describe how the

caseworker would testify if the caseworker were called as a witness.

The county attorney also moved to admit exhibits, including

mother’s substance abuse evaluation and letters sent to mother.

¶ 21 Following the county attorney’s offer of proof, the court asked

mother’s attorney, “[I]s there anything else you’d like to add?”

8 Mother’s attorney responded “[n]o” and only added that he “would

stipulate” that his “client indicated to the Court that the Indian

Child Welfare Act did not apply.” And regarding the “other matters,

the best interests,” mother’s attorney told the court, “I maintain the

same position that I don’t agree with that but that’s for that other

procedure that I think we’re going to be scheduling.”

¶ 22 After the hearing, the court concluded that it would

“tentatively grant the request to terminate parental rights.” But it

did not enter the judgment terminating mother’s rights because “if

the Court decided to place the child with . . . the grandparent in the

case, that would be a less drastic alternative to termination.” The

court then set a review hearing to “hear how the Department’s going

to deal with that issue involving the grandparent,” including

visitation and contact with the child.

¶ 23 At the review hearing, the court heard different proposals.

Again, mother was not present. The Department suggested

granting APR to the paternal stepgrandmother, with whom the child

had been living since the beginning of the case, and allowing visits

with the maternal grandmother. But the child’s GAL believed that

termination was necessary. Mother’s attorney then informed the

9 court that his client wanted the child placed with the maternal

grandmother, but he did not request an evidentiary hearing to

determine whether the child could be placed with the maternal

grandmother as a less drastic alternative to termination.

¶ 24 The court ended the hearing to allow the parties to meet and

find a resolution that would allow both the paternal

stepgrandmother and maternal grandmother to maintain contact

with the child. The court set another hearing without entering a

judgment terminating mother’s parental rights.

¶ 25 At the next hearing, the county attorney requested that the

court enter a judgment terminating mother’s rights. Only then did

mother’s attorney request a hearing regarding placing the child with

the maternal grandmother. The judge responded, “Well, I’m gonna

deny a request for a hearing. I already had the hearing.” The court

then signed the order terminating mother’s parental rights, ordered

that the maternal grandmother have visits with the child, and set

another hearing to discuss the child’s placement.

¶ 26 The juvenile court supplemented its termination judgment a

few months later, after a hearing to discuss the child’s placement,

ruling as follows:

10 The order terminating the parental rights of Respondents is currently on appeal. The Court may have dropped the ball on this case early on. The child has extended family on both sides. There is a less drastic alternative to termination. Until the appeals court enters a ruling, this court will hold off on issuing any orders as it relates to the permanent placement of this child. Should the appeals court overturn the termination order, the court will look at maintaining the relationship between the minor child and his extended family.

A minute order clarified that had the “court known of extended

family,” it was likely the court “would have denied” the motion to

terminate mother’s parental rights.

¶ 27 We now turn to mother’s contentions on appeal.

II. Jurisdiction to Terminate

¶ 28 Initially, we address whether the juvenile court had personal

jurisdiction to terminate the parent-child legal relationship. We

conclude that it did.

¶ 29 The child’s status as dependent or neglected is established at

the adjudication stage of a dependency or neglect proceeding, and

“the resulting adjudication provide[s] the jurisdictional bases for

State intervention to assist the parents and child in establishing a

relationship and home environment that will preserve the family

11 unit.” People in Interest of A.M.D.,

(Colo. 1982);

see also People in Interest of J.W. v. C.O.,

.

¶ 30 If there are procedural errors at the adjudication stage, a

parent may challenge these errors by filing a timely appeal of the

adjudication order after entry of the disposition. § 19-1-109(2)(c),

C.R.S. 2018; C.A.R. 3.4(b). After a court has acquired jurisdiction,

procedural errors do not divest the court of jurisdiction. See People

in Interest of Clinton,

(Colo. 1988).

¶ 31 Mother mounts two separate personal jurisdiction challenges.

She first contends that the court lacked personal jurisdiction

because the record does not show she was served with the petition

or waived service of the petition. We conclude that the record

supports a contrary conclusion. Mother personally appeared with

counsel at a hearing in July 2016. She did not assert a defect in

service and waived further advisement. Because mother appeared

and did not object to the juvenile court’s jurisdiction over her, she

may not raise this issue on appeal. See Gognat v. Ellsworth,

(Colo. App. 2009) (recognizing that one who enters

an appearance may not later challenge personal jurisdiction), aff’d,

(Colo. 2011).

12 ¶ 32 Mother also contends that the court lacked personal

jurisdiction because the court did not enter a valid adjudication.

She points to three deficiencies: (1) there is no indication she was

advised of her rights before her counsel agreed to the child’s

adjudication; (2) her trial counsel’s statement that an admission

would be in her “best interests” was not an effective admission; and

(3) the adjudicatory hearing was not held within sixty days as

required under section 19-3-505(3), C.R.S. 2018. But these are

procedural errors, and procedural errors at the adjudication stage

do not divest the court of personal jurisdiction. See Clinton,

.

¶ 33 Mother or her counsel had an opportunity to contest these

procedural errors by filing a timely appeal from the adjudication

order after entry of the written disposition. See § 19-1-109(2)(c).

She or her counsel also could have objected to the entry of

adjudication at a later hearing. Because they did neither, she may

not raise these issues on appeal from the termination judgment.

People in Interest of E.H.,

, 287 (Colo. App. 1992).

13 ¶ 34 We, therefore, conclude these purported errors did not divest

the juvenile court of jurisdiction, and the court had personal

jurisdiction to terminate mother’s parental rights.

III. Ineffective Assistance of Counsel

¶ 35 We next consider mother’s claim, raised for the first time on

appeal, that she received ineffective assistance of trial counsel at

the adjudicatory and termination hearings. To address these

claims, we need to answer these questions:

1. Do respondent parents have a right to effective assistance of

counsel in a termination of parental rights hearing?

2. If so, may we consider such a claim when it is first raised

on appeal of a judgment terminating parental rights?

3. What test applies when a parent’s appellate counsel raises a

claim of ineffective assistance of trial counsel in a

termination of parental rights proceeding?

A. Do Parents Have a Right to Effective Assistance of Counsel?

¶ 36 In Colorado, a respondent parent’s right to appointed counsel

in a termination proceeding is “secured by statute and not

constitutional mandate.” C.S. v. People in Interest of I.S.,

(Colo. 2004). The Colorado Children’s Code provides that

14 respondent parents have a right “to be represented by counsel at

every stage” of dependency and neglect proceedings and a right “to

seek the appointment of counsel through the office of respondent

parents’ counsel” if the parent cannot financially secure counsel on

his or her own. § 19-3-202(1), C.R.S. 2018; see also §§ 19-1-105(2),

19-3-602(2), C.R.S. 2018; C.S.,

.

¶ 37 Divisions of this court, like other courts around the country,

have recognized that a parent’s statutory right to counsel includes

the right to effective assistance of counsel. People in Interest of S.L.,

; C.H., 166 P.3d at 290; D.G.,

;

People in Interest of V.M.R.,

(Colo. App. 1989);

In re Parental Responsibilities Concerning Torrance P.,

(Wis. 2006) (“[T]he statutory right to counsel [under the

Wisconsin Children’s Code] includes the right to effective assistance

of counsel[.]”); In the Interest of M.S.,

(Tex.

2003) (“We hold that the statutory right to counsel in parental-

rights termination cases embodies the right to effective counsel.”).

¶ 38 Without effective representation, after all, a party “is in no

better position than one who has no counsel.” In the Interest of

K.L.,

(Tex. App. 2002) (quoting Evitts v. Lucey, 469

(1985)). And, counsel plays a critical role in

protecting parents’ interests and ensuring that respondent parents

receive fair proceedings. See A.M., ¶¶ 28-30; Torrance P.,

.

¶ 39 Accordingly, we agree with these holdings and follow the great

weight of authority recognizing that respondent parents’ statutory

right to counsel in termination proceedings includes the right to

effective assistance of counsel.

B. When May a Court Consider a Claim of Ineffective Assistance of Counsel?

¶ 40 Dependency and neglect cases do not have a specific

procedure for challenging counsel’s effectiveness. C.H., 166 P.3d at

291. Divisions of this court have therefore permitted respondent

parents to challenge trial counsel’s effectiveness on direct appeal

from a judgment terminating their parental rights. S.L., ¶¶ 1, 58;

C.H., 166 P.3d at 291; D.G.,

; V.M.R.,

.

¶ 41 We agree with this procedure because it allows a reviewing

court to consider all errors that could potentially disrupt the finality

of a termination judgment in one step. People in Interest of P.N.,

16

(Colo. 1983) (“There must be finality to litigation

involving children.”); see also Santosky,

(Children

and parents “share a vital interest in preventing erroneous

termination of their natural relationship.”). Accordingly, this

procedure is the most expedient way to address an ineffective

assistance of counsel claim, and it mitigates the delay in achieving

permanency for children. See, e.g., § 19-1-109(1) (Appeals involving

dependency and neglect proceedings “shall be advanced on the

calendar of the appellate court and shall be decided at the earliest

practical time.”).

C. What is the Test for Evaluating an Ineffective Assistance of Counsel Claim?

¶ 42 Although Strickland has two prongs governing review of

ineffective assistance of counsel claims, the major issue here is the

prejudice component.

¶ 43 Previous divisions of this court have borrowed the Strickland

outcome-determinative test applied in criminal cases when

evaluating the prejudice component of a claim of ineffective

assistance of trial counsel in a termination of parental rights

proceeding. Under this test, parents must show that, but for

17 counsel’s deficient performance, the result of the termination

proceeding likely would have been different. See S.L., ¶ 59; C.H.,

166 P.3d at 290-92; D.G.,

; V.M.R.,

. That is, without counsel’s errors, the court would not have

terminated parental rights.

¶ 44 Some jurisdictions, however, have applied a “fundamental

fairness” test to determine prejudice. See, e.g., In re Geist,

(Or. 1990) (A parent “must show, not only that her trial

counsel was inadequate, but also that any inadequacy prejudiced

her cause to the extent that she was denied a fair trial, and,

therefore, that the justice of the circuit court’s decision is called

into serious question.”); see also People in Interest of RGB,

(Haw. 2010) (holding that the proper inquiry is “whether

the proceedings were fundamentally unfair as a result of counsel’s

incompetence”); Baker v. Marion Cty. Office of Family & Children,

(Ind. 2004) (“[W]e deem the focus of the

inquiry to be whether it appears that the parents received a

fundamentally fair trial whose facts demonstrate an accurate

determination.”).

18 ¶ 45 We likewise conclude that the focus of the prejudice inquiry

should be fundamental fairness. But, we do so because parents’

statutory right to counsel is one of the procedural protections

afforded in termination proceedings to ensure fundamental fairness.

See A.M., ¶¶ 27-30.

¶ 46 We, therefore, depart from other divisions of this court that

have exclusively applied the Strickland outcome-determinative test,

without considering fundamental fairness, to determine whether a

parent was prejudiced by counsel’s deficient performance in a

termination of parental rights proceeding. See People in Interest of

S.N-V.,

, 914 (Colo. App. 2011) (one division of the

court of appeals is not bound by the decision of another division).

¶ 47 Fundamental fairness has long been the hallmark of due

process in termination of parental rights proceedings. A.M., ¶ 28

(“Due process is ultimately rooted in the concept of fundamental

fairness . . . .”). The foundation of the Strickland test is criminal

defendants’ right to counsel under the Sixth Amendment. See

Strickland,

. But the foundation of the

fundamental fairness test is the fundamentally fair procedures

required in termination proceedings to protect parents’ fundamental

19 liberty interest under the Due Process Clause of the Fourteenth

Amendment. Santosky,

.

¶ 48 Following Santosky, fundamental fairness has also been the

benchmark by which our supreme court has measured the

sufficiency of procedures afforded to parents in termination

proceedings. A.M.D.,

. Our supreme court

considered whether a trial court’s error in not entering a formal

order of adjudication confirming the children’s status as dependent

or neglected impaired the fundamental fairness of the termination

proceeding or deprived the parent of due process under the

circumstances of that case. J.W., ¶ 20. In a different case, the

court considered whether full participation by foster parent

intervenors undermined the fundamental fairness of the

termination hearing. A.M., ¶ 38. The supreme court has also

observed that the statute authorizing an expert witness for an

indigent parent “is part of the complex statutory scheme designed

to accord fundamental fairness to all parties in parental rights

termination proceedings.” B.B. v. People,

(Colo.

1990).

20 ¶ 49 Fundamental fairness as a focus of Strickland’s prejudice

inquiry is also simply more suited to the highly discretionary nature

of termination proceedings. Because of the extent of discretion

afforded to the juvenile court, discerning the impact of counsel’s

deficient performance in the court’s decision to terminate a parent’s

rights, as required by an outcome-determinative test, is

problematic, if not impossible. In a criminal trial, the fact finder

must decide whether the defendant committed a particular crime by

determining whether the prosecution proved beyond a reasonable

doubt “the existence of all essential elements necessary to

constitute the offense charged.” Leonard v. People,

,

(1962). But in a termination proceeding, the

juvenile court, as fact finder, retains discretion in deciding whether

to terminate a parent’s rights.

¶ 50 We acknowledge that section 19-3-604(1)(c), C.R.S. 2018, sets

forth the statutory factors that a juvenile court must find by clear

and convincing evidence before it may terminate parental rights.

These include “an appropriate treatment plan approved by the court

has not been reasonably complied with by the parent . . . or has not

been successful,” “the parent is unfit,” and “the conduct or

21 condition of the parent . . . is unlikely to change within a

reasonable time.” § 19-3-604(1)(c)(I)-(III). The court must also

determine whether reasonable efforts by child-caring agencies have

been unable to rehabilitate the parent. § 19-3-604(2)(h).

¶ 51 By requiring the juvenile court to determine what is

appropriate, reasonable, fit, and likely, these statutory factors

require the court to exercise discretion in determining whether

sufficient evidence exists to terminate a parent’s rights. The

ultimate decision of whether to terminate the parent-child legal

relationship also remains in the juvenile court’s discretion. See

§ 19-3-604(1) (“The court may order a termination of the parent-

child legal relationship upon the finding by clear and convincing

evidence of any one of the following . . . .”).

¶ 52 The juvenile court retains this expansive discretion because its

decision depends on additional, fact-specific inquiries. For

example, it must determine whether there is a less drastic

alternative to termination, such as the possibility here of placing

the child in the permanent custody of the maternal grandmother.

See People in Interest of M.M.,

(Colo. 1986);

see also People in Interest of A.R.,

, ¶¶ 37-38. And,

22 most important, the court must give primary consideration to the

child’s “physical, mental, and emotional conditions and needs.”

§ 19-3-604(3). In other words, the juvenile court must determine

whether termination is in the child’s best interests, and that

determination is a fact-specific inquiry. See C.H., 166 P.3d at 289;

see also A.M., ¶ 26; In re Dependency of M.-A.F.-S.,

(Wash. Ct. App. 2018).

¶ 53 In making these highly discretionary determinations, the

juvenile court, as fact finder, must assess the credibility of

witnesses and determine the weight, sufficiency, and probative

value of the evidence. People in Interest of A.J.L.,

,

249-50 (Colo. 2010). And “the sanctity of trial court findings is

derived from the recognition that the trial judge’s presence during

the presentation of testimonial evidence provides an unparalleled

opportunity” to make these determinations. Id. at 250 (quoting

Page v. Clark,

,

(1979)).

¶ 54 Accordingly, an appellate court substantially defers to a

juvenile court’s findings in a termination proceeding and only

disturbs the court’s findings if they are “so clearly erroneous as to

find no support in the record.”

(quoting People in Interest of

23 C.A.K.,

(Colo. 1982)). An appellate court may

not reweigh the evidence or substitute its judgment for that of the

juvenile court. See id. at 253.

¶ 55 Because the outcome of a termination proceeding may depend

on any of a variety of discretionary inquiries, an appellate court can

only speculate on the extent to which counsel’s performance

affected the juvenile court’s decision to terminate a parent’s rights.

Thus, given the considerable discretion afforded to the juvenile

court, an appellate court usually cannot resolve whether there is a

reasonable probability that, but for counsel’s deficient performance,

the court would not have terminated parental rights. See D.G.,

.

¶ 56 But an appellate court can still assess whether a parent has

made a sufficient showing that counsel’s deficient performance

prejudiced the parent by rendering the proceeding fundamentally

unfair or unreliable. We, therefore, conclude that a fundamental

fairness test is the better approach.

D. The Fundamental Fairness Test

¶ 57 Applying a fundamental fairness test, then, a parent asserting

ineffective assistance of trial counsel must allege on appeal

24 sufficient facts to demonstrate that (1) counsel’s performance was

outside the range of professionally competent assistance and (2)

counsel’s deficient performance prejudiced the parent by rendering

the proceeding fundamentally unfair or unreliable. Lockhart,

; C.H., 166 P.3d at 291; see People in Interest of A.G.,

(Colo. 2011) (“We decline to decide whether

Strickland applies to a claim of ineffective assistance in a

termination hearing, but we acknowledge that if such a claim is

cognizable, at the very least, an allegation of prejudice would be

required.”).

1. Competent Assistance

¶ 58 To demonstrate that counsel’s performance was outside the

range of professionally competent assistance, we look to the

practice standards adopted by our supreme court for trial counsel

appointed on behalf of indigent parents in dependency and neglect

cases. Chief Justice Directive 16-02 includes minimum

requirements that a respondent parent’s counsel must pursue,

such as the following:

• “Advocate for the client’s goals and empower the client to

direct the representation and make informed decisions,”

25 Chief Justice Directive 16-02, Court Appointment

Through the Office of Respondent Parents’ Counsel,

attach. A, p.1 (effective July 1, 2017) (hereinafter CJD

16-02);

• “When needed, use formal discovery methods to obtain

information,” id. at p.2;

• “Timely file all pleadings, motions, and briefs,” id. at p.3;

• “Research applicable legal issues and advance legal

arguments when appropriate,” id.;

• “Prepare and make all appropriate motions and

evidentiary objections,” id.;

• “Present and cross-examine witnesses, prepare and

present exhibits,” id.; and

• “Request the opportunity to make opening and closing

arguments,” id.

¶ 59 Deciding whether trial counsel rendered deficient performance

is in many instances a factual endeavor because some practice

standards may not apply to a given case. See C.H., 166 P.3d at

291. Thus, a parent’s ineffective assistance of trial counsel claim

must first allege sufficient facts in the opening appellate brief that,

26 if proved, would allow a juvenile court on remand to conclude that

trial counsel’s performance was outside the range of professionally

competent assistance as defined by any chief justice directive or

another standard of professional conduct. Conversely, if the

parent’s allegations lack sufficient specificity, the ineffective

assistance claim may be summarily denied. See id.

2. Prejudice

¶ 60 To demonstrate prejudice under a fundamental fairness test,

the parent is not required to establish that counsel’s deficient

performance determined the result of the termination of parental

rights proceeding; instead, the parent must show that counsel’s

deficient performance rendered the termination proceeding

fundamentally unfair or unreliable. See Lockhart,

.

¶ 61 A judgment terminating parental rights may be unreliable

when, due to counsel’s deficient performance, the court did not

receive essential information favorable to the parent that directly

related to the termination criteria under section 19-3-604. And, a

termination proceeding is fundamentally unfair if, due to counsel’s

deficient performance, a parent is deprived of a significant

27 procedural safeguard to which the law entitles him or her. See

Lockhart,

.

¶ 62 The Supreme Court in Santosky noted that parents “faced

with forced dissolution of their parental rights have a more critical

need for procedural protections . . . .” Santosky,

.

Accordingly, when “the State moves to destroy weakened familial

bonds, it must provide the parents with fundamentally fair

procedures.”

. This means that the State must

provide parents adequate procedural safeguards in termination

hearings.

at 754 n.7 (The State may not deny “natural parents

constitutionally adequate procedures. Nor can the State refuse to

provide natural parents adequate procedural safeguards on the

ground that the family unit already has broken down.”).

¶ 63 Following Santosky, our supreme court agreed that a county

department “must meet certain due process and equal protection

standards before [a parent’s] constitutional rights can be

extinguished. Logically, the greater the deprivation, the greater the

procedural protection provided to parents.” L.L. v. People,

(Colo. 2000). Thus, because termination proceedings

affect important constitutional rights, “there must be substantial

28 compliance with statutory requirements.” A.M.D.,

.

These statutory requirements that provide procedural safeguards to

parents in termination proceedings include the following:

 Notice. See § 19-3-602(1) (“Termination of a parent-child

legal relationship shall be considered only after the filing of

a written motion alleging the factual grounds for

termination.”).

 Right to a separate hearing. See id. (“[T]ermination of a

parent-child legal relationship shall be considered at a

separate hearing following an adjudication of a child as

dependent or neglected. Such motion shall be filed at least

thirty days before such hearing.”).

 Counsel. See § 19-3-602(2) (“[T]he parent or parents shall

be advised of the right to counsel if not already represented

by counsel . . . .”).

 Appointment of counsel if indigent. See § 19-3-202(1)

(“[T]he court shall fully advise the respondent [parent] of his

or her . . . right to seek the appointment of counsel through

the office of respondent parents’ counsel . . . if the

29 respondent is unable to financially secure counsel on his or

her own.”).

 Appointment of an expert if indigent. See § 19-3-607(1),

C.R.S. 2018 (“An indigent parent has the right to have

appointed one expert witness of his or her own choosing

whose reasonable fees and expenses, subject to the review

and approval by the office of the respondent parents’

counsel, shall be paid by the state of Colorado.”).

 Review of all ordered evaluations. See § 19-3-607(2) (“All

ordered evaluations shall be made available to counsel at

least fifteen days prior to the hearing.”).

 Appointment of a guardian ad litem. See § 19-3-602(3) (“A

guardian ad litem, who shall be an attorney and who shall

be the child’s previously appointed guardian ad litem

whenever possible, shall be appointed to represent the

child’s best interests in any hearing determining the

involuntary termination of the parent-child legal

relationship.”).

 Proof by clear and convincing evidence. See § 19-3-604(1)

(“The court may order a termination of the parent-child 30 legal relationship upon the finding by clear and convincing

evidence . . . .”).

 Right to cross-examine adverse parties and call witnesses.

A.M., ¶ 29.

 The juvenile court’s consideration and elimination of less

drastic alternatives to terminating parental rights. M.M.,

.

 Right to appeal an adverse judgment. See § 19-1-109(2)(b)

(“An order terminating . . . the legal relationship between a

parent or parents and one or more of the children of such

parent or parents on a petition, or between a child and one

or both parents of the child, shall be a final and appealable

order.”).

See A.M., ¶¶ 28-29.

¶ 64 In light of these requirements, a parent’s ineffective assistance

of trial counsel claim must also allege sufficient facts in the opening

appellate brief that, if proved, would allow a juvenile court on

remand to conclude, on the one hand, that counsel’s deficient

performance impaired a significant procedural safeguard. See

Lockhart,

. Significant procedural safeguards 31 include, for example, the right to notice, see § 19-3-602(1), the right

to a separate hearing, see id., the right to counsel and appointed

counsel if indigent, see §§ 19-3-602(2), 19-3-202(1), proof by clear

and convincing evidence, see § 19-3-604(1), and the right to appeal,

see § 19-1-109(2)(b).

¶ 65 Or, on the other hand, a parent must allege sufficient facts

that, if proved, would allow a juvenile court on remand to conclude

that because of counsel’s deficient performance, the court did not

receive essential information favorable to the parent that related to

the termination criteria under section 19-3-604. Failure to receive

essential information might relate to counsel’s efforts to rebut the

county department’s evidence through cross-examining adverse

parties, calling witnesses, obtaining an expert witness, timely review

of an ordered evaluation, or litigating a less drastic alternative to

termination when a relative has previously been identified. See

§ 19-3-602(2) (The court must advise a parent that relatives “must

file a request for guardianship and legal custody of the child within

twenty days” of the filing of the motion to terminate parental

rights.).

32 ¶ 66 But, again, if the parent’s allegations lack sufficient specificity,

such as how the information was essential to the parent’s case, the

ineffective assistance claim may be summarily denied. See C.H.,

166 P.3d at 291.

¶ 67 Nonetheless, a reviewing court may, in some circumstances,

find that counsel’s deficient performance was so likely to prejudice

the parent that the termination proceeding was presumptively

unfair and unreliable. See United States v. Cronic,

(1984). That is, “if counsel entirely fails to subject the

[adverse party’s] case to meaningful adversarial testing,” then “the

adversary process itself” is “presumptively unreliable.”

This is

so because, “as our adversary system presupposes, accurate and

just results are most likely to be obtained” in termination of

parental rights proceedings “through the equal contest of opposed

interests.” Lassiter v. Dep’t of Soc. Servs.,

(1981).

¶ 68 Accordingly, where an appellate court concludes that counsel’s

deficient performance rendered the termination proceeding

presumptively unfair or unreliable, it need not remand a parent’s

ineffective assistance claim to the juvenile court for further

proceedings because “the cost of litigating” the effect of counsel’s

33 deficient performance “in a particular case is unjustified.” Cronic,

.

¶ 69 We now turn to mother’s ineffective assistance of counsel

claim.

E. Mother’s Ineffective Assistance of Counsel Claim

¶ 70 Mother’s ineffective assistance of counsel claim, as we

understand, addresses the fact of the earlier adjudication and other

deficiencies at the termination hearing. We address each in turn.

1. The Fact of the Earlier Adjudication

¶ 71 Mother, as we understand, points to a lack of compliance with

the statutory requirements for establishing the fact of the earlier

adjudication and contends that her counsel was ineffective at the

adjudicatory stage because he did not

 make a record of her request for an adjudicatory hearing,

including requesting or waiving a jury trial;

 represent her position at the adjudicatory hearing (as

opposed to purporting to represent her “best interests”); and

 request that evidence be presented at the adjudicatory

hearing.

34 Mother also contends that her counsel was ineffective because he

did not object to the court entering an adjudication without

ensuring that her admission was knowing and voluntary.

¶ 72 To address mother’s contentions, we must first determine

whether her claim is cognizable. Because we conclude her claim is

cognizable, we must then determine whether she has alleged

sufficient facts that, if proved, would allow a juvenile court on

remand to conclude that she received ineffective assistance of trial

counsel at the termination hearing.

a. The Claim is Cognizable

¶ 73 “[T]he fact of an earlier dependency or neglect adjudication

must be established by clear and convincing proof” at a termination

hearing. A.M.D.,

n.14; see § 19-3-604(1). This fact

rests on proof of the child’s status as dependent or neglected. See

J.W., ¶ 32 (noting that mother’s admission established the

children’s factual status as dependent or neglected and thus met

the purpose of the adjudicatory process). This status is proved at

the earlier adjudicatory hearing in several ways.

¶ 74 First, a county department may prove that the factual

allegations in the petition are supported by a preponderance of the

35 evidence under section 19-3-505(1) and (7)(a). See People in Interest

of A.H.,

(Colo. App. 2011). The fact of an

adjudication may be determined by a court or by a jury. § 19-3-

202(2); see People in Interest of K.J.B.,

; A.H.,

. Or, the material facts may be undisputed. See

People in Interest of S.N.,

.

¶ 75 Second, a parent may waive his or her right to an adjudicatory

hearing and enter an admission to the petition. People in Interest of

N.D.V.,

(Colo. App. 2009); see C.R.J.P. 4.2(b).

When the parent admits or stipulates that the child is dependent or

neglected, the county department is relieved of its burden of proving

the allegations in the petition. See People in Interest of A.M.,

, 479 (Colo. App. 1989). Before accepting the admission,

the court must find that (1) the parent understands his or her

rights, the allegations in the petition, and the effect of the

admission; and (2) the admission is voluntary. People in Interest of

N.G.,

; see also C.R.J.P. 4.2(c)(1)-(2).

¶ 76 (Some juvenile courts enter an adjudication by default. See

generally K.J.B.,

. In our case, the court found at the

termination hearing that the child had been adjudicated dependent

36 and neglected by default. We agree with mother that the record

does not show that the court entered a default judgment against

her at the adjudicatory hearing. We express no opinion on whether

a default would be an appropriate method to prove an adjudication.

See id.)

¶ 77 But, if, due to counsel’s deficient performance, a county

department did not have to prove the factual allegations in the

petition by a preponderance of the evidence and the parent did not

make a knowing and voluntary admission, the child’s factual status

as dependent or neglected was not properly established.

¶ 78 Because the fact of adjudication must be established by clear

and convincing evidence at a termination of parental rights hearing,

A.M.D.,

n.14, a claim attacking this fact based on

counsel’s performance at the adjudicatory stage is cognizable. But

this claim is only cognizable in the narrow circumstance where,

because of counsel’s deficient performance, the county department

did not prove the child’s status as dependent or neglected by a

preponderance of the evidence or by a parent’s knowing and

voluntary admission. See J.W., ¶ 32. In so concluding, we express

no opinion on whether a parent may raise an ineffective assistance

37 of counsel claim in the direct appeal of an adjudication after the

entry of disposition. See § 19-1-109(2)(c).

¶ 79 Thus, for us to consider a claim of ineffective assistance of

counsel based on counsel’s performance at the adjudicatory hearing

in a direct appeal from a judgment terminating parental rights, a

parent must allege sufficient facts in the opening appellate brief

that, if proved, would allow a juvenile court on remand to conclude

that

 counsel rendered deficient performance at the adjudicatory

hearing; and

 due to counsel’s deficient performance, there was not

substantial compliance with the requirements for

establishing a child’s status as dependent or neglected.

¶ 80 We now turn to mother’s contentions.

b. Mother’s Contentions

¶ 81 Mother’s contention that her counsel made no record of her

request for an adjudicatory hearing is unsupported. Her counsel

appeared before the court in early August 2016 to set the matter for

a hearing. Still, as mother correctly asserts, counsel neither

38 requested nor waived mother’s right to have a jury at the

adjudicatory hearing.

¶ 82 When the adjudicatory hearing began, mother’s counsel

informed the court that he was unsure why mother was not present

because he “had arrangements with” mother to be there. Mother’s

counsel stated that he would proceed in mother’s “best interests”

and that it was in her “best interests” for the court to enter a no-

fault adjudication.

¶ 83 The record does not show why counsel believed it was in

mother’s best interests to accept a no-fault adjudication in her

absence. Counsel’s obligation, however, was to advocate for

mother’s position, not to represent his idea of her “best interests.”

CJD 16-02, attach. A, p.1; see also A.L.L. v. People in Interest of

C.Z.,

(Colo. 2010). Thus, because of

counsel’s deficient performance, the court adjudicated the child

dependent or neglected without requiring the Department to prove

the allegations in the petition by a preponderance of the evidence or

ensuring that mother was making a knowing and voluntary

admission.

39 ¶ 84 Accordingly, we conclude that mother has alleged sufficient

facts that, if proved, would allow a juvenile court on remand to

conclude that trial counsel’s performance was outside the range of

professionally competent assistance as defined by CJD 16-02 and

that, due to counsel’s deficient performance, there was not

substantial compliance with the requirements for establishing the

child’s status as dependent or neglected. CJD 16-02, attach. A,

pp.1, 3 (noting that the parent’s attorney shall advocate for the

client’s goals, empower the client to make informed decisions, and

make all appropriate motions and evidentiary objections).

¶ 85 Thus, mother has made a sufficient showing that counsel’s

deficient performance relieved the Department of its burden of

proving the fact of the earlier adjudication by clear and convincing

evidence. § 19-3-604(1)(c); A.M.D.,

n.14 (“[T]he fact

of an earlier dependency or neglect adjudication must be

established by clear and convincing proof at a subsequent

termination of parental rights proceeding since the existence of a

dependency or neglect adjudication is an essential prerequisite to

termination.”).

40 ¶ 86 Accordingly, mother’s counsel did not subject this essential

element to any meaningful adversarial testing, rendering the

termination proceeding presumptively unfair and unreliable.

Cronic,

.

2. Termination Hearing

¶ 87 Mother also contends that her counsel was ineffective at the

termination hearing because he

 made no objection to admitting exhibits containing

inadmissible hearsay statements;

 agreed to proceed by offer of proof; and

 did not effectively litigate placing the child with maternal

grandmother as a less drastic alternative.

We agree, in part. Applying the fundamental fairness test, we

conclude that overall mother has made a sufficient showing of

ineffective assistance of counsel at the termination hearing.

a. Exhibits

¶ 88 We initially conclude that mother has not made a sufficient

showing of ineffective assistance based on her counsel’s failure to

object to the admission of the exhibits. Mother does not explain

which exhibits contained inadmissible hearsay or how the 41 admission of the exhibits led to a fundamentally unfair or

unreliable proceeding.

b. Offer of Proof

¶ 89 But we conclude that mother has made a sufficient showing of

ineffective assistance based on her counsel’s agreement to proceed

by offer of proof at the termination hearing.

¶ 90 Offers of proof are governed by CRE 103. CRE 103(a)(2)

provides that when a trial court makes a ruling excluding evidence,

“the substance of the evidence [i]s made known to the court by

offer.” An offer of proof apprises the court of the nature and

substance of proposed evidence. See Lanari v. People,

(Colo. 1992). But an offer of proof is not evidence. See

People v. Gillis,

(Colo. App. 1994).

¶ 91 We recognize there is an opinion of the Colorado Bar

Association’s Ethics Committee broadly stating that in dependency

and neglect proceedings, a respondent parent’s attorney “may agree

to, or not object to, the presentation of evidence by offers of proof.”

Colo. Bar Ass’n Ethics Comm., Formal Op. 114 (modified June 19,

2010) (hereinafter, Formal Opinion 114). We also recognize that

footnote 15 of Formal Opinion 114 states that such offers of proof

42 are not the same as offers of proof under CRE 103(a)(2) and that

many Colorado jurisdictions use informal offers of proof to expedite

proceedings.

¶ 92 Whether proffered evidence at a termination of parental rights

hearing is called an “offer of proof” or something else is

unimportant. Although the Children’s Code permits juvenile courts

to conduct hearings informally, see § 19-1-106(2), C.R.S. 2018,

Formal Opinion 114 does not specifically address the use of “offers

of proof” at termination of parental rights proceedings, and our

supreme court has held that “before a parent-child relationship may

be terminated due process of law requires that the state support the

alleged grounds for termination by a standard of proof no less

demanding than clear and convincing evidence.” A.M.D.,

(referring to the Supreme Court’s holding in Santosky). Only

if “a parent is deemed unfit when tested by demanding standards is

a parent-child relationship to be terminated.”

(citation

omitted). Thus, the informal “offer of proof” proceeding discussed in

Formal Opinion 114 should not serve as a substitute for an

evidentiary termination of parental rights proceeding. See People in

Interest of L.M.,

(noting the “substantial burden of

43 proof that the legislature has imposed on the State for terminating

parental rights in a dependency and neglect proceeding”).

¶ 93 And, statements by an attorney representing the county

department about how the caseworker would testify at a

termination of parental rights proceeding is not equivalent to live

testimony made under oath. See People v. Fry,

(Colo. 2004) (“[T]estimony is much more reliable when it is given

under oath at trial where the witness can be cross-examined and

the [fact finder] may observe the witness’s demeanor.”). (We do not

mean to suggest that it is always improper for counsel to stipulate

to facts not in dispute.)

¶ 94 Mother’s counsel here stated that he did not “have any

objection” to the county attorney talking about the evidence instead

of offering live testimony at the termination hearing. Mother’s

counsel also neither contested the county attorney’s statements,

nor made clear that he was not stipulating to the statements. See

Formal Opinion 114 at n.15 (cautioning opposing counsel to not

stipulate to the statements made in an “offer of proof” proceeding).

As a result, the court terminated mother’s parental rights without

hearing any testimony and with little evidence.

44 ¶ 95 Accordingly, mother has made a sufficient showing that trial

counsel’s performance was outside the range of professionally

competent assistance as defined by CJD 16-02. CJD 16-02, attach.

A, p.3 (providing that the parent’s attorney shall advance a legal

argument, prepare and make all evidentiary objections, present and

cross-examine witnesses, present exhibits, and request the

opportunity to present opening and closing arguments). And,

because mother’s counsel did not subject the Department’s case to

any meaningful adversarial testing, see Cronic,

,

counsel’s deficient performance further rendered the termination

proceeding presumptively unfair and unreliable. See

¶ 96 Thus, we reverse the termination judgment and remand for a

new termination of parental rights hearing.

c. Less Drastic Alternatives

¶ 97 Mother mounts two challenges regarding less drastic

alternatives to termination. She contends that (1) the court erred in

finding no less drastic alternative to termination, and (2) mother’s

counsel did not effectively litigate placing the child with maternal

grandmother as a less drastic alternative to termination. Because

these two issues are so intertwined, and we are otherwise

45 remanding for a new termination of parental rights hearing, we

need not address mother’s ineffective assistance of counsel

contentions regarding a less drastic alternative.

¶ 98 The maternal grandmother asked to be made a party to the

case and even moved for the court to allocate parental

responsibilities for the child to her. Mother’s counsel indicated that

the maternal grandmother could be a long-term placement for the

child and could care for the child without an adoption. But he did

not move for APR to the maternal grandmother, respond to the

maternal grandmother’s APR motion, object to the juvenile court’s

denial of the maternal grandmother’s motion to intervene, or timely

request an evidentiary hearing on the matter.

¶ 99 Because mother’s counsel did not litigate this issue, the record

is unclear as to whether the juvenile court fully considered the

maternal grandmother as a less drastic alternative to termination.

This may be the reason the judge could not recall at a later hearing

that maternal grandmother had moved for custody of the child

before the termination hearing.

¶ 100 A reviewing court often presumes that the juvenile court

considered and eliminated less drastic alternatives to termination if

46 the court’s findings conform to the statutory criteria for termination

and its findings are supported by clear and convincing evidence.

C.S.,

. But counsel did not timely litigate the less

drastic alternative issue, the juvenile court’s findings are based on

little evidence, and the court at a later hearing indicated that it

wanted to consider maternal grandmother as a less drastic

alternative to termination. Thus, this is not a case where we can

presume anything about maternal grandmother based on the

juvenile court’s findings regarding the other termination criteria and

their record support.

¶ 101 Indeed, the juvenile court indicated it likely would have denied

the Department’s motion to terminate parental rights and that there

was a less drastic alternative. For these reasons, in the interest of

judicial economy, the juvenile court may consider maternal

grandmother as a less drastic alternative before conducting a full

evidentiary termination hearing.

IV. Conclusion

¶ 102 We reverse the judgment and remand the case to the juvenile

court for further proceedings.

47 ¶ 103 As a threshold matter, the juvenile court may consider the

maternal grandmother as a viable less drastic alternative to

termination. If, however, the court determines that maternal

grandmother is not a viable less drastic alternative, the court must

hold a new evidentiary termination hearing and allow mother to

present evidence and argument in opposition. The court and

parties must give priority on the docket to holding such a hearing.

See § 19-5-202.5(1), C.R.S. 2018.

¶ 104 Any party may appeal the order terminating or refusing to

terminate the legal relationship between mother and her child.

§ 19-1-109(2)(b).

JUDGE ROMÁN and JUDGE LICHTENSTEIN concur.

48