Peo in Interest of EM
Peo in Interest of EM
Peo in Interest of EM
Opinion
21CA0546 Peo in Interest of EM 12-09-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA0546
Fremont County District Court No. 19JV58
Honorable Lynette M. Wenner, Judge
The People of the State of Colorado,
Appellee,
In the Interest of E.M., a Child,
and Concerning P.C.,
Appellant.
JUDGMENT AFFIRMED
Division V
Opinion by JUDGE HARRIS
Richman and Gomez, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 9, 2021
Brenda L. Jackson, County Attorney, Nicole L. Bartell, Assistant County
Attorney, Cañon City, Colorado, for Appellee
Jenna L. Mazzucca, Guardian Ad Litem
Lindsey Parlin, Office of Respondent Parents’ Counsel, Ewa Beach, Hawaii , for
Appellant P.C.
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¶ 1 In this dependency and neglect case, P.C. (father) appeals the
juvenile court’s judgment terminating his parent-child legal
relationship with E.M. (the child). Father, who was incarcerated at
the time of the termination hearing, contends that the juvenile
court violated his procedural due process rights by proceeding with
the termination hearing in his absence. According to father, the
juvenile court should have continued the hearing so that he could
have appeared by Webex. We disagree and, therefore, affirm.
I. Relevant Facts
¶ 2 In July 2019, the Fremont County Department of Human
Services filed a petition in dependency and neglect concerning the
then four-month-old child (and her siblings, who are not part of this
appeal). The child was adjudicated dependent and neglected as to
father by default in October 2019, and, shortly thereafter, the court
adopted a treatment plan for him. In June 2020, the Department
filed a motion to terminate father’s parental rights.
¶ 3 A hearing on the termination motion was initially scheduled
for October 27, 2020. At the child’s mother’s request, the court
reset the hearing to December 2020.
2
¶ 4 Father was incarcerated in the Pueblo County jail at the time
of the December hearing. Due to father’s absence, the juvenile
court bifurcated father’s termination hearing from the child’s
mother’s hearing and continued father’s portion until January
2021. The court granted father’s counsel’s application for a writ of
habeas corpus ad testificandum for father so that he could appear
at the January 2021 hearing via Webex.
¶ 5 Just before the January hearing, the juvenile court granted
the Department’s unopposed motion for a continuance and reset
the hearing to February 17, 2021. The court also granted father’s
counsel’s new application for a writ for father to appear at the
February hearing by Webex from the jail.
¶ 6 However, shortly before the hearing date, the court and
counsel learned that father was scheduled to be transferred from
the jail back to the Department of Corrections (DOC) on February
16. The guardian ad litem (GAL) filed a motion requesting that the
juvenile court hold the termination hearing in father’s absence to
prevent further delay in the proceedings. The GAL’s motion noted
that father had been incarcerated since “at least February of 2020”
and had not had parenting time with the child since November 4,
3
2019. Father’s counsel objected to proceeding in father’s absence,
arguing that father had a due process right to appear. He advised
the court that “while DOC is cooperative in allowing inmates to
appear by WebEx, they require two weeks’ notice,” and he requested
a continuance “until such time as Respondent Father can appear
by WebEx.”
¶ 7 The juvenile court granted the GAL’s motion, and the hearing
began on February 17 without father present. But the hearing was
not completed on February 17, so the court scheduled additional
hearing time on March 3, 2021, two weeks later.
¶ 8 At the March 3 hearing, father’s counsel objected to
proceeding without father. He explained that father was “in
Centennial” and could be available “within a reasonable amount of
time.” He told the court that “DOC requires 2 weeks without a
writ.” The juvenile court overruled the objection, noting that in the
two weeks since the last hearing, no “attempts were made to get
[father] here today[;] [n]o writs were issued or requested.”
¶ 9 After the hearing, the court granted the motion to terminate
father’s parent-child legal relationship with the child.
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II. Discussion
¶ 10 Father contends that his due process rights were violated
when the juvenile court proceeded in his absence rather than
granting his motion to continue the termination hearing so that he
could appear by Webex. He says that the court’s decisions deprived
him of “an opportunity to participate in the termination hearing and
present evidence.” We discern no basis for reversal.
¶ 11 In a proceeding to terminate the parent-child legal
relationship, due process requires that the parent be given notice of
the termination proceedings, an opportunity to be heard or defend,
and the assistance of legal counsel. People in Interest of V.M.R., 768
P.2d 1268, 1270 (Colo. App. 1989); see also A.M. v. A.C., 2013 CO
16, ¶ 29 (listing additional procedural protections provided to
parents at a terminating hearing). Because dependency and neglect
proceedings are civil in nature, neither due process nor other
constitutional guarantees require a parent’s presence at a
termination hearing. People in Interest of C.G., 885 P.2d 355, 357
(Colo. App. 1994).
¶ 12 Here, the record shows that father received notice of the
termination proceedings, he was represented by counsel throughout
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the case, and counsel was present at the termination hearing and
able to participate on his behalf.
¶ 13 Most importantly, the juvenile court did not deny any request
by father to appear by Webex. To the contrary, the court granted
each request for a writ submitted by father’s counsel. The date on
which father could have testified was March 3, 2021. But father’s
counsel did not ask the court to issue a writ to secure father’s
attendance on that date nor did he otherwise attempt to arrange for
father’s presence at the hearing by video or telephone. Under these
circumstances, we cannot conclude that the juvenile court violated
father’s due process rights.
¶ 14 Nor are we persuaded that the court abused its discretion by
denying father’s request, made at the March 3 hearin g, for a
continuance of the remainder of the termination hearing.
¶ 15 When ruling on a motion to continue, the juvenile court
should balance the need for orderly and expeditious administration
of justice against the facts underlying the motion and the child’s
need for permanency. C.S. v. People in Interest of I.S., 83 P.3d 627,
638 (Colo. 2004); see also CJD 96-09(4) (“Continuances will be
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granted by a Judicial Officer only upon a finding that a manifest
injustice would occur in the absence of a continuance.”).
¶ 16 Where, as here, expedited permanency procedures apply, the
court shall not grant a continuance unless good cause is shown,
and the court finds that the child’s best interests will be served by a
continuance. §§ 19-3-104, 19-3-508(3)(a), 19-3-602(1), C.R.S.
2021.
¶ 17 The court determined that it was not in the child’s best
interest to continue the hearing again. In making that
determination, the court considered legally appropriate factors, all
of which find support in the record: the history of delay in the case,
father’s lack of participation throughout the case, and the child’s
need for permanency.
¶ 18 In the juvenile court, father did not explain why continuing the
termination hearing would be in the child’s best interests. (He does
not offer any explanation on appeal either.) At the time of the
termination hearing, the child had been in an adoptive foster
placement for most of her life. The caseworker testified that the
child needed permanency as soon as possible and that remaining
with her current placement was in her best interests.
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¶ 19 In any event, father has failed to allege, much less show, any
prejudice from the court’s denial of his request for a continuance.
See Interest of Spohr, 2019 COA 171, ¶ 32 (To be entitled to relief,
the “moving party must show that the denial of the continuance
resulted in actual prejudice.”). He did not make an offer of proof in
the juvenile court, see CRE 103(a)(2), and does not explain on
appeal what he would have testified about or how his testimony (or
other participation) would have affected the outcome of the
proceeding.
¶ 20 The record shows that at the time of the termination hearing,
father had seen the child only a couple of times and had not had
any contact with her since early November 2019, when she was
eight months old. He had failed to engage in services and had
mostly been incarcerated during the pendency of the case. Father
does not dispute the juvenile court’s findings that he had failed to
comply with his treatment plan, was unfit, and was unlikely to
become fit within a reasonable time. Accordingly, we discern no
basis to reverse the court’s termination order.
III. Conclusion
¶ 21 The judgment is affirmed.
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JUDGE RICHMAN and JUDGE GOMEZ concur.
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