A.R. v. D.R.

456 P.3d 1266

A.R., Petitioner

and

The People of the State of Colorado, Petitioner

In the Interest of A.R., Minor Child

v.D.R., Respondent:

Supreme Court Case No. 18SC919

Supreme Court of Colorado.

February 10, 2020

Attorneys for Petitioner A.R.: Anna N.H. Ulrich Attorney at Law, L.L.C., Anna N.H. Ulrich, Guardian ad litem, Crestone, Colorado

Attorneys for Petitioner the People of the State of Colorado: Gradisar Trechter Ripperger Roth, David A. Roth, Pueblo, Colorado

Attorneys for Respondent: Jordan Juvenile and Family Law, LLC, Melanie Jordan, Golden, Colorado

Attorneys for Amicus Curiae National Association of Counsel for Children: Brooke Silverthorn, Christopher Church, Denver, Colorado

Attorney for Amicus Curiae Office of Respondent Parents’ Counsel: Ruchi Kapoor, Denver, Colorado

Attorneys for Amicus Curiae Office of the Child’s Representative: Sheri Danz, Cara Nord, Denver, Colorado

En Banc

JUSTICE GABRIEL delivered the Opinion of the Court.

¶1 This case requires us to decide a number of issues relating to claims of ineffective assistance of counsel in the context of a dependency and neglect proceeding. Specifically, we are asked to decide (1) whether, in a direct appeal from a judgment terminating parental rights, an appellate court may consider a claim of ineffective assistance of counsel based on counsel’s performance at an adjudicatory hearing; (2) the correct standard for determining whether a parent in a dependency and neglect proceeding was prejudiced by counsel’s ineffective performance; and (3) whether an appellate court may vacate a juvenile court’s decision in a dependency and neglect proceeding on the ground of ineffective assistance of counsel without remanding the case for further evidentiary development.¹

¶2 Addressing these issues in turn, we first conclude that in a direct appeal from a judgment terminating parental rights, an appellate court may consider a claim of ineffective assistance of counsel based on counsel’s performance at an adjudicatory hearing only when the party claiming ineffective assistance did not have a full and fair opportunity to assert such a claim immediately after his or her child was adjudicated dependent and neglected (e.g., by filing a timely direct appeal from the adjudication). Next, we conclude, contrary to the division below, that the proper test for prejudice in the context of a claim of ineffective assistance of counsel in a dependency and neglect proceeding is the test for prejudice set forth in Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and not a fundamental fairness test. Accordingly, to establish prejudice from counsel’s deficient performance in a dependency and neglect proceeding, a party must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. Last, we conclude that an appellate court may vacate a juvenile court’s decision in a dependency and neglect proceeding on the ground of ineffective assistance of counsel without remanding for further fact-finding when either (1) the record is sufficiently developed to allow the appellate court to decide the question of counsel’s ineffectiveness or (2) the record establishes presumptive prejudice under the standard set forth in United States v. Cronic , 466 U.S. 648, 656–62, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).

¶3 Applying these determinations to the facts and claims now before us, we conclude that respondent D.R. ("mother") (1) had a full and fair opportunity to appeal the adjudication entered after the adjudicatory hearing and thus cannot now raise her claim that her counsel was ineffective at that hearing; (2) has not established a basis for presuming prejudice in this case and has not shown that her counsel was ineffective in allowing the Pueblo County Department of Human Services (the "Department") to proceed by way of an offer of proof at the termination hearing; and (3) has established that her counsel was ineffective in not properly litigating the issue of less drastic alternatives to termination and therefore a remand for further proceedings is warranted and appropriate.

¶4 Accordingly, we affirm the judgment of the division below, albeit on different grounds, and we remand this case for further proceedings consistent with this opinion.

I. Facts and Procedural History

¶5 In the evening of July 9, 2016, petitioner A.R.’s (the "child’s") paternal step-grandmother took him to the emergency room at St. Mary Corwin Medical Center in Pueblo to receive treatment for scabies. A physician who treated the then-six-month-old child determined that the degree of scabies on the child evinced a case of neglect, and, later that night, another doctor confirmed that the child also had a skull fracture. The psychiatric liaison at the hospital thus contacted the Department, and a crisis caseworker arrived soon thereafter.

¶6 The step-grandmother reported to the crisis caseworker that the child and his parents had stayed with her for about six weeks, from late April through May 2016, and that, in her view, the child’s parents were not caring for the child appropriately. The step-grandmother further stated that the child appeared behind developmentally and that his parents were not working, sleeping all day, and using drugs.

¶7 While the crisis caseworker was speaking to the step-grandmother, a Pueblo police officer arrived and stated that she was taking custody of the child due to concerns of neglect. Thereafter, the child was transferred to the Children’s Hospital in Denver for treatment of his skull fracture.

¶8 The next afternoon, pursuant to the step-grandmother’s instruction, mother contacted the crisis caseworker. The crisis caseworker explained that the Department had custody of the child and what the concerns were. Mother denied that she abused substances or that she had abused or neglected her child in any way, and she expressed surprise when she was told that her child had a skull fracture, stating that she did not know how the child had sustained that injury.

¶9 The Department subsequently initiated this dependency and neglect proceeding, and the juvenile court granted the Department continued custody of the child and ordered the child placed with the step-grandmother.

¶10 Three months later, the juvenile court held an adjudicatory hearing with respect to both parents. When mother did not appear, her counsel told the court that he had made arrangements with mother to attend the hearing. Counsel indicated that he did not know why mother was not present. Counsel then stated, "I did advise my client [of] the status of the ma[t]ter and the position of The Department and it—it may just well be that she determined that was a result that she might be okay with and I’ll let the County Attorney go forward on that [sic]." Counsel added, "[S]o I’m going to proceed in my client’s best interests ...."

¶11 Apparently in an effort to move the case forward, and after speaking with counsel for both mother and the child’s father (who also did not appear), the Department asked the court for leave to amend the Department’s dependency and neglect petition to include an allegation that the child was dependent or neglected through no fault of the child’s parents and to allow the Department to rest on the Report of Investigation filed with the petition. The Department sought to proceed in this fashion because it had "issues regarding [its] witnesses, as well."

¶12 Mother’s counsel responded, "I think, it would be in my client’s best interests for me ... [t]o accept [a no-fault adjudication] and the treatment plan [that the Department had proposed]." The child’s guardian ad litem ("GAL") agreed with this procedure, stating that it was in the child’s best interests to "move forward," and the court therefore entered a no-fault adjudication and approved the proposed treatment plan. Mother did not appeal this adjudication.

¶13 The matter proceeded, and at a hearing that took place approximately four months later, the Department indicated that mother had just begun to get involved in the case and wanted to become engaged in it but that the Department nonetheless intended to file a motion for termination of parental rights based on mother’s general noncompliance with her treatment plan. Mother’s counsel replied by confirming that mother was "trying to [b]ecome involved" in the case, and he noted that mother had handed him a document indicating that she wanted the child to be placed with the child’s maternal grandmother (the child was still placed with his paternal step-grandmother at that time).

Counsel, however, does not appear to have filed any motions or briefs requesting such a placement.

¶14 One month later, the Department filed its motion for termination of parental rights. In this motion, the Department alleged, as pertinent here, that (1) mother had not reasonably complied with her treatment plan and the treatment plan had not been successful; (2) mother’s conduct or condition was unlikely to change within a reasonable period of time; (3) mother was unfit; (4) continuation of the parent-child legal relationship was likely to result in a grave risk of death or serious injury to the child; and (5) it would be in the child’s best interests to terminate the parent-child relationship between child and mother.

¶15 Thereafter, the child’s maternal grandmother, acting pro se, moved to intervene and requested custody of the child "if mother is unable to regain [custody] of him." At that point, mother’s counsel filed what he called a "Notice of Deposit" with an attached handwritten letter from mother requesting that the maternal grandmother "get temp[o]rary custody of [the child] just for the time being till [sic] he[’]s back in my custody."

¶16 The court does not appear to have acted on counsel’s so-called "Notice of Deposit." In response to the maternal grandmother’s motion for leave to intervene, however, the court...