     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
                                                             January 2, 2020

                                 2020COA3

No. 18CA2158, People in Interest of Z.M. — Appellate
Procedure — Record on Appeal — Supplementing the Record on
Appeal After Record is Transmitted

     In this dependency and neglect proceeding, a division of the

court of appeals addresses a question of first impression in

Colorado: What is the meaning of the word “material” in C.A.R.

10(f)(2)? Father argues that all documents, transcripts, and other

materials related to the proceeding that is the subject of the appeal

are necessarily material for purposes of the appellate record. The

division rejects this argument, concluding that the Colorado

Appellate Rules and Colorado case law necessarily contemplate a

narrower definition.
COLORADO COURT OF APPEALS                                         2020COA3


Court of Appeals No. 18CA2158
El Paso County District Court No. 17JV537
Honorable Jessica L. Curtis, Judge


The People of the State of Colorado,

Appellee,

In the Interest of Z.M., G.F., and L.M., Children,

and Concerning J.F.,

Appellant.


                            JUDGMENT AFFIRMED

                                  Division VI
                          Opinion by JUDGE BERGER
                         Terry and Welling, JJ., concur

                          Announced January 2, 2020


Diana K. May, County Attorney, Melanie Douglas, Special Assistant County
Attorney, Gunnison, Colorado, for Appellee

Anna N.H. Ulrich, Guardian Ad Litem

Steven E. Baum, Office of Respondent Parents’ Counsel, Ainsley E. Bochniak,
Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant
¶1    In this dependency and neglect proceeding, J.F. (father)

 appeals the termination of his parent-child legal relationship with

 G.F. and Z.M. (the children).1 He argues that the lack of a complete

 record on appeal denied him due process and that the juvenile

 court erred when it determined that there were no less drastic

 alternatives to termination.

¶2    C.A.R. 10(f)(2) provides:

            If any material part of the trial court record is
            omitted or missing from the record by error or
            accident or is misstated therein after the
            record is transmitted to the appellate court,
            the appellate court, on motion or of its own
            initiative, may order that the supplemental
            record be certified and transmitted.

¶3    We address a question of first impression in Colorado: What is

 the meaning of the word “material” in C.A.R. 10(f)(2)? Because we

 conclude both that father failed to demonstrate that the missing

 portions of the record were material and that the record supports

 the juvenile court’s findings, we affirm.




 1 Parental rights to another child, L.M., were also at issue in this
 case. But L.M. is not J.F.’s child, and there are no issues with
 respect to L.M. before us.

                                    1
                          I.    Background

¶4    The El Paso County Department of Human Services moved for

 an adjudication that the children were dependent or neglected by

 father. The court granted the motion, and the children were placed

 with maternal aunt and uncle. The court also adopted a treatment

 plan for father.

¶5    The guardian ad litem (GAL) later moved to terminate father’s

 parental rights, alleging that father had not complied with his

 treatment plan. After a hearing, the juvenile court granted the

 motion.

¶6    Father then appealed to this court. He designated thirty-two

 hearing transcripts for the appeal. Several months later, it was

 discovered that the record was missing six of the requested hearing

 transcripts.

¶7    Father moved this court to supplement the record, and this

 court granted the motion. The record was supplemented, but

 father’s counsel found that three transcripts remained missing.

 Father’s counsel again moved to supplement the record and then

 amended that motion to request just two transcripts.




                                   2
¶8     The court denied father’s second motion “with leave to refile

  with a statement of materiality” under C.A.R. 10(f)(2). A few days

  later, the Chief Judge of this court entered a new order deferring a

  ruling on father’s request to supplement the record to the merits

  division and directing father to “address C.A.R. 10(f)(2)’s materiality

  standard in his opening brief.” The parties then completed

  appellate briefing.

¶9     After briefing was completed, a judge of this court ordered the

  juvenile court to supplement the record with the remaining

  transcripts. In response, the juvenile court submitted an affidavit

  from the transcriptionist assigned to the case. The affidavit stated

  that “there was no recording for the hearing dates requested . . . ,

  thus no transcripts [could] be produced.”

                 II.    Motion to Supplement the Record

¶ 10   Father contends that this court violated his due process rights

  and his right to effective assistance of counsel when it ordered him

  to address his motion to supplement the record in his opening brief

  and to file his opening brief without access to those transcripts. To

  address this alleged error, father asks that we “remand the case to




                                     3
  give the district court the opportunity to complete the record on

  appeal.”

¶ 11        We reject this claim, as well as father’s request for remand, for

  two reasons. First, this court has the discretion to limit the record

  on appeal to its material portions, and father has not demonstrated

  that the missing transcripts were material. Second, father has not

  demonstrated that he was denied due process or the right to

  effective assistance of counsel.

       A.     Father Has Not Demonstrated that the Missing Transcripts
                                  Were Material

¶ 12        Father, championing a broad definition of materiality,

  contends that the missing transcripts necessarily contained

  information material to his appeal. We disagree because, although

  the Colorado Appellate Rules do not define materiality, those rules

  and Colorado case law contemplate a narrower definition.

¶ 13        In a dependency and neglect appeal, a respondent parent

  must, upon request, be provided a “transcript of the trial proceeding

  for the appeal.” § 19-3-609(2), C.R.S. 2019; see People in Interest of

  M.N., 950 P.2d 674, 676 (Colo. App. 1997) (the free transcript is of

  the termination hearing). More specifically, C.A.R. 3.4(d)(1) states



                                         4
  that the record on appeal must include the trial court file and all

  exhibits. The record may also include “any transcripts designated

  and ordered by the parties . . . .” Id.

¶ 14   C.A.R. 10(f)(2) grants the appellate court express discretion to

  limit the record on appeal based on materiality: “If any material part

  of the trial court record is omitted or missing from the record by

  error or accident . . . after the record is transmitted to the appellate

  court, the appellate court, on motion or of its own initiative, may

  order that the supplemental record be certified and transmitted.”

  (Emphasis added.)

¶ 15   To obtain a new trial on the basis of an incomplete record

  (relief that father does not seek here), a civil appellant must (1)

  make a specific allegation of error; (2) show that the record defect

  materially affects the appellate court’s ability to review the alleged

  error; and (3) show that a C.A.R. 10(e) proceeding has failed or

  would fail to produce an adequate substitute for the record defect.

  Knoll v. Allstate Fire & Cas. Ins., 216 P.3d 615, 617-18 (Colo. App.

  2009) (applying then C.A.R. 10(c), now C.A.R. 10(e)). Federal courts

  have adopted an analogous standard. E.g., Bergerco, U.S.A. v.

  Shipping Corp. of India, Ltd., 896 F.2d 1210, 1217 (9th Cir. 1990).


                                      5
¶ 16   Father asserts that “any memorialized hearings, exhibits,

  videos, etc. are material to the appeal because counsel must review

  such materials to determine if they give rise to legal issues.” Under

  father’s definition, every document and transcript of proceedings is

  material. Adoption of this definition necessarily abrogates the

  materiality considerations required under C.A.R. 10(f)(2), which

  refers to “any material part of the trial court record.” (Emphasis

  added.) Moreover, by requiring appellants seeking a new trial on

  the basis of an incomplete record to connect the defect in the record

  to a specific error, Colorado and federal courts have explicitly

  rejected father’s position that “materiality must . . . refer to the

  appeal generally and not to any particular legal issue.” Thus, the

  appellate rules and case law necessarily contemplate a narrower

  definition of materiality.

¶ 17   Father fails to explain how the two missing transcripts are

  material under any reasonable definition of the term. Accordingly,

  father has not sufficiently demonstrated that the missing

  transcripts are material.

       B.   Father Makes No Colorable Due Process or Ineffective
                            Assistance Claim



                                      6
¶ 18   Without any supporting authority, father asserts that this

  court violated his rights to due process when it ordered him to

  address the materiality of the missing transcripts in his opening

  brief. Although father makes no ineffective assistance of counsel

  claim, he further asserts that the lack of these transcripts

  prevented his counsel from providing effective assistance on appeal

  and rendered the process fundamentally unfair. We reject each

  contention.

¶ 19   We review de novo whether father’s right to due process was

  violated. People in Interest of C.J., 2017 COA 157, ¶ 25.

¶ 20   In termination proceedings, a parent’s rights must be

  protected “with fundamentally fair procedures.” L.L. v. People, 10

  P.3d 1271, 1276 (Colo. 2000) (quoting Santosky v. Kramer, 455 U.S.

  745, 745 (1982)). “These procedures include a parent receiving

  notice of the hearing, advice of counsel, and a meaningful

  opportunity to be heard and defend.” People in Interest of Z.P.S.,

  2016 COA 20, ¶ 40. The record here shows that father was afforded

  a treatment plan, notice of the proceedings, a hearing on the

  termination motion before an impartial judge, and the assistance of

  counsel.


                                    7
¶ 21   Due process is not violated when a parent has access to a

  record of sufficient completeness to permit proper appellate

  consideration of the parent’s claims. See M.L.B. v. S.L.J., 519 U.S.

  102, 128 (1996). The record in this case included the case file and

  all but two of the thirty-two requested transcripts, including full

  transcripts of the termination hearing.

¶ 22   We note that, although it is impossible to know precisely what

  occurred in the hearings that were not transcribed, both hearings’

  proceedings were memorialized in minute orders. At the first

  hearing for which there is no transcript, according to the minute

  order and father’s opening brief, the court transferred custody of

  the children to the aunt and uncle with whom they were already

  staying. At the second hearing for which there is no transcript,

  according to the minute order, the court ordered the GAL to file a

  motion for an allocation of parental rights. On that same date, the

  court entered an order requiring mother to leave the aunt and

  uncle’s home for the safety of the children. Father has not

  explained why the transcripts of these hearings are material to his

  claim on appeal.




                                     8
¶ 23   More importantly, the juvenile court did not rely on either of

  the untranscribed hearings in its termination order. As shown in

  Part III below, the court had ample information to determine

  father’s one claim on appeal. Accordingly, the record was

  sufficiently complete.

¶ 24   Moreover, there has been no showing that the unavailability of

  the complete record under C.A.R. 3.4 resulted in deficient

  performance by appellate counsel. See People in Interest of N.A.T.,

  134 P.3d 535, 539 (Colo. App. 2006).

¶ 25   Finally, though not controlling because dependency and

  neglect proceedings are civil in nature, see, e.g., People in Interest of

  Z.P., 167 P.3d 211, 214 (Colo. App. 2007), Colorado criminal case

  law further supports our conclusion. To prevail on a claim that the

  lack of a complete record offended a criminal appellant’s due

  process rights, the appellant “must always demonstrate specific

  prejudice resulting from the state of that record.” People v.

  Rodriguez, 914 P.2d 230, 300-01 (Colo. 1996). Similarly, to show

  that the incomplete record rendered counsel unable to provide

  effective assistance, the appellant must “identify . . . how the

  incomplete record prejudiced his counsel’s ability to raise any issue


                                      9
  on appeal.” Id. at 300. In this case, father has failed to identify any

  prejudice resulting from the state of the record.

¶ 26   Accordingly, we reject father’s due process claim and decline

  to remand to the juvenile court for further proceedings to settle the

  record.

                     III.    Less Drastic Alternatives

¶ 27   Father also contends that the juvenile court reversibly erred

  when it found that there was no less drastic alternative to

  termination. Specifically, father asserts that the court lacked

  sufficient evidence to conclude that an ongoing relationship with

  father was not in the children’s best interests. He further asserts

  that an allocation of parental responsibilities to the aunt and uncle

  with whom the children were placed was an appropriate less drastic

  alternative. We disagree.

                    A.      Law and Standard of Review

¶ 28   To terminate parental rights, a court must find by clear and

  convincing evidence that (1) the child has been adjudicated

  dependent or neglected; (2) the parent did not comply with or was

  not successfully rehabilitated by an appropriate, court-approved

  treatment plan; (3) the parent is unfit; and (4) the parent’s conduct


                                     10
  or condition is unlikely to change within a reasonable time. § 19-3-

  604(1)(c), C.R.S. 2019; People in Interest of B.C., 122 P.3d 1067,

  1071 (Colo. App. 2005).

¶ 29   Implicit in the statutory criteria for termination is the

  requirement that the court consider and eliminate less drastic

  alternatives. People in Interest of M.M., 726 P.2d 1108, 1122 (Colo.

  1986). In considering less drastic alternatives, the court must give

  primary consideration to the child’s physical, mental, and emotional

  conditions and needs. People in Interest of J.L.M., 143 P.3d 1125,

  1126 (Colo. App. 2006).

¶ 30   Determining whether to order permanent placement as an

  alternative to termination depends on the child’s best interests.

  People in Interest of D.P., 160 P.3d 351, 356 (Colo. App. 2007).

  Permanent placement is not a viable less drastic alternative if the

  child needs a stable, permanent home that can only be assured by

  adoption. People in Interest of S.N-V., 300 P.3d 911, 920 (Colo. App.

  2011); see People in Interest of A.R., 2012 COA 195M, ¶ 41.

¶ 31   The court may also consider whether the placement favors

  adoption rather than an allocation of parental responsibilities. See

  S.N-V., 300 P.3d at 920.


                                    11
¶ 32   If the record supports the court’s findings and conclusions

  that no less drastic alternatives existed and that termination of

  parental rights was in the child’s best interests, we may not disturb

  the court’s determination. See People in Interest of M.B., 70 P.3d

  618, 627 (Colo. App. 2003).

                              B.   Analysis

¶ 33   The juvenile court concluded that father did not comply with

  his treatment plan and was unfit. These findings are supported by

  the record.

¶ 34   Father’s treatment plan required him to (1) communicate with

  the Department; (2) eliminate his substance abuse and take

  sobriety tests; (3) learn and demonstrate effective parenting skills

  and parental protective capacity, including attending visits and

  ensuring the children’s attendance at school; (4) have stable

  housing and a legal income; (5) comply with probation or parole

  requirements; (6) address domestic violence; and (7) participate in a

  mental health evaluation. Father did not comply with these

  requirements.

¶ 35   To be sure, there were significant barriers to father’s

  compliance with some objectives. Father was incarcerated for


                                    12
  significant portions of the case. His incarceration was due, in part,

  to new criminal charges. In addition, father had a protection order

  that prevented him from seeing the children. Indeed, he testified

  that he had not seen the children for two years. Nevertheless,

  father never inquired of the caseworker about any support for

  developing parenting skills in the absence of contact with the

  children.

¶ 36   The Department made reasonable efforts to accommodate

  father. For example, after father completed a substance abuse

  evaluation, the caseworker testified that she found a therapist who

  could work with father’s scheduling needs; but he did not engage in

  substance abuse therapy or provide any sobriety test results.

  Similarly, after father completed a domestic violence evaluation, the

  Department found a domestic violence therapy provider who could

  work with father’s scheduling requests, but father never attended

  therapy. Father never completed a mental health evaluation, let

  alone mental health therapy.

¶ 37   In addition, Father did not maintain sufficient contact with the

  Department. He refused to inform the caseworker where he lived or

  worked, and he never provided proof of his employment or income.


                                   13
  Father never offered to provide for the financial needs of the

  children at any point throughout this case. Indeed, the record

  shows that he never asked the Department about his children at

  all.

¶ 38     When asked if father could become fit in a reasonable time,

  the caseworker testified that she did not believe he could.

¶ 39     The juvenile court, explicitly taking the children’s physical,

  mental, and emotional conditions and needs into account, also

  found that there were no less drastic alternatives to termination.

  Again, the record supports this finding.

¶ 40     The caseworker testified that termination of father’s parental

  rights best served the physical, emotional, and mental health needs

  of the children and that there were no less drastic alternatives to

  termination. She testified that the children wanted to know “where

  they are going to be” and that they have “been on edge long

  enough.”

¶ 41     A therapist testified that the children’s fears of domestic

  violence have “improved greatly” after being placed with maternal

  aunt and uncle. The therapist recommended that they stay in their

  current placement.


                                      14
¶ 42   Given this record, we conclude that the juvenile court did not

  err in finding that there were no less drastic alternatives to

  termination in this case and that termination was in the children’s

  best interests.

                             IV.   Conclusion

¶ 43   The judgment is affirmed.

       JUDGE TERRY and JUDGE WELLING concur.




                                    15
