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                                                        ADVANCE SHEET HEADNOTE
                                                                  February 10, 2020

                                       2020 CO 11

No. 19SC370 M.A.W. v. The People in Interest of A.L.W.—Dependency and Neglect—
Ineffective Assistance of Counsel—Standard of Review.

      This case is a companion case to People in Interest of A.R., 2020 CO 10, __ P.3d

__, which we are also deciding today. For the reasons discussed at length in A.R.,

the supreme court concludes 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 (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.

The supreme court further concludes 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 (1984).

      Applying these principles here, the supreme court concludes that the

juvenile court correctly applied Strickland’s prejudice prong to father’s ineffective

assistance of counsel claims and that the court did not abuse its discretion in

rejecting those claims.

      Accordingly, the supreme court affirms the judgment terminating father’s

parental rights.
                 The Supreme Court of the State of Colorado
                 2 East 14th Avenue • Denver, Colorado 80203

                                   2020 CO 11

                      Supreme Court Case No. 19SC370
               C.A.R. 50 Certiorari to the Colorado Court of Appeals
                     Court of Appeals Case No. 19CA452
               Adams County District Court, Case No. 16JV122
                       Honorable Priscilla J. Loew, Judge

                         Petitioner/Cross-Respondent:

                                    M.A.W.,

                                        v.

                         Respondent/Cross-Petitioner:

                      The People of the State of Colorado,

                        In the Interest of Minor Child:

                                     A.L.W.

                              Judgment Affirmed
                                    en banc
                               February 10, 2020


Attorneys for Petitioner/Cross-Respondent:
The Noble Law Firm, LLC
Matthew Fredrickson
Tara Jorfald
      Lakewood, Colorado

Attorney for Cross-Petitioner the People of the State of Colorado:
Katherine Gregg
     Westminster, Colorado

Attorneys for Minor Child:
Anna N.H. Ulrich Attorney at Law, L.L.C.
Anna N.H. Ulrich, Guardian ad litem
      Crestone, 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




JUSTICE GABRIEL delivered the Opinion of the Court.
                                      2
¶1    This case is a companion case to People in Interest of A.R., 2020 CO 10, __ P.3d

__, which we are also deciding today. Here, as in A.R., we are asked to decide

(1) the correct standard for determining whether a parent in a dependency and

neglect proceeding was prejudiced by counsel’s ineffective performance and

(2) 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




1Specifically, in light of our grant of certiorari in A.R., we granted certiorari here,
pursuant to C.A.R. 50, to decide:
      1. Whether a determination of “fundamental fairness” is the best
         means of analyzing the second prong of Strickland v. Washington,
         466 U.S. 668 (1984), when assessing ineffectiveness of parent’s
         counsel on appeal from a termination order in a dependency and
         neglect case.
      2. Whether evidence of parent’s counsel electing to do nothing
         during a termination proceeding is sufficient evidence of
         ineffectiveness such that the court of appeals can vacate a trial
         court’s decision in dependency and neglect cases without the
         unnecessary delay inherent in remanding the case.
      3. Whether the court of appeals, in departing from the decisions of
         other divisions [of] the court of appeals, correctly designated
         “fundamental fairness” as the best means to apply the second
         prong of the analysis as described in Strickland v. Washington,
         466 U.S. 668 (1984), when assessing whether a parent’s trial
         counsel was ineffective in an appeal from a termination order in a
         dependency and neglect case.

                                          3
¶2    For the reasons discussed at length in A.R., we conclude 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 (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. We further 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 (1984).




      4. Whether an appellate court may vacate a trial [court’s] decision in
         a dependency and neglect case without remanding the case to the
         trial court to make findings under Strickland’s two-part test.

                                           4
¶3    Applying these principles here, we conclude that the juvenile court correctly

applied Strickland’s prejudice prong to father’s ineffective assistance of counsel

claims and that the court did not abuse its discretion in rejecting those claims.

¶4    Accordingly, we affirm the judgment terminating father’s parental rights.

                        I. Facts and Procedural History

¶5    In June 2016, shortly after the child’s birth, the Boulder County Department

of Housing and Human Services initiated this case based on evidence that the

child’s mother was using drugs and that both father and the child’s mother were

missing the child’s cues, were homeless, and had previously been involved in

child welfare cases. The child was placed with maternal relatives.

¶6    As pertinent here, the juvenile court in Boulder adjudicated the child

dependent and neglected as to father based on father’s admission that he needed

support and services and that the child’s environment was injurious to her welfare.

Shortly thereafter, because father and the child’s mother had a history of receiving

services and residing in Adams County, venue was transferred there.

¶7    At the first hearing in the juvenile court in Adams County, father appeared

in custody following a recent arrest. The court appointed counsel for him and

approved an initial treatment plan that required father to (1) provide an

environment for the child that was safe, stable, and free of substance abuse;

(2) resolve his criminal charges; (3) safely and effectively parent his child; and


                                          5
(4) work cooperatively with the Adams County Department of Human Services

(the “Department”). The court also ordered father to contact the Department’s

caseworker when he was released from custody, so that assessments could be

completed and a comprehensive treatment plan could be developed.

¶8    Two months later, the court conducted another hearing, and father again

appeared in custody, this time based on new drug possession charges. At the

hearing, both father and his counsel represented to the court that after father had

been released from custody following the initial Adams County hearing, he had

tried to contact the caseworker but was unsuccessful.

¶9    A little over a year later, the Department filed a motion to terminate father’s

parental rights. In this petition, the Department alleged that (1) father did not

comply with his treatment plan, and the treatment plan failed; (2) no additional

period of time would allow for the successful completion of the treatment plan;

(3) father was an unfit parent; (4) father’s conduct or condition was unlikely to

change within a reasonable period of time; and (5) there were no less drastic

alternatives to termination, which would be in the child’s best interests.

¶10   The matter then proceeded to a termination hearing. At the time of the

hearing, father was incarcerated in the Arapahoe County Jail. When father did not

appear for the hearing, father’s counsel told the court that father was “on a writ at

Arapahoe County and he refused the writ so he did not want to appear today.”

                                         6
Father’s counsel did not seek a continuance to ensure father’s presence, and the

court found that father had voluntarily absented himself from the court.

¶11   Counsel for the child’s mother, however, then requested a continuance, “so

that [the mother] may become [sic] into compliance with her treatment plan.” The

court denied this motion, noting that a continuance would require the court to

make specific findings to justify resetting the hearing beyond the deadlines set

forth in the expedited permanency planning guidelines, which applied here

because the child was under six years of age. The court further found that the

mother had not shown good cause for a continuance.

¶12   The hearing proceeded, and as pertinent here, all counsel waived any

opening statements. The Department then offered testimony from one witness,

namely, the ongoing caseworker. Before the caseworker testified, all of the parties

stipulated that she was qualified to offer testimony as an expert in social work with

an emphasis in child protection. The caseworker then testified, as pertinent here,

that father (1) had had no contact with the child since she was discharged from the

hospital after her birth; (2) was not compliant with his treatment plan; (3) was an

unfit parent; and (4) had not reached out to the caseworker at any time. The

caseworker further testified that she did not believe that father’s conduct or

condition was likely to change within a reasonable time and that adoption was in




                                         7
the child’s best interest, and she authenticated the Department’s termination

report, which was admitted into evidence without objection.

¶13   After the caseworker completed her direct testimony, father’s counsel

declined to cross-examine her. In addition, father’s counsel did not call any

witnesses of his own and did not make a closing argument on father’s behalf

(indeed, none of the parties’ counsel made any closing arguments).

¶14   At the conclusion of the hearing, the court ruled from the bench that

(1) father was an unfit parent and (2) based on father’s noncompliance with his

treatment plan and the fact that he had made no effort to contact the Department

or to maintain a relationship with his child, father’s condition of unfitness was not

likely to change within a reasonable period of time. The court thus ordered that

father’s parental rights be terminated.

¶15   Two weeks later, father filed a verified motion pursuant to C.R.C.P. 59 to

allow him to provide testimony by written statement. In this motion, father

attested under oath that he had wanted to participate in the termination hearing

but that no one came to pick him up on the date of the hearing. Father further

stated that during one of his releases from incarceration, he had contacted the

Department but that no one returned his calls.

¶16   The court accepted father’s written statement into the record as his

termination hearing testimony but maintained its prior oral termination ruling.

                                          8
Thereafter, the court issued a written termination order confirming its bench

ruling terminating father’s parental rights.

¶17   Father then appealed, contending that his trial counsel had rendered

ineffective assistance at the termination hearing by (1) not presenting any opening

statement or closing argument on father’s behalf; (2) not presenting any evidence

on father’s behalf; (3) not cross-examining the caseworker; (4) not objecting to the

Department’s endorsement of the caseworker as an expert; and (5) stipulating to

the caseworker’s being qualified as an expert.          People in Interest of A.L.W.,

No. 17CA1239, ¶ 17 (Colo. App. Aug. 16, 2018).

¶18   In a unanimous, unpublished opinion, a division of the court of appeals

declined to speculate as to why father’s counsel acted as he had. Id. at ¶ 21. The

division noted father’s contention that his counsel might have been able to make

a few good faith arguments on father’s behalf, but the division observed that it

was not well-positioned to determine whether such arguments might have been

successful. Id. at ¶¶ 22–23. The division thus left it to the juvenile court to evaluate

all such issues at an evidentiary hearing on remand. Id. at ¶ 23. Notably, in

remanding the case, the division did not indicate what standard the juvenile court

was to use in making additional findings and orders. The division instructed,

however, that if the juvenile court found no ineffective assistance of counsel, then




                                           9
the termination judgment would stand affirmed, subject to father’s right of further

appeal. Id. at ¶ 26.

¶19   On remand, father contended, through new counsel, that his trial counsel

was ineffective in (1) not facilitating the Department’s reasonable efforts to

rehabilitate the family prior to the termination and then in not objecting to the

Department’s failure to make such reasonable efforts; (2) not pursuing a less

drastic alternative to termination; (3) not communicating with father; and (4) not

advocating zealously on father’s behalf at the termination hearing. In further

support of this last point, father asserted that his trial counsel was ineffective in

(1) not requesting a continuance when he was told that father had refused the writ;

(2) declining to make either an opening statement or closing argument; (3) not

cross-examining the caseworker on the issues of reasonable efforts and less drastic

alternatives; and (4) stipulating that the caseworker was an expert.

¶20   The court then conducted a two-day evidentiary hearing to consider these

claims. At this hearing, the court heard testimony from the relative with whom

the child had been placed, father’s trial counsel, the caseworker, father himself,

and an expert on the question of the ineffective assistance of counsel.

¶21   As pertinent here, trial counsel testified that he had encouraged father to

maintain contact with him, with the Department, and with the child’s guardian ad

litem but that father did not call him or answer his letters. Trial counsel further

                                         10
testified that he did not ask for a continuance or take a position at the termination

hearing because (1) he had had no direct contact with father as to how father

wanted to proceed at the termination hearing; (2) father had never informed

counsel that he wanted to contest termination; and (3) on the day of the hearing,

counsel was told that father had refused to come to court.

¶22   Father’s expert then testified that trial counsel was ineffective at the

termination hearing by (1) not seeking a continuance to ensure father’s presence

at the hearing; (2) making no opening statement or closing argument; (3) taking no

position on the reasonableness of the Department’s efforts or on less drastic

alternatives; (4) presenting no evidence or witnesses; (5) conducting no voir dire

of the caseworker; and (6) stipulating to the admission of the termination report.

¶23   Applying both the Strickland standard for ineffective assistance of counsel

and the fundamental fairness test adopted by the division in People in Interest of

A.R., 2018 COA 176, ¶¶ 47–56, __ P.3d __, aff’d on other grounds, 2020 CO 10, the

court ultimately rejected each of father’s assertions.

¶24   As pertinent here, the court first found that father’s trial counsel did not fail

to facilitate the Department’s reasonable efforts to rehabilitate the family. The

court observed that father’s treatment plan required him to contact the

Department, that parents are responsible for ensuring compliance with their




                                          11
treatment plans, and that counsel had repeatedly encouraged father to comply

with his treatment plan but to no avail.

¶25   Second, the court found that trial counsel had not failed to pursue less

drastic alternatives to termination, particularly in not advocating for an allocation

of parental responsibilities (“APR”) to the family with whom the child was placed.

The court noted that it would have been inappropriate for counsel to make such

an argument when father had not asked counsel to seek such an APR.

¶26   Third, the court rejected father’s assertion that trial counsel had failed to

communicate with father. In so ruling, the court credited trial counsel’s testimony

that he had made a number of efforts to contact father.

¶27   Finally, with respect to father’s claims that trial counsel was ineffective in

the course of the termination hearing by not asking for a continuance, not

addressing whether the Department had made reasonable efforts to rehabilitate

the family, not making an opening statement or closing argument, and not

cross-examining the caseworker, the court found deficient conduct in part but no

prejudice. Specifically, the court concluded that counsel’s representation was

deficient in not requesting a continuance and in not cross-examining the

caseworker. The court found, however, that such conduct was not prejudicial

under either the Strickland or fundamental fairness tests. In so finding, the court

reasoned that the record revealed no prejudice under the Strickland standard

                                           12
because the record showed that (1) the court would have denied a motion for a

continuance had father made one because of the expedited permanency planning

deadlines and (2) “the facts . . . of this case are so very clear that any

cross-examination of the caseworker would not have resulted in something

different.” Similarly, the court concluded that the record revealed no prejudice

under the fundamental fairness test because the evidence did not establish that

counsel’s failure to request a continuance or to cross-examine the caseworker

deprived either the court of essential information favorable to father or father of a

significant procedural safeguard.

¶28   The court thus concluded that father had not shown that his trial counsel

was ineffective in this case. Accordingly, the termination order stood affirmed.

¶29   Father again appealed, but while his appeal was pending, this court granted

certiorari in A.R. Because the present case raises many of the same issues as were

presented in A.R., father petitioned this court for certiorari under C.A.R. 50, the

Department cross-petitioned under the same rule, and we granted both petitions.

                                    II. Analysis

¶30   We begin by setting forth the appropriate standard of review. We then

reiterate our conclusions in A.R., which we are also deciding today and which

resolves the issues on which we granted certiorari here. We end by applying the

pertinent legal standards to the facts and claims in this case, and we conclude that


                                         13
the juvenile court did not abuse its discretion in terminating father’s parental

rights.

                             A. Standard of Review

¶31     A determination of the proper legal standard to be applied in a case and the

application of that standard to the particular facts of the case are questions of law

that we review de novo. See Carousel Farms Metro. Dist. v. Woodcrest Homes, Inc.,

2019 CO 51, ¶ 18, 442 P.3d 402, 407; State ex rel. Weiser v. Castle Law Grp., LLC, 2019

COA 49, ¶ 35, __ P.3d __; In re Marriage of Krejci, 2013 COA 6, ¶ 3, 297 P.3d 1035,

1037.

¶32     In addition, we review the juvenile court’s evidentiary rulings in a

termination of parental rights proceeding for an abuse of discretion. People in

Interest of A.N-B., 2019 COA 46, ¶ 9, 440 P.3d 1272, 1276. The court abuses its

discretion when its decision is manifestly arbitrary, unreasonable, or unfair or

when it misapplies the law. Id. We will not disturb the juvenile court’s findings

on review if the record supports them. People in Interest of C.H., 166 P.3d 288, 290

(Colo. App. 2007).

                         B. Applicable Legal Standards

¶33     As noted above, this case principally asks us to decide the correct standard

for determining whether a parent in a dependency and neglect proceeding was

prejudiced by his or her counsel’s ineffective performance and whether an


                                          14
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.

¶34   For the reasons discussed at length in A.R., ¶¶ 46–60, we conclude first 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, 466 U.S. at 694, 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.

¶35   Next, for the reasons set forth in A.R., ¶¶ 61–67, we have concluded 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 Cronic,

466 U.S. at 656–62. Here, however, the juvenile court, on remand from the court

of appeals, conducted an evidentiary hearing to allow father to develop a factual

record in support of his ineffective assistance of counsel claims. Accordingly, this

                                         15
case presents no issue as to whether an appellate court in a termination of parental

rights matter can decide an ineffective assistance claim without remanding the

case for further factual development.

¶36    The question thus becomes whether father has shown, in light of these

standards, that the juvenile court abused its discretion in rejecting his ineffective

assistance of counsel claims in this case. We turn next to that question.

             C. Merits of Father’s Ineffective Assistance Claims

¶37    As noted above, father contended in the juvenile court that his trial counsel

was ineffective in multiple ways. Applying the appropriate test for deficient

conduct, the juvenile court rejected most of father’s claims, finding deficient

conduct only with respect to counsel’s failures to request a continuance of the

termination hearing and to cross-examine the caseworker. As to these issues, the

court found no prejudice under either the Strickland standard or the fundamental

fairness test.

¶38    In our view, each of the juvenile court’s findings, which we describe at

length above, was amply supported by the record. Moreover, because the court

found no prejudice under either the Strickland standard or the fundamental

fairness test, we perceive no error of law in the court’s analysis.




                                          16
¶39   Accordingly, we conclude that the juvenile court did not abuse its discretion

in rejecting each of father’s ineffective assistance of counsel claims. See A.N-B., ¶ 9,

440 P.3d at 1276; C.H., 166 P.3d at 290.

                                  III. Conclusion
¶40   For these reasons, we conclude 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, 466 U.S. at 694, and not

the fundamental fairness test adopted by the division in A.R.. Thus, 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. We further conclude that an appellate court may vacate a juvenile

court’s decision in a dependency and neglect proceeding without remanding for

further fact-finding when either the record is sufficiently developed to allow the

appellate court to decide the question of counsel’s ineffectiveness or the record

establishes presumptive prejudice under the standard set forth in Cronic, 466 U.S.

at 656–62. Finally, we conclude that the juvenile court did not abuse its discretion

in rejecting father’s ineffective assistance of counsel claims in this case.

¶41   Accordingly, we affirm the judgment terminating father’s parental rights.




                                           17
