     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

                               2018COA177

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, 466 U.S.

668 (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, 455 U.S. 745, 753-54
(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, 506

U.S. 364, 372 (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, 466

U.S. 648, 659 (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                                    2018COA176


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, 466 U.S. 668 (1984), prongs governing

 review of ineffective assistance claims in dependency and neglect

 cases. See, e.g., People in Interest of C.H., 166 P.3d 288, 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., 140 P.3d 299, 308 (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., 140 P.3d at 308. 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, 455 U.S. 745, 753-54 (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., 2013 CO 16, ¶¶ 27-30 (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, 506

  U.S. 364, 372 (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., 648 P.2d 625, 640 (Colo. 1982);

  see also People in Interest of J.W. v. C.O., 2017 CO 105, ¶¶ 20, 31.

¶ 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, 762 P.2d 1381, 1387-88 (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, 224

  P.3d 1039, 1054 (Colo. App. 2009) (recognizing that one who enters

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

  259 P.3d 497 (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, 762

  P.2d at 1387-88.

¶ 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., 837 P.2d 284, 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., 83 P.3d

  627, 636 (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., 83 P.3d at 636.

¶ 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.,

  2017 COA 160, ¶ 58; C.H., 166 P.3d at 290; D.G., 140 P.3d at 308;

  People in Interest of V.M.R., 768 P.2d 1268, 1270 (Colo. App. 1989);

  In re Parental Responsibilities Concerning Torrance P., 724 N.W.2d

  623, 631 (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., 115 S.W.3d 534, 544 (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., 91 S.W.3d 1, 7 (Tex. App. 2002) (quoting Evitts v. Lucey, 469

                                     15
  U.S. 387, 396 (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., 724

  N.W.2d at 631.

¶ 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., 140 P.3d at 302, 308; V.M.R., 768 P.2d

  at 1269-70.

¶ 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
  663 P.2d 253, 258 (Colo. 1983) (“There must be finality to litigation

  involving children.”); see also Santosky, 455 U.S. at 760 (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., 140 P.3d at 308; V.M.R., 768 P.2d at

  1270. 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, 796 P.2d

  1193, 1204 (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, 229 P.3d

  1066, 1090 (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,

  810 N.E.2d 1035, 1041 (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., 300 P.3d 911, 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, 466 U.S. at 684-85, 687. 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, 455 U.S. at 753-54.

¶ 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., 648 P.2d at 636. 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, 785 P.2d 132, 137 (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, 149 Colo. 360,

  372, 369 P.2d 54, 61 (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., 726 P.2d 1108, 1122 (Colo. 1986);

  see also People in Interest of A.R., 2012 COA 195M, ¶¶ 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., 421 P.3d 482,

  503 (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., 243 P.3d 244,

  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, 197 Colo. 306, 313, 592 P.2d 792, 796 (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.” Id. (quoting People in Interest of

                                     23
  C.A.K., 652 P.2d 603, 613 (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., 140

  P.3d at 308.

¶ 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, 506

  U.S. at 372; C.H., 166 P.3d at 291; see People in Interest of A.G.,

  262 P.3d 646, 651 (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, 506 U.S. at 372.

¶ 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, 506 U.S. at 372.

¶ 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, 455 U.S. at 753.

  Accordingly, when “the State moves to destroy weakened familial

  bonds, it must provide the parents with fundamentally fair

  procedures.” Id. at 753-54. This means that the State must

  provide parents adequate procedural safeguards in termination

  hearings. Id. 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, 10 P.3d

  1271, 1276 (Colo. 2000). Thus, because termination proceedings

  affect important constitutional rights, “there must be substantial

                                    28
compliance with statutory requirements.” A.M.D., 648 P.2d at 631.

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.,

          726 P.2d at 1123.

        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, 506 U.S. at 372. 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, 466 U.S. 648,

  658-59 (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.” Id. 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., 452 U.S. 18, 28 (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,

  466 U.S. at 658.

¶ 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., 648 P.2d at 641 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., 271 P.3d 1116, 1120 (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., 2014 COA 168, ¶ 29; A.H.,

  271 P.3d at 1120. Or, the material facts may be undisputed. See

  People in Interest of S.N., 2014 CO 64, ¶ 21.

¶ 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., 224 P.3d 410, 415 (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., 786

  P.2d 476, 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., 2012 COA 131, ¶ 19; 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., 2014 COA 168. 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., 648 P.2d at 641 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., 226 P.3d 1054, 1063-64 (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., 648 P.2d at 641 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, 466 U.S. at 659.

                        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, 827 P.2d

  495, 503 (Colo. 1992). But an offer of proof is not evidence. See

  People v. Gillis, 883 P.2d 554, 559 (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., 648 P.2d

  at 631 (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.” Id. at 640 (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., 2018 CO 34, ¶ 36 (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, 92 P.3d 970, 975

  (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, 466 U.S. at 659,

  counsel’s deficient performance further rendered the termination

  proceeding presumptively unfair and unreliable. See id.

¶ 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., 83 P.3d at 640-41. 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. Id.

¶ 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
