         The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                             January 2, 2020

                                 2020COA5

No. 19CA0198, People in the Interest of S.B. — Juvenile Court
— Dependency and Neglect — Termination of the Parent-Child
Legal Relationship; Attorneys and Clients — Ineffective
Assistance of Counsel

     A division of the court of appeals considers whether the

juvenile court erred in terminating father’s parental rights.

     In separate opinions, Judges Hawthorne, Furman and Navarro

conclude that the court did not err. Judge Hawthorne, writing for

the majority, concludes that under People in Interest of A.G., 262

P.3d 646 (Colo. 2011), a parent’s ineffective assistance of counsel

claim in a termination proceeding requires demonstrating

“outcome-determinative” prejudice pursuant to Strickland v.

Washington, 466 U.S. 668, 687 (1984). Judge Furman specially

concurs, pointing out the shortcomings of applying the criminal

“outcome-determinative” prejudice inquiry to civil termination of
parental rights proceedings. Judge Navarro specially concurs that

father failed to demonstrate prejudice under either analysis.
COLORADO COURT OF APPEALS                                          2020COA5


Court of Appeals No. 19CA0198
Montrose County District Court No. 17JV83
Honorable D. Cory Jackson, Judge


The People of the State of Colorado,

Appellee,

In the Interest of S.B., a Child,

and Concerning R.B.,

Appellant.


                             JUDGMENT AFFIRMED

                                   Division IV
                        Opinion by JUDGE HAWTHORNE
                         Furman, J., specially concurs
                         Navarro, J., specially concurs

                           Announced January 2, 2020


Julie R. Andress, Assistant County Attorney, Montrose, Colorado, for Appellee

Barbra J. Remmenga, Guardian Ad Litem

Michael Kovaka, Littleton, Colorado, for Appellant
¶1    In this dependency and neglect proceeding, R.B. (father)

 appeals the judgment terminating his parental rights to S.B. (the

 child). We affirm.

               I.   Factual Background and Procedural History

¶2    In August 2017, law enforcement officials placed the child in

 protective custody because during a drug raid they found the child

 alone in unsafe conditions where he and father lived. The Montrose

 County Department of Health and Human Services (Department)

 initiated a dependency and neglect proceeding, and the juvenile

 court granted custody of the child to the Department. The

 Department placed the child in the care of his paternal great aunt

 and uncle, whom the court appointed as special respondents in the

 case. The child’s mother had died earlier that year.

¶3    In September 2017, father admitted that the child was

 dependent and neglected and the court adopted a treatment plan

 for father.

¶4    Father was later arrested on several offenses, and under a plea

 agreement was sentenced to six years in the custody of the

 Department of Corrections in March 2018.




                                     1
¶5    In August 2018, the Department moved to terminate father’s

 parent-child legal relationship with the child. The court held a

 termination hearing and terminated father’s parental rights.

     II.   The Juvenile Court’s Errors Under ICWA Were Harmless

¶6    Father contends that the juvenile court failed to comply with

 the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C.

 §§ 1901-1963 (2018), in two ways: (1) it failed to make proper ICWA

 inquiries during the termination proceeding and (2) it and the

 Department failed to send proper notice of the termination

 proceeding to the Jena Band of the Choctaw Tribe. We conclude

 the errors in the court’s inquiry and notice procedures under ICWA

 were harmless.

             A.   Standard of Review and Applicable Law

¶7    We review de novo whether ICWA’s requirements applied to

 the proceeding and were satisfied. People in Interest of M.V., 2018

 COA 163, ¶ 32; People in Interest of T.M.W., 208 P.3d 272, 274

 (Colo. App. 2009).

¶8    Colorado’s ICWA-implementing legislation provides that in

 dependency and neglect proceedings, the petitioning party must

 make continuing inquiries to determine whether the child is an


                                   2
  Indian child. § 19-1-126(1)(a), C.R.S. 2018;1 see also B.H. v. People

  in Interest of X.H., 138 P.3d 299, 302 (Colo. 2006).

¶9        The federal guidelines implementing ICWA impose a duty of

  inquiry and notice on trial courts. 25 C.F.R. § 23.107(a) (2019);

  Bureau of Indian Affairs, Guidelines for Implementing the Indian

  Child Welfare Act (Dec. 2016), https://perma.cc/3TCH-8HQM; see

  also Notice of Guidelines, 81 Fed. Reg. 96,476 (Dec. 30, 2016). The

  court must ask each participant on the record at the beginning of

  every emergency, voluntary, or involuntary child custody proceeding

  whether the participant knows or has reason to know that the child

  is an Indian child. 25 C.F.R. § 23.107(a); see People in Interest of

  L.L., 2017 COA 38, ¶ 19. A proceeding to terminate parental rights

  is a separate child custody proceeding under ICWA. See 25 U.S.C.

  § 1903(1) (2018); see also § 19-1-126(1); People in Interest of C.A.,

  2017 COA 135, ¶ 10.

¶ 10      When there is reason to know or believe that a child involved

  in a custody proceeding is an Indian child, the petitioning party

  must send notice of the proceeding to the potentially concerned


  1   The statute in effect at the time.


                                           3
  tribe or tribes. B.H., 138 P.3d at 302; see 25 U.S.C. § 1912(a)

  (2018); § 19-1-126(1)(b). A court “has reason to know” a child is an

  Indian child if, in relevant part, “[a]ny participant in the proceeding,

  officer of the court involved in the proceeding, Indian Tribe, Indian

  organization, or agency informs the court that the child is an Indian

  child . . . [or] informs the court that it has discovered information

  indicating that the child is an Indian child[.]” 25 C.F.R. § 23.107(c).

  State courts and agencies are encouraged to interpret these factors

  expansively. M.V., ¶ 43. If the tribe’s identity or location can’t be

  determined, notice must be given to the Bureau of Indian Affairs.

  B.H., 138 P.3d at 302; see 25 U.S.C. § 1912(a).

                          B.    Additional Facts

¶ 11   Prior to the dependency and neglect adjudication, the court

  asked father on two occasions whether the child had Indian

  heritage. Father said that the child didn’t and that he was unaware

  of any Indian heritage from the child’s mother.

¶ 12   At the adjudication hearing, the Department notified the court

  that it was inquiring into the child’s possible Indian heritage from

  his mother.




                                     4
¶ 13   Months later at a review hearing, the Department updated the

  court on its efforts to determine the child’s possible Indian heritage.

  Its counsel said that the Department had communicated with the

  child’s maternal grandfather, who said that he was a registered

  member of a Choctaw tribe. Counsel said that the Department had

  sent notices to the three federally recognized Choctaw tribes, and

  that two had responded that the grandfather wasn’t a member or

  eligible to be one. The Department hadn’t heard back from the

  third tribe, the Jena Band, and hadn’t been able to contact the tribe

  by telephone.

¶ 14   In July 2018, the court held a “permanency planning hearing.”

  It adopted the Department’s primary termination and adoption

  plan. The court found that “ICWA continues not to be an issue,”

  and that it “does not know or have reason to know that [the child] is

  [an] Indian child.”

¶ 15   On August 1, 2018, the Department moved to terminate

  father’s parent-child legal relationship with the child. In the

  motion, the Department stated that it

             made appropriate inquiries to determine that
             [the child is] not subject to [ICWA]. . . .
             Inquiries were made into the [m]other’s


                                     5
             heritage and the Choctaw Tribes were noticed.
             The People do not know or have reason to
             know or believe that the child is an Indian
             Child under the meaning of [ICWA].

¶ 16   On August 15, 2018, in a “pre-hearing” order, the court stated

  that it “hereby inquires of [father] whether [he] or the child[] are

  members of a Native American Indian tribe or are eligible for

  membership in a Native American Indian tribe. [Father] shall file a

  report indicating whether ICWA is a[n] issue in this case within

  [seven] days.” Father didn’t respond.

¶ 17   Eight days before the termination hearing on November 6,

  2018, the Department filed a “Notice Regarding [ICWA].” In the

  notice the Department detailed its efforts to inquire into the child’s

  possible Indian heritage, including what counsel had already

  provided at the review hearing. The Department also sent

  information to the Bureau of Indian Affairs, but the Bureau had

  responded that it couldn’t identify a tribe. The Jena Band of the

  Choctaw Tribe still hadn’t responded to the notice or to the

  Department’s follow-up efforts.

¶ 18   The notice also said that the Department had called

  grandfather in July 2018 prior to the termination motion, and he



                                     6
  had “confirmed that the tribe he is enrolled in is the ‘Metis’ tribe,” a

  federally unrecognized tribe. Thus, the Department concluded that

  it didn’t believe or have reason to know that the child was an Indian

  child for ICWA purposes.

                               C.   Analysis

¶ 19   We agree that the court’s inquiry and notice procedures under

  ICWA were insufficient.

¶ 20   “The trial court must ask each participant on the record at the

  beginning of each emergency, voluntary, or involuntary child

  custody proceeding ‘whether the participant knows or has reason to

  know that the child is an Indian child.’” People in Interest of K.G.,

  2017 COA 153, ¶ 21 (quoting 25 C.F.R. § 23.107(a)). Yet the court

  inquired only of father. See K.G., ¶ 25 (“Nor did the court make the

  required inquiry on the record as to any of the three parents, the

  guardian ad litem, or the Department.”); see also People in Interest

  of J.L., 2018 COA 11, ¶ 20 (“A written advisement form provided to

  one participant falls far short of meeting this requirement.”).

¶ 21   And at the time the Department sought termination, based on

  the existing record, the court had “reason to know” the child may

  have Indian heritage and should have required the Department to


                                     7
  send notice to the Jena Band. See M.V., ¶ 44 (parent indicating

  that children had Indian heritage and were eligible for membership

  in a federally recognized tribe was “sufficient to give the court

  reason to know the children were Indian children”); L.L., ¶ 39 (“If a

  Tribe does not respond to the notice . . . the Department must

  continue to send the Tribe notices of subsequent proceedings for

  which notice is required, such as a termination of parental rights

  proceeding.”).

¶ 22   But these errors were harmless. Grandfather’s claim to be a

  registered member of a Choctaw tribe was the sole basis for

  believing or having reason to know that the child possibly had

  Indian heritage. So when grandfather later clarified that he was

  enrolled in a federally unrecognized tribe, further notice wasn’t

  required and the previous errors were harmless. See People in

  Interest of Z.C., 2019 COA 71M, ¶ 22 (“And because the [tribe] was

  able to determine that the child was not a member of or eligible for

  membership in the tribe (albeit in a letter that was not before the

  juvenile court at the time of the hearing), the error in the juvenile

  court’s finding that the [tribe] received proper notice is harmless.”);

  People in Interest of S.R.M., 153 P.3d 438, 441 (Colo. App. 2006).


                                     8
                        III.   Ineffective Assistance

¶ 23   Father contends that his trial counsel rendered ineffective

  assistance by (1) failing to communicate with him; (2) failing to

  secure his testimony for the termination hearing or later written

  closing argument, instead proceeding by an “offer of proof”; and (3)

  not “fully understand[ing] the facts of the case or [father’s] position

  on central issues.” We disagree.

              A.    Standard of Review and Applicable Law

¶ 24   We consider ineffective assistance claims raised for the first

  time on appeal. See People in Interest of A.R., 2018 COA 176, ¶ 35

  (cert. granted Mar. 4, 2019).

¶ 25   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). Divisions of this court 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. These divisions have evaluated ineffective assistance of

  counsel claims by applying the test used in criminal cases — the

  Strickland test. People in Interest of C.H., 166 P.3d 288, 290-91


                                      9
  (Colo. App. 2007) (citing Strickland v. Washington, 466 U.S. 668,

  687 (1984)). Under Strickland, the parent must show two things:

  (1) counsel’s performance was outside the wide range of

  professionally competent assistance and (2) counsel’s errors

  prejudiced the parent. Id. at 291. Prejudice requires showing “a

  reasonable probability that, but for counsel’s alleged deficiencies,

  the outcome of the termination proceeding would have been

  different.” S.L., ¶ 59. In evaluating counsel’s performance, courts

  must indulge a strong presumption that counsel’s actions might be

  considered sound trial strategy. People v. Phipps, 2016 COA 190M,

  ¶ 17.

¶ 26      But a division of this court recently departed from the

  Strickland outcome-determinative prejudice test and adopted a

  “fundamental fairness” test. See A.R., ¶ 46 (“We . . . depart from

  other divisions of this court that have exclusively applied the . . .

  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.”). Under this approach, counsel’s performance may




                                      10
  also be prejudicial where a judgment is unreliable or fundamentally

  unfair. See id. at ¶¶ 57, 61.

¶ 27   Chief Justice Directive 16-02, Court Appointments Through

  the Office of Respondent Parents’ Counsel (amended July 1, 2017),

  provides the practice standards for respondent parent counsel in

  dependency and neglect cases. Specifically, respondent parent

  counsel is required to “[a]dvocate for the client’s goals and empower

  the client to direct the representation and make informed

  decisions,” “[m]eet and communicate regularly with the client well

  before court proceedings,” “[p]resent and cross-examine witnesses,

  prepare and present exhibits,” and “[r]equest the opportunity to

  make opening and closing arguments.” Id. at attach. A, pp. 1-3.

¶ 28   If the parent’s allegations aren’t sufficiently specific or fail to

  make a prima facie showing of ineffective assistance, the claim may

  be denied without further inquiry. S.L., ¶ 60 (citing C.H., 166 P.3d

  at 291). And the failure to establish either Strickland prong defeats

  an ineffective assistance claim. Id. (citing People in Interest of D.G.,

  140 P.3d 299, 308 (Colo. App. 2006)).




                                     11
                           B.    Additional Facts

¶ 29   Shortly before the termination hearing, the court granted

  father’s request to attend the termination hearing via telephone

  because he was incarcerated. At the termination hearing, father’s

  counsel told the court that father wouldn’t be able to attend the

  hearing by telephone and suggested that the hearing be continued

  because “I know [father] does want to testify and I think he should

  be allowed to testify in this trial.” The court partially granted

  counsel’s request, continuing the closing arguments and allowing

  father to file “an affidavit, if any, with the court on or before

  November 26, 2018.” It gave the parties until December 7, 2018, to

  file written closing arguments.

¶ 30   On November 26, father’s counsel asked the court to extend

  the time to file father’s affidavit. The court granted the request, but

  counsel never filed an affidavit.

¶ 31   On December 7, 2018, father’s counsel filed a written closing

  argument, stating, in part, that “[c]ounsel unsuccessfully attempted

  to schedule a phone call with [father] . . . . Thus, any information

  counsel includes regarding [father’s] position is essentially an offer

  of proof.”


                                      12
                              C.    Analysis

¶ 32   Father argues that the judgment terminating his parental

  rights must be vacated because counsel’s failure to communicate

  with him “rendered him unable to essentially offer anything more

  than an ‘offer of proof’ at the termination stage of [his] case,” which

  “deprived [him] of the equal contest of opposed interests required

  for fundamentally fair proceedings.” Father doesn’t allege how or

  why the result of the proceeding would have been any different had

  counsel communicated with him, but instead relies solely on the

  fundamental fairness test adopted in A.R., ¶¶ 57-68.

¶ 33   Because father “has failed to allege facts that would prove

  prejudice,” we conclude that his ineffective assistance of counsel

  claim fails. People in Interest of A.G., 262 P.3d 646, 652 (Colo.

  2011); see S.L., ¶ 65.

¶ 34   In reaching this conclusion, we decline to apply A.R.’s

  fundamental fairness test for establishing prejudice in ineffective

  assistance of counsel claims, which is contrary to every other

  division that has addressed the Strickland prejudice prong in

  termination of parental rights cases. See In re Estate of Becker, 32

  P.3d 557, 563 (Colo. App. 2000) (“[D]ivisions of this court generally


                                    13
  have given considerable deference to the decisions of other

  [divisions] . . . .”), aff’d sub nom. In re Estate of DeWitt, 54 P.3d 849

  (Colo. 2002). And we discern no compelling reason to dilute the

  prejudice test in termination of parental rights cases in favor of

  A.R.’s fundamental fairness test given the latter has its own

  problems. It is “a requirement whose meaning can be as opaque as

  its importance is lofty.” A.M. v. A.C., 2013 CO 16, ¶ 28 (quoting

  Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 24 (1981)). Because of

  its uncertainty and lack of clear benchmarks, we conclude that

  fundamental fairness isn’t a viable alternative to outcome-

  determinative prejudice.

¶ 35   But we need not delve into the fundamental fairness test’s

  specific shortcomings because ultimately, even if we were to agree

  with A.R.’s reasoning, see A.R., ¶¶ 46-55 (“Fundamental fairness as

  a focus of Strickland’s prejudice inquiry is also simply more suited

  to the highly discretionary nature of termination proceedings.”),

  we’re bound by supreme court precedent. And the supreme court

  defines “prejudice” in an ineffective assistance of counsel claim in

  parental termination cases as requiring some evidence showing




                                      14
  “that the result of the termination hearing may have been different”

  absent counsel’s unprofessional errors. A.G., 262 P.3d at 652.

¶ 36      In A.G., our supreme court reviewed a parent’s ineffective

  assistance of counsel claim based on trial counsel’s failure to timely

  request that the trial judge recuse himself in a parental termination

  proceeding. The court “decline[d] to decide whether Strickland

  applies to a claim of ineffective assistance in a termination hearing,”

  but it held “that if such a claim is cognizable, at the very least, an

  allegation of prejudice would be required.” Id. at 651. And it

  described prejudice by quoting from Strickland: “The reviewing

  court looks at whether ‘there is a reasonable probability that, but

  for counsel’s unprofessional errors, the result of the proceeding

  would have been different.’” Id. (quoting Strickland, 466 U.S. at

  694).

¶ 37      The court then analyzed the parent’s claim and found that the

  parent “failed to allege facts that would prove prejudice” because

  the allegation “[didn’t] contain any facts to support a conclusion

  that the judge was actually biased.” Id. at 652. It also found that

  the claim “[a]t most . . . alleged that there may have been an

  appearance of impropriety[.]” Id.


                                      15
¶ 38   The supreme court then addressed the deficiency in the

  division’s analysis:

             The court of appeals maintained that [the
             parent] suffered prejudice in that, had the
             recusal motion [] been timely, [the parent]
             would have been entitled to a different
             termination hearing before a different judge.
             This conclusion fails to focus on the key
             concern of the prejudice prong: whether the
             result of the proceeding would have been
             different. The court of appeals did not
             conclude, and there has been no evidence
             presented, that the result of the termination
             hearing may have been different if the judge
             had recused himself.

  Id. The court concluded that “[w]ithout an assertion of prejudice,

  counsel’s failure to move for disqualification cannot be the basis of

  a valid claim for ineffective assistance of counsel.” Id.

¶ 39   Thus, we conclude that A.G. requires that a cognizable

  ineffective assistance of counsel claim in a termination proceeding

  must, “at the very least,” allege “there is a reasonable probability

  that, but for counsel’s unprofessional errors, the result of the

  proceeding would have been different.” Id. at 651 (quoting

  Strickland, 466 U.S. at 694).

¶ 40   Father doesn’t allege with any specificity how counsel’s

  performance prejudiced him. He doesn’t allege what evidence


                                     16
  counsel should have elicited in his testimony that would have

  resulted in the proceeding’s outcome being different had he

  testified. See People in Interest of V.M.R., 768 P.2d 1268, 1270-71

  (Colo. App. 1989) (deciding that parent’s absence from termination

  hearing was not prejudicial where parent was represented by

  counsel and personal presence would have had little effect on the

  proceeding). And he doesn’t allege how counsel’s further

  communication with him or fuller understanding of the facts and

  father’s position on central issues would have caused the result of

  the proceeding to have been different.

¶ 41   Without such an assertion of prejudice, counsel’s conduct

  can’t be the basis of a valid claim for ineffective assistance of

  counsel. A.G., 262 P.3d at 652; S.L., ¶ 60.

                             IV.   Conclusion

¶ 42   The judgment is affirmed.

       JUDGE FURMAN specially concurs.

       JUDGE NAVARRO specially concurs.




                                     17
       JUDGE FURMAN, specially concurring.

¶ 43   While I agree that father did not allege with enough specificity

  how counsel’s deficient performance prejudiced him, I write

  separately to address the majority’s view that we should apply

  Strickland’s criminal prejudice inquiry to an ineffective assistance of

  counsel claim in a civil dependency and neglect case. I would follow

  the division in A.R. and apply fundamental fairness as the standard

  by which we evaluate prejudice in parents’ ineffective assistance of

  counsel claims. See People in Interest of A.R., 2018 COA 176,

  ¶¶ 64-65 (cert. granted Mar. 4, 2019).

¶ 44   The majority concludes that the supreme court’s holding in

  People in Interest of A.G., 262 P.3d 646, 651 (Colo. 2011), requires,

  at a minimum, that we apply Strickland’s “outcome-determinative”

  prejudice inquiry to respondent parents’ ineffective assistance of

  counsel claims. I respectfully disagree. True, the court applied this

  inquiry to such a claim. Id. But, as I read A.G., this was by

  example because the court in A.G. explicitly declined to “decide

  whether Strickland applies to a claim of ineffective assistance in a

  termination hearing.” Id. If I am misreading A.G., I respectfully ask

  our supreme court, for the reasons that follow, to reconsider its


                                    18
  holding regarding the prejudice inquiry. The division in A.R. did not

  directly address the shortcomings of making such an inquiry, so I

  do so here.

¶ 45   The United States Supreme Court in Strickland v. Washington

  set out the now-familiar test for evaluating a criminal defendant’s

  ineffective assistance of counsel claim. 466 U.S. 668 (1984). A

  defendant making this claim must first show “that counsel’s

  performance was deficient. This requires showing that counsel

  made errors so serious that counsel was not functioning as the

  ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.

  at 687. A defendant then must show “that the deficient

  performance prejudiced the defense. This requires showing that

  counsel’s errors were so serious as to deprive the defendant of a fair

  trial, a trial whose result is reliable.” Id. The court explained that

  “the question is whether there is a reasonable probability that,

  absent the errors, the factfinder would have had a reasonable doubt

  respecting guilt.” Id. at 695. This is referred to as the “outcome-

  determinative” test.

¶ 46   Without analysis, divisions of this court have adopted the

  Strickland outcome-determinative test to evaluate ineffective


                                    19
  assistance claims in civil termination of parental rights proceedings.

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

  1989) (adopting, without analysis, the outcome-determinative test

  for prejudice in ineffective assistance of counsel claims); see also

  People in Interest of C.H., 166 P.3d 288, 291 (Colo. App. 2007)

  (same); People in Interest of D.G., 140 P.3d 299, 308 (Colo. App.

  2006) (same). Under this test, a parent bringing an ineffective

  assistance claim must show “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.

¶ 47   But the United States Supreme Court cautioned against

  applying Strickland’s prejudice inquiry in a mechanical fashion.

  Weaver v. Massachusetts, 582 U.S. ___, ___, 137 S. Ct. 1899, 1911

  (2017) (citing Strickland, 466 U.S. at 694, 696). The Court

  recognized that under Strickland,

          • “the concept of prejudice is defined in different ways

             depending on the context in which it appears”;

          • “the prejudice inquiry is not meant to be applied in a

             ‘mechanical’ fashion”; and




                                    20
          • “when a court is evaluating an ineffective-assistance

             claim, the ultimate inquiry must concentrate on the

             ‘fundamental fairness of the proceeding.’”

  Id. (quoting Strickland, 466 U.S. at 696).

¶ 48   I believe that evaluating ineffective assistance of counsel

  claims in civil termination of parental rights proceedings calls for a

  more flexible prejudice inquiry — one that concentrates on the

  “fundamental fairness” of the proceeding. I reach this conclusion

  for two reasons: (1) there are essential differences between criminal

  trials and civil termination of parental rights proceedings; and (2)

  since the landmark decision in Santosky v. Kramer, 455 U.S. 745

  (1982), the United States Supreme Court and our supreme court

  have consistently used “fundamental fairness” as the benchmark

  for evaluating the adequacy of procedures afforded to parents in

  termination of parental rights proceedings. I believe errors of

  counsel should be measured by their effect on whether a parent

  received a fundamentally fair termination of parental rights hearing.

  See A.R., ¶ 57. I will refer to this as the “fundamental fairness” test.

                         I.    Essential Differences




                                    21
¶ 49   Criminal trials and civil termination of parental rights

  hearings require the fact finder to answer profoundly different

  questions.

¶ 50   In criminal trials, the judge or jury must decide whether the

  prosecution proved that the defendant committed the charged crime

  at a specific time and place. See In re Winship, 397 U.S. 358, 364

  (1970). If it finds the prosecution proved this beyond a reasonable

  doubt, it must find the defendant guilty. Leonard v. People, 149

  Colo. 360, 372, 369 P.2d 54, 61 (1962). In other words, it does not

  have discretion to find otherwise. Id.

¶ 51   Unlike criminal trials, a typical civil termination of parental

  rights hearing requires the judge to conduct a multifactorial,

  totality-of-the-circumstances evaluation of a parent’s fitness, or

  whether a parent is likely to become fit within a reasonable time,

  based primarily on the parent’s compliance with an appropriate

  treatment plan over many months. § 19-3-604(1)(c)(I)-(III), C.R.S.

  2019. Colorado’s complex statutory scheme provides a

  nonexhaustive list of factors the judge may consider when

  conducting this evaluation. See § 19-3-604(2). But that does not

  end the judge’s analysis.


                                    22
¶ 52   Even if the judge determines that the Department or guardian

  ad litem proved parental unfitness and other criteria by clear and

  convincing evidence, the judge retains discretion to decide whether

  to terminate parental rights. 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:

  . . . .”) (emphasis added). By using the word “may,” the General

  Assembly gave the judge discretion to deny termination even when

  the statutory criteria are met.

¶ 53   Factors that may influence the judge’s decision to terminate

  parental rights include whether a less drastic alternative exists and

  the “physical, mental, and emotional conditions and needs of the

  child.” § 19-3-604(3); People in Interest of M.M., 726 P.2d 1108,

  1122 (Colo. 1986). Unlike in a criminal case, in which the fact

  finder must choose between only two possible outcomes — guilty or

  not guilty of a specifically defined offense at a fixed point in time —

  the juvenile court’s decision is not a binary choice of whether a

  parent is fit or unfit, able or unable to care for a child on the final

  day of the termination hearing. Instead, for example, a juvenile

  court may conclude that, even though termination is one legally


                                     23
  available option, an allocation of parental responsibilities to a

  relative would better serve a particular child’s needs.

¶ 54   These differences between criminal trials and civil termination

  hearings bear on the propriety of applying the outcome-

  determinative test in each context. In criminal trials, a defendant

  mounting an ineffective assistance claim must show that errors of

  counsel “actually had an adverse effect on the defense.” Strickland,

  466 U.S. at 693. An outcome-determinative test in a criminal case,

  then, can properly focus on “whether there is a reasonable

  probability that, absent the errors, the factfinder would have had a

  reasonable doubt respecting guilt.” Id. at 695.

¶ 55   In contrast, the prejudicial effect of counsel’s errors on the

  judge’s parental fitness determination is difficult, if not impossible,

  to quantify because a cold record seldom shows how any one or

  more of the factors may have dealt the deciding blow in the fitness

  determination. And, even if we could quantify this, the fitness

  determination is not the only factor the judge must consider. Thus,

  weighing the prejudicial effect of counsel’s errors on the decision to

  terminate parental rights only results in speculation.




                                     24
¶ 56   Two hypothetical cases illustrate these key differences and

  show why I believe an ineffective assistance of counsel claim in a

  civil termination of parental rights proceeding should not include an

  outcome-determinative inquiry.

¶ 57   Imagine that the prosecution charges a defendant with second

  degree burglary. At trial, defense counsel fails to call two of the

  defendant’s friends, who would have credibly testified that the

  defendant was with them in another town on the day of the

  burglary. Without this evidence, the jury finds the defendant guilty,

  and he is convicted of the offense.

¶ 58   Now imagine the defendant brings an ineffective assistance of

  counsel claim. He must show that (1) his counsel’s performance

  was outside the wide range of professionally competent assistance

  and (2) he was prejudiced by counsel’s errors. Strickland, 466 U.S.

  at 687. To satisfy the “prejudice” prong, the defendant must show

  there is “a reasonable probability that, but for counsel’s

  unprofessional errors, the result of the proceeding would have been

  different.” Id. at 694.

¶ 59   The hypothetical defendant can show that had his lawyer

  called his friends as witnesses, there is a reasonable probability the


                                    25
  jury would not have found that he committed the burglary. See

  § 18-4-204, C.R.S. 2019; Leonard, 149 Colo. at 372, 369 P.2d at 61.

  That is, the postconviction court can assess how the friends’

  testimony would have affected the verdict because it would have

  shown the defendant was not at the scene of the crime.

¶ 60   Contrast this hypothetical with a civil termination of parental

  rights proceeding.

¶ 61   Imagine a mother struggles with substance abuse. Her young

  child has been placed out of her home for a year, and she is now

  facing termination of her parental rights. At the termination

  hearing, the judge hears testimony from mother’s caseworker that

  mother has attended some, but not all, of her required substance

  abuse treatment sessions; that she has maintained sobriety for

  some of the time her child has been placed outside the home; and

  that she has missed visits with her child. The caseworker offers her

  expert opinion that terminating mother’s parental rights is in the

  best interests of the child.

¶ 62   Now imagine that mother’s counsel failed to call her substance

  abuse therapist as a witness at the termination hearing. The

  therapist would have credibly testified that mother was the most


                                   26
  successful client he had ever worked with, that she has been sober

  for six months, and that she will almost certainly maintain sobriety

  going forward. Without this evidence, the judge terminates

  mother’s parental rights, finding, among other things, that the

  Department of Human Services and the child’s guardian ad litem

  proved by clear and convincing evidence that mother did not

  reasonably comply with her treatment plan, that she is unfit, and

  that she is unlikely to become fit within a reasonable time. See §

  19-3-604(1)(c)(I)-(III).

¶ 63    Now suppose that mother brings an ineffective assistance of

  counsel claim on direct appeal.

¶ 64    I believe that mother would be hard pressed to show that the

  outcome would have been different. Under the outcome-

  determinative test, she may be able to show that her therapist’s

  testimony would have been highly relevant to whether she

  reasonably complied with her treatment. But an appellate court

  could only speculate on what effect this evidence might have had on

  the outcome. This is so because we have no way to determine

  whether the judge would have maintained his or her evaluation of

  mother’s fitness or whether mother would become fit within a


                                    27
  reasonable time based on other factors, such as mother’s missed

  visits. And fitness is not the outcome. The outcome is the

  judgment terminating parental rights. Parental fitness is only one

  factor the judge must consider when deciding whether to terminate

  parental rights. The judge must also consider facts external to the

  parent, including the physical, mental, and emotional conditions

  and needs of the child and whether there are any less drastic

  alternatives. § 19-3-604(3); M.M., 726 P.2d at 1122.

¶ 65   Our supreme court has made clear that an appellate court

  may not substitute its own judgment for that of the juvenile court.

  People in Interest of A.J.L., 243 P.3d 244, 249-50, 253 (Colo. 2010)

  (citing People in Interest of C.A.K., 652 P.2d 603, 613 (Colo. 1982)).

  But, in my view, this kind of second-guessing is precisely what the

  outcome-determinative test requires appellate courts to do in

  termination of parental rights cases. See D.G., 140 P.3d at 308

  (explaining that, to establish prejudice under Strickland “a parent

  must show that there is a reasonable probability that, but for

  counsel’s deficient performance, the outcome of the hearing would

  have been different”).




                                    28
¶ 66   In sum, it is difficult, if not impossible, for a parent to show —

  and an appellate court to assess — prejudice under a mechanical

  application of Strickland’s outcome-determinative test. See Susan

  Calkins, Ineffective Assistance of Counsel in Parental-Rights

  Termination Cases: The Challenge for Appellate Courts, 6 J. App.

  Prac. & Process 179, 215 (2004) (“In almost all of the cases in which

  Strickland is applied, either expressly or impliedly, the courts

  decline to find ineffectiveness.”).

¶ 67   For this reason, I believe that applying the outcome-

  determinative test in the parental rights context is at odds with the

  legislature’s guarantee that respondent parents shall have the “right

  to be represented by counsel at every stage of the proceedings.”

  § 19-3-202(1), C.R.S. 2019. If Colorado courts mechanically apply

  an outcome-determinative test, which poses an almost

  insurmountable hurdle for parents alleging ineffective assistance of

  counsel, I fail to see how parents’ statutory right to effective counsel

  can be protected. See In re Geist, 796 P.2d 1193, 1200 (Or. 1990)

  (“The statutory right to adequate trial counsel may prove illusory if

  there is no procedure for review of claims of inadequate counsel.”).




                                        29
¶ 68   In my view, it makes little sense to stretch Strickland beyond

  its Sixth Amendment, criminal, origins.

                        II.   Fundamental Fairness

¶ 69   Instead, I believe the prejudice inquiry must concentrate on

  the “fundamental fairness” of the proceeding. See A.R., ¶ 56. The

  fundamental fairness test asks whether deficient performance by a

  respondent parent’s counsel “rendered the proceeding

  fundamentally unfair or the result of the proceeding unreliable.” Id.

  at ¶ 11. In my view, this test better comports with the flexible,

  discretionary nature of dependency and neglect proceedings. See

  § 19-3-604(1). After all, dependency and neglect proceedings are

  civil cases, not criminal cases, implicating parents’ due process

  rights to the care, custody, and control of their child. And

  fundamental fairness has long been the benchmark by which the

  United States Supreme Court and our supreme court have

  evaluated the adequacy of procedural protections afforded to

  parents in termination of parental rights proceedings. See

  Santosky, 455 U.S. at 753-54; People in Interest of A.M.D., 648 P.2d

  625, 636 (Colo. 1982) (adopting clear and convincing evidence as

  the standard of proof in termination of parental rights hearings


                                    30
  because Santosky requires “that the State’s procedure must be

  fundamentally fair”); see also People in Interest of J.W. v. C.O., 2017

  CO 105, ¶¶ 34-35 (considering whether “the trial court’s failure to

  enter a written adjudication order” before terminating parental

  rights impaired “the fundamental fairness of the proceedings”); A.M.

  v. A.C., 2013 CO 16, ¶ 38 (“[F]ull participation by foster parent

  intervenors does not undermine the fundamental fairness of the

  termination hearing.”); B.B. v. People, 785 P.2d 132, 136-37 (Colo.

  1990) (explaining that the purpose of the “complex statutory

  scheme” governing termination proceedings is to “accord

  fundamental fairness to all parties”).

¶ 70   The majority concludes that the fundamental fairness test is

  “opaque” and has problems with “uncertainty and lack of clear

  benchmarks.” Supra ¶ 34 (quoting A.M., ¶ 28). I respectfully

  disagree.

¶ 71   A.R. outlined two concrete ways a parent may answer a

  prejudice inquiry. See A.R., ¶¶ 64-65.

¶ 72   First, a parent could claim that his counsel’s deficient

  performance impaired a significant procedural safeguard, such as

  the right to notice, the right to a separate hearing, the right to proof


                                     31
  by clear and convincing evidence, and the right to appeal. Id. at

  ¶ 64; see A.M., ¶¶ 29, 38 (recognizing the significant protections

  Colorado law provides to respondent parents under the

  “fundamental fairness” standard). To illustrate, a parent could

  allege that his counsel rendered deficient performance by not

  objecting to the Department of Human Services explaining what

  evidence it would offer to the court without actually presenting that

  evidence at a termination of parental rights hearing. (This

  unfortunately common procedure is often called an “offer of proof.”

  See A.R., ¶¶ 89-96 (discussing “offer of proof”).) The parent could

  show prejudice by claiming he was denied the right to proof by clear

  and convincing evidence at the termination of parental rights

  proceeding, as required under section 19-3-604(1) and A.M.D., 648

  P.2d at 636.

¶ 73   Second, a parent could claim that her counsel’s deficient

  performance prevented the juvenile court from receiving essential

  information favorable to the parent relating to section 19-3-604’s

  termination criteria. A.R., ¶ 65. To illustrate, our earlier

  hypothetical mother could allege that her counsel rendered deficient

  performance by failing to call her therapist as a witness. Recall that


                                    32
  the therapist would have credibly testified that mother successfully

  engaged in her treatment plan and was sober for the six months

  before the termination of parental rights hearing. The hypothetical

  mother could show prejudice by claiming that the therapist’s

  testimony would have provided essential information relating to her

  compliance with her treatment plan and fitness to parent. See §

  19-3-604(1)(c)(I), (II); A.R., ¶ 65. If she makes such a showing, the

  juvenile court, on remand, would evaluate its termination judgment

  after hearing the therapist’s testimony.

¶ 74   For all these reasons, I believe that fundamental fairness is

  the better test for evaluating whether errors by a parent’s counsel

  under Colorado’s complex statutory scheme deprived the parent of

  a fundamentally fair termination of parental rights hearing.

¶ 75   I now turn to the present case.

¶ 76   Father contends on appeal that his counsel rendered

  ineffective assistance for the following reasons:

          • His attorney did not arrange for father’s attendance at

             the termination hearing by telephone.

          • His attorney did not arrange for father to testify.




                                    33
          • His attorney was unclear about many of the facts central

             to father’s case.

          • His attorney was uncertain about father’s

             communications with his son.

          • His attorney did not know whether father’s condition had

             improved during the proceedings.

¶ 77   Applying the fundamental fairness test, I would conclude

  father has not alleged with enough specificity how counsel’s

  deficient performance prejudiced him. I reach this conclusion for

  two reasons: (1) father does not allege that his counsel’s deficient

  performance impaired a significant procedural safeguard and (2) he

  does not claim that his counsel’s deficient performance prevented

  the court from receiving essential information favorable to him

  relating to section 19-3-604’s termination criteria. See A.R., ¶ 66.

¶ 78   I conclude with one last observation. Permitting a parent to

  bring an ineffective assistance claim on direct appeal is the most

  expedient way to handle these claims, because it allows a reviewing

  court to consider all errors that could potentially disrupt the finality

  of a termination judgment in one step. See Calkins, 6 J. App. Prac.




                                     34
& Process at 207 (“A direct appeal is likely to be faster than either a

post-judgment motion or a habeas proceeding in most cases.”).




                                  35
       JUDGE NAVARRO, specially concurring.

¶ 79   I join Judge Hawthorne’s opinion in full. I write separately to

  say that I also agree with Judge Furman that father’s assertion of

  prejudice from his counsel’s allegedly deficient performance fails the

  fundamental fairness test adopted in People in Interest of A.R., 2018

  COA 176, ¶ 35 (cert. granted Mar. 4, 2019). Accordingly, under

  either test for assessing prejudice from his counsel’s performance,

  father’s claim does not succeed.




                                     36
