     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
                                                          November 14, 2019

                               2019COA168

No. 18CA1013, People in Interest of C.B. — Juvenile Court —
Dependency and Neglect — Termination of the Parent-Child
Legal Relationship; Appellate Procedure — Appeals from
Proceedings in Dependency or Neglect — Time for Appeal

     In this appeal of a judgment terminating parental rights,

mother challenges the adjudication of her child by default entered

after she failed to appear at an advisement of rights hearing. She

claims that the juvenile court violated C.R.C.P. 55, and that she is

entitled to relief under C.R.C.P. 60(b)(3). Because mother’s

challenge is to the adjudication, the division concludes that it is not

timely under either section 19-1-109(2)(c), C.R.S. 2019, or C.A.R.

3.4(b)(1). Thus, the division dismisses this portion of mother’s

appeal.

     Mother also challenges her trial counsel’s effectiveness,

claiming her first appointed attorney rendered ineffective assistance
by not attacking the default adjudication. Because mother was

appointed another attorney who represented her at the termination

of parental rights hearing, and she does not contend that this

attorney rendered ineffective assistance, the division concludes that

mother is not entitled to relief from the judgment terminating her

parental rights on this basis. Thus, the division affirms the

judgment terminating mother’s parental rights
COLORADO COURT OF APPEALS                                    2019COA168


Court of Appeals No. 18CA1013
Pueblo County District Court No. 17JV248
Honorable William D. Alexander, Judge


The People of the State of Colorado,

Petitioner-Appellee,

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

and Concerning A.A.,

Respondent-Appellant.


                          APPEAL DISMISSED IN PART
                          AND JUDGMENT AFFIRMED

                                  Division III
                          Opinion by JUDGE FURMAN
                          Webb and Brown, JJ., concur

                         Announced November 14, 2019


Cynthia Mitchell, County Attorney, David A. Roth, Special Assistant County
Attorney, Pueblo, Colorado, for Petitioner-Appellee

Jennifer Zamarripa, Guardian Ad Litem

Debra W. Dodd, Office of Respondent Parents’ Counsel, Berthoud, Colorado, for
Respondent-Appellant
¶1    In this dependency and neglect case, the juvenile court

 adjudicated the child, C.B., dependent and neglected by default

 after mother, A.A., failed to appear at an advisement of rights

 hearing. The juvenile court appointed an attorney for mother after

 it entered the default adjudication. This attorney withdrew shortly

 afterward.

¶2    Mother then filed a pro se motion to set aside the default

 adjudication. But, after conferring with her second appointed

 attorney, she agreed to withdraw this motion.

¶3    The juvenile court later entered a judgment terminating

 mother’s parental rights.

¶4    On appeal, mother mounts several challenges to the judgment

 terminating her parental rights, two of which are central to her

 appeal.

¶5    First, she attacks the adjudication of her child by default,

 claiming that the juvenile court violated C.R.C.P. 55, and that she is

 entitled to relief under C.R.C.P. 60(b)(3). We note that mother

 appears to have waived her challenge to the default adjudication.

 But we conclude that because her challenge is to the adjudication,




                                   1
 it is not timely under either section 19-1-109(2)(c), C.R.S. 2019, or

 C.A.R. 3.4(b)(1). Thus, we dismiss this portion of her appeal.

¶6    Second, mother contends her first appointed attorney

 rendered ineffective assistance by not challenging the default

 adjudication. Because mother withdrew her challenge to the

 default adjudication, we conclude that she cannot use the entry of

 default as a basis to complain about her first attorney’s

 effectiveness. And because mother was appointed another attorney

 who represented her at the termination of parental rights hearing,

 and she does not contend that this attorney rendered ineffective

 assistance, we conclude that she is not entitled to relief from the

 judgment terminating her parental rights on this basis. See People

 in Interest of A.R., 2018 COA 176, ¶ 78 (recognizing a claim of

 ineffective assistance of termination counsel in the “narrow

 circumstance” where, because of counsel’s deficient performance,

 the county department did not prove the “fact of adjudication”

 element in section 19-3-604(1), C.R.S. 2019) (cert. granted Mar. 4,

 2019).

¶7    Mother also points out that the juvenile court erred by not

 making an Indian Child Welfare Act of 1978 (ICWA) inquiry at the


                                   2
  hearing terminating her parental rights. Because, in supplemental

  briefing, mother concedes the child does not have any Indian

  heritage, we conclude that the juvenile court’s inquiry error was

  harmless.

                        I. The Default Judgment

¶8     The record establishes the following facts.

¶9     The Pueblo County Department of Human Services filed a

  petition in dependency or neglect after mother left the child with a

  friend. Mother had asked the friend to care for the child

  temporarily because mother was using methamphetamine and had

  lost her home and job.

¶ 10   Although mother had not been served with notice of the

  dependency or neglect proceeding, the juvenile court ordered her to

  appear for advisement on April 24, 2017. (Mother appeared before

  the juvenile court in an unrelated matter on April 20, 2017.) A

  minute order indicates mother received a copy of the Department’s

  “report of investigation” and an application for court-appointed

  counsel, but not a copy of the petition in dependency or neglect, a

  summons, or an advisement of her rights in the dependency or

  neglect action.


                                    3
¶ 11   Mother returned to Utah, where she had originally tried to

  place the child with friends or family. She asked the court to allow

  her to appear at the advisement hearing by telephone. The juvenile

  court denied her request. When mother did not appear at the

  advisement hearing, the Department asked the juvenile court to

  adjudicate the child dependent or neglected by default. The

  juvenile court agreed. We note the following concerning this April

  24, 2017, hearing:

          • Mother had not been served.

          • Mother had not been advised of her rights.

          • Mother had not been notified that the juvenile court

             would address adjudication rather than advisement at

             this hearing.

          • Mother had not been notified that the Department would

             seek a default judgment.

          • Mother had not been appointed counsel.

¶ 12   Seven weeks later, the juvenile court appointed counsel for

  mother. At a July 2017 hearing, this counsel reported that mother

  had agreed to file a written stipulation to adjudication because he

  had advised her that it would be “very difficult to get out of a default

                                     4
  judgment this old.” (The record does not include a written

  stipulation.) This attorney withdrew after the July hearing.

¶ 13   In August 2017, mother filed a pro se motion to set aside the

  default judgment. The motion stated that mother (1) had not been

  properly served or advised and (2) could document a legal

  temporary guardianship of the child with the friend. The juvenile

  court did not rule on the motion.

¶ 14   In September 2017, the court appointed a second attorney to

  represent mother. In November 2017, after conferring with her

  second attorney, mother agreed to withdraw her motion to set aside

  the default judgment and work on her treatment plan.

¶ 15   The juvenile court terminated mother’s parental rights more

  than one year after entering the default adjudication.

                          II. The Adjudication

¶ 16   Mother first challenges the adjudication.

                   A. Mother’s Challenge is Untimely

¶ 17   Mother contends that the juvenile court erred by adjudicating

  the child dependent or neglected by default when she did not

  appear at the advisement hearing. Although we have grave

  concerns about the process by which the juvenile court entered


                                      5
  adjudication, we conclude that we must dismiss this portion of

  mother’s appeal.

¶ 18   Challenges to the propriety of a judgment of adjudication must

  be raised in a timely appeal from the adjudicatory stage of a

  dependency and neglect proceeding. People in Interest of E.H., 837

  P.2d 284, 287 (Colo. App. 1992). A judgment of adjudication

  becomes final and appealable on entry of the initial dispositional

  order. § 19-1-109(2)(c); People in Interest of C.L.S., 934 P.2d 851,

  854 (Colo. App. 1996). A respondent parent has twenty-one days to

  file an appeal of a judgment of adjudication after entry of an initial

  dispositional order. C.A.R. 3.4(b)(1). This expedited timeframe

  allows a reviewing court to timely address the propriety of an

  adjudication and mitigates delay in achieving permanency for

  children. See, e.g., § 19-1-109(1); see also People in Interest of P.N.,

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

  involving children.”).

¶ 19   Mother concedes that she did not appeal the judgment of

  adjudication within the time for appeal established by C.A.R. 3.4.

  But she contends that we may review this judgment because (1) it

  was entered in violation of C.R.C.P. 55 and, as a result, it was void;


                                     6
  and (2) the limitations period does not apply to void judgments. We

  disagree.

¶ 20   The timely filing of a notice of appeal is a jurisdictional

  prerequisite to appellate review. In re C.A.B.L., 221 P.3d 433, 438

  (Colo. App. 2009). Mother cites no authority to support her

  contention that the limitations period of C.A.R. 3.4 does not apply

  to allegedly void judgments, and we are aware of none.

¶ 21   Apparently recognizing this fatal flaw, mother asks us to

  review the adjudicatory order under C.R.C.P. 60(b)(3). True

  enough, when a trial court motion alleges that a judgment is void,

  either the judgment is void or it is not, and if it is void, relief must

  be afforded accordingly. See In re C.L.S., 252 P.3d 556, 561 (Colo.

  App. 2011) (citing In re Marriage of Stroud, 631 P.2d 168, 170 n.5

  (Colo. 1981)). But mother did not file such a motion in the trial

  court. And she cites no authority that an appellate court can act

  under this rule. See Barnett v. Elite Props. of Am., Inc., 252 P.3d 14,

  19 (Colo. App. 2010) (“We will not consider a bald legal proposition

  presented without argument or development.”). In any event, the

  absence of an analogous rule in the Colorado Appellate Rules

  strongly suggests otherwise.


                                      7
¶ 22   Finally, mother broadly contends that the allegedly erroneous

  default adjudication “requires reversal of [both] the adjudication

  and subsequent termination.” But on appeal she does not directly

  challenge any of the criteria for termination — including sufficiency

  of proof that the child was adjudicated dependent or neglected. See

  § 19-3-604(1); A.R., ¶¶ 33, 78. Instead, her argument focuses solely

  on the validity of the judgment of adjudication by default. Because

  her challenge to the adjudication is untimely, we cannot consider

  whether or how a flawed adjudication might have affected the later

  termination.

¶ 23   And because her appeal is untimely, we lack jurisdiction to

  reach the merits of the adjudication. See People in Interest of A.E.,

  994 P.2d 465, 467 (Colo. App. 1999) (“S.E.’s appeal is untimely and

  this court lacks jurisdiction to entertain it.”). We also note that by

  agreeing to withdraw her pro se motion to set aside the default

  adjudication, after conferring with her second appointed attorney,

  she appears to have waived any challenge to the judgment by

  default. But we do not reach that issue because, as noted above,

  we lack jurisdiction to reach the merits of the adjudication.

¶ 24   Thus, we dismiss this portion of her appeal.


                                     8
                   B. Ineffective Assistance of Counsel

¶ 25   Mother next challenges the effectiveness of her first appointed

  counsel primarily because he did not challenge the default

  adjudication. She also points out that he revealed his private

  advice to her regarding the default adjudication in open court, told

  the court she stipulated to the adjudication, and withdrew his

  representation without notice to her. We perceive no basis for

  reversal.

¶ 26   To establish a claim of ineffective assistance of counsel, a

  parent must show that (1) counsel’s performance was outside the

  wide range of professionally competent assistance and (2) counsel’s

  errors prejudiced the parent. A.R., ¶ 7; see also Strickland v.

  Washington, 466 U.S. 668, 687 (1984). If the parent fails to

  establish either prong of this test, the claim fails. See People in

  Interest of C.H., 166 P.3d 288, 291 (Colo. App. 2007) (stating that a

  claim of ineffective assistance fails unless parent’s allegations, if

  true, would establish both prongs of the Strickland test).

¶ 27   As noted, after conferring with her second appointed counsel,

  mother withdrew her motion to set aside the default adjudication

  and agreed to work on her treatment plan. Because she withdrew


                                      9
  her challenge to the default adjudication, we conclude that she

  cannot use the entry of default as a basis to complain about her

  first attorney’s effectiveness.

¶ 28   And, mother was appointed another attorney who represented

  her at the termination of parental rights hearing. Because she does

  not contend that this attorney rendered ineffective assistance, we

  conclude that she is not entitled to relief from the judgment

  terminating her parental rights on this basis. See A.R., ¶ 78

  (recognizing a claim of ineffective assistance of termination counsel

  in the “narrow circumstance” where, because of counsel’s deficient

  performance at the adjudicatory stage, the county department did

  not prove the “fact of adjudication” element in section 19-3-604(1),

  C.R.S. 2019).

            C. Compliance with the Indian Child Welfare Act

¶ 29   In her opening brief, mother also contends that the juvenile

  court did not comply with the inquiry requirements of ICWA,

  because it did not inquire on the record whether she knew or had

  reason to know or believe that the child was an Indian child.

¶ 30   A division of this court ordered mother to submit a

  supplemental brief addressing (1) whether she had reason to know


                                    10
  or believe the child is an Indian child and (2) whether the juvenile

  court’s alleged failure to comply with ICWA constituted harmless

  error.

¶ 31   Mother concedes that she does not have any Indian heritage.

  Thus, the juvenile court’s inquiry error was harmless. We reject

  mother’s contention that the error in this case was not harmless

  because a similar error in another case might lead to tragic

  consequences.

                             III. Conclusion

¶ 32   The appeal is dismissed in part, and the judgment terminating

  mother’s parental rights is affirmed.

       JUDGE WEBB and JUDGE BROWN concur.




                                    11
