People ex rel. C.H., 06CA1567.

• Citation: 166 P.3d 288
• Decision Date: 14 June 2007
• Docket Number: No. 06CA1567.,06CA1567.
• Parties: The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of C.H., a Child, and Concerning M.J.H., a/k/a M.J.S., Respondent-Appellant.
• Court: Court of Appeals of Colorado

166 P.3d 288

The PEOPLE of the State of Colorado, Petitioner-Appellee,

In the Interest of C.H., a Child, and

Concerning M.J.H., a/k/a M.J.S., Respondent-Appellant.

No. 06CA1567.

Colorado Court of Appeals, Div. VI.

June 14, 2007.

George H. Hass, County Attorney, William G. Ressue, Assistant County Attorney, Fort Collins, Colorado, for Petitioner-Appellee.

Sarah A. Hubbard, Fort Collins, Colorado, for Respondent-Appellant.

Opinion by Judge RUSSEL.

M.J.S. appeals from a judgment terminating the parent-child legal relationship between her and her child, C.H. We remand for further proceedings.

I. Sufficiency of Evidence

M.J.S. argues that the evidence was insufficient to support an order of termination. We disagree.

A trial court may terminate a parent-child legal relationship under § 19-3-604(1)(c), C.R.S.2006, if it finds that the following facts have been proved by clear and convincing evidence: (1) the child has been adjudicated dependent or neglected; (2) an appropriate treatment plan, approved by the trial court, has not been complied with by the parent or has not been successful in rehabilitating the parent; (3) the parent is unfit; and (4) the parent's conduct or condition is unlikely to change within a reasonable time. People in Interest of A.M.D., 648 P.2d 625, 637 (Colo.1982). The court must also find that (5) there is no less drastic alternative to termination and that (6) termination is in the child's best interests. Section 19-3-604(3), C.R.S.2006; C.S. v. People, 83 P.3d 627, 640 (Colo.2004).

As finder of fact, the trial court must determine the credibility of the witnesses and the probative effect and weight of evidence as well as the inferences and conclusions to be drawn from the evidence. The trial court's findings will not be disturbed on review if the record supports them. People in Interest of C.A.K., 652 P.2d 603, 613 (Colo. 1982).

Here, the necessary facts were proved by clear and convincing evidence:

1. It was undisputed that the child had been adjudicated dependent or neglected.

2. The trial court found, on supporting evidence, that M.J.S. had failed to attend scheduled visitations with sufficient regularity. In light of this finding, M.J.S. cannot be said to have complied with the treatment plan. See People in Interest of M.T., 121 P.3d 309, 311-12 (Colo.App.2005) (if the parent has not shown good cause for failing to visit the child, the trial court must conclude that the parent has failed to comply with the treatment plan).

3. The state's witnesses testified that M.J.S.'s inconsistent and unpredictable behavior had a negative effect on the child. The witnesses also testified that M.J.S. was unable or unwilling to recognize the child's sexualized behaviors and therefore could not parent all her children successfully. This evidence supports the court's finding that M.J.S. was unfit as to the child. See People in Interest of D.L.C., 70 P.3d 584, 588 (Colo.App.2003) (a parent may be unfit as to one, but not all, of his or her children).

4. The trial court found, on supporting evidence, that M.J.S. exhibited the same problems with consistency and predictability that she had displayed before the intervention. This finding supports the conclusion that M.J.S.'s conduct and condition were unlikely to change within a reasonable time. See § 19-3-703, C.R.S.2006 (creating a twelve-month deadline on permanency placements for children who are under six years of age when they are first placed out of the home); People in Interest of D.L.C., supra, 70 P.3d at 589 ("A reasonable time is not an indefinite time, and it must be determined by considering the physical, mental, and emotional conditions and needs of the child.").

5. Neither the paternal grandmother nor the paternal aunt sought permanent placement of the child. M.J.S. did not want the child to be placed with the maternal grandparents, and no other relatives were suggested as potential alternatives. Therefore, the record supports the trial court's determination that there were no less drastic alternatives to termination.

6. The evidence indicates that the child was adoptable and that her greatest need was a permanent home with consistent, predictable, and nurturing caregivers. In light of M.J.S.'s inconsistency, this evidence supports the trial court's conclusion that termination was in the child's best interests.

Because the record supports the trial court's findings, we conclude that the order of termination was based on sufficient evidence.

II. Ineffective Assistance of Counsel

M.J.S. contends that the order of termination must be reversed because she did not receive the effective assistance of counsel. We conclude that the matter must be remanded for an evidentiary hearing.

A. Governing Law

A parent's right to appointed counsel in termination proceedings is secured by statute, and not by constitutional mandate. People in Interest of A.J., 143 P.3d 1143, 1148 (Colo.App.2006). Nevertheless, Colorado courts will allow a parent to challenge an order of termination on the ground that the parent did not receive the effective assistance of counsel. People in Interest of A.J., supra; People in Interest of T.D., 140 P.3d 205, 217-18 (Colo.App.2006).

When evaluating a claim of ineffective assistance of counsel in termination proceedings, Colorado courts employ the same test that governs claims of ineffective assistance of counsel in criminal cases. People in Interest of A.J., supra; People in Interest of T.D., supra; People in Interest of V.M.R., 768 P.2d 1268, 1270 (Colo.App.1989). Under this test, the parent must show two things: (1) counsel's performance was outside the wide range of professionally competent assistance; and (2) the parent was prejudiced by counsel's errors. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Ardolino v. People, 69 P.3d 73, 76 (Colo.2003).

In criminal cases, ineffective assistance claims are litigated in collateral proceedings according to special rules of procedure. See Crim. P. 35(c). Termination cases are different. Because Colorado law provides no specific mechanism for challenging the effectiveness of counsel in a termination case, a parent must employ one of the general procedures available in civil cases, such as direct appeal. See, e.g., People in Interest of A.J., supra; People in Interest of T.D., supra; People in Interest of V.M.R., supra; see also E.T. v. State, 930 So.2d 721, 727 n. 2 (Fla.Dist.Ct.App.2006) (most states allow the claim to be raised on direct appeal).

Certain problems may arise if an ineffective assistance claim is presented for the first time on direct appeal. The chief problem is that the record may not contain sufficient information to enable the appellate court to resolve the parent's contentions. See S. Calkins, Ineffective Assistance of Counsel in Parental-Rights Termination Cases: The Challenge for Appellate Courts, 6 J.App. Prac. & Process 179, 209 (2004) ("[I]n some cases it will be impossible to determine the merits of an ineffectiveness claim from the appeal record."); see also Ardolino v. People, supra, 69 P.3d at 77.

When the record is insufficient, appellate courts generally remand the case to the trial court for further findings and conclusions. See State ex rel. Children, Youth & Families Dep't v. Tammy S., 126 N.M. 664, 974 P.2d 158, 163-64 (Ct.App.1998) (remanding for a hearing at which the parents may develop an evidentiary record on their ineffective assistance of counsel claims); In re K.K., 180 S.W.3d 681, 688 (Tex.App.2005) (same).

A remand is required only if the parent's allegations are sufficiently specific and compelling to constitute a prima facie showing of ineffective assistance of counsel. State ex rel. Children, Youth & Families Dep't v. David F., 121 N.M. 341, 911 P.2d 235, 242 (N.M.Ct.App.1995); see also State ex rel. Juvenile Dep't v. Geist, 310 Or. 176, 796 P.2d 1193, 1204 n. 16 (1990) ("Before authorizing an evidentiary hearing, a court doubtless would require a threshold showing of specific allegations, including the names of witnesses to be called, the expected substance of their testimony, and an explanation of how that testimony would show that trial counsel was inadequate.").

If the parent's allegations lack sufficient specificity, the ineffective assistance claim may be denied without further inquiry. Cf. People v. Osorio, ___ P.3d ___, ___ 2007 WL 1288475 (Colo.App. No. 05CA1765, May 3, 2007) (allegation that counsel failed to cross-examine certain witnesses was properly denied without a hearing where defendant did not explain "what the cross-examination of any witnesses would have revealed"); People v. Zuniga, 80 P.3d 965, 973 (Colo.App.2003) (allegation that counsel was ineffective for failing to conduct an adequate investigation was properly denied without a hearing because the defendant did not explain "what additional investigation counsel should have done, what the results of those efforts would have been, and how they would have affected the outcome of the case"). Similarly, if the parent's allegations do not constitute a prima facie showing of ineffective assistance, the claim may be denied summarily. Cf. Ardolino v....