Peo in Interest of TMS , 2019 COA 136 ( 2019 )

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
August 29, 2019
2019COA136
No. 18CA1164, Peo in Interest of TMS — Juvenile Court —
Dependency and Neglect — Appointment of Guardian Ad Litem
— Impaired Adult
A division of the court of appeals considers whether a
guardian ad litem (GAL) for a parent with an intellectual disability
may properly advocate against the parent’s goal of reunification.
The division concludes that termination of a parent’s parental rights
over the parent’s objection is not in the parent’s best interests. As a
result, the juvenile court erred when it denied a parent’s motion to
remove her GAL after the GAL advocated for positions that
undermined the parent’s goal of reunification over the parent’s
objections. The juvenile court also erred when it allowed the GAL to
give closing argument at the termination hearing because, unlike a
child’s GAL, a parent’s GAL may not participate as a party in
dependency or neglect proceedings. Nonetheless, the juvenile
court’s errors were harmless beyond a reasonable doubt because (1)
ample evidence supported the judgment of termination and (2) the
juvenile court stated that it did not rely on the GAL’s improper
argument.
The division concludes the juvenile court properly denied the
parent’s motions for a continuance because the parent failed to
show good cause for a delay or that a delay would serve the child’s
best interests.
The division also considers the parent’s claims of ineffective
assistance of counsel by her two trial attorneys. Based on its
determination that the GAL’s improper advocacy was harmless, the
division declines to consider the parent’s assertion that her first
attorney rendered ineffective assistance by requesting the
appointment of the GAL and allowing the GAL to advocate against
the parent’s interests. The division rejects the parent’s claim as to
her second attorney because the parent does not explain how the
attorney’s allegedly deficient performance prejudiced her.
COLORADO COURT OF APPEALS 2019COA136
Court of Appeals No. 18CA1164
City and County of Denver Juvenile Court No. 17JV542
Honorable Laurie A. Clark, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of T.M.S., a Child,
and Concerning S.A.S.,
Respondent-Appellant.
JUDGMENT AFFIRMED
Division IV
Opinion by JUDGE ROMÁN
J. Jones and Lipinsky, JJ., concur
Announced August 29, 2019
Kristin M. Bronson, City Attorney, Laura Grzetic Eibsen, Assistant City
Attorney, Denver, Colorado, for Petitioner-Appellee
Josi McCauley, Guardian Ad Litem
The Noble Law Firm, LLC, Antony Noble, Lakewood, Colorado, for Respondent-
Appellant
¶1 Mother, S.A.S., appeals the juvenile court’s judgment
terminating her parent-child relationship with her child, T.M.S. We
are asked to decide what happens in a dependency and neglect
proceeding when the parent’s guardian ad litem (GAL) presents
argument and testimony against the parent’s interest and over the
parent’s objection. We conclude that the juvenile court erred in not
granting the parent’s motion to remove the GAL and in permitting
the GAL’s adverse closing argument. Nonetheless, under the
circumstances of this case, we further conclude that these errors
were harmless and, therefore, affirm.
I. Background
¶2 Mother has an intellectual disability. Shortly after the child
was born, hospital staff contacted the Denver Department of
Human Services to report that mother’s low functioning impairs her
ability to provide proper care for the child. The Department filed a
petition in dependency or neglect citing concerns that mother’s
inability to recognize the child’s basic needs, such as for feeding,
diapering, and swaddling, places him at risk of harm. The juvenile
court placed the child in a foster home when he was released from
the hospital, and he remained there throughout the proceeding.
1
¶3 The juvenile court adjudicated the child dependent or
neglected and adopted a treatment plan for mother. One year later,
the juvenile court held a three-day evidentiary hearing and
terminated mother’s parental rights. The child’s father confessed
the motion to terminate his parental rights.
II. Analysis
A. Mother’s GAL
¶4 Mother contends that the juvenile court erred when it denied
her motion to remove her GAL and allowed the GAL to give closing
argument supporting the termination of her parental rights. We
agree that the court erred. But, under the circumstances, we
conclude that the error was harmless.
1. The Role of a Parent’s GAL Is to Assist the Parent
and Protect the Parent’s Best Interests
¶5 A juvenile court may appoint a GAL for a respondent parent
who has an intellectual or developmental disability.
§ 19-1-111(2)(c), C.R.S. 2018. Under the Children’s Code,
“guardian ad litem” means a person appointed by a court “to act in
the best interests of the person whom the [GAL] is representing.”
§ 19-1-103(59), C.R.S. 2018. A GAL must comply with the chief
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justice directives (CJD) and other practice standards incorporated
by reference into the GAL statute. § 19-1-111(6). An attorney who
is appointed as a GAL is subject to all of the rules and standards of
the legal profession. See Chief Justice Directive 04-05,
Appointment and Payment Procedures for Court-appointed
Counsel, Guardians ad litem, Child and Family Investigators, and
Court Visitors paid by the Judicial Department, § VI(A) (amended
July 2018).
¶6 The legislature has recognized that the differences between the
respective disabilities and legal incapacities of children and
mentally disabled adults require separate standards regarding the
appointment, duties, and rights of a GAL for these categories of
persons. See People in Interest of M.M., 726 P.2d 1108, 1117 (Colo.
1986). For example, a juvenile court must appoint a GAL for the
child in a dependency or neglect proceeding but has discretion
whether to appoint a GAL for a respondent parent who has an
intellectual or developmental disability. § 19-1-111(1), (2)(c). The
child’s GAL has a statutory right to participate as a party in
dependency or neglect proceedings, but a parent’s GAL does not.
§ 19-1-111(3); cf. People in Interest of A.R.W., 903 P.2d 10, 12 (Colo.
3
Ohio App. 1994) (in contrast to role of child’s GAL in dependency and
neglect proceedings or dissolution of marriage actions, GAL for child
in paternity action is neither a party nor counsel for the child and
has no right to control the proceedings, defend the action, or
appeal). Section 19-3-203(3), C.R.S. 2018, defines the duties of the
child’s GAL, which include making recommendations to the court
concerning the child’s welfare. Conversely, no statute authorizes
the parent’s GAL to make recommendations to the court concerning
the parent’s welfare.
¶7 Juvenile courts must “ensure that guardians ad litem . . .
involved with cases under their jurisdiction are representing the
best interests of . . . impaired adults.” CJD 04-05, § VIII(B).
¶8 To be sure, a respondent parent, the parent’s counsel, and the
parent’s GAL have distinct roles and responsibilities in a
dependency or neglect proceeding. “While it is the [parent’s
counsel’s] duty to provide the parent with legal advice on such
decisions as whether to contest the termination motion and
whether to present particular defenses to the motion, it is the role
and responsibility of the parent to make those decisions.” M.M.,
726 P.2d at 1120.
4
¶9 Unlike the parent or parent’s counsel, the GAL does not
participate as a party or a party’s advocate in dependency or neglect
proceedings. Cf. § 19-1-111(3); A.R.W., 903 P.2d at 12. Instead,
the GAL has an assistive role: to facilitate communication between
the parent and counsel and help the parent participate in the
proceeding. A juvenile court must appoint a GAL for a parent who
“lacks the intellectual capacity to communicate with counsel or is
mentally or emotionally incapable of weighing the advice of counsel
on the particular course to pursue in her own interest.” M.M., 726
P.2d at 1120. But a “client who is making decisions that [a] lawyer
considers to be ill-considered is not necessarily unable to act in his
[or her] own interest.” So if
a parent, although mentally disabled to some
degree, understands the nature and
significance of the proceeding, is able to make
decisions in her own behalf, and has the
ability to communicate with and act on the
advice of counsel, then a court might [properly]
conclude . . . that a guardian ad litem could
provide little, if any, service to the parent that
would not be forthcoming from counsel.
Id.
5
2. The Juvenile Court Erred When It Denied
Mother’s Motion to Remove Her GAL
¶ 10 Decisions regarding the appointment of a GAL for a parent lie
within the discretion of the juvenile court. People in Interest of
L.A.C., 97 P.3d 363, 366 (Colo. App. 2004). A court abuses its
discretion when its ruling rests on a misunderstanding or
misapplication of the law. Sinclair Transp. Co. v. Sandberg, 2014
COA 75M, ¶ 26.
¶ 11 Mother was represented by two different attorneys during the
proceeding below. Mother’s first attorney requested the
appointment of a GAL for mother at the temporary custody hearing.
She gave no reason for the request. The magistrate granted the
request “based on the information contained in the [dependency or
neglect] petition.”
¶ 12 Mother’s first attorney withdrew nine months later. At the
next hearing, mother’s second attorney asked the juvenile court to
replace mother’s GAL, asserting that mother’s GAL was acting
outside her role as GAL by advocating against mother’s goal of
reunifying with the child. She also said that mother’s relationship
with the GAL had broken down to the point that the GAL could no
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longer fulfill her role. The juvenile court described its
understanding of the GAL’s role as follows:
[Mother] doesn’t get to dictate what [her GAL]
does just like the child doesn’t get to dictate
what [his GAL] does.
....
[Mother’s GAL] can advocate differently [from
mother’s goals] if she believes that . . . such
advocating would not be in her client’s best
interest, meaning that it could put [mother] at
criminal negligence [sic] for child abuse
because [mother] doesn’t have the ability to do
so, she absolutely should not be advocating for
that. As matter of fact they [sic] would be
against her role to do so. No different than if a
[GAL were] representing a teenager, who said
they wanted a return home, and [the GAL]
believed that was not appropriate.
....
So [mother’s GAL] has a du[a]l role. One role
is to help [mother] understand the information
that’s being provided, and, secondly, to
advocate . . . for . . . what that [GAL] believes is
in the best interest of the adult, not what the
adult wants, not what the adult believes is
best, but what the [GAL] believes is best. And
so if [mother] wants me to sift through all the
professionals to find one that’s going to agree
with her, that’s not happening.
¶ 13 Mother then filed a written motion to dismiss the GAL. She
asserted the following grounds for dismissal:
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(1) The GAL had improperly advocated for positions adverse
to mother’s fundamental right to raise her child. The GAL
had requested a reduction of parenting time and
supported a concurrent permanency goal of adoption
over mother’s objection.
(2) The GAL was ineffective in her role. Mother had difficulty
understanding the GAL because the GAL did not use
simple language or make other accommodations when
presenting information. The GAL’s relationship with
mother was so contentious that mother refused to meet
with the GAL alone or to include the GAL in meetings
with mother’s attorney.
(3) Mother did not need a GAL because she was able to
understand the proceedings and assist her attorney
without one. Mother’s attorney was able to communicate
with her effectively. When necessary, mother’s attorney
employed other protections to support mother, such as
enlisting trusted family and kin.
¶ 14 Mother’s GAL filed a response to the motion, which the
juvenile court accepted and cited in its order. We note, however,
8
that mother’s GAL lacked standing to file a response to mother’s
motion because she was not a party to the dependency or neglect
proceeding. Cf. Hollingsworth v. Perry, 570 U.S. 693, 694 (2013)
(except in limited circumstances, a litigant may not assert the legal
rights or interests of others); see also C.W.B., Jr. v. A.S., 2018 CO 8,
¶ 38 (statute granting foster parents right to intervene and
participate fully in dependency or neglect proceedings does not
confer standing to appeal juvenile court’s judgment denying motion
to terminate parental rights).
¶ 15 The juvenile court denied mother’s motion to remove the GAL.
The court reasoned that a respondent parent’s GAL, like a child’s
GAL, has a duty to represent what the GAL believes to be in the
parent’s best interests — even over the objection of the parent and
the parent’s counsel.
¶ 16 But the GAL improperly participated in the proceeding when
she purported to represent mother’s best interests in court hearings
and pleadings standing apart from mother and mother’s counsel.
And by advocating for a reduction of parenting time and supporting
a concurrent permanency goal of adoption, the GAL undermined
mother’s constitutional interest in preventing the irretrievable
9
destruction of the parent-child relationship. See M.M., 726 P.2d at
1122 n.9. The GAL asserted that visitation was stressful for mother
and the baby, mother was exhausted after visits, and mother had
not learned to read the baby’s cues. But these concerns did not
establish that it was in mother’s best interests to reduce her
opportunity to develop her parenting skills or to plan for
permanently severing her contact with the child. And they did not
outweigh mother’s fundamental liberty interest in the care, custody,
and management of her child. See Santosky v. Kramer, 455 U.S.
745, 753-54 (1982). Thus, the juvenile court erred when it
concluded that the GAL’s advocacy served mother’s best interests.
¶ 17 Citing M.M., the juvenile court also noted that courts must
appoint GALs for parents in cases where “the parent is mentally
impaired so as to be incapable of understanding the nature and
significance of the proceeding or incapable of making those critical
decisions that are the parent’s right to make.” 726 P.2d at 1120.
But the court made no findings to support the appointment of a
GAL for mother on this basis, and we find no such support in the
record. To the contrary, mother’s counsel advised the court that
10
mother understood the proceedings and could work effectively with
counsel.
¶ 18 We conclude that the juvenile court abused its discretion
when it denied mother’s motion to dismiss her GAL.
3. The Juvenile Court Erred When It Allowed Mother’s GAL
to Give Closing Argument and Improper Testimony
¶ 19 Over mother’s objection, mother’s GAL gave a closing
argument at the termination hearing in which the GAL urged the
juvenile court to terminate mother’s parental rights. 1 We agree with
mother that the court erred in permitting this argument for three
reasons.
¶ 20 First, a parent’s GAL has no right to participate as a party in a
dependency or neglect proceeding. See § 19-1-111. So, the GAL
had no right to present closing argument.
1During the termination hearing, mother’s GAL also testified in
opposition to mother’s motion to continue the proceeding because
mother had not been properly accommodated under the Americans
with Disabilities Act. Specifically, mother’s GAL testified, “All of the
accommodations that were necessary have been put into place. I
don’t think there’s anything else that could have been done.”
11
¶ 21 Second, the GAL’s closing argument included improper
testimony. When a GAL makes recommendations “based on an
independent investigation, the facts of which have not otherwise
been introduced into evidence, the guardian functions as a witness
in the proceedings and, thus, should be subject to examination and
cross-examination as to the bases of his or her opinion and
recommendation.” People in Interest of J.E.B., 854 P.2d 1372, 1375
(Colo. App. 1993) (discussing children’s GALs, who may choose to
present recommendations either through closing argument or
through testimony).
¶ 22 The GAL described her observations of mother and the facts
underlying her recommendations. She told the juvenile court that
mother had refused to engage in necessary services. The GAL said
that mother had tried very hard, but mother’s disabilities made it
impossible for her to parent the child. This type of information
could only be offered through the testimony of a witness because it
was based on the GAL’s personal observations and included facts
that had not otherwise been introduced into evidence. See id. And
by appointing a GAL to assist mother and then allowing the GAL to
testify against her, the juvenile court violated mother’s right to
12
fundamentally fair procedures in the termination proceeding. See
Santosky v. Kramer, 455 U.S. 745, 753 (1982); People in Interest of
D.C.C., 2018 COA 98, ¶ 21.
¶ 23 Third, it was improper for the GAL to advocate against
mother’s goal of protecting her fundamental liberty interest in the
care, custody, and management of her child. See Santosky, 455
U.S. at 753. The termination of mother’s parental rights over her
objection was not in mother’s best interests as a matter of law. Yet
the GAL told the court that termination would be in mother’s best
interests. So, the juvenile court erred when it allowed the GAL to
act against mother’s goals in the proceeding. See CJD 04-05,
§ VIII(B).
¶ 24 Accordingly, we conclude that the juvenile court erred when it
allowed mother’s GAL to give closing argument and testify in
opposition to mother’s interests.
4. The Juvenile Court’s Errors Were Harmless
¶ 25 Mother urges us to apply the constitutional harmless error
standard of reversal, under which we may disregard an error only if
it is harmless beyond a reasonable doubt. An error is harmless if it
does not affect a party’s substantial rights. See C.A.R. 35(c).
13
¶ 26 Our supreme court has not addressed whether the
constitutional harmless error standard applies with respect to a
parent’s constitutional rights in dependency or neglect proceedings.
See A.M. v. A.C., 2013 CO 16, ¶ 16 n.10. For purposes of this
opinion, we will assume that it does. An error is harmless beyond a
reasonable doubt if there is no reasonable possibility that the error
prejudiced the appellant. People v. Trujillo, 114 P.3d 27, 32 (Colo.
App. 2004).
¶ 27 Our review of the record leads us to conclude that there is no
reasonable possibility that the outcome of the proceeding would
have been different if the juvenile court had dismissed mother’s
GAL or precluded the GAL from giving closing argument. We reach
this conclusion for two reasons.
¶ 28 First, the juvenile court said that in considering the success of
the treatment plan, it had “listened to argument by all parties, but
[based] its ruling . . . only [on] the testimony that was provided
during [the] hearing.” Thus, we conclude that the court did not rely
on the improper testimony by mother’s GAL.
¶ 29 Second, ample evidence showed that mother remained unfit to
parent the child despite intensive intervention over a long period of
14
time, and that her conduct or condition of unfitness was unlikely to
change. This evidence included testimony by a psychologist and
mother’s visitation therapist.
¶ 30 The psychologist, who performed a cognitive evaluation of
mother, testified at the termination hearing that mother’s cognitive
functioning was in the extremely low range — below ninety-nine
percent of people her age. He said this meant she would have
difficulty learning, grasping concepts, and understanding
communications. He recommended intensive support services,
including hands-on parenting skill development such as that
provided by a therapist.
¶ 31 Mother’s visitation therapist testified that she had provided
intensive, hands-on parenting skills training for mother during
visitation. The therapist said she had worked with mother at over
sixty visits — for three to six hours per visit, twice a week, for nine
months. She said she had tailored her teaching style to mother’s
learning style based on the psychologist’s recommendations. She
described accommodations that addressed mother’s memory,
15
learning style, verbal skills, concrete learning, and scaffolding
techniques. 2
¶ 32 The therapist opined that it was not safe to leave mother alone
with the child for more than five minutes, and even then only if the
child was in a secure setting such as a crib or car seat where he
could not fall. She explained that mother would often freeze if she
did not know how to respond; in one instance, mother froze when
the child began to gag on his saliva, and the therapist had to
intervene. She testified that, despite mother’s effort and desire,
mother was unable to keep up with the child’s growth and
development. She said mother’s parenting skills had peaked,
mother could not consistently meet the child’s needs, and mother
would need twenty-four-hour supervision to parent the child.
¶ 33 The juvenile court also made the following findings and
conclusions, which are supported by testimony at the termination
hearing:
2 “Scaffolding” involves teaching parents new skills with young
children, starting with lots of support and gradually withdrawing
the support as the parent learns to do things on his or her own.
16
¶ 34 Mother had not made enough progress to be able to care for
the child alone for any period of time without creating a grave risk
of death or serious bodily injury to the child.
¶ 35 Mother’s tendency to freeze was unpredictable and put the
child at significant risk due to his young age.
¶ 36 Mother had not been able to maintain a support system that
would allow her to care for the child. She was no longer engaged
with the people who wanted to protect her.
¶ 37 Despite complying with her treatment plan, mother had not
internalized the services provided in such a way as to address the
concerns that brought the case to the Department’s attention.
¶ 38 Even with accommodations, mother’s disability rendered her
unable to meet the child’s needs.
¶ 39 Mother was unfit, and her conduct or condition was unlikely
to change within a reasonable time.
¶ 40 Under these circumstances, we conclude that the juvenile
court’s errors in denying mother’s motion to dismiss the GAL and
allowing the GAL to give closing argument and testimony that
supported the termination of mother’s parental rights were
harmless beyond a reasonable doubt.
17
B. Ineffective Assistance of Mother’s First Attorney
¶ 41 Mother contends that her first attorney rendered ineffective
assistance by requesting the appointment of the GAL and by
allowing the GAL to advocate against mother’s goal of reunification.
Based on our conclusion that there is no reasonable possibility the
GAL’s conduct prejudiced mother, we need not address this
contention. See People in Interest of A.R., 2018 COA 176, ¶ 7
(parent must demonstrate prejudice to succeed on a claim of
ineffective assistance of counsel) (cert. granted Mar. 4, 2019); People
in Interest of C.H., 166 P.3d 288, 291 (Colo. App. 2007) (same).
C. Motions for Continuance
¶ 42 Mother contends that the juvenile court erred when it denied
her motions to continue the termination hearing. We perceive no
basis for reversal.
1. Standard of Review and Legal Principles
¶ 43 We will uphold a juvenile court’s ruling on a motion for
continuance absent a showing of an abuse of discretion. M.M., 726
P.2d at 1121; People in Interest of T.E.M., 124 P.3d 905, 908 (Colo.
App. 2005). A court abuses its discretion when its ruling is
18
manifestly arbitrary, unreasonable, or unfair. People in Interest of
A.N-B., 2019 COA 46, ¶ 9.
¶ 44 In ruling on a motion for continuance, a juvenile court “should
balance the need for orderly and expeditious administration of
justice against the facts underlying the motion, while considering
the child’s need for permanency.” T.E.M., 124 P.3d at 908; see also
M.M., 726 P.2d at 1121.
¶ 45 The child was an infant when the Department filed the
petition, so the juvenile court could not delay or continue the
termination hearing absent good cause and a finding that the delay
would serve the best interests of the child. §§ 19-3-104,
19-3-508(3)(a), 19-3-602(1), C.R.S. 2018; see also § 19-1-123,
C.R.S. 2018 (expedited permanency procedures for children under
six years old).
2. Witnesses
¶ 46 Mother contends that the juvenile court erred when it denied
her motion to continue the termination hearing to allow her to
secure the attendance of all her witnesses. We disagree.
¶ 47 The termination hearing was originally scheduled for two days,
but it took three days. The morning of the third day, mother’s
19
attorney moved for a continuance. Mother’s attorney reported that
three of mother’s witnesses were unavailable to testify that day
because she had not been able to notify them of the additional
hearing date. Mother’s attorney did not explain how a delay would
serve the child’s best interests.
¶ 48 The juvenile court denied the motion. The court noted that
the termination hearing was already in its third day and that the
witnesses could have been taken out of order to accommodate their
schedules. The court found that the lack of availability of witnesses
did not establish good cause to continue the hearing.
¶ 49 The juvenile court’s ruling reflects that it considered the
reasons for mother’s motion and the need to conclude the
termination hearing in a timely manner. The record supports the
juvenile court’s finding that mother did not establish good cause for
granting a delay. And mother provided no basis to find that a delay
would serve the child’s best interests. See § 19-3-104;
§ 19-3-602(1).
¶ 50 Therefore, we conclude that the juvenile court did not abuse
its discretion when it denied mother’s motion to continue the
20
termination hearing to allow her to secure the attendance of her
remaining witnesses.
¶ 51 To the extent mother contends that the juvenile court erred
when it did not conduct an analysis on the record that balanced the
court’s administrative needs and the child’s need for permanency
against mother’s reasons for requesting the continuance, we
disagree. We are aware of no authority that requires courts to
make such specific findings on the record.
3. Additional Time
¶ 52 Mother contends that the juvenile court erred when it denied
her motion to continue the termination hearing so that she could (1)
have more time to work on her treatment plan and (2) investigate
less drastic alternatives to termination of her parental rights.
Again, we disagree.
¶ 53 We cannot conclude that the juvenile court erred when it did
not give her more time to work on her treatment plan. Mother’s
therapist testified that mother’s parenting skills had peaked and
she remained unfit to parent the child independently for even brief
periods after nine months of intensive intervention.
21
¶ 54 Mother identified two possible alternatives to termination of
her parental rights that she wanted to explore. One was joint
placement for herself and the child in a host home through Rocky
Mountain Health Services. Mother said she had recently accepted a
referral for services and her eligibility was under review. But
testimony at the termination hearing established that mother had
refused to accept a referral for this service during most of the
dependency or neglect proceeding. The delay in evaluating this
option was due to mother’s conduct.
¶ 55 Mother also wanted time for the Department to evaluate her
housemate as a kin provider. But the record shows the Department
did evaluate him. Although the Department did not conduct an
extensive investigation, it determined that the housemate had a
criminal record and a child welfare record that disqualified him
from being involved in the child’s care.
¶ 56 Thus, the record shows that mother did not demonstrate good
cause for a delay or that a delay would have served the child’s best
interests. We therefore conclude that the juvenile court did not
abuse its discretion when it denied mother’s motion to continue the
termination hearing to give her more time to comply with her
22
treatment plan and investigate less drastic alternatives to
termination.
D. Ineffective Assistance of Mother’s Second Attorney
¶ 57 Mother contends that her second attorney rendered ineffective
assistance by failing to secure the attendance of her witnesses on
the third day of the termination hearing. We perceive no basis for
reversal.
¶ 58 To succeed on a claim of ineffective assistance of counsel,
mother must establish that she was prejudiced by counsel’s
allegedly deficient performance. See A.R., ¶ 7; C.H., 166 P.3d at
291.
¶ 59 Mother contends that counsel’s alleged error prejudiced her
because she was not able to present the following testimony:
¶ 60 The intake social worker would have testified about mother’s
disability, the disability accommodations provided by the
Department at the time of intake, and the accommodations
provided by the hospital where the child was born. But mother
does not specify what this testimony would have been or how it
would have helped her case.
23
¶ 61 The service coordination supervisor from Rocky Mountain
Human Services would have testified about the services the
organization generally provides and the date mother became eligible
for the services. But mother does not suggest that this testimony
would have differed from that provided by other witnesses who
addressed the same issues.
¶ 62 A disability services provider from Rocky Mountain Human
Services would have testified about the timeline for application for
their services and the lack of reasonable efforts by the Department.
See §§ 19-1-103(89), 19-3-100.5, 19-3-604(2)(h), C.R.S. 2018 (state
must make reasonable efforts to rehabilitate parents and reunite
families following out-of-home placement of abused or neglected
children). But mother does not describe how the witness’s
description of the timeline would have differed from other testimony
or specify what efforts the witness would have said were lacking.
¶ 63 Most importantly, mother does not explain how this testimony
would have affected the outcome of the case in light of her
therapist’s testimony that her parenting skills had peaked and she
remained unable to parent the child without constant supervision
after nine months of intensive intervention. Moreover, she does not
24
suggest that any of these witnesses would have refuted the
therapist’s testimony.
¶ 64 Therefore, we reject mother’s contention that reversal is
warranted because her second counsel rendered ineffective
assistance.
III. Conclusion
¶ 65 The judgment is affirmed.
JUDGE J. JONES and JUDGE LIPINSKY concur.
25