A.R. v. D.R., 2018 SC 919

The Colorado Supreme Court granted certiorari on the following three issues.
1. Whether the Court of Appeals, in departing from the decisions of other divisions of the Court of Appeals, correctly designated “fundamental fairness” as the best means to apply the second prong of the analysis described in Strickland v. Washington, 466 U.S. 668 (1984), when assessing whether a parent’s trial court counsel was ineffective in an appeal from a termination order in a dependency and neglect case.
2. Whether an appellate court may vacate a trial court’s decision in a dependency and neglect case without remanding the case to the trial court to make findings under Strickland’s two-part test.
3. Whether an appellate court, in a direct appeal from a judgment terminating parental rights, may consider a claim of ineffective assistance of counsel based on counsel’s performance at an adjudicatory hearing.

Note: While these issues are up for certiorari, it is important for GALs to know that in the decision being reviewed, People in Interest of A.R., 2018 COA 177 (December 13, 2018), the Court of Appeals also held that a timely appeal of the adjudication served as the appropriate remedy for the alleged procedural errors associated with the adjudication and that once a juvenile court has acquired jurisdiction, such procedural errors do not divest the juvenile court of jurisdiction. Additionally, in applying the fundamental fairness analysis to assess the ineffective assistance of counsel claim, the standard up for review, the division made clear that offers of proof do not satisfy the evidentiary requirements applicable to a termination of parental rights proceeding.

The recent oral arguments before the Colorado Supreme Court on this case can be accessed here.

Click here to access the case in Westlaw.