People in Interest of A.R., 456 P.3d 1266 (Colo. 2020)

This decision involves a review of a division of the Court of Appeals announcement of a “fundamental fairness” test for determining parents’ claims of ineffective assistance of counsel in D&N cases and consideration of a parent’s claim of ineffective assistance of counsel at the adjudication stage on appeal of a subsequent order terminating the parent-child legal relationship.

The Colorado Supreme Court holds the following.
• In a direct appeal of an order terminating parental rights, an appellate court may consider a claim of ineffective assistance of counsel based on counsel’s performance at an adjudicatory hearing only when the party asserting the claim did not have a full and fair opportunity to bring such a claim immediately after adjudication. In this case, the mother made no effort to file a timely appeal from the adjudication order and the record did not establish any legal or factual impediments to her ability to timely file an appeal. The Court is not persuaded by the mother’s argument regarding the lack of a written dispositional order, noting that mother could have asked the juvenile court to enter a written dispositional order.
• Strickland’s prejudice test, which requires a parent to show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” is the correct test for resolving ineffective assistance of counsel claims in D&N proceedings. In adopting this standard, the Court rejects the fundamental fairness test adopted by the Court of Appeals.
• While a parent must establish a prima facie claim of ineffectiveness with sufficient specificity in order for an appellate court to remand the case for further factual findings and an appellate court may summarily deny a claim absent sufficient specificity, an appellate court need not remand every case in which a parent has established a prima facie case. Under the following two circumstances, an appellate court may decide the claim without remanding for further factual findings: (a) ahen the record is sufficiently developed such that the only matter before the court is a question of law and (b) under the narrow circumstances that allow prejudice to be presumed in criminal proceedings because counsel “entirely fails to subject the prosecution’s case to meaningful adversarial testing.” Examples of such narrow circumstances include a court’s failure to appoint counsel, the prohibition of counsel from participating in a critical aspect of the proceeding, or counsel acting under a conflict of interest.

The Supreme Court considers the mother’s claims of ineffective assistance of counsel in light of the articulated standard. Under this standard, the Court rejects the mother’s claim of ineffectiveness based on her counsel’s failure to object to inadmissible hearsay, noting that the mother did not explain which exhibits contained inadmissible hearsay or how they prejudiced her. Similarly, the Court rejects the mother’s claim of ineffectiveness based on counsel’s willingness to proceed at the termination by “offer of proof,” noting that proceeding by offer of proof does not constitute deficient performance per se or establish presumptive prejudice and the mother did not indicate how live testimony or cross examination would have changed the facts before the court. The Court does, however, hold that the record established that the mother’s counsel was deficient in not properly litigating less drastic alternatives and that but for counsel’s deficient performance, the outcome would have been different. Notably, in this case, the trial court had stated after the termination hearing that had it known of the relative placement, it would not have entered the termination order; the Supreme Court notes that these circumstances were “unusual.”

Based on this analysis, the Supreme Court affirms the judgement of the Court of Appeals on different grounds than those upon which the Court of Appeals relied, and remands the case for further proceedings.

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