People in Interest of E.B., 521 P.3d 637 (Colo. 2022)

Here, the Colorado Supreme Court addressed whether the trial court violated father’s due process rights when it denied his attorney’s motion to continue a termination hearing although father may have been attempting to attend the virtual hearing but was unable to stay connected.

The Colorado Supreme Court reversed the decision of the Colorado Court of Appeals, finding that, even if the trial court violated father’s due process rights by denying his counsel’s request for a continuance, father failed to demonstrate “actual prejudice” stemming from the alleged due process violation. To reach this holding, the Colorado Supreme Court looked to the uncontroverted facts in the record which demonstrated that father was not participating in his treatment plan, was not visiting the child, and was not otherwise meaningfully engaged in the case at the time of the termination hearing. The Court noted the following.  

Father failed to make any offer of proof indicating how he would have testified or what other evidence he would have offered had he been present so we are unable to discern that the termination proceedings would have been affected in any appreciable way” by his testimony.  People in Int. of C.G., 885 P.2d 355, 358 (Colo. App. 1994).  Because Father has failed to show actual prejudice resulting from the juvenile court’s denial of his requested continuance, we conclude that his due process claim fails.

E.B. ¶ 22. The opinion provides necessary guardrails to parents’ due process arguments by requiring that the alleged violation be meaningful to the case in some tangible way.

Practice tips:

  1. Statutory language matters. When facing a motion to continue a contested hearing or considering filing one, consider the relevant standard before formulating your position and making arguments. For example, when Expedited Permanency Planning (EPP) applies, the court must not delay a termination hearing unless good cause is shown and the delay is in the child’s best interests. CRS § 19-3-602(1). If EPP does not apply, the party seeking the continuance must still demonstrate good cause. See R.C.P. 121, Rule 1-11. Either way, be sure to articulate with specificity how the relevant standard applies to the facts of your case. 
  2. More generally, when facing a due process challenge to a procedure or lack of a procedure, assess whether there might be actual prejudice to a parent if the request is denied. Another less formal way to frame this question is to ask whether the requested procedure has decent chance of making a difference in the outcome of the case. If the answer is yes, consider this factor and its implications down the road, alongside your assessment of the child’s best interest (as GAL) or the youth’s position (as CFY). If the answer is clearly no, you are in a better position to object to the request, if doing so is consistent with your client’s interest.  
  3. If you are seeking a continuance of a contested hearing based upon your client’s failure/inability to attend a hearing, consider providing an offer of proof as to how your client’s absence will cause your client actual prejudice.

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