People in Interest of Z.M., 2020 COA 3M

On this appeal of an order terminating the father’s parent-child legal relationship, the Court of Appeals considers the meaning of the word “material” in Colorado Appellate Rule 10(f)(2). In his appeal, the father designated thirty-two hearing transcripts. The record was missing six transcripts, and the father filed a motion to supplement the record. While the record was supplemented, two transcripts ultimately remained missing. The father filed another motion to supplement the record, and the Court of Appeals directed him to address the materiality requirements of Colorado Appellate Rule 10(f)(2) in his opening brief. After briefing, the juvenile court was ordered to supplement the record, but responded with an affidavit from the transcriptionist stating that recordings were not available for the requested dates and that a transcript could not be reduced.

In its decision, the Court of Appeals first rejects the father’s claim that the Court of Appeals denied the father’s due process rights and his right to effective assistance of counsel by requiring him to file his opening brief without access to the missing transcripts. The Court of Appeals concludes that the father did not demonstrate the materiality of the missing transcripts, denial of his due process rights, or denial of his right to effective assistance of counsel. The Court does not adopt the father’s proposed broad definition of material and instead looks to Colorado Appellate Rule 19(f)(2) and federal and state decisions requiring an appellee to connect the record deficit to a specific error raised on appeal. The Court of Appeals defines fundamentally fair procedures to “include a parent receiving notice of the hearing, advice of counsel, and a meaningful opportunity to be heard and defend” and notes that the father has not explained why the transcripts are material to his claim on appeal and that the juvenile court did not rely on either untranscribed hearing in its termination order. The Court also cites criminal law cases requiring a showing of “specific prejudice resulting from the state of that record” and notes that the father has not established that threshold in his briefing.

As to less drastic alternatives, the Court of Appeals concludes that the record provides sufficient support for the juvenile court’s findings that the department made reasonable efforts and that there were no less drastic alternatives to termination. The father had not participated in visits with the children or services, and caseworker and therapist testimony supported the juvenile court’s findings regarding less drastic alternatives.

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