SUMMARY

January 2, 2020

2020COA5

No. 19CA0198, People in the Interest of S.B. — Juvenile Court 

— Dependency and Neglect — Termination of the Parent-Child 

Legal Relationship; Attorneys and Clients — Ineffective 

Assistance of Counsel

A division of the court of appeals considers whether the 

juvenile court erred in terminating father’s parental rights. 

In separate opinions, Judges Hawthorne, Furman and Navarro 

conclude that the court did not err. Judge Hawthorne, writing for 

the majority, concludes that under People in Interest of A.G., 262

P.3d 646 (Colo. 2011), a parent’s ineffective assistance of counsel 

claim in a termination proceeding requires demonstrating 

“outcome-determinative” prejudice pursuant to Strickland v. 

Washington, 466 U.S. 668, 687 (1984). Judge Furman specially 

concurs, pointing out the shortcomings of applying the criminal 

“outcome-determinative” prejudice inquiry to civil termination of 

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.
parental rights proceedings. Judge Navarro specially concurs that 

father failed to demonstrate prejudice under either analysis. 
COLORADO COURT OF APPEALS 2020COA5

Court of Appeals No. 19CA0198

Montrose County District Court No. 17JV83

Honorable D. Cory Jackson, Judge

The People of the State of Colorado,

Appellee,

In the Interest of S.B., a Child,

and Concerning R.B.,

Appellant.

JUDGMENT AFFIRMED

Division IV

Opinion by JUDGE HAWTHORNE

Furman, J., specially concurs

Navarro, J., specially concurs

Announced January 2, 2020

Julie R. Andress, Assistant County Attorney, Montrose, Colorado, for Appellee

Barbra J. Remmenga, Guardian Ad Litem

Michael Kovaka, Littleton, Colorado, for Appellant
1

¶ 1 In this dependency and neglect proceeding, R.B. (father) 

appeals the judgment terminating his parental rights to S.B. (the 

child). We affirm.

I. Factual Background and Procedural History

¶ 2 In August 2017, law enforcement officials placed the child in

protective custody because during a drug raid they found the child 

alone in unsafe conditions where he and father lived. The Montrose 

County Department of Health and Human Services (Department)

initiated a dependency and neglect proceeding, and the juvenile 

court granted custody of the child to the Department. The 

Department placed the child in the care of his paternal great aunt 

and uncle, whom the court appointed as special respondents in the 

case. The child’s mother had died earlier that year.

¶ 3 In September 2017, father admitted that the child was 

dependent and neglected and the court adopted a treatment plan

for father.

¶ 4 Father was later arrested on several offenses, and under a plea 

agreement was sentenced to six years in the custody of the 

Department of Corrections in March 2018.
2

¶ 5 In August 2018, the Department moved to terminate father’s 

parent-child legal relationship with the child. The court held a 

termination hearing and terminated father’s parental rights.

II. The Juvenile Court’s Errors Under ICWA Were Harmless

¶ 6 Father contends that the juvenile court failed to comply with 

the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. 

§§ 1901-1963 (2018), in two ways: (1) it failed to make proper ICWA 

inquiries during the termination proceeding and (2) it and the 

Department failed to send proper notice of the termination 

proceeding to the Jena Band of the Choctaw Tribe. We conclude 

the errors in the court’s inquiry and notice procedures under ICWA

were harmless.

A. Standard of Review and Applicable Law

¶ 7 We review de novo whether ICWA’s requirements applied to 

the proceeding and were satisfied. People in Interest of M.V., 2018 

COA 163, ¶ 32; People in Interest of T.M.W., 208 P.3d 272, 274 

(Colo. App. 2009).

¶ 8 Colorado’s ICWA-implementing legislation provides that in 

dependency and neglect proceedings, the petitioning party must 

make continuing inquiries to determine whether the child is an 
3

Indian child. § 19-1-126(1)(a), C.R.S. 2018;

1 see also B.H. v. People 

in Interest of X.H., 138 P.3d 299, 302 (Colo. 2006).

¶ 9 The federal guidelines implementing ICWA impose a duty of 

inquiry and notice on trial courts. 25 C.F.R. § 23.107(a) (2019); 

Bureau of Indian Affairs, Guidelines for Implementing the Indian 

Child Welfare Act (Dec. 2016), https://perma.cc/3TCH-8HQM; see 

also Notice of Guidelines, 81 Fed. Reg. 96,476 (Dec. 30, 2016). The 

court must ask each participant on the record at the beginning of 

every emergency, voluntary, or involuntary child custody proceeding 

whether the participant knows or has reason to know that the child 

is an Indian child. 25 C.F.R. § 23.107(a); see People in Interest of 

L.L., 2017 COA 38, ¶ 19. A proceeding to terminate parental rights 

is a separate child custody proceeding under ICWA. See 25 U.S.C. 

§ 1903(1) (2018); see also § 19-1-126(1); People in Interest of C.A., 

2017 COA 135, ¶ 10. 

¶ 10 When there is reason to know or believe that a child involved 

in a custody proceeding is an Indian child, the petitioning party 

must send notice of the proceeding to the potentially concerned 

 

1 The statute in effect at the time.
4

tribe or tribes. B.H., 138 P.3d at 302; see 25 U.S.C. § 1912(a) 

(2018); § 19-1-126(1)(b). A court “has reason to know” a child is an 

Indian child if, in relevant part, “[a]ny participant in the proceeding, 

officer of the court involved in the proceeding, Indian Tribe, Indian 

organization, or agency informs the court that the child is an Indian 

child . . . [or] informs the court that it has discovered information 

indicating that the child is an Indian child[.]” 25 C.F.R. § 23.107(c). 

State courts and agencies are encouraged to interpret these factors 

expansively. M.V., ¶ 43. If the tribe’s identity or location can’t be 

determined, notice must be given to the Bureau of Indian Affairs. 

B.H., 138 P.3d at 302; see 25 U.S.C. § 1912(a).

B. Additional Facts

¶ 11 Prior to the dependency and neglect adjudication, the court 

asked father on two occasions whether the child had Indian 

heritage. Father said that the child didn’t and that he was unaware 

of any Indian heritage from the child’s mother.

¶ 12 At the adjudication hearing, the Department notified the court 

that it was inquiring into the child’s possible Indian heritage from

his mother.
5

¶ 13 Months later at a review hearing, the Department updated the 

court on its efforts to determine the child’s possible Indian heritage. 

Its counsel said that the Department had communicated with the 

child’s maternal grandfather, who said that he was a registered 

member of a Choctaw tribe. Counsel said that the Department had 

sent notices to the three federally recognized Choctaw tribes, and 

that two had responded that the grandfather wasn’t a member or 

eligible to be one. The Department hadn’t heard back from the 

third tribe, the Jena Band, and hadn’t been able to contact the tribe 

by telephone.

¶ 14 In July 2018, the court held a “permanency planning hearing.” 

It adopted the Department’s primary termination and adoption

plan. The court found that “ICWA continues not to be an issue,” 

and that it “does not know or have reason to know that [the child] is 

[an] Indian child.” 

¶ 15 On August 1, 2018, the Department moved to terminate

father’s parent-child legal relationship with the child. In the 

motion, the Department stated that it 

made appropriate inquiries to determine that 

[the child is] not subject to [ICWA]. . . . 

Inquiries were made into the [m]other’s 
6

heritage and the Choctaw Tribes were noticed. 

The People do not know or have reason to 

know or believe that the child is an Indian 

Child under the meaning of [ICWA].

¶ 16 On August 15, 2018, in a “pre-hearing” order, the court stated 

that it “hereby inquires of [father] whether [he] or the child[] are 

members of a Native American Indian tribe or are eligible for 

membership in a Native American Indian tribe. [Father] shall file a 

report indicating whether ICWA is a[n] issue in this case within 

[seven] days.” Father didn’t respond.

¶ 17 Eight days before the termination hearing on November 6, 

2018, the Department filed a “Notice Regarding [ICWA].” In the 

notice the Department detailed its efforts to inquire into the child’s 

possible Indian heritage, including what counsel had already 

provided at the review hearing. The Department also sent 

information to the Bureau of Indian Affairs, but the Bureau had 

responded that it couldn’t identify a tribe. The Jena Band of the 

Choctaw Tribe still hadn’t responded to the notice or to the 

Department’s follow-up efforts.

¶ 18 The notice also said that the Department had called 

grandfather in July 2018 prior to the termination motion, and he 
7

had “confirmed that the tribe he is enrolled in is the ‘Metis’ tribe,” a

federally unrecognized tribe. Thus, the Department concluded that 

it didn’t believe or have reason to know that the child was an Indian 

child for ICWA purposes.

C. Analysis

¶ 19 We agree that the court’s inquiry and notice procedures under 

ICWA were insufficient.

¶ 20 “The trial court must ask each participant on the record at the 

beginning of each emergency, voluntary, or involuntary child 

custody proceeding ‘whether the participant knows or has reason to 

know that the child is an Indian child.’” People in Interest of K.G., 

2017 COA 153, ¶ 21 (quoting 25 C.F.R. § 23.107(a)). Yet the court 

inquired only of father. See K.G., ¶ 25 (“Nor did the court make the 

required inquiry on the record as to any of the three parents, the 

guardian ad litem, or the Department.”); see also People in Interest 

of J.L., 2018 COA 11, ¶ 20 (“A written advisement form provided to 

one participant falls far short of meeting this requirement.”).

¶ 21 And at the time the Department sought termination, based on 

the existing record, the court had “reason to know” the child may 

have Indian heritage and should have required the Department to 
8

send notice to the Jena Band. See M.V., ¶ 44 (parent indicating 

that children had Indian heritage and were eligible for membership 

in a federally recognized tribe was “sufficient to give the court 

reason to know the children were Indian children”); L.L., ¶ 39 (“If a 

Tribe does not respond to the notice . . . the Department must 

continue to send the Tribe notices of subsequent proceedings for 

which notice is required, such as a termination of parental rights 

proceeding.”).

¶ 22 But these errors were harmless. Grandfather’s claim to be a 

registered member of a Choctaw tribe was the sole basis for 

believing or having reason to know that the child possibly had

Indian heritage. So when grandfather later clarified that he was 

enrolled in a federally unrecognized tribe, further notice wasn’t 

required and the previous errors were harmless. See People in 

Interest of Z.C., 2019 COA 71M, ¶ 22 (“And because the [tribe] was 

able to determine that the child was not a member of or eligible for 

membership in the tribe (albeit in a letter that was not before the 

juvenile court at the time of the hearing), the error in the juvenile 

court’s finding that the [tribe] received proper notice is harmless.”); 

People in Interest of S.R.M., 153 P.3d 438, 441 (Colo. App. 2006).
9

III. Ineffective Assistance

¶ 23 Father contends that his trial counsel rendered ineffective 

assistance by (1) failing to communicate with him; (2) failing to 

secure his testimony for the termination hearing or later written 

closing argument, instead proceeding by an “offer of proof”; and (3) 

not “fully understand[ing] the facts of the case or [father’s] position 

on central issues.” We disagree.

A. Standard of Review and Applicable Law

¶ 24 We consider ineffective assistance claims raised for the first 

time on appeal. See People in Interest of A.R., 2018 COA 176, ¶ 35 

(cert. granted Mar. 4, 2019).

¶ 25 In Colorado, a respondent parent’s right to appointed counsel 

in a termination proceeding is secured by statute and not 

constitutional mandate. C.S. v. People in Interest of I.S., 83 P.3d 

627, 636 (Colo. 2004). Divisions of this court have recognized that 

a parent’s statutory right to counsel includes the right to effective 

assistance of counsel. People in Interest of S.L., 2017 COA 160, 

¶ 58. These divisions have evaluated ineffective assistance of 

counsel claims by applying the test used in criminal cases — the 

Strickland test. People in Interest of C.H., 166 P.3d 288, 290-91
10

(Colo. App. 2007) (citing Strickland v. Washington, 466 U.S. 668, 

687 (1984)). Under Strickland, the parent must show two things: 

(1) counsel’s performance was outside the wide range of 

professionally competent assistance and (2) counsel’s errors 

prejudiced the parent. Id. at 291. Prejudice requires showing “a 

reasonable probability that, but for counsel’s alleged deficiencies, 

the outcome of the termination proceeding would have been 

different.” S.L., ¶ 59. In evaluating counsel’s performance, courts 

must indulge a strong presumption that counsel’s actions might be 

considered sound trial strategy. People v. Phipps, 2016 COA 190M, 

¶ 17.

¶ 26 But a division of this court recently departed from the 

Strickland outcome-determinative prejudice test and adopted a

“fundamental fairness” test. See A.R., ¶ 46 (“We . . . depart from 

other divisions of this court that have exclusively applied the . . .

outcome-determinative test, without considering fundamental 

fairness, to determine whether a parent was prejudiced by counsel’s 

deficient performance in a termination of parental rights 

proceeding.”). Under this approach, counsel’s performance may 
11

also be prejudicial where a judgment is unreliable or fundamentally 

unfair. See id. at ¶¶ 57, 61.

¶ 27 Chief Justice Directive 16-02, Court Appointments Through 

the Office of Respondent Parents’ Counsel (amended July 1, 2017),

provides the practice standards for respondent parent counsel in 

dependency and neglect cases. Specifically, respondent parent 

counsel is required to “[a]dvocate for the client’s goals and empower 

the client to direct the representation and make informed 

decisions,” “[m]eet and communicate regularly with the client well 

before court proceedings,” “[p]resent and cross-examine witnesses, 

prepare and present exhibits,” and “[r]equest the opportunity to 

make opening and closing arguments.” Id. at attach. A, pp. 1-3.

¶ 28 If the parent’s allegations aren’t sufficiently specific or fail to 

make a prima facie showing of ineffective assistance, the claim may 

be denied without further inquiry. S.L., ¶ 60 (citing C.H., 166 P.3d 

at 291). And the failure to establish either Strickland prong defeats 

an ineffective assistance claim. Id. (citing People in Interest of D.G., 

140 P.3d 299, 308 (Colo. App. 2006)).
12

B. Additional Facts

¶ 29 Shortly before the termination hearing, the court granted

father’s request to attend the termination hearing via telephone 

because he was incarcerated. At the termination hearing, father’s 

counsel told the court that father wouldn’t be able to attend the 

hearing by telephone and suggested that the hearing be continued 

because “I know [father] does want to testify and I think he should 

be allowed to testify in this trial.” The court partially granted

counsel’s request, continuing the closing arguments and allowing

father to file “an affidavit, if any, with the court on or before 

November 26, 2018.” It gave the parties until December 7, 2018, to 

file written closing arguments. 

¶ 30 On November 26, father’s counsel asked the court to extend 

the time to file father’s affidavit. The court granted the request, but 

counsel never filed an affidavit.

¶ 31 On December 7, 2018, father’s counsel filed a written closing 

argument, stating, in part, that “[c]ounsel unsuccessfully attempted 

to schedule a phone call with [father] . . . . Thus, any information 

counsel includes regarding [father’s] position is essentially an offer 

of proof.”
13

C. Analysis

¶ 32 Father argues that the judgment terminating his parental 

rights must be vacated because counsel’s failure to communicate 

with him “rendered him unable to essentially offer anything more 

than an ‘offer of proof’ at the termination stage of [his] case,” which 

“deprived [him] of the equal contest of opposed interests required 

for fundamentally fair proceedings.” Father doesn’t allege how or 

why the result of the proceeding would have been any different had 

counsel communicated with him, but instead relies solely on the 

fundamental fairness test adopted in A.R., ¶¶ 57-68.

¶ 33 Because father “has failed to allege facts that would prove 

prejudice,” we conclude that his ineffective assistance of counsel

claim fails. People in Interest of A.G., 262 P.3d 646, 652 (Colo. 

2011); see S.L., ¶ 65.

¶ 34 In reaching this conclusion, we decline to apply A.R.’s

fundamental fairness test for establishing prejudice in ineffective 

assistance of counsel claims, which is contrary to every other 

division that has addressed the Strickland prejudice prong in 

termination of parental rights cases. See In re Estate of Becker, 32 

P.3d 557, 563 (Colo. App. 2000) (“[D]ivisions of this court generally 
14

have given considerable deference to the decisions of other 

[divisions] . . . .”), aff’d sub nom. In re Estate of DeWitt, 54 P.3d 849 

(Colo. 2002). And we discern no compelling reason to dilute the 

prejudice test in termination of parental rights cases in favor of 

A.R.’s fundamental fairness test given the latter has its own 

problems. It is “a requirement whose meaning can be as opaque as 

its importance is lofty.” A.M. v. A.C., 2013 CO 16, ¶ 28 (quoting 

Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 24 (1981)). Because of 

its uncertainty and lack of clear benchmarks, we conclude that 

fundamental fairness isn’t a viable alternative to outcomedeterminative prejudice. 

¶ 35 But we need not delve into the fundamental fairness test’s 

specific shortcomings because ultimately, even if we were to agree 

with A.R.’s reasoning, see A.R., ¶¶ 46-55 (“Fundamental fairness as 

a focus of Strickland’s prejudice inquiry is also simply more suited 

to the highly discretionary nature of termination proceedings.”),

we’re bound by supreme court precedent. And the supreme court

defines “prejudice” in an ineffective assistance of counsel claim in 

parental termination cases as requiring some evidence showing
15

“that the result of the termination hearing may have been different”

absent counsel’s unprofessional errors. A.G., 262 P.3d at 652.

¶ 36 In A.G., our supreme court reviewed a parent’s ineffective 

assistance of counsel claim based on trial counsel’s failure to timely 

request that the trial judge recuse himself in a parental termination 

proceeding. The court “decline[d] to decide whether Strickland

applies to a claim of ineffective assistance in a termination hearing,” 

but it held “that if such a claim is cognizable, at the very least, an 

allegation of prejudice would be required.” Id. at 651. And it

described prejudice by quoting from Strickland: “The reviewing 

court looks at whether ‘there is a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding 

would have been different.’” Id. (quoting Strickland, 466 U.S. at 

694).

¶ 37 The court then analyzed the parent’s claim and found that the 

parent “failed to allege facts that would prove prejudice” because 

the allegation “[didn’t] contain any facts to support a conclusion 

that the judge was actually biased.” Id. at 652. It also found that 

the claim “[a]t most . . . alleged that there may have been an 

appearance of impropriety[.]” Id.
16

¶ 38 The supreme court then addressed the deficiency in the 

division’s analysis:

The court of appeals maintained that [the 

parent] suffered prejudice in that, had the 

recusal motion [] been timely, [the parent] 

would have been entitled to a different 

termination hearing before a different judge. 

This conclusion fails to focus on the key 

concern of the prejudice prong: whether the 

result of the proceeding would have been 

different. The court of appeals did not 

conclude, and there has been no evidence 

presented, that the result of the termination 

hearing may have been different if the judge 

had recused himself. 

Id. The court concluded that “[w]ithout an assertion of prejudice, 

counsel’s failure to move for disqualification cannot be the basis of 

a valid claim for ineffective assistance of counsel.” Id.

¶ 39 Thus, we conclude that A.G. requires that a cognizable

ineffective assistance of counsel claim in a termination proceeding 

must, “at the very least,” allege “there is a reasonable probability 

that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” Id. at 651 (quoting

Strickland, 466 U.S. at 694).

¶ 40 Father doesn’t allege with any specificity how counsel’s 

performance prejudiced him. He doesn’t allege what evidence 
17

counsel should have elicited in his testimony that would have 

resulted in the proceeding’s outcome being different had he 

testified. See People in Interest of V.M.R., 768 P.2d 1268, 1270-71 

(Colo. App. 1989) (deciding that parent’s absence from termination 

hearing was not prejudicial where parent was represented by 

counsel and personal presence would have had little effect on the 

proceeding). And he doesn’t allege how counsel’s further 

communication with him or fuller understanding of the facts and 

father’s position on central issues would have caused the result of 

the proceeding to have been different.

¶ 41 Without such an assertion of prejudice, counsel’s conduct 

can’t be the basis of a valid claim for ineffective assistance of 

counsel. A.G., 262 P.3d at 652; S.L., ¶ 60.

IV. Conclusion

¶ 42 The judgment is affirmed.

JUDGE FURMAN specially concurs.

JUDGE NAVARRO specially concurs.
18

JUDGE FURMAN, specially concurring. 

¶ 43 While I agree that father did not allege with enough specificity 

how counsel’s deficient performance prejudiced him, I write 

separately to address the majority’s view that we should apply 

Strickland’s criminal prejudice inquiry to an ineffective assistance of 

counsel claim in a civil dependency and neglect case. I would follow 

the division in A.R. and apply fundamental fairness as the standard 

by which we evaluate prejudice in parents’ ineffective assistance of 

counsel claims. See People in Interest of A.R., 2018 COA 176, 

¶¶ 64-65 (cert. granted Mar. 4, 2019). 

¶ 44 The majority concludes that the supreme court’s holding in 

People in Interest of A.G., 262 P.3d 646, 651 (Colo. 2011), requires, 

at a minimum, that we apply Strickland’s “outcome-determinative” 

prejudice inquiry to respondent parents’ ineffective assistance of 

counsel claims. I respectfully disagree. True, the court applied this 

inquiry to such a claim. Id. But, as I read A.G., this was by 

example because the court in A.G. explicitly declined to “decide 

whether Strickland applies to a claim of ineffective assistance in a 

termination hearing.” Id. If I am misreading A.G., I respectfully ask 

our supreme court, for the reasons that follow, to reconsider its 
19

holding regarding the prejudice inquiry. The division in A.R. did not 

directly address the shortcomings of making such an inquiry, so I 

do so here.

¶ 45 The United States Supreme Court in Strickland v. Washington

set out the now-familiar test for evaluating a criminal defendant’s 

ineffective assistance of counsel claim. 466 U.S. 668 (1984). A 

defendant making this claim must first show “that counsel’s 

performance was deficient. This requires showing that counsel 

made errors so serious that counsel was not functioning as the 

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.

at 687. A defendant then must show “that the deficient 

performance prejudiced the defense. This requires showing that 

counsel’s errors were so serious as to deprive the defendant of a fair 

trial, a trial whose result is reliable.” Id. The court explained that 

“the question is whether there is a reasonable probability that, 

absent the errors, the factfinder would have had a reasonable doubt 

respecting guilt.” Id. at 695. This is referred to as the “outcomedeterminative” test.

¶ 46 Without analysis, divisions of this court have adopted the 

Strickland outcome-determinative test to evaluate ineffective 
20

assistance claims in civil termination of parental rights proceedings. 

See People in Interest of V.M.R., 768 P.2d 1268, 1270 (Colo. App. 

1989) (adopting, without analysis, the outcome-determinative test 

for prejudice in ineffective assistance of counsel claims); see also 

People in Interest of C.H., 166 P.3d 288, 291 (Colo. App. 2007) 

(same); People in Interest of D.G., 140 P.3d 299, 308 (Colo. App. 

2006) (same). Under this test, a parent bringing an ineffective 

assistance claim must show “a reasonable probability that, but for 

counsel’s deficient performance, the outcome of the hearing would 

have been different.” D.G., 140 P.3d at 308. 

¶ 47 But the United States Supreme Court cautioned against 

applying Strickland’s prejudice inquiry in a mechanical fashion. 

Weaver v. Massachusetts, 582 U.S. ___, ___, 137 S. Ct. 1899, 1911 

(2017) (citing Strickland, 466 U.S. at 694, 696). The Court 

recognized that under Strickland,

• “the concept of prejudice is defined in different ways 

depending on the context in which it appears”; 

• “the prejudice inquiry is not meant to be applied in a 

‘mechanical’ fashion”; and
21

• “when a court is evaluating an ineffective-assistance 

claim, the ultimate inquiry must concentrate on the 

‘fundamental fairness of the proceeding.’” 

Id. (quoting Strickland, 466 U.S. at 696).

¶ 48 I believe that evaluating ineffective assistance of counsel 

claims in civil termination of parental rights proceedings calls for a 

more flexible prejudice inquiry — one that concentrates on the 

“fundamental fairness” of the proceeding. I reach this conclusion 

for two reasons: (1) there are essential differences between criminal 

trials and civil termination of parental rights proceedings; and (2) 

since the landmark decision in Santosky v. Kramer, 455 U.S. 745 

(1982), the United States Supreme Court and our supreme court 

have consistently used “fundamental fairness” as the benchmark 

for evaluating the adequacy of procedures afforded to parents in 

termination of parental rights proceedings. I believe errors of 

counsel should be measured by their effect on whether a parent 

received a fundamentally fair termination of parental rights hearing. 

See A.R., ¶ 57. I will refer to this as the “fundamental fairness” test.

I. Essential Differences
22

¶ 49 Criminal trials and civil termination of parental rights 

hearings require the fact finder to answer profoundly different 

questions.

¶ 50 In criminal trials, the judge or jury must decide whether the 

prosecution proved that the defendant committed the charged crime 

at a specific time and place. See In re Winship, 397 U.S. 358, 364 

(1970). If it finds the prosecution proved this beyond a reasonable 

doubt, it must find the defendant guilty. Leonard v. People, 149 

Colo. 360, 372, 369 P.2d 54, 61 (1962). In other words, it does not 

have discretion to find otherwise. Id. 

¶ 51 Unlike criminal trials, a typical civil termination of parental 

rights hearing requires the judge to conduct a multifactorial, 

totality-of-the-circumstances evaluation of a parent’s fitness, or 

whether a parent is likely to become fit within a reasonable time, 

based primarily on the parent’s compliance with an appropriate 

treatment plan over many months. § 19-3-604(1)(c)(I)-(III), C.R.S. 

2019. Colorado’s complex statutory scheme provides a 

nonexhaustive list of factors the judge may consider when 

conducting this evaluation. See § 19-3-604(2). But that does not 

end the judge’s analysis.
23

¶ 52 Even if the judge determines that the Department or guardian 

ad litem proved parental unfitness and other criteria by clear and 

convincing evidence, the judge retains discretion to decide whether 

to terminate parental rights. See § 19-3-604(1) (“The court may

order a termination of the parent-child legal relationship upon the 

finding by clear and convincing evidence of any one of the following: 

. . . .”) (emphasis added). By using the word “may,” the General 

Assembly gave the judge discretion to deny termination even when 

the statutory criteria are met.

¶ 53 Factors that may influence the judge’s decision to terminate 

parental rights include whether a less drastic alternative exists and 

the “physical, mental, and emotional conditions and needs of the 

child.” § 19-3-604(3); People in Interest of M.M., 726 P.2d 1108, 

1122 (Colo. 1986). Unlike in a criminal case, in which the fact 

finder must choose between only two possible outcomes — guilty or 

not guilty of a specifically defined offense at a fixed point in time —

the juvenile court’s decision is not a binary choice of whether a 

parent is fit or unfit, able or unable to care for a child on the final 

day of the termination hearing. Instead, for example, a juvenile 

court may conclude that, even though termination is one legally 
24

available option, an allocation of parental responsibilities to a 

relative would better serve a particular child’s needs.

¶ 54 These differences between criminal trials and civil termination 

hearings bear on the propriety of applying the outcomedeterminative test in each context. In criminal trials, a defendant 

mounting an ineffective assistance claim must show that errors of 

counsel “actually had an adverse effect on the defense.” Strickland, 

466 U.S. at 693. An outcome-determinative test in a criminal case, 

then, can properly focus on “whether there is a reasonable 

probability that, absent the errors, the factfinder would have had a 

reasonable doubt respecting guilt.” Id. at 695. 

¶ 55 In contrast, the prejudicial effect of counsel’s errors on the 

judge’s parental fitness determination is difficult, if not impossible, 

to quantify because a cold record seldom shows how any one or 

more of the factors may have dealt the deciding blow in the fitness 

determination. And, even if we could quantify this, the fitness 

determination is not the only factor the judge must consider. Thus, 

weighing the prejudicial effect of counsel’s errors on the decision to 

terminate parental rights only results in speculation.
25

¶ 56 Two hypothetical cases illustrate these key differences and 

show why I believe an ineffective assistance of counsel claim in a 

civil termination of parental rights proceeding should not include an 

outcome-determinative inquiry.

¶ 57 Imagine that the prosecution charges a defendant with second 

degree burglary. At trial, defense counsel fails to call two of the 

defendant’s friends, who would have credibly testified that the 

defendant was with them in another town on the day of the 

burglary. Without this evidence, the jury finds the defendant guilty, 

and he is convicted of the offense. 

¶ 58 Now imagine the defendant brings an ineffective assistance of 

counsel claim. He must show that (1) his counsel’s performance 

was outside the wide range of professionally competent assistance 

and (2) he was prejudiced by counsel’s errors. Strickland, 466 U.S. 

at 687. To satisfy the “prejudice” prong, the defendant must show 

there is “a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been 

different.” Id. at 694.

¶ 59 The hypothetical defendant can show that had his lawyer 

called his friends as witnesses, there is a reasonable probability the 
26

jury would not have found that he committed the burglary. See 

§ 18-4-204, C.R.S. 2019; Leonard, 149 Colo. at 372, 369 P.2d at 61. 

That is, the postconviction court can assess how the friends’ 

testimony would have affected the verdict because it would have 

shown the defendant was not at the scene of the crime.

¶ 60 Contrast this hypothetical with a civil termination of parental 

rights proceeding.

¶ 61 Imagine a mother struggles with substance abuse. Her young 

child has been placed out of her home for a year, and she is now 

facing termination of her parental rights. At the termination 

hearing, the judge hears testimony from mother’s caseworker that 

mother has attended some, but not all, of her required substance 

abuse treatment sessions; that she has maintained sobriety for 

some of the time her child has been placed outside the home; and 

that she has missed visits with her child. The caseworker offers her 

expert opinion that terminating mother’s parental rights is in the 

best interests of the child.

¶ 62 Now imagine that mother’s counsel failed to call her substance 

abuse therapist as a witness at the termination hearing. The 

therapist would have credibly testified that mother was the most 
27

successful client he had ever worked with, that she has been sober 

for six months, and that she will almost certainly maintain sobriety 

going forward. Without this evidence, the judge terminates 

mother’s parental rights, finding, among other things, that the 

Department of Human Services and the child’s guardian ad litem 

proved by clear and convincing evidence that mother did not 

reasonably comply with her treatment plan, that she is unfit, and 

that she is unlikely to become fit within a reasonable time. See § 

19-3-604(1)(c)(I)-(III).

¶ 63 Now suppose that mother brings an ineffective assistance of 

counsel claim on direct appeal.

¶ 64 I believe that mother would be hard pressed to show that the 

outcome would have been different. Under the outcomedeterminative test, she may be able to show that her therapist’s 

testimony would have been highly relevant to whether she 

reasonably complied with her treatment. But an appellate court 

could only speculate on what effect this evidence might have had on 

the outcome. This is so because we have no way to determine 

whether the judge would have maintained his or her evaluation of 

mother’s fitness or whether mother would become fit within a 
28

reasonable time based on other factors, such as mother’s missed 

visits. And fitness is not the outcome. The outcome is the 

judgment terminating parental rights. Parental fitness is only one 

factor the judge must consider when deciding whether to terminate 

parental rights. The judge must also consider facts external to the 

parent, including the physical, mental, and emotional conditions 

and needs of the child and whether there are any less drastic 

alternatives. § 19-3-604(3); M.M., 726 P.2d at 1122.

¶ 65 Our supreme court has made clear that an appellate court 

may not substitute its own judgment for that of the juvenile court. 

People in Interest of A.J.L., 243 P.3d 244, 249-50, 253 (Colo. 2010) 

(citing People in Interest of C.A.K., 652 P.2d 603, 613 (Colo. 1982)). 

But, in my view, this kind of second-guessing is precisely what the

outcome-determinative test requires appellate courts to do in 

termination of parental rights cases. See D.G., 140 P.3d at 308 

(explaining that, to establish prejudice under Strickland “a parent 

must show that there is a reasonable probability that, but for 

counsel’s deficient performance, the outcome of the hearing would 

have been different”).
29

¶ 66 In sum, it is difficult, if not impossible, for a parent to show —

and an appellate court to assess — prejudice under a mechanical 

application of Strickland’s outcome-determinative test. See Susan 

Calkins, Ineffective Assistance of Counsel in Parental-Rights 

Termination Cases: The Challenge for Appellate Courts, 6 J. App. 

Prac. & Process 179, 215 (2004) (“In almost all of the cases in which 

Strickland is applied, either expressly or impliedly, the courts 

decline to find ineffectiveness.”).

¶ 67 For this reason, I believe that applying the outcomedeterminative test in the parental rights context is at odds with the 

legislature’s guarantee that respondent parents shall have the “right 

to be represented by counsel at every stage of the proceedings.” 

§ 19-3-202(1), C.R.S. 2019. If Colorado courts mechanically apply

an outcome-determinative test, which poses an almost 

insurmountable hurdle for parents alleging ineffective assistance of 

counsel, I fail to see how parents’ statutory right to effective counsel 

can be protected. See In re Geist, 796 P.2d 1193, 1200 (Or. 1990) 

(“The statutory right to adequate trial counsel may prove illusory if 

there is no procedure for review of claims of inadequate counsel.”).
30

¶ 68 In my view, it makes little sense to stretch Strickland beyond 

its Sixth Amendment, criminal, origins. 

II. Fundamental Fairness

¶ 69 Instead, I believe the prejudice inquiry must concentrate on 

the “fundamental fairness” of the proceeding. See A.R., ¶ 56. The 

fundamental fairness test asks whether deficient performance by a 

respondent parent’s counsel “rendered the proceeding 

fundamentally unfair or the result of the proceeding unreliable.” Id.

at ¶ 11. In my view, this test better comports with the flexible, 

discretionary nature of dependency and neglect proceedings. See

§ 19-3-604(1). After all, dependency and neglect proceedings are 

civil cases, not criminal cases, implicating parents’ due process 

rights to the care, custody, and control of their child. And 

fundamental fairness has long been the benchmark by which the 

United States Supreme Court and our supreme court have 

evaluated the adequacy of procedural protections afforded to 

parents in termination of parental rights proceedings. See 

Santosky, 455 U.S. at 753-54; People in Interest of A.M.D., 648 P.2d 

625, 636 (Colo. 1982) (adopting clear and convincing evidence as 

the standard of proof in termination of parental rights hearings 
31

because Santosky requires “that the State’s procedure must be 

fundamentally fair”); see also People in Interest of J.W. v. C.O., 2017 

CO 105, ¶¶ 34-35 (considering whether “the trial court’s failure to 

enter a written adjudication order” before terminating parental 

rights impaired “the fundamental fairness of the proceedings”); A.M. 

v. A.C., 2013 CO 16, ¶ 38 (“[F]ull participation by foster parent 

intervenors does not undermine the fundamental fairness of the 

termination hearing.”); B.B. v. People, 785 P.2d 132, 136-37 (Colo. 

1990) (explaining that the purpose of the “complex statutory 

scheme” governing termination proceedings is to “accord 

fundamental fairness to all parties”). 

¶ 70 The majority concludes that the fundamental fairness test is 

“opaque” and has problems with “uncertainty and lack of clear 

benchmarks.” Supra ¶ 34 (quoting A.M., ¶ 28). I respectfully 

disagree.

¶ 71 A.R. outlined two concrete ways a parent may answer a 

prejudice inquiry. See A.R., ¶¶ 64-65. 

¶ 72 First, a parent could claim that his counsel’s deficient 

performance impaired a significant procedural safeguard, such as 

the right to notice, the right to a separate hearing, the right to proof 
32

by clear and convincing evidence, and the right to appeal. Id. at 

¶ 64; see A.M., ¶¶ 29, 38 (recognizing the significant protections 

Colorado law provides to respondent parents under the 

“fundamental fairness” standard). To illustrate, a parent could 

allege that his counsel rendered deficient performance by not 

objecting to the Department of Human Services explaining what 

evidence it would offer to the court without actually presenting that 

evidence at a termination of parental rights hearing. (This 

unfortunately common procedure is often called an “offer of proof.” 

See A.R., ¶¶ 89-96 (discussing “offer of proof”).) The parent could 

show prejudice by claiming he was denied the right to proof by clear 

and convincing evidence at the termination of parental rights 

proceeding, as required under section 19-3-604(1) and A.M.D., 648 

P.2d at 636.

¶ 73 Second, a parent could claim that her counsel’s deficient 

performance prevented the juvenile court from receiving essential 

information favorable to the parent relating to section 19-3-604’s 

termination criteria. A.R., ¶ 65. To illustrate, our earlier 

hypothetical mother could allege that her counsel rendered deficient 

performance by failing to call her therapist as a witness. Recall that 
33

the therapist would have credibly testified that mother successfully 

engaged in her treatment plan and was sober for the six months 

before the termination of parental rights hearing. The hypothetical 

mother could show prejudice by claiming that the therapist’s 

testimony would have provided essential information relating to her 

compliance with her treatment plan and fitness to parent. See § 

19-3-604(1)(c)(I), (II); A.R., ¶ 65. If she makes such a showing, the 

juvenile court, on remand, would evaluate its termination judgment 

after hearing the therapist’s testimony.

¶ 74 For all these reasons, I believe that fundamental fairness is 

the better test for evaluating whether errors by a parent’s counsel 

under Colorado’s complex statutory scheme deprived the parent of 

a fundamentally fair termination of parental rights hearing.

¶ 75 I now turn to the present case.

¶ 76 Father contends on appeal that his counsel rendered 

ineffective assistance for the following reasons:

• His attorney did not arrange for father’s attendance at 

the termination hearing by telephone.

• His attorney did not arrange for father to testify.
34

• His attorney was unclear about many of the facts central 

to father’s case.

• His attorney was uncertain about father’s 

communications with his son.

• His attorney did not know whether father’s condition had 

improved during the proceedings.

¶ 77 Applying the fundamental fairness test, I would conclude 

father has not alleged with enough specificity how counsel’s 

deficient performance prejudiced him. I reach this conclusion for 

two reasons: (1) father does not allege that his counsel’s deficient 

performance impaired a significant procedural safeguard and (2) he 

does not claim that his counsel’s deficient performance prevented 

the court from receiving essential information favorable to him 

relating to section 19-3-604’s termination criteria. See A.R., ¶ 66.

¶ 78 I conclude with one last observation. Permitting a parent to 

bring an ineffective assistance claim on direct appeal is the most 

expedient way to handle these claims, because it allows a reviewing 

court to consider all errors that could potentially disrupt the finality 

of a termination judgment in one step. See Calkins, 6 J. App. Prac. 
35

& Process at 207 (“A direct appeal is likely to be faster than either a 

post-judgment motion or a habeas proceeding in most cases.”).
36

JUDGE NAVARRO, specially concurring.

¶ 79 I join Judge Hawthorne’s opinion in full. I write separately to 

say that I also agree with Judge Furman that father’s assertion of 

prejudice from his counsel’s allegedly deficient performance fails the 

fundamental fairness test adopted in People in Interest of A.R., 2018 

COA 176, ¶ 35 (cert. granted Mar. 4, 2019). Accordingly, under 

either test for assessing prejudice from his counsel’s performance, 

father’s claim does not succeed.