SUMMARY January 2, 2020
20 20 COA 5 No. 19 CA0198 , People i n 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 pa rental 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.COLOR ADO COURT OF APPEALS 20 20 COA 5

Court of Appeals No. 19CA 0 198 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 Appellant1

¶ 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. T he 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 , wh o m t he court appointed as special respondents in the

case . The child’s mother had died earlier that year. ¶ 3 In September 2017, f ather 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 year s 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 F ather contends that the juvenile court failed to comply with the Indian Child Welf are Act of 1978 (ICWA), 25 U.S.C. § § 1901

- 1963 (2018) , in two ways : ( 1) it failed to make proper ICWA inquiries du ring the termination proceeding and ( 2) it and the Department failed to send proper notic e 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 sa tisfied. People i n 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 conti nuing inquiries to determine whether the child is an3

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 als o 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 tribe s. 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 th at the child is an Indian child

. . . [or] informs the court that it has discovered information indicating tha t the child is an Indian child[.] ” 25 C.F.R. § 23.107 (c)

. State courts and agencies are encouraged to interp ret 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 P rior 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 , t he Dep artment updated the
court on its efforts to determine the child ’s possible Indian heritage

. Its c ounsel 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 notice s to the t h ree federally recognized Choctaw tribes, and that two had responded that the grandfather wasn’t a member or eligible to be one

. T he Department hadn’t heard back from the third tribe, the Jena Band, and hadn’t been able to contact the tribe by tele phone

. ¶ 14 In July 2018, the court held a “permanency plan ning 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’s6 heritage and the Choctaw Tribes were noticed. The People do not know or have reason to know or believe that t he 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
repo rt indicating whether ICWA is a[n] iss ue in this case within [seven] days.” F ather didn’t respond

. ¶ 17 Eight days b efor e the termination hearing on November 6,
201 8, the Department filed a “Notice Regarding [ICWA].” In the
notice the Department detailed its efforts to inquire into the child ’s possible In dian heritage , including what counsel had already provided at the rev iew hearing . The Department also sent information to the Bureau of Indian Affairs, but the Bureau had responded that it couldn’t identify a tribe. T he Jena Band of the Choctaw T ribe still hadn’t respond ed to the notice or to the Department ’s follow

- up ef forts

. ¶ 18 The notice also said that the Department had called grandfather in July 2018 prior to the termination motion , and he7

had “confirmed that the tribe he is enrolled in is the ‘Metis’ tribe, ” a federally un recognized 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 i n Interest of K.G. , 2017 COA 153, ¶ 21 (quo ting 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 i n 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 chi ld may have Indian heritage and should have required the Department to8

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 termin ation of parental rights proceeding. ”)

. ¶ 22 But the se errors were harmless

. G randfather ’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 grandf ather later clarified that he was enrolled in a federally unrecognized tribe , further notice wasn’t required and the previous errors were harmless

. See People i n 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 pr oper 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 t estimony 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 i n 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 p roceeding 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
assistan ce 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

- 9110

(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 prejudic ed the parent. Id. at 291. P rejudice requires showing “a reasonable probability that, but for counsel’s alleged deficiencies, the outcome of the termination proceedi ng 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 may11

also be prejudicial where a judgment is unreliable or fundamentally unfair. See i d. at ¶ ¶ 57 , 61

. ¶ 27 Chief Justic e Directive 16

- 02 , Court Appointment s 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 requi red to “[a ]dvocate for the client’s goals and empower the client to direct the representati on 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. 2 006) ).12 B. Additional Facts ¶ 29 Shortly before the termination hearing , the court granted father’s request to attend the termination heari ng 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 th e 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 phon e call with [father]

. . . . Thus, any information counsel includes r egarding [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 f ailure 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 B ecause 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 , w e decline to apply A.R. ’s fundamental fairness test for establishing prejudice in ineffective assistance of counsel claim s , 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 generally14

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 dil ute 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
it s uncertainty and lack of clear benchmarks , we conclude that fundamental fairness isn ’ t a viable alternative to outcome

determinative prejudice

. ¶ 35 But we need not delve into the fundamental fairness test’s specific shortcomings because ultimately, e ven if we were to agree with A.R. ’ s reasoning, s ee A.R. , ¶ ¶ 46

- 55 (“ Fundamental fairness as a focus of Strickland ’s prejudice inquiry is also simply more suited to the hi ghly discretionary nature of termination proceedings. ”) ,

we ’ re bound by supreme court precedent . And the supreme court defin es “ prejudice ” in an ineffect ive assistance of counsel claim in parental termination cases as requiring some evidence showing15

“that the result of the termination h earing 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 assis tance 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 “fai led to allege facts that would prove prejudice” because the allegation “[ did n’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 ineff ective assistance of counsel.” Id. ¶ 39 Thus, we conclude that A.G. requires that a cognizable ineffective assista nce of counsel claim in a termination proceeding must, “at the very least,” allege “ there is a reasonable pr obability that, but for counsel’ s unprofessional errors, the result of the proceeding would have been different. ” Id. at 651 (quoting Strickland , 4 66 U.S. at 694). ¶ 40 F ather doesn’t allege with any specificity how counsel’s performance prejudiced him. H e doesn’t allege what evidence17

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 ha d 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 concur s .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 Stricklan d ’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 minim um, 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 b y 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 its19

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 guil t.” Id. at 695. This is referred to as the “outcome

determinative” test. ¶ 46 Without analysis, divisions of this court have adopted the Strickland outcome

- determinative test to evaluate ineffective20

assistance claims in civil termination of parental rights pr oceedings. 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, 2 91 (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”; and21

• “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 consist ently 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 f

undamentally fair termination of parental rights hearing.
See A.R. , ¶ 57. I will refer to this as the “fundamental fairness” test.
I. Essential Differences22

¶ 49 Criminal trials and civil termination of parental rights hearings require the fact finder to answer p rofoundly 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 pros ecution 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, i t 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 co mpliance 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 term ination 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 tim e — 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 legally24

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 outcome

determinative 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 thi s, 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 di fferences 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 burgla ry. A t 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 coun sel’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 T he hypothetical defendant can show that had his lawyer called his friends as witnesses, there is a reasonable probability the26

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 pr oceeding. ¶ 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 caseworke r 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 casework er 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 most27

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 parenta l 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 unlikel y 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 diffe rent. Under the outcome

determinative 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 evid ence 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 a28

reasonable time based on other factors, such a s 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 consi der 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

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- 604(3); M.M. , 726 P.2d at 1122. ¶ 65 Our supreme court has made clear that an appellat e 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

- g uessing 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 outcome

determinative 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 po ses 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 p rejudice 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 resu lt 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 cr iminal 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 proc edural 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 termin ation of parental rights hearings31

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 adju dication 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 he aring.”); 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 proof32

by clear and convincing evidence, and the right to appeal. Id. at ¶ 6 4; 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 t o 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 illustra te, our earlier hypothetical mother could allege that her counsel rendered deficient performance by failing to call her therapist as a witness. Recall that33

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 treat ment 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 th e 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 i mpaired 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 t he 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

JUDG E NAVARRO, specially concurring. ¶ 79 I j oin 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 i n 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.