Peo in Interest of LCC

24CA0687 Peo in Interest of LCC 12-19-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0687
City and County of Denver Juvenile Court No. 21JV425
Honorable J. Robert Lowenbach, Judge

The People of the State of Colorado,

Appellee,

In the Interest of L.C.C. and I.P.W., Children,

and Concerning S.L.W. and M.R.C.,

Appellants.

JUDGMENT AFFIRMED

Division A
Opinion by JUDGE HAWTHORNE*
Román, C.J., and Graham*, J., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 19, 2024

Kerry Tipper, City Attorney, Christina R. Kinsella, Assistant City Attorney,
Denver, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem

Ainsley Bochniak, Office of Respondent Parents’ Counsel, Denver, Colorado, for
Appellant S.L.W.

Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant M.R.C.

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024
¶1 In this dependency and neglect proceeding, M.R.C. (father) and

S.L.W. (mother) appeal the judgment terminating father’s parent-

child legal relationship with L.C.C. and mother’s parent-child legal

relationships with L.C.C. and I.P.W. (the children). We affirm.

I. Background

¶2 In June 2021, the Denver Department of Human Services filed

a petition in dependency or neglect concerning then-three-year-old

I.P.W. and eight-year-old L.C.C. At the time, I.P.W. lived with

mother, but L.C.C. had been living with paternal grandmother for

approximately three months. The Department noted that father

had been previously adjudicated as L.C.C.’s legal father, but the

identity of I.P.W.’s father was unknown. The Department alleged

concerns about mother’s substance use and criminal activity, as

well as I.P.W.’s lack of supervision and exposure to domestic

violence.

¶3 The juvenile court granted temporary legal custody of the

children to the Department. It placed I.P.W. with maternal uncle,

D.W., and L.C.C. remained with paternal grandmother. The court

later adjudicated the children dependent or neglected and adopted

treatment plans for both parents.

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¶4 In July 2022, D.W. went on a trip and left I.P.W. with a family

friend without notifying the Department or seeking approval. The

Department removed I.P.W. from D.W.’s care and briefly placed her

with maternal uncle, J.R. J.R. then attempted to manipulate a

urinalysis (UA) test’s results by bringing synthetic urine to his UA

appointment. The Department removed I.P.W. from J.R.’s care and

placed her with L.C.C.’s paternal grandmother. About two months

later, after paternal grandmother reported that she could not be a

long-term placement, the Department placed I.P.W. in foster care.

L.C.C. remained with paternal grandmother.

¶5 The Department then moved to terminate the parents’ legal

relationships with the children. D.W., J.R., and maternal

grandmother intervened in the case and asked that I.P.W. be placed

with one of them. The juvenile court held a six-day termination

hearing and denied the Department’s termination motion, finding

that while it could eliminate placing I.P.W. with J.R. as a less

drastic alternative, it could not eliminate placing her with D.W. The

court ordered the Department to create a treatment plan for D.W.

and a transition plan for I.P.W. to return to D.W.’s care.

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¶6 Several months later, the Department filed another motion to

terminate the parents’ legal relationships with the children. After a

four-day termination hearing, the juvenile court granted the

Department’s motion.

II. Less Drastic Alternatives

¶7 Both parents contend that the juvenile court erred by finding

that termination was in L.C.C.’s best interests when an allocation of

parental responsibilities (APR) to paternal grandmother was an

available less drastic alternative. We discern no error.

A. Applicable Law and Standard of Review

¶8 Consideration and elimination of less drastic alternatives is

implicit in the statutory criteria for termination. People in Interest

of A.M. v. T.M., 2021 CO 14, ¶ 40. In considering less drastic

alternatives, a juvenile court must give primary consideration to the

child’s physical, mental, and emotional conditions and needs.

People in Interest of Z.M., 2020 COA 3M, ¶ 29. A juvenile court may

also consider other factors, including whether an ongoing

relationship with a parent would be beneficial to the child, which is

influenced by a parent’s fitness to care for the child’s needs. People

in Interest of A.R., 2012 COA 195M, ¶ 38. And a juvenile court may

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consider whether the placement provider favors adoption over an

APR. Z.M., ¶ 31.

¶9 For a less drastic alternative to be viable, it must do more than

“adequately” meet a child’s needs; rather, the less drastic

alternative must be the “best” option for the child. A.M., ¶ 27.

Long-term or permanent placement with a family member or foster

family, short of termination, may not be a viable less drastic

alternative if it does not provide adequate permanence that

adoption would provide or otherwise meet a child’s needs. A.R., ¶

41. If a juvenile court considers a less drastic alternative but finds

instead that termination is in the child’s best interests, it must

reject the less drastic alternative and order termination. A.M., ¶ 32.

¶ 10 “We review a juvenile court’s less drastic alternatives findings

for clear error.” People in Interest of E.W., 2022 COA 12, ¶ 34. So,

when a juvenile court considers a less drastic alternative but

instead finds that termination is in the child’s best interests, we are

bound to affirm the court’s decision if the record supports its

findings. People in Interest of B.H., 2021 CO 39, ¶ 80.

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B. Analysis

¶ 11 The juvenile court considered whether an APR to paternal

grandmother was in L.C.C.’s best interests but ultimately concluded

it was not. Specifically, the court found that both paternal

grandmother and L.C.C. preferred termination and eventual

adoption. The court also found that it would not be in L.C.C.’s best

interests to “require him to settle for the less permanent and less

stable legal option of allocation of parental rights and

responsibilities to his grandmother” and that an APR would “deprive

[L.C.C.] of the stability, care and permanency that only adoption

can provide.”

¶ 12 The record supports these findings. The caseworker testified

that paternal grandmother wanted to adopt L.C.C. and was not

open to an APR. The caseworker also testified that while L.C.C.

wanted to continue to have some contact with his parents, he

wanted paternal grandmother to adopt him. And the caseworker

opined that an APR would not give L.C.C. the sense of permanency

he needed.

¶ 13 We reject mother’s argument that the juvenile court erred by

declining to enter an APR because paternal grandmother did not

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understand all of her legal options. To the contrary, the caseworker

testified that she, the guardian ad litem (GAL), and mother’s

counsel had conversations with paternal grandmother about

alternatives to termination, including APR and the relative

guardianship assistance program. But throughout those

conversations, paternal grandmother maintained that she preferred

adoption over other alternatives.

¶ 14 We are also unpersuaded by mother’s argument that the

juvenile court erred by declining to enter an APR because paternal

grandmother would not have relinquished custody of L.C.C. if an

APR had been entered. This fact did not, on its own, render an APR

a viable less drastic alternative. Rather, in determining whether an

APR was viable, the court properly considered other factors, such as

L.C.C.’s need for stability and permanency, in conjunction with

paternal grandmother’s preference for adoption. See Z.M., ¶ 29 (in

considering less drastic alternatives, a juvenile court must give

primary consideration to the child’s physical, mental, and emotional

conditions and needs).

¶ 15 We also reject father’s argument that the juvenile court

infringed on his fundamental constitutional right to parent L.L.C.

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by declining to enter an APR to paternal grandmother. The

Department and the GAL assert that father did not preserve this

argument for appeal because he failed to raise it prior to or during

the termination hearing. Even assuming, without deciding, that the

argument was preserved, we are not persuaded.

¶ 16 Relying on A.M., father argues that a less drastic alternative

does not have to be the “best” option for a child. And he asserts

that his fundamental right to parent was violated because L.C.C.’s

needs would have been adequately met by an APR to paternal

grandmother. But father’s reliance on A.M. is misplaced because in

that case, the supreme court considered and rejected the exact

argument father makes here. See A.M., ¶¶ 33-38. Specifically, the

supreme court rejected an “adequacy” standard for determining

whether a less drastic alternative is viable, stating that “[p]rimary

consideration of the child’s physical, mental, and emotional

condition and needs requires more than a mere assessment of

adequacy in order to satisfy the overall intent of the Children’s

Code.” Id. at ¶ 31. The supreme court concluded that “the

consideration and elimination of a less drastic alternative to

termination on the ground that termination best serves the child’s

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interests, where the statutory criteria for termination are otherwise

established by clear and convincing evidence, satisfies due process.”

Id. at ¶ 37. Father does not challenge the court’s findings regarding

the termination factors set forth in section 19-3-604(1)(c), C.R.S.

2024. And, as noted above, sufficient evidence supports the court’s

finding that termination, not an APR, was in L.C.C.’s best interests.

¶ 17 So, we conclude that the juvenile court did not err by finding

that termination, rather than an APR, was in L.C.C.’s best interests.

B.H., ¶ 80.

III. Ineffective Assistance of Counsel

¶ 18 Mother also contends that she received ineffective assistance

of counsel. She asserts that at the termination hearing, her trial

counsel failed to cross-examine the forensic toxicologist, Dr. Brown,

and failed to call a different forensic toxicologist, Dr. Abbas, as a

witness. She also asserts that her appellate counsel failed to secure

affidavits from Dr. Brown and Dr. Abbas to show what their

testimony would have been at the termination hearing. Mother

argues that the toxicologists’ testimony would have demonstrated

J.R.’s credibility and sobriety. And that, in turn, would have

persuaded the court to find that the less drastic APR to J.R.

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alternative was available and in I.P.W.’s best interests. We are not

persuaded.

A. Applicable Law

¶ 19 A parent has a statutory right to effective counsel in

dependency and neglect proceedings. §§ 19-1-105(2), 19-3-202(1),

C.R.S. 2024; A.R. v. D.R., 2020 CO 10, ¶ 47. A party can raise a

claim of ineffective assistance of counsel in a dependency and

neglect proceeding for the first time on appeal. People in Interest of

C.H., 166 P.3d 288, 291 (Colo. App. 2007).

¶ 20 To establish a claim of ineffective assistance of counsel in a

termination of parental rights proceeding, a parent must show that

(1) counsel’s performance was deficient because it fell outside the

wide range of professionally competent assistance, and (2) there is a

reasonable probability that but for counsel’s unprofessional errors,

the proceeding’s result would have been different. A.R., ¶¶ 48-51,

60; see also Strickland v. Washington, 466 U.S. 668, 687 (1984). “If

the parent fails to establish either prong of this test, the claim

fails.” People in Interest of C.B., 2019 COA 168, ¶ 26.

¶ 21 Under this approach, we must remand for an evidentiary

hearing if the parent’s allegations are sufficiently specific and

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compelling to constitute a prima facie showing of ineffective

assistance of counsel. A.R., ¶ 63. But, if the parent’s allegations

lack sufficient specificity, we may summarily deny the ineffective

assistance claim. Id.

B. Analysis

¶ 22 First, we reject mother’s argument that trial counsel’s failure

to cross-examine Dr. Brown constituted ineffective assistance.

Mother asserts that her counsel should have elicited testimony from

Dr. Brown that environmental exposure to cocaine could have

caused J.R.’s positive oral swab test results. However, while Dr.

Brown opined that J.R.’s oral swab test results indicated cocaine

ingestion, he also testified that environmental exposure could cause

positive results “[i]f the exposure is severe enough and the drugs - -

it is done in a way in which the drugs actually [are] ingested and

entered the body.” Thus, because the court heard the evidence

mother now asserts her counsel should have elicited, we conclude

that mother has not established that counsel’s failure to cross-

examine Dr. Brown prejudiced her.

¶ 23 Next, we reject mother’s argument that trial counsel’s failure

to call Dr. Abbas as a witness amounted to ineffective assistance.

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Mother asserts that Dr. Abbas would have opined that

environmental exposure to cocaine caused J.R.’s positive hair test

results, which would have proved that J.R. had been honest when

he denied using cocaine even after his positive hair test results.

But, even assuming, without deciding, that Dr. Abbas’s testimony

would have convinced the juvenile court that J.R. had been honest

about his hair test results, mother has not established a reasonable

probability that the proceeding’s result would have been different.

¶ 24 We recognize that the juvenile court found J.R.’s testimony to

be incredible based, at least in part, on his denial of cocaine use

despite his positive hair test results. But the court also based its

credibility finding on the undisputed fact that J.R. attempted to

falsify a UA result during the pendency of the case. And mother

does not explain how evidence showing that J.R. was honest about

his hair test results would have refuted that he had separately

attempted to falsify a UA result.

¶ 25 We also recognize that Dr. Abbas had testified in a previous

hearing that J.R.’s hair test results indicated environmental

exposure to cocaine because norcocaine was not present. But at

the same hearing, Dr. Abbas admitted that because of the amount

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of norcocaine necessary to show as positive, it was possible to

ingest cocaine and still produce a negative norcocaine hair test

result. Dr. Abbas also testified that he was “not very familiar with”

oral fluid testing and that “every kind of test stands on [its] own.”

So, even if Dr. Abbas had opined at the termination hearing that

J.R.’s hair test results indicated environmental exposure to cocaine,

mother does not explain how his testimony would have refuted Dr.

Brown’s opinion that J.R.’s oral swab results indicated ingestion.

¶ 26 Also, the juvenile court did not determine that termination,

not an APR, was in I.P.W.’s best interests based solely on J.R.’s

alleged lack of credibility or sobriety. Rather, the court found, with

record support, that I.P.W. was “fragile” and had problems with

social interactions, dysregulation, hypervigilance, aggression, and

post-traumatic stress disorder. And the court concluded that I.P.W.

had “significant special needs that would be difficult for [J.R.] and

his family to meet.” It also found, with record support, that I.P.W.’s

behavioral and mental health issues were based, at least in part, on

“the number of moves she [had] experienced in her life” and that

I.P.W. was “concerned about moving again.” So, the court

concluded that I.P.W. would be “harmed” by “any move” and that

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placement with “any of the kinship options” through an APR would

deprive her of the stability, care, and permanency she needed.

¶ 27 The record also supports the court’s rejecting an APR to J.R.

for other reasons. The caseworker testified that she would be

concerned about placing I.P.W. with J.R. because “even if he [was]

sober,” he still lived with D.W., and the caseworker believed D.W.

was actively using substances. The caseworker was also concerned

because even though J.R. knew that D.W. and maternal

grandmother struggled with substance use, J.R. identified them as

his support system for helping with his children. And J.R. testified

that although he had concerns about D.W.’s and maternal

grandmother’s substance use, he still allowed them to watch his

children and would rely on them to help if I.P.W. was placed with

him.

¶ 28 Based on the foregoing, mother’s claim that Dr. Abbas’s

testimony would have persuaded the court to grant an APR to J.R

instead of terminating mother’s parental rights is too speculative to

establish prejudice. See People v. Sherman, 172 P.3d 911, 914

(Colo. App. 2006) (holding that a speculative claim does not satisfy

the prejudice prong of Strickland).

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¶ 29 We also reject mother’s argument that her appellate counsel’s

failure to obtain affidavits from Dr. Abbas and Dr. Brown

constituted ineffective assistance. Mother does not explain how

these affidavits would have changed the proceeding’s outcome. She

simply states that the affidavits would “prove that but for trial

counsel’s ineffective assistance of counsel, the outcome of the

termination hearing would have been different.”

¶ 30 Therefore, we conclude that mother’s allegations are not

sufficiently specific or compelling to constitute a prima facie

showing of ineffective assistance of counsel requiring a remand.

See A.R., ¶ 63.

IV. Disposition

¶ 31 The judgment is affirmed.

CHIEF JUDGE ROMÁN and JUDGE GRAHAM concur.

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