Peo in Interest of AT

23CA2014 Peo in Interest of AT 07-11-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2014

City and County of Denver Juvenile Court No. 22JV30831

Honorable Pax Moultrie, Judge

The People of the State of Colorado,

Appellee,

In the Interest of A.T., A.A., T.A., G.K.L.A., and A.K.L-L.A., Children,

and Concerning A.A. and T.T.,

Appellants.

JUDGMENT AND ORDER AFFIRMED

Division VI

Opinion by JUDGE FREYRE

Lipinsky and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 11, 2024

Kerry Tipper, City Attorney, Amy J. Packer, Assistant City Attorney, Tierney A.

Shea, Assistant City Attorney, Denver, Colorado, for Appellee

Debra W. Dodd, Guardian Ad Litem

Padilla Law, P.C., Beth Padilla, Mancos, Colorado, for Appellant A.A.

James West, Office of Respondent Parent’s Counsel, Longmont, Colorado, for

Appellant T.T.

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¶ 1 In this dependency and neglect action, T.T. (mother) and A.A.

(father) appeal the judgment adjudicating A.K.A, G.K.A., A.S.A.,

T.A.A., and A.T. (the children) dependent and neglected. Mother

also appeals the dispositional order. We affirm.

I. Background

¶ 2 The Denver Department of Human Services (the Department)

received a referral while the family was staying in a shelter and

opened a voluntary, non-court case. Two months later, the

Department filed a petition in dependency and neglect, alleging that

the family was asked to leave the shelter and there were concerns

about physical abuse, domestic violence, and substance abuse.

The family was from Micronesia and was struggling with their

adjustment to the language and cultural norms of the United

States. Both parents denied the allegations in the petition and

requested a jury trial.

¶ 3 The juvenile court conducted a jury trial in this case eight

months after the Department filed the petition. At the trial, the

Department alleged and the jury found that:

• the children lacked proper parental care through father’s

actions or omissions;

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• the children’s environment was injurious to their welfare;

• mother and father failed or refused to provide proper or

necessary subsistence, education, medical care, or any

other care for A.S.A., T.A.A., and A.T.; and

• the children were homeless or without proper care

through no fault of mother and father.

Although the Department alleged that (1) mother had mistreated or

abused A.T. and (2) the children lacked proper parental care

through mother’s actions or omissions, the jury disagreed.

¶ 4 Based on the jury’s verdicts, the juvenile court adjudicated the

children dependent and neglected. Following a contested

dispositional hearing, the juvenile court adopted treatment plans

for the parents.

II. Jury Instructions

¶ 5 Mother contends that the juvenile court erred by declining to

give the jury her tendered instruction based on the presumption

from Troxel v. Granville, 530 U.S. 57 (2000). We disagree.

A. Standard of Review

¶ 6 A juvenile court must correctly instruct the jury on the law

applicable to a case, and if the juvenile court meets this obligation,

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it has broad discretion over the style and form of instructions.

People in Interest of J.G., 2016 CO 39, ¶ 33. We review jury

instructions de novo to determine whether, taken as a whole, they

accurately informed the jury of the applicable law. Id. However, we

review a court’s decision to give or not give a particular instruction

for an abuse of discretion. Id. A ruling on jury instructions is an

abuse of discretion only when the ruling results in a misstatement

of the law or is manifestly arbitrary, unreasonable, or unfair. Id.

B. Additional Background

¶ 7 As relevant here, mother proposed an instruction stating that

the jury “must presume all of the Respondent Parents’ decisions for

the children were made in the children’s best interest unless you

conclude that the Petitioner has presented evidence to overcome

that presumption by a preponderance of the evidence.” Mother

cited Troxel as support for her proposed instruction.

¶ 8 The Department and the guardian ad litem (GAL) objected. At

a pretrial conference, mother argued — seemingly in response to

written objections not in the record — that the proposed instruction

should be permitted because “it [was] an accurate statement of the

law and [the Department’s] objection is that adjudication does not

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ask the jury to determine if a parent is fit. The instruction actually

doesn’t contain the word fit, just simply states that until

adjudication occurs, parents are presumed to have that fitness and

to act in their children’s best interest.”

¶ 9 The juvenile court agreed the instruction was a correct

statement of the law but expressed concern about “confusion of the

issues and also perhaps a reading into the instruction that it

applies an additional element that has to be proven at trial.” The

juvenile court then declined to include the proposed instruction.

¶ 10 Mother also proposed amendments to the Department’s

proffered instruction about the burden of proof. The pattern

instruction states that “the plaintiff has the burden of proving its

claim(s) by a preponderance of the evidence” and “the defendant

has the burden of proving each of their affirmative defense(s) by a

preponderance of the evidence.” CJI—Civ. 3:1 (2023) (general

burden of proof instruction for civil cases). Mother argued that “any

reference to the fact that the parents have a burden of proof

improperly shifts the burden at trial” and would be confusing to the

jury. The juvenile court agreed, “[s]ince the burden remains on the

Petitioner and the Juvenile Rules do not require specific pleading of

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defenses or affirmative defenses, the court finds it appropriate to

modify the pattern instruction regarding burden of proof to remove

reference to affirmative defenses or defenses to prevent any

confusion for the jury.”

C. Analysis

¶ 11 Mother contends that, like the presumption of innocence in a

criminal trial, parents are entitled to a presumption that their

“decisions are made in the best interests of the children.” She

reasons that an instruction regarding the presumption would have

been particularly important here because of the family’s cultural

background. Specifically, mother contends that, had her proposed

instruction been included, evidence of her and father’s discipline

choices would not have been as impactful on the jury and would

have helped the jury understand how cultural considerations

informed the parents’ disciplinary practices.

¶ 12 Mother also argues that the proposed instruction should have

been included because it properly stated the law and did not alter

the Department’s burden of proof. The juvenile court agreed that

the proposed instruction was a correct statement of the law from

Troxel. Nonetheless, the juvenile court excluded the proposed

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instruction for other reasons. The court reasoned that the proposed

instruction altered the burden of proof because it required the

Department to prove “an additional element,” and it would confuse

the jury.

¶ 13 While we agree that mother’s tendered instruction correctly

stated the law, we nevertheless conclude that it duplicated other

instructions and was therefore unnecessary. The totality of the

instructions as given properly informed the jury of the Department’s

burden and complied with the statute. Therefore, we discern no

abuse of discretion. See J.G., ¶ 33.

1

¶ 14 Furthermore, mother’s concerns about the jury incorrectly

placing the burden of proof on the parents were addressed in other

jury instructions, including amendments to the instructions that

mother proposed and the juvenile court accepted. See People v.

Asberry, 172 P.3d 927, 933 (Colo. App. 2007) (“There is no

reversible error if the jury instructions, read as a whole, adequately

inform the jury of the law.”).

1

We need not, and do not, decide whether a juvenile court would

abuse its discretion by providing a jury instruction that explains the

Troxel presumption in an adjudicatory trial. See People in Interest

of N.G., 20212 COA 131, ¶¶ 35-36, 40.

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¶ 15 We conclude that the juvenile court did not abuse its

discretion by declining to give mother’s proposed jury instruction.

III. Juror T

¶ 16 Father contends that the juvenile court erred by denying his

challenge for cause to Juror T. We discern no error.

A. Applicable Law and Standard of Review

¶ 17 A challenge for cause is entrusted to the sound discretion of

the juvenile court, and we will not disturb a court’s decision to deny

a challenge for cause absent an abuse of discretion. Day v.

Johnson, 232 P.3d 175, 178 (Colo. App. 2009). We defer to the

juvenile court’s assessment of a prospective juror’s responses

because the juvenile court is uniquely positioned to evaluate the

demeanor and body language of the prospective juror. Id.

¶ 18 Under C.R.C.P. 47(e)(6) and (7), a court may remove a juror for

cause based on an “unqualified opinion or belief as to the merits of

the action” or “the existence of a state of mind in the juror evincing

enmity against or bias to either party.” However, a court need not

excuse a juror for cause when, “after explanation and rehabilitative

efforts, the court believes that [the juror] can render a fair and

impartial verdict based on the instructions given by the judge and

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the evidence presented at trial.” People v. Clemens, 2017 CO 89,

¶ 16.

B. Additional Background

¶ 19 Based solely on juror questionnaires, the parties agreed to

dismiss nineteen jurors for cause. Father challenged four more

jurors based on their responses which, he argued, indicated they

could not be fair. The juvenile court denied those challenges, but

encouraged the parties to “ask pointed questions” if those jurors

made it to the box during voir dire.

¶ 20 After voir dire, father challenged an additional six jurors,

including Juror T, for cause. Father raised concerns that these

jurors would place the burden of proof on the parents and be

unwilling to follow the law. In response, the juvenile court provided

additional instruction to the jurors, including that the Department

had the burden of proof, and asked them if, knowing the burden, it

would “still [be] a struggle for any of you if you don’t hear anything

from any of the parents?” No juror “indicated that is a struggle.”

Similarly, when the juvenile court asked if anyone was “unwilling to

follow the law regardless of whether you agree with that,” no juror

indicated an unwillingness to follow the law.

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¶ 21 In declining to dismiss Juror T and five others for cause, the

juvenile court found that, after “hearing the answers and

considering all of the voir dire together . . . we’ve adequately

questioned the jurors as to all these things and so understanding

and noting the objection from parent counsel, I’m passing the panel

for cause.”

C. Analysis

¶ 22 Father points to Juror T’s agreement with another juror’s

response to counsel’s question, “even though [she] would be

instructed that the burden of proof is over here, [she] would say,

yeah, I need to see some more from these guys over here” and such

juror’s statement that she “would have a hard time not hearing

from” the parents. But Juror T also affirmed that she could follow

the law and did not have questions about how to do that. And

when, after further instruction, the juvenile court asked the jurors

about their willingness to follow the law regardless of whether they

agreed with it, Juror T did not indicate an unwillingness to do so.

¶ 23 While Juror T — and others — made somewhat conflicting

statements during voir dire, we must defer to the juvenile court’s

assessment of the prospective jurors’ responses. See Day, 232 P.3d

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at 178; see also People v. Lefebre, 5 P.3d 295, 301 (Colo. 2000) (“A

prospective juror who makes a statement suggesting actual bias

may nonetheless sit on the jury if she agrees to set aside any

preconceived notions and make a decision based on the evidence

and the court’s instructions.”), overruled on other grounds by People

v. Novotny, 2014 CO 18. Under these circumstances, we perceive

no abuse of discretion by the juvenile court in denying the challenge

for cause to Juror T and allowing her to remain in the jury pool.

See Carrillo v. People, 974 P.2d 478, 485-86 (Colo. 1999) (The abuse

of discretion standard “recognizes the trial court’s unique role and

perspective in evaluating the demeanor and body language of live

witnesses, and it serves to discourage an appellate court from

second-guessing those judgments based on a cold record.”).

IV. Amendments to the Petition

¶ 24 Father next contends, somewhat paradoxically, that the

juvenile court erred by both (1) allowing the petition to be amended

before the adjudicatory trial and (2) not requiring the petition to be

amended after the adjudicatory trial. We disagree with both

contentions.

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A. Relevant Law

¶ 25 A petition alleging dependency or neglect “shall set forth

plainly the facts which bring the child within the court’s

jurisdiction.” § 19-3-502(2), C.R.S. 2023. Because an adjudication

must be based on existing circumstances and relate to the status of

the child at the time of the adjudicatory hearing, the Children’s

Code anticipates that “additional or different” matters may be raised

by the evidence at an adjudicatory trial. See § 19-3-505(4)(a),

C.R.S. 2023; see also J.G., ¶ 38. In such circumstances, the

Children’s Code directs that a juvenile court “may proceed

immediately to consider the additional or different matters raised by

the evidence if the parties consent” and “[i]n such event, the court,

on the motion of any interested party or on its own motion, shall

order the petition to be amended to conform to the evidence.”

§ 19-3-505(4)(a), (b). If the amendment “results in a substantial

departure” from the original petition, the juvenile court must

continue the hearing. § 19-3-505(4)(c).

¶ 26 Colorado Rule of Civil Procedure 15(b) is analogous. It

provides that, “[i]f evidence is objected to at the trial on the ground

that it is not within the issues made by the pleadings, the court

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may allow the pleadings to be amended and shall do so freely when

the presentation of the merits of the action will be subserved

thereby and the objecting party fails to satisfy the court that the

admission of such evidence would prejudice him in maintaining his

action or defense upon the merits.” C.R.C.P. 15(b)

¶ 27 Pleadings are to be construed so as to do substantial justice,

and their purpose is merely the giving of notice of the issues to be

litigated. Belfor USA Grp., Inc. v. Rocky Mountain Caulking &

Waterproofing, LLC, 159 P.3d 672, 678 (Colo. App. 2006). Thus,

amendment of the pleadings to conform to the evidence should be

granted liberally to allow litigation to be determined on the merits

and not be limited to the strict parameters of the pleadings. People

v. Mountain States Tel. & Tel. Co., 739 P.2d 850, 852 (Colo. 1987).

¶ 28 Whether to grant leave to amend a petition is entrusted to the

juvenile court’s discretion, and we will not disturb a decision to

grant leave to amend absent an abuse of that discretion. Polk v.

Denver Dist. Ct., 849 P.2d 23, 25 (Colo. 1993).

B. The Amended Petitions

¶ 29 The Department filed a first amended petition that added

allegations of dental neglect for two of the children. A few days

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prior to the adjudicatory trial, which occurred eight months after

the initial filing, the Department submitted a second amended

petition that added allegations regarding continued “concerns . . .

related to the respondent parents’ drinking,” including that the

parents appeared under the influence of alcohol during meetings

with the caseworker and at a family time session where “father

admitted to being under the influence and had to be asked to

leave.”

¶ 30 Father argued that the juvenile court should not permit the

Department to file the second amended petition, stating (1) the

Department already used “its one amendment permitted” by

C.R.C.P. 15(a); (2) amending the petition three business days before

the start of the scheduled jury trial was insufficient notice; and (3)

the amendment was not timely because the family time incident

occurred a month before the Department sought leave to file the

second amended petition.

¶ 31 The juvenile court ordered that the second amended petition

be received after considering both C.R.C.P. 15(a) and section

19-3-505(4). In so doing, the juvenile court found “that allegations

in the Second Amended Petition are not a substantial departure

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from the allegations in the original petition,” and that the “parties

have been on notice of the concerns about parental substance use,”

including through witness disclosures and a stipulation that

required both parents to engage in substance monitoring. Finally,

the juvenile court found that continuing the adjudicatory trial,

which had already been reset twice and which was occurring nine

months after the filing of the original petition, was not in the

children’s best interests.

¶ 32 Given the multiple ways that father was given notice of the

Department’s concerns about his substance use before the petition

was amended, and the significant passage of time between the filing

of the petition and the adjudicatory trial, we cannot say that the

juvenile court’s decision to allow the amendment was unreasonable

or unfair. The original petition and the second amended petition

recited the statutory grounds for determining dependency and

neglect as to all the children and stated plainly that the Department

had concerns about physical abuse, domestic violence, and

substance abuse. And father agreed to provide random urinalysis

— clean of all substances — as part of a family time stipulation four

months before the adjudicatory trial.

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¶ 33 Notably, father appears to concede that the amendments were

not a substantial departure from the original petition because he

did not object on those grounds either before the juvenile court or

on appeal. See People in Interest of A.E.L., 181 P.3d 1186, 1193

(Colo. App. 2008) (affirming order allowing the filing of an amended

petition two days before the adjudicatory hearing where there was

no showing of a substantial departure from the original allegations).

¶ 34 Instead, father argues that C.R.C.P. 15(a) requires the juvenile

court to analyze and make specific findings that “justice so

requires” the amendment of a petition. We are not aware of, nor

does father provide, support for the proposition that a trial court

errs by not expressly incanting this language.

¶ 35 Lastly, father argues that the juvenile court’s decision to

authorize the filing of the second amended petition violated his right

to due process. Because he did not object to the filing on this

ground in the juvenile court, we decline to address it now. People in

Interest of M.B., 2020 COA 13, ¶ 14.

C. Amendments After the Adjudicatory Trial

¶ 36 Father also contends that the juvenile court erred by not

requiring the Department to further amend the petition after the

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trial because the Department “presented evidence relating to three

topics that were not alleged in [any] petition.” We conclude that no

such amendment was required because the three topics that father

challenges were not presented to the jury, he did not object to

testimony related to those topics, and the juvenile court properly

instructed the jury.

¶ 37 First, father claims that the Department’s opening statement

improperly presented evidence of “inappropriate acts in front of

other families” at the shelter where father, mother, and the children

resided. Father objected during the opening statement on the

grounds that neither the original nor the second amended petitions

contained allegations of inappropriate contact between the parents.

The juvenile court ruled that testimony about the parents’ conduct

would be permitted “if it goes to the issues of why they were asked

to leave the shelter.” Nonetheless, the juvenile court instructed the

jury that “what is said in opening statements and all other

statements made by the attorneys are not evidence.” Absent a

showing to the contrary, we presume that the jury understood and

followed the juvenile court’s instructions. See Perez v. People, 2015

CO 45, ¶ 43.

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¶ 38 Additionally, the juvenile court sustained father’s objection to

the shelter program supervisor’s testimony about “inappropriate

behavior” between mother and father. The juvenile court did not

allow specific testimony describing the alleged inappropriate

behavior.

¶ 39 Therefore, the jury never heard evidence of the “inappropriate

acts” that father now argues should not have been admitted.

¶ 40 Second, father contends that the juvenile court should not

have allowed the county attorney to argue that “evidence of father’s

warrants was in the petition.” But father does not provide, nor

could we locate, any reference in the record showing that the

county attorney referred to the warrants in the presence of the jury.

¶ 41 Third, father claims that his “rights to due process and a fair

proceeding were impacted” by a school official’s testimony

“regarding the children’s excessive absences.” A.T., A.S.A., and

T.A.A.’s school principal testified about the school’s efforts to help

the children come to school and provided specific numbers for their

absences and tardies. However, father did not object to this

testimony, either on the grounds that it was not included in the

original or second amended petitions or that it affected his due

18

process rights. Therefore, we will not consider this issue further.

People in Interest of T.E.R., 2013 COA 73, ¶ 30 (generally, issues not

raised in the trial court will not be considered on appeal).

V. Testimony and Evidence of Father’s Criminal Matters

¶ 42 Next, father contends that the juvenile court erred by

permitting evidence of his criminal history and custodial status.

We disagree.

A. Relevant Law and Standard of Review

¶ 43 Evidence of prior acts is only admissible in an adjudicatory

hearing under certain circumstances. While evidence of prior acts

is not admissible “to prove the character of a person in order to

show that he acted in conformity therewith,” a “parent’s past

conduct and current circumstances” are relevant to a prediction of

whether “it is likely or expected that the parent will fail to provide

proper care for the child in the future.” People in Interest of A.W.,

2015 COA 144M, ¶ 21 (comparing CRE 404(b) with People in

Interest of S.N., 2014 COA 116, ¶ 17).

¶ 44 Because a child’s situation “cannot be viewed in a vacuum,”

the evidence of whether a child is dependent or neglected at the

time of adjudication “must be considered in the context of the . . .

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parent’s prior behavior.” People v. D.A.K., 198 Colo. 11, 15, 596

P.2d 747, 749-50 (1979). For that reason, a jury may properly use

a parent’s prior acts to predict whether a child would be dependent

or neglected in the future. See A.W., ¶¶ 22-23; see also People in

Interest of G.E.S., 2016 COA 183, ¶ 15 (a dependency and neglect

proceeding is preventative as well as remedial).

¶ 45 A child may not be found dependent and neglected “solely

because the child’s parent has criminal convictions or faces

criminal charges.” People in Interest of D.M.F.D., 2021 COA 95,

¶ 26. However, a parent’s convictions and pending charges may

support a determination that a child is dependent and neglected

when there is “a link between the convictions and pending charges

and the factors identified in section 19-3-102.” Id. at ¶ 24. For

these reasons, CRE 404(b) does not apply to evidence of prospective

harm to the child introduced at an adjudicatory hearing. A.W.,

¶ 23. Moreover, otherwise relevant evidence “may be excluded if its

probative value is substantially outweighed by the danger of unfair

prejudice.” CRE 403. But “unfair prejudice” does not mean

prejudice from the legitimate probative force of evidence. People v.

Gibbens, 905 P.2d 604, 608 (Colo. 1995).

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¶ 46 We review evidentiary rulings, including rulings allowing or

prohibiting witness testimony, for an abuse of discretion. People in

Interest of M.V., 2018 COA 163, ¶ 52, overruled on other grounds by

People in Interest of E.A.M. v. D.R.M., 2022 CO 42. An error is

harmless unless “it can be said with fair assurance that it

substantially influenced the outcome of the case or impaired the

basic fairness of the trial itself.” Id. at ¶ 66.

B. Criminal History

¶ 47 The juvenile court denied father’s request for a “blanket

prohibition” of testimony or other evidence related to his criminal

history and pending criminal charges. In so doing, the juvenile

court found that father’s Denver Police Department (DPD) and

Colorado Bureau of Investigation (CBI) records were admissible and

emphasized that CRE 403 required a showing that the probative

value of such evidence be “substantially outweighed” by the danger

of unfair prejudice. However, the juvenile court required a portion

of father’s DPD record to be redacted and required further

information about a portion of father’s CBI record before

determining whether it, too, should be redacted.

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¶ 48 In addition to the DPD and CBI records, which the juvenile

court admitted without further objection, the jury heard evidence

that the Department considered father’s criminal history in its

assessment, including charges for child abuse and domestic

violence, and that father was denied housing because of a criminal

background check that noted “a fight in the past.” The jury also

heard from father’s probation officer, who testified that father was

on probation for a misdemeanor domestic violence incident and that

his probation was being revoked, in part, because he had multiple

additional police contacts and a new domestic violence charge.

Father did not object to this testimony. In fact, father elicited

testimony from the caseworker about the impact of “the prior

criminal histories of the parents.”

¶ 49 Because the jury was tasked with deciding whether father

could provide proper care for his children, we conclude that father’s

criminal history was relevant. And we note that the juvenile court

redacted information from the written criminal history documents

in response to father’s objections. Beyond asserting the general

prejudice inherent in such evidence, father does not explain why

the probative value of this evidence was outweighed by the danger

22

of unfair prejudice. Accordingly, we discern no abuse of discretion

in the juvenile court’s decision to admit evidence concerning

father’s criminal history.

C. Custodial Status

1. Additional Background

¶ 50 In its original petition, the Department alleged that father had

an open warrant. Throughout the proceeding, the parties noted

that father had active warrants.

¶ 51 At the end of the first day of the adjudicatory trial, and outside

the presence of the jury, father was taken into custody on two

warrants. The juvenile court ordered the jail staff to bring father to

court the next day in street clothes if he did not bond out.

¶ 52 At the beginning of the second day, father asked “that the

parties be precluded from mentioning that he’s in custody” because

the information was “not relevant to a child safety concern.”

Following argument from all parties, the juvenile court found that

multiple criminal charges were included in the original and second

amended petitions. The juvenile court next found that father’s

custodial status was “potentially relevant” because (1) one of the

charges for which he had been taken into custody related to one of

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the children and (2) father’s custodial status may potentially go to

his availability to parent. The juvenile court noted that it also had

to consider whether the information was unduly prejudicial.

Although the juvenile court found it would “allow limited testimony”

regarding father’s custodial status, the jury did not hear any

information about father being in custody that day.

¶ 53 On the third day of the trial, the Department called father’s

probation officer to testify. Father asked that the probation officer

be precluded from mentioning that father was in custody because

his in-custody status was “highly prejudicial.” The juvenile court

found that, although “anything that’s negative is potentially

prejudicial,” father’s in-custody status had probative value and was

not unfairly prejudicial. The probation officer then testified that

father was on probation for a domestic violence misdemeanor;

father had at least three new probation violations; and a revocation

of his probation was pending. The probation officer did not testify

that father had been arrested pursuant to a warrant.

¶ 54 Father testified on the final day of the adjudicatory trial. On

direct examination, he testified that a consequence of not complying

with probation was going to jail. On cross-examination, the GAL

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asked father if he was incarcerated that day. Father’s counsel

objected, “reiterating the objection that we have been making . . .

since [father] has been in custody.” The GAL argued that father’s

in-custody status went to his ability to care for the children. The

juvenile court agreed and overruled the objection but encouraged

father’s counsel to “do what you need to do on cross or redirect.”

Father went on to testify that he was incarcerated that day, but also

could be bonded out that day; that he made efforts to clear his

warrants before the hearing; and that his extended family was

raising the money to bond him out.

2. Analysis

¶ 55 Father argues that permitting testimony regarding his

custodial status deprived him of due process and a fair proceeding.

We note that he made no due process objection to the juvenile

court, nor does he explain on appeal how this testimony implicated

his due process rights. Therefore, we do not consider this argument

further. See M.B., ¶ 14; People v. Ujaama, 2012 COA 36, ¶ 37

(explaining that issues are unpreserved when the grounds raised on

appeal are different from those raised below). Nevertheless, we

discern no abuse of discretion by the juvenile court in admitting

25

this testimony because it was relevant to the jury’s determination of

whether it was “likely or expected that the parent will fail to provide

proper care for the child in the future.” People in Interest of A.W.,

2015 COA 144M, ¶ 21.

VI. Mother’s Disposition

¶ 56 Mother contends that the juvenile court erred by entering a

dispositional order that was not final for purposes of appeal and by

adopting an inappropriate treatment plan. We discern no basis for

reversal.

A. Additional Background

¶ 57 At the dispositional hearing, mother stated, “there are things

that [mother] is willing to agree to, and there are things that she

does contest” with regard to her treatment plan. The juvenile court

called for a recess to allow “the attorneys to talk to each other about

what modifications they might be requesting.”

¶ 58 When the juvenile court recalled the matter, father stated that

he was “not in disagreement with any of the objectives as a whole”

with regard to his treatment plan but that he wanted fourteen days

to suggest modifications.

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¶ 59 Through counsel, mother made what she called a “similar

record.” Specifically, mother requested “the opportunity to kind of

tighten up some of the language and the [duplication] in the action

steps” to ensure that the plan was streamlined and not

overwhelming. Mother represented that she would provide

suggested modifications.

¶ 60 The juvenile court found that the Department’s proposed

treatment plan “can serve as an interim treatment plan” and

ordered the parties to file proposed amendments within fourteen

days. The juvenile court subsequently issued a written

dispositional order, adopting the treatment plan and finding that

the Department’s proposed plan was appropriate.

¶ 61 Mother failed to timely submit proposed amendments to the

treatment plan.

B. Analysis

¶ 62 First, we disagree with mother’s contention that the juvenile

court’s dispositional order created ambiguity about her ability to

appeal. Even though the juvenile court used the phrase “interim

treatment plan,” it’s “Adjudicatory and Dispositional Hearing Order

for Respondent Mother” was the first dispositional order. Indeed, it

27

is “the initial dispositional order adopting a treatment plan [that]

constitutes a ‘decree of disposition’ and renders the adjudication

and the initial dispositional order final for purposes of appeal.”

People in Interest of C.L.S., 934 P.2d 851, 854 (Colo. App. 1996)

(emphasis added) (citations omitted).

¶ 63 Next, we decline to address mother’s contention that the

treatment plan that the juvenile court adopted was not appropriate

or that the juvenile court failed to make specific findings about the

appropriateness of the plan because we conclude mother waived

these issues. Waiver is the intentional relinquishment of a known

right. People v. Rediger, 2018 CO 32, ¶ 39. When a party waives

an issue below, we do not review it on appeal. Id. at ¶ 40.

¶ 64 Here, when given the opportunity to provide suggestions or

modifications to the proposed treatment plan, mother never did so.

Nor did she object to the juvenile court’s order adopting the

Department’s proposed treatment plan as an “interim treatment

plan” or the subsequent written order adopting the Department’s

proposed treatment plan.

¶ 65 Similarly, mother never asked the juvenile court to make

specific findings regarding the appropriateness of each element of

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the treatment plan. Section 19-3-508(1), C.R.S. 2023, directs the

juvenile court to “approve an appropriate treatment plan,” and the

juvenile court appropriately found that the treatment plan was

“appropriate, related to the child’s needs, and reasonably calculated

to render [mother] fit” within a reasonable time.

VII. Ineffective Assistance of Counsel

¶ 66 Finally, mother claims that her counsel’s failure to object to

the dispositional order amounted to ineffective assistance of

counsel. We are not persuaded.

¶ 67 Divisions of this court have recognized that a parent’s

statutory right to counsel includes the right to effective assistance

of counsel. See People in Interest of A.R., 2018 COA 177, ¶ 37, aff’d

on other grounds sub nom. A.R. v. D.R., 2020 CO 10; People in

Interest of S.L., 2017 COA 160, ¶ 58; People in Interest of C.H., 166

P.3d 288, 290 (Colo. App. 2007).

¶ 68 To successfully make an ineffective assistance of counsel

claim, a parent must show that (1) counsel’s performance was

outside the wide range of professionally competent assistance and

(2) the parent was prejudiced by counsel’s errors. A.R., ¶ 48; C.H.,

166 P.3d at 291-92.

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¶ 69 An ineffective assistance of counsel claim must allege facts

with sufficient specificity to be successful, including, for example,

the expected names of witnesses to be called, the expected

substance of testimony, and a clear explanation of how that

testimony would demonstrate that trial counsel’s performance was

outside the wide range of professionally competent assistance. See

C.H., 166 P.3d at 291.

¶ 70 To show prejudice, the parent must show a reasonable

probability that the outcome of the proceeding would have been

different but for counsel’s deficient performance or unprofessional

errors. A.R., ¶ 60. If the parent’s allegations lack sufficient

specificity, we may summarily deny the ineffective assistance claim.

See C.H., 166 P.3d at 291. In other words, a remand for an

evidentiary hearing is only required if the parent’s allegations are

sufficiently specific and compelling to constitute a prima facie

showing of ineffective assistance of counsel. Id.

¶ 71 We will not remand the matter for an evidentiary hearing

because mother’s allegations lack specificity. See id. Even

assuming, without deciding, that counsel’s performance fell below

the range of professionally competent assistance, mother has not

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established that these alleged errors prejudiced her. As previously

discussed, mother did not file a timely objections to the proposed

treatment plan, and “treatment plans adopted at the dispositional

stage are interlocutory and can be changed after periodic review by

the court or by motion of a party” at any time during the

proceedings. H.T., ¶ 24.

VIII. Disposition

¶ 72 The adjudication judgment and dispositional order are

affirmed.

JUDGE LIPINSKY and JUDGE SCHUTZ concur.