Peo in Interest of EM

21CA0546 Peo in Interest of EM 12-09-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA0546

Fremont County District Court No. 19JV58

Honorable Lynette M. Wenner, Judge

The People of the State of Colorado,

Appellee,

In the Interest of E.M., a Child,

and Concerning P.C.,

Appellant.

JUDGMENT AFFIRMED

Division V

Opinion by JUDGE HARRIS

Richman and Gomez, JJ., concur

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

Announced December 9, 2021

Brenda L. Jackson, County Attorney, Nicole L. Bartell, Assistant County

Attorney, Cañon City, Colorado, for Appellee

Jenna L. Mazzucca, Guardian Ad Litem

Lindsey Parlin, Office of Respondent Parents’ Counsel, Ewa Beach, Hawaii , for

Appellant P.C.

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¶ 1 In this dependency and neglect case, P.C. (father) appeals the

juvenile court’s judgment terminating his parent-child legal

relationship with E.M. (the child). Father, who was incarcerated at

the time of the termination hearing, contends that the juvenile

court violated his procedural due process rights by proceeding with

the termination hearing in his absence. According to father, the

juvenile court should have continued the hearing so that he could

have appeared by Webex. We disagree and, therefore, affirm.

I. Relevant Facts

¶ 2 In July 2019, the Fremont County Department of Human

Services filed a petition in dependency and neglect concerning the

then four-month-old child (and her siblings, who are not part of this

appeal). The child was adjudicated dependent and neglected as to

father by default in October 2019, and, shortly thereafter, the court

adopted a treatment plan for him. In June 2020, the Department

filed a motion to terminate father’s parental rights.

¶ 3 A hearing on the termination motion was initially scheduled

for October 27, 2020. At the child’s mother’s request, the court

reset the hearing to December 2020.

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¶ 4 Father was incarcerated in the Pueblo County jail at the time

of the December hearing. Due to father’s absence, the juvenile

court bifurcated father’s termination hearing from the child’s

mother’s hearing and continued father’s portion until January

2021. The court granted father’s counsel’s application for a writ of

habeas corpus ad testificandum for father so that he could appear

at the January 2021 hearing via Webex.

¶ 5 Just before the January hearing, the juvenile court granted

the Department’s unopposed motion for a continuance and reset

the hearing to February 17, 2021. The court also granted father’s

counsel’s new application for a writ for father to appear at the

February hearing by Webex from the jail.

¶ 6 However, shortly before the hearing date, the court and

counsel learned that father was scheduled to be transferred from

the jail back to the Department of Corrections (DOC) on February

16. The guardian ad litem (GAL) filed a motion requesting that the

juvenile court hold the termination hearing in father’s absence to

prevent further delay in the proceedings. The GAL’s motion noted

that father had been incarcerated since “at least February of 2020”

and had not had parenting time with the child since November 4,

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2019. Father’s counsel objected to proceeding in father’s absence,

arguing that father had a due process right to appear. He advised

the court that “while DOC is cooperative in allowing inmates to

appear by WebEx, they require two weeks’ notice,” and he requested

a continuance “until such time as Respondent Father can appear

by WebEx.”

¶ 7 The juvenile court granted the GAL’s motion, and the hearing

began on February 17 without father present. But the hearing was

not completed on February 17, so the court scheduled additional

hearing time on March 3, 2021, two weeks later.

¶ 8 At the March 3 hearing, father’s counsel objected to

proceeding without father. He explained that father was “in

Centennial” and could be available “within a reasonable amount of

time.” He told the court that “DOC requires 2 weeks without a

writ.” The juvenile court overruled the objection, noting that in the

two weeks since the last hearing, no “attempts were made to get

[father] here today[;] [n]o writs were issued or requested.”

¶ 9 After the hearing, the court granted the motion to terminate

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

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II. Discussion

¶ 10 Father contends that his due process rights were violated

when the juvenile court proceeded in his absence rather than

granting his motion to continue the termination hearing so that he

could appear by Webex. He says that the court’s decisions deprived

him of “an opportunity to participate in the termination hearing and

present evidence.” We discern no basis for reversal.

¶ 11 In a proceeding to terminate the parent-child legal

relationship, due process requires that the parent be given notice of

the termination proceedings, an opportunity to be heard or defend,

and the assistance of legal counsel. People in Interest of V.M.R., 768

P.2d 1268, 1270 (Colo. App. 1989); see also A.M. v. A.C., 2013 CO

16, ¶ 29 (listing additional procedural protections provided to

parents at a terminating hearing). Because dependency and neglect

proceedings are civil in nature, neither due process nor other

constitutional guarantees require a parent’s presence at a

termination hearing. People in Interest of C.G., 885 P.2d 355, 357

(Colo. App. 1994).

¶ 12 Here, the record shows that father received notice of the

termination proceedings, he was represented by counsel throughout

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the case, and counsel was present at the termination hearing and

able to participate on his behalf.

¶ 13 Most importantly, the juvenile court did not deny any request

by father to appear by Webex. To the contrary, the court granted

each request for a writ submitted by father’s counsel. The date on

which father could have testified was March 3, 2021. But father’s

counsel did not ask the court to issue a writ to secure father’s

attendance on that date nor did he otherwise attempt to arrange for

father’s presence at the hearing by video or telephone. Under these

circumstances, we cannot conclude that the juvenile court violated

father’s due process rights.

¶ 14 Nor are we persuaded that the court abused its discretion by

denying father’s request, made at the March 3 hearin g, for a

continuance of the remainder of the termination hearing.

¶ 15 When ruling on a motion to continue, the juvenile court

should balance the need for orderly and expeditious administration

of justice against the facts underlying the motion and the child’s

need for permanency. C.S. v. People in Interest of I.S., 83 P.3d 627,

638 (Colo. 2004); see also CJD 96-09(4) (“Continuances will be

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granted by a Judicial Officer only upon a finding that a manifest

injustice would occur in the absence of a continuance.”).

¶ 16 Where, as here, expedited permanency procedures apply, the

court shall not grant a continuance unless good cause is shown,

and the court finds that the child’s best interests will be served by a

continuance. §§ 19-3-104, 19-3-508(3)(a), 19-3-602(1), C.R.S.

2021.

¶ 17 The court determined that it was not in the child’s best

interest to continue the hearing again. In making that

determination, the court considered legally appropriate factors, all

of which find support in the record: the history of delay in the case,

father’s lack of participation throughout the case, and the child’s

need for permanency.

¶ 18 In the juvenile court, father did not explain why continuing the

termination hearing would be in the child’s best interests. (He does

not offer any explanation on appeal either.) At the time of the

termination hearing, the child had been in an adoptive foster

placement for most of her life. The caseworker testified that the

child needed permanency as soon as possible and that remaining

with her current placement was in her best interests.

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¶ 19 In any event, father has failed to allege, much less show, any

prejudice from the court’s denial of his request for a continuance.

See Interest of Spohr, 2019 COA 171, ¶ 32 (To be entitled to relief,

the “moving party must show that the denial of the continuance

resulted in actual prejudice.”). He did not make an offer of proof in

the juvenile court, see CRE 103(a)(2), and does not explain on

appeal what he would have testified about or how his testimony (or

other participation) would have affected the outcome of the

proceeding.

¶ 20 The record shows that at the time of the termination hearing,

father had seen the child only a couple of times and had not had

any contact with her since early November 2019, when she was

eight months old. He had failed to engage in services and had

mostly been incarcerated during the pendency of the case. Father

does not dispute the juvenile court’s findings that he had failed to

comply with his treatment plan, was unfit, and was unlikely to

become fit within a reasonable time. Accordingly, we discern no

basis to reverse the court’s termination order.

III. Conclusion

¶ 21 The judgment is affirmed.

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JUDGE RICHMAN and JUDGE GOMEZ concur.