Peo in Interest of DP

24CA1310 Peo in Interest of DP 02-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1310
Weld County District Court No. 23JV120
Honorable Anita Crowther, Judge

The People of the State of Colorado,

Appellee,

In the Interest of D.P. and K.P., Children,

and Concerning O.P.,

Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE GOMEZ
Fox and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 6, 2025

Bruce T. Barker, County Attorney, David S. Anderson, Assistant County
Attorney, Greeley, Colorado, for Appellee

Alison A. Bettenberg, Guardian Ad Litem

Andrew A. Gargano, Office of Respondent Parents’ Counsel, Denver, Colorado,
for Appellant
¶1 O.P. (father) appeals the judgment adjudicating D.P. and K.P.

(the children) dependent and neglected. We affirm.

I. Background

¶2 In September 2023, the Weld County Department of Human

Services (Department) received a referral with concerns about

substance use and domestic violence in the home. A caseworker

contacted mother, who admitted to substance use and agreed to a

safety plan in which she would reside with a family friend and be

supervised when caring for the children. The caseworker also

contacted father, but he told the caseworker he was out of town and

didn’t intend to comply with the Department’s requests.

¶3 Based on this information, the Department filed a petition in

dependency and neglect and assumed temporary legal custody of

the children. Mother also filed for, and received, a civil protection

order preventing father from coming within 100 yards of the family

home; she then filed for divorce in a separate domestic relations

case. In the dependency and neglect proceeding, mother made a

no-fault admission to the petition, and the juvenile court returned

legal custody to her following a dispositional hearing. Father denied

the allegations and asked for a jury trial.

1
¶4 In May 2024, the juvenile court held a two-day jury trial for

father’s portion of the case. Mother testified that, among other

things, she and father used illegal substances in the home; father

threatened violence against her on multiple occasions; and on one

occasion, he spit in her face, grabbed her by the throat, and threw

her against the bed. Father denied any recent drug use or acts of

domestic violence and claimed that mother had fabricated these

allegations for the domestic relations case.

¶5 The jury determined that the Department had met its burden

to establish that the children were dependent and neglected under

section 19-3-102, C.R.S. 2024. Specifically, the jury found that the

children were dependent and neglected because

• they lacked proper parental care through the actions or

omissions of father, see § 19-3-102(1)(b);

• their environment was injurious to their welfare, see

§ 19-3-102(1)(c); and

• they were homeless, without proper care, or not

domiciled with a parent through no fault of father, see

§ 19-3-102(1)(e).

2
Based on the jury’s verdicts, the court sustained the petition,

entered an order of adjudication, and adopted a treatment plan for

father following a dispositional hearing.

II. Mistrial

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

request for a mistrial. We disagree.

A. Standard of Review

¶7 We review a juvenile court’s decision to deny a motion for a

mistrial for an abuse of discretion. See People v. Marko, 2015 COA

139, ¶ 29, aff’d, 2018 CO 97. A court abuses its discretion when

its decision is manifestly arbitrary, unreasonable, or unfair, or

when it misapplies the law. People in Interest of A.N-B., 2019 COA

46, ¶ 9. A mistrial is a drastic remedy, which is warranted only

when the prejudice to a party is so substantial that its effect on the

jury cannot be remedied by any other means. People v. Griffin, 985

P.2d 15, 21 (Colo. App. 1998).

B. Additional Background

¶8 During the Department’s rebuttal closing argument at trial,

the county attorney stated that she’d been “distracted briefly by a

dispute that was occurring behind the podium.” The juvenile court

3
asked counsel to approach the bench, and the court stated that it

did not “see anything” or “know what happened” and “doubt[ed]

that the jury did.” The county attorney told the court that father

had been “harassing” her co-counsel. Although father’s counsel

“didn’t see what had occurred,” he still believed that the county

attorney’s comment cast “undue attention” on the incident and

requested a mistrial. The court denied the request but prohibited

the county attorney from further mentioning the incident.

¶9 After the jury retired to deliberate, the juvenile court made

additional inquiries and findings about the incident. The court

reiterated that it hadn’t seen anything occur between father and the

county attorney but did see a deputy sheriff standing near the

parties. The county attorney involved in the incident stated that

father told her that her typing was “very distracting,” so she advised

him to “scoot over to the next seat.” The county attorney said that,

instead of moving seats, father “started arguing” with her, so she

“asked law enforcement to come up to stand between” them to

“de-escalate” the situation.

¶ 10 Father’s counsel then clarified that the incident occurred

during his closing argument, and he only “hear[d] some shuffling”

4
but didn’t see what happened because he was “trying to make eye

contact” with the jurors. Counsel said he couldn’t be sure “what

the jury saw,” considering that “the podium ha[d] probably blocked

some of it.” Nevertheless, father’s counsel renewed the request for a

mistrial, arguing that the Department’s “whole case” was premised

on the idea that father was an “unreasonable monster” and “there’s

been undue and unnecessary and inappropriate attention brought

to” the incident.

¶ 11 The Department and the guardian ad litem (GAL) opposed a

mistrial. The county attorney asserted that her comment didn’t

prejudice father because she “didn’t draw attention to what the

dispute was” or “who was involved in the dispute,” only that there

was a dispute of some sort. The GAL asserted that father wasn’t

entitled to a mistrial because the jury could “use their common

sense” to “decide what they believe occurred.”

¶ 12 The juvenile court determined that, although the situation

“could have been handled better” by the parties, the dispute and

the county attorney’s brief comment about it didn’t warrant a

mistrial. As a result, the court again denied the request for a

mistrial.

5
C. Analysis

¶ 13 We discern no reversible error resulting from the juvenile

court’s decision to deny father’s request for a mistrial for four

reasons. See People v. Helms, 2016 COA 90, ¶ 59 (An appellate

court “will not disturb the district court’s decision [denying a

motion for a mistrial] absent a showing of a gross abuse of [its]

discretion and prejudice to the moving party.”).

¶ 14 First, the record shows that it was unlikely the jury saw or

heard the incident. Specifically, the record indicates that neither

the juvenile court, nor father’s counsel, saw what happened, and

father’s counsel admitted that the jury might not have seen

anything because the podium blocked their view. See People v.

Thatcher, 638 P.2d 760, 769 (Colo. 1981) (affirming the trial court’s

decision to deny a mistrial where the jury likely didn’t notice the

victim’s husband’s acts during closing argument), superseded by

rule on other grounds as stated in People v. Dist. Ct., 790 P.2d 332

(Colo. 1990). But to the extent that the jury may have seen what

happened, the record shows that father initiated the incident by

arguing with the county attorney. See People v. Burke, 937 P.2d

6
886, 889 (Colo. App. 1996) (A party “may not by his own conduct

force a declaration of mistrial.”).

¶ 15 Second, we disagree with father’s contention that he was

entitled to a mistrial because the county attorney improperly drew

the jury’s attention to the incident. True, the county attorney

briefly mentioned the “dispute” in her rebuttal argument, but the

juvenile court quickly stopped the argument and prevented the

county attorney from further commenting about what happened.

See People v. Rhea, 2014 COA 60, ¶ 68 (the defendant wasn’t

entitled to a new trial where the prosecutor’s improper comment

was an “isolated” event). And as noted, the county attorney never

described the nature of the dispute or said that it involved father.

Therefore, considering the very brief and limited nature of the

comment, coupled with the lack of evidence that the jurors saw

anything, we discern no reversible error on this basis.

¶ 16 Third, we are not convinced that father was entitled to a

mistrial based on the deputy “st[anding] directly beside him,

exhibiting an unnecessary show of force in full view of the jury.” In

so arguing, father relies on criminal cases involving the jury’s

exposure to a criminal defendant being escorted by police during a

7
trial, which, in limited circumstances, may be grounds for a

mistrial. See People v. Garcia, 17 P.3d 820, 827 (Colo. App. 2000).

But father hasn’t directed us to any authority — and we aren’t

aware of any — that would require a mistrial under the same

circumstances in a civil proceeding, such as a dependency and

neglect proceeding. See People in Interest of K.N.B.E., 2019 COA

157, ¶ 13 (parties to a dependency and neglect proceeding are not

“entitled to the same due process rights as a defendant in a

criminal proceeding”). In any event, nothing in the record suggests

that the deputy escorted father anywhere, and father hasn’t

explained why Garcia isn’t distinguishable on that ground. We

therefore reject father’s assertion.

¶ 17 Finally, we conclude that the juvenile court didn’t abuse its

discretion by not (1) instructing the jury to disregard the incident or

(2) polling the jurors to determine whether they were affected by the

incident. Father didn’t ask the court for either remedy. And based

on the record before us, we disagree that the court should’ve acted

sua sponte. Indeed, such remedies may have had the effect of

calling unnoticed acts to the jury’s attention. See Thatcher, 638

P.2d at 769 (the trial court didn’t abuse its discretion by declining

8
to provide a jury instruction when it didn’t appear that the jury had

noticed the challenged conduct); People v. Horton, 683 P.2d 358,

361 (Colo. App. 1984) (rejecting, for similar reasons, an assertion

that the court erred by failing to poll the jury).

III. Expert Opinion on an Ultimate Issue

¶ 18 Father also contends that the juvenile court erred by allowing

the intake caseworker to testify that the evidence was sufficient to

satisfy the legal criteria for adjudication, thereby usurping the

jury’s function. We reject father’s contention because he (1) didn’t

preserve it for appeal and (2) isn’t entitled to relief under the

miscarriage of justice exception to the preservation rule. However,

even if father’s contention is properly before us, we still reject it.

A. Preservation

¶ 19 In dependency and neglect proceedings, appellate courts don’t

consider issues that weren’t preserved in the trial court — such as

challenges to the admission of evidence that weren’t timely made at

trial. See People in Interest of M.B., 2020 COA 13, ¶ 14. To

preserve an issue for appeal, a party must present the court with

“an adequate opportunity to make findings of fact and conclusions

9
of law on [the] issue.” Forgette v. People, 2023 CO 4, ¶ 21 (quoting

People v. Melendez, 102 P.3d 315, 322 (Colo. 2004)).

¶ 20 Father’s contention is based on the intake caseworker’s

testimony that she received information indicating that the children

lacked proper parental care and were in an injurious environment.

Father didn’t object to this evidence. That said, his counsel did

object to the county attorney’s question about whether the intake

caseworker “believe[d] that the[] children [were] dependent and

neglected,” and the juvenile court sustained that objection because

“[t]hat’s for the jury to decide.”

¶ 21 Consequently, although father raised an objection on the same

grounds he raises on appeal, he didn’t object to the specific

evidence that he is now challenging. In other words, he didn’t

preserve his appellate contention. See Martinez v. People, 2015 CO

16, ¶ 14 (an objection must be “specific enough to draw the trial

court’s attention to the asserted error”).

B. Miscarriage of Justice Exception

¶ 22 Nevertheless, father contends that we should address his

unpreserved assertion under the miscarriage of justice exception to

the preservation rule. In “limited situations,” the miscarriage of

10
justice exception allows an appellate court to reach an issue raised

for the first time on appeal to avoid a miscarriage of justice. People

in Interest of A.E., 914 P.2d 534, 539 (Colo. App. 1996). The

exception has been applied in very few dependency and neglect

cases. See People in Interest of T.W., 2022 COA 88M, ¶ 24; People in

Interest of E.S., 2021 COA 79, ¶ 14; A.E., 914 P.2d at 539. But see

People in Interest of S.Z.S., 2022 COA 133, ¶ 21 n.1 (declining to

apply the miscarriage of justice exception).

¶ 23 We are not persuaded by father’s vague invocation of the

miscarriage of justice exception. In father’s opinion, the

miscarriage of justice exception should apply to his unpreserved

argument because he “had a fundamental liberty interest in

parenting his children” and a “fundamental right to a fair trial by an

impartial jury.” But parents involved in dependency and neglect

cases always have a fundamental liberty interest in parenting their

children and the right to an impartial jury (if their case is heard by

a jury). Therefore, under father’s interpretation, every putative

error in a dependency and neglect case would be subject to

appellate review regardless of preservation. That cannot be the case

11
because it would render meaningless both the preservation

requirement and the miscarriage of justice exception.

C. Analysis

¶ 24 Even assuming, without deciding, that father’s argument is

properly before us, we still reject it.

¶ 25 We review a juvenile court’s admission of expert testimony for

an abuse of discretion. People in Interest of S.L., 2017 COA 160,

¶ 68.

¶ 26 Under CRE 704, opinion testimony is not objectionable merely

because it embraces an ultimate issue to be decided by the jury.

People in Interest of J.R., 2021 COA 81, ¶ 21. But an expert witness

cannot tell the jury what result to reach or form conclusions for

jurors that they are competent to reach on their own. People v.

Baker, 2019 COA 165, ¶ 14, aff’d, 2021 CO 29. In determining

whether expert testimony usurped the jury’s function, we consider

several factors, including whether the expert’s testimony expressed

an opinion on the applicable law or legal standards and whether the

jury was properly instructed that it may accept or reject the expert’s

opinion. People v. Rector, 248 P.3d 1196, 1203 (Colo. 2011); see

also J.R., ¶ 30.

12
¶ 27 In our view, the caseworker didn’t express a legal opinion

about whether the criteria in section 19-3-102 were satisfied. See

Rector, 248 P.3d at 1203; see also People v. McMinn, 2013 COA 94,

¶ 55 (the court didn’t abuse its discretion in allowing a witness to

use language that tracked one of the elements of the crime). And

because the juvenile court sustained father’s objection as described

above, the caseworker never opined that the children were

dependent and neglected. See J.R., ¶ 30 (an expert witness cannot

opine that a criminal defendant committed the crime). Finally, the

court properly instructed the jury on the law and the jury’s ability

to accept or reject expert testimony. See Rector, 248 P.3d at 1203.

¶ 28 In sum, the juvenile court didn’t abuse its discretion by

allowing the intake caseworker to answer the county attorney’s

questions about proper parental care and injurious environment.

IV. Father’s Refusal to Cooperate with the Department

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

admitting evidence of his refusal to cooperate with the Department.

We discern no reversible error.

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A. Applicable Law and Standard of Review

¶ 30 Before an adjudication, “parents may voluntarily work with the

department to alleviate any child welfare concerns.” People in

Interest of G.E.S., 2016 COA 183, ¶ 14. But “a parent need not

cooperate with the department’s efforts to investigate the factual

allegations supporting the petition” because “it is the department’s

burden to prove, by a preponderance of the evidence, the petition’s

allegations.” Id. Still, evidence of a parent’s refusal to cooperate

with the department may be admissible under some circumstances.

See People in Interest of M.H-K., 2018 COA 178, ¶ 69 n.5 (after the

magistrate entered an order requiring a father to submit to drug

testing, his refusal to comply was relevant and the jury could infer

that he refused because “the results would have been detrimental to

his interests”).

¶ 31 “A person’s refusal to perform a particular act has probative

value only if the person has a duty to perform the act or it would

have otherwise ‘been natural under the circumstances’ for the

person to take the action.” Id. at ¶ 68 (quoting United States v.

Hale, 422 U.S. 171, 176 (1975)). “[W]hen the refusal to perform the

act is objectively unreasonable, the jury can reasonably infer that

14
the person has refused to perform the act because performance

would be detrimental to his or her interests.” Id. at ¶ 69. “But

when the refusal to perform the act may be attributable to a variety

of innocent circumstances that are completely unrelated to the

inferred conclusion the proponent seeks to educe, the fact of refusal

is too ambiguous to be relevant and is therefore inadmissible.” Id.

at ¶ 70.

¶ 32 We review the juvenile court’s evidentiary rulings for an abuse

of discretion. Id. at ¶ 60.

¶ 33 An error in admitting evidence is harmless when it doesn’t

affect the substantial rights of the parties. C.R.C.P. 61; CRE 103(a).

An error affects the substantial rights of a party only when it can be

said with fair assurance that the error substantially influenced the

case’s outcome or impaired the basic fairness of the trial itself.

People in Interest of C.C., 2022 COA 81, ¶ 20. In assessing whether

an error is harmless, we consider “the importance of the evidence to

the proponent’s case, whether the evidence was cumulative, the

presence of other evidence corroborating or contradicting the point

for which the evidence was offered, and the overall strength of the

proponent’s case.” People in Interest of M.V., 2018 COA 163, ¶ 67,

15
overruled on other grounds by People in Interest of E.A.M. v. D.R.M.,

2022 CO 42.

B. Analysis

¶ 34 To begin, father directs our attention to allegedly improper

comments the county attorney uttered in her opening statement.

Specifically, the county attorney stated that father wasn’t interested

in engaging with the Department and wouldn’t participate in

treatment without a warrant. However, father didn’t object to these

statements. See M.B., ¶ 14. At any rate, we discern no reversible

error because the juvenile court instructed the jury, at the outset of

trial and before its deliberations, that opening statements are not

evidence and that it could only consider evidence presented at trial.

See Brooktree Vill. Homeowners Ass’n v. Brooktree Vill., LLC, 2020

COA 165, ¶ 108 (if the court gives an instruction that an opening

statement isn’t evidence, it is presumed, absent a contrary showing,

that the jury understood the instruction and followed it).

¶ 35 Next, father asserts that the juvenile court erred by admitting

the intake caseworker’s testimony about father’s noncooperation.

He points to two portions of the intake caseworker’s testimony, but

his counsel only objected to one question on the grounds that he

16
now raises on appeal. See People v. Ujaama, 2012 COA 36, ¶ 37 (an

issue is unpreserved if a party objects but on grounds different from

those raised on appeal). The GAL asked whether father complied

with the Department’s attempts to verify whether he was using

substances, to which the caseworker said he did not. Because the

court entered temporary orders requiring father to comply with drug

testing, evidence of his failure to comply with such testing was

admissible. See M.H-K., ¶ 69 n.5. But even assuming that the

evidence was inadmissible, we conclude that any error was

harmless because other competent evidence established that father

was using drugs. See M.V., ¶ 67.

¶ 36 Father also asserts that the juvenile court erred by failing to

exclude the ongoing caseworker’s testimony that father didn’t

comply with monitored sobriety or treatment. Father didn’t object

to this testimony and, thus, the objection isn’t preserved. See M.B.,

¶ 14. In any event, to the extent that father now objects to the

testimony concerning his failure to comply with monitored sobriety,

we reject his argument for the same reasons addressed above — he

was subject to temporary orders requiring drug testing, making his

lack of compliance admissible, and any error was harmless given

17
the other evidence that he was using drugs. See M.H-K., ¶ 69 n.5;

M.V., ¶ 67. And while father wasn’t required to engage in treatment

under the temporary orders, any putative error related to the

ongoing caseworker’s brief mention of whether father agreed to

treatment was harmless. See M.V., ¶ 67.

¶ 37 Finally, father asserts that the juvenile court erred in failing to

instruct the jury that father had no duty to cooperate with the

Department and that there is a presumption that fit parents act in

the best interests of their children. See G.E.S., ¶ 14; People in

Interest of J.G., 2021 COA 47, ¶ 20. But father didn’t ask for such

an instruction. See In re Estate of Chavez, 2022 COA 89M, ¶ 20 (a

party can preserve an alleged instructional error for appeal by

tendering a proposed jury instruction). And considering that the

model jury instructions don’t include one, we aren’t convinced that

the court abused its discretion by not creating one sua sponte. See

generally Evans v. People, 706 P.2d 795, 800 (Colo. 1985) (“[A] trial

court’s use of an excerpt from an opinion in an instruction is

generally an unwise practice.”).

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V. Dismissal

¶ 38 Father also contends that the juvenile court should’ve

dismissed the case before the adjudicatory hearing, based on his

motion for directed verdict or because the evidence presented at the

hearing was insufficient. We disagree.

A. Applicable Law and Standard of Review

¶ 39 “The purpose of an adjudicatory hearing is to determine

whether the factual allegations in the dependency and neglect

petition are supported by a preponderance of the evidence, and

whether the status of the subject child or children warrants

intrusive protective or corrective state intervention into the familial

relationship.” People in Interest of A.M., 786 P.2d 476, 479 (Colo.

App. 1989).

¶ 40 As relevant here, a child is dependent and neglected if (1) the

child “lacks proper parental care through the actions or omissions”

of a parent; (2) the child’s “environment is injurious to his or her

welfare”; or (3) the child is “homeless, without proper care, or not

domiciled with his or her parent . . . through no fault of [the]

parent.” § 19-3-102(1)(b)-(c), (e). A child is in an injurious

environment when the child is in a situation that is likely harmful

19
to the child. People in Interest of J.G., 2016 CO 39, ¶ 26. Proper

parental care means the minimum level of care or services and

necessities that are required to prevent any serious threat to the

child’s health or welfare. People in Interest of S.X.M., 271 P.3d

1124, 1131-32 (Colo. App. 2011); see also CJI-Civ. 41:7 (2024).

¶ 41 An adjudication of dependency and neglect must be based on

existing circumstances and must relate to the child’s status at the

time of adjudication. People in Interest of A.E.L., 181 P.3d 1186,

1192 (Colo. App. 2008). But that doesn’t mean that a factfinder

must find the child is receiving improper care at the time of the

hearing. S.X.M., 271 P.3d at 1130. Instead, an adjudication may

be based on current, past, or prospective harm. See G.E.S., ¶ 15.

¶ 42 In considering prospective harm, the factfinder’s task is to

determine whether the child will lack proper parental care or the

child’s environment will be injurious to the child if returned to the

parent. S.X.M., 271 P.3d at 1130. Thus, a factfinder may consider

whether it is likely or expected that a child will be dependent and

neglected if returned to the parent. People in Interest of S.N., 2014

COA 116, ¶¶ 15-16. Such a determination may be based on the

“parent’s past conduct and current circumstances.” Id. at ¶ 17.

20
¶ 43 Whether a child is dependent and neglected presents a mixed

question of fact and law because it requires the application of

evidentiary facts to statutory grounds. People in Interest of M.M.,

2017 COA 144, ¶ 17. When determining whether the evidence is

sufficient to sustain an adjudication, we review the evidence in the

light most favorable to the prevailing party and draw every inference

fairly deducible from the evidence in favor of the factfinder’s

decision. People in Interest of S.G.L., 214 P.3d 580, 583 (Colo. App.

2009). We won’t disturb the factfinder’s verdict if the record

supports it, even if reasonable people could arrive at different

conclusions based on the same facts. Id.

B. Analysis

¶ 44 Father first asserts that the juvenile court should’ve dismissed

the case before the adjudicatory hearing because mother had

completed her treatment plan. Father acknowledges that he never

asked the court to dismiss the case for this reason, see M.B., ¶ 14,

and again asks us to apply the miscarriage of justice exception to

reach his unpreserved argument, see S.Z.S., ¶ 29 n.1. We are not

convinced, but regardless we discern no error. Although the record

indicates that mother had complied with many aspects of her

21
treatment plan, it doesn’t show that mother had completed her

treatment plan and was a fit parent. Rather, the record shows that,

although mother had made some progress, the Department believed

she still needed to continue to participate in monitored sobriety,

provide a safe living environment for the children, and stay in

contact with her caseworker.

¶ 45 Father also contends that the juvenile court erred by denying

his motion for a directed verdict. See C.R.C.P. 50 (describing the

requirements for a motion for directed verdict). He asserts that the

children couldn’t lack proper care or be in an injurious environment

if returned to his care because they couldn’t have returned to his

care. Specifically, he notes that, because mother had a restraining

order against him and had filed a domestic relations case, even if

this case was dismissed, the children wouldn’t be able to return to

his care. We reject his assertion.

¶ 46 To start, although father moved for a directed verdict, he did

so for different reasons than those he now asserts. See Flores v.

Am. Pharm. Servs., Inc., 994 P.2d 455, 459 (Colo. App. 1999)

(declining to address issues that “were not presented to the trial

court as bases for the motion for a directed verdict”); see also

22
C.R.C.P. 50 (“A motion for a directed verdict shall state the specific

grounds therefor.”). However, assuming, without deciding, that

father’s assertion can be construed as a challenge to the sufficiency

of the evidence (and therefore not subject to the preservation rule,

see generally McCoy v. People, 2019 CO 44, ¶ 27), we still reject it.

¶ 47 Contrary to father’s assertion, the record doesn’t show that the

children could not be returned to his care. Although mother

received a protection order against father, the protection order

didn’t include the children. And while the record indicates that

mother asked the domestic court for custody of the children, it is

mere speculation that she would achieve those requests. In other

words, if the dependency and neglect case closed, there would be no

court order preventing father from caring for the children. His

assertion therefore fails.

¶ 48 What’s more, father’s argument assumes that the children

wouldn’t be dependent and neglected in mother’s care. As noted,

although the record indicates that mother had made progress on

her sobriety, it also indicates that the Department still believed

additional monitoring and contact with the caseworker were

warranted. So even if the children couldn’t be returned to father’s

23
care as he maintains, the evidence was still sufficient for the jury to

find that the children would be dependent and neglected in

mother’s care. See M.M., ¶ 26 (summary judgment was appropriate

under section 19-3-102(1)(c) and (e) based on the father’s

admissions that the mother wasn’t properly caring for the children

and that the children were in an injurious environment in her care).

¶ 49 Viewing the evidence in the light most favorable to the

Department and drawing every fairly deducible inference in favor of

the jury’s decision, we conclude that the record contains sufficient

evidence to support the jury’s determination. See S.G.L., 214 P.3d

at 583.

¶ 50 Finally, father argues that the juvenile court erred by

instructing the jury that it could find the children were dependent

and neglected, even if father didn’t have custody of the children, if it

found that the children would lack proper parental care if returned

to father’s care. See CJI-Civ 41:12 (2024); see also S.X.M., 271 P.3d

at 1129 (a juvenile court’s decision to give a particular instruction is

reviewed for an abuse of discretion). He asserts that this jury

instruction was improper because the children couldn’t be returned

24
to his care if the case was dismissed. We reject this assertion for

the same reasons explained above.

VI. Ineffective Assistance of Counsel

¶ 51 As his final argument, father contends that his counsel failed

to provide him with effective assistance of counsel. We discern no

basis for a remand.

A. Applicable Law and Standard of Review

¶ 52 A parent has a statutory right to counsel in a dependency and

neglect proceeding. § 19-3-202(1), C.R.S. 2024. A parent’s

statutory right to counsel includes the right to the effective

assistance of counsel. See A.R. v. D.R., 2020 CO 10, ¶ 47.

¶ 53 We employ the same test that we use to evaluate an ineffective

assistance of counsel claim in a criminal case. See id. at ¶¶ 48, 60.

Under this test, the parent must establish that (1) counsel’s

performance was outside the wide range of professionally competent

assistance and (2) the parent was prejudiced by counsel’s deficient

performance — that is, there is a reasonable probability that but for

counsel’s unprofessional errors, the outcome of the proceeding

would’ve been different. Id. “If the parent fails to establish either

25
prong of this test, the claim fails.” People in Interest of C.B., 2019

COA 168, ¶ 26.

¶ 54 Under this test, an appellate court must remand for an

evidentiary hearing if the parent’s allegations are sufficiently

specific and compelling to constitute a prima facie showing of

ineffective assistance of counsel. A.R., ¶ 63. However, if the

parent’s allegations lack sufficient specificity, the appellate court

may summarily deny the ineffective assistance claim. Id.

B. Analysis

¶ 55 We have already addressed and rejected several of the

underlying claims that father asserts his counsel should’ve raised.

These include claims that counsel failed to (1) ask for a limiting

instruction about the incident between him and the county attorney

described in Part II above; (2) request that the juvenile court poll

the jury about that same incident; (3) object to the intake

caseworker’s testimony discussed in Part III above; and (4) move the

court to dismiss the case when mother “completed” her treatment

plan as noted in Part IV above. Because we rejected the underlying

claims, father cannot establish the prejudice prong. See People v.

Osorio, 170 P.3d 796, 801 (Colo. App. 2007) (because a division of

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this court determined that the failure to give a limiting instruction

was harmless on direct appeal, the defendant couldn’t establish

that he was prejudiced by counsel’s error).

¶ 56 Father next asserts that his counsel was ineffective for failing

to “cite to appropriate law where necessary.” But he provides no

specific examples, nor does he explain in any detail how counsel’s

alleged deficient performance prejudiced him. Thus, this claim

lacks sufficient specificity. See A.R., ¶ 63.

¶ 57 Finally, father asserts that his counsel was ineffective for

failing to object to an improper statement made during closing

argument. We need not consider whether counsel’s failure to object

to this statement amounted to deficient performance because father

hasn’t alleged prejudice. Rather, he asserts that the allegedly

improper statement was “prejudicial in and of itself.” In other

words, father asserts that we should merely presume prejudice.

But the “presumption of prejudice applies only in relatively narrow

circumstances,” none of which are present here. See id. at ¶ 66

(these circumstances include, for example, when counsel was

(1) not made available; (2) prohibited from participating in a critical

aspect of the proceeding; or (3) acting under a conflict of interest).

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¶ 58 In sum, we conclude that father hasn’t raised sufficiently

specific and compelling allegations to constitute a prima facie

showing of ineffective assistance of counsel. See id. at ¶ 63; see

also People v. Sherman, 172 P.3d 911, 914 (Colo. App. 2006) (a

claim that is too speculative won’t satisfy the prejudice prong).

Thus, we discern no basis to remand the matter to the juvenile

court for an evidentiary hearing.

VII. Disposition

¶ 59 The judgment is affirmed.

JUDGE FOX and JUDGE LUM concur.

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