Peo in Interest of SJW

25CA0524 Peo in Interest of SJW 08-14-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0524
City and County of Denver Juvenile Court No. 23JV30956
Honorable Elizabeth J. McCarthy, Judge

The People of the State of Colorado,

Appellee,

In the Interest of S.J.W., a Child,

and Concerning D.T.W.,

Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE SULLIVAN
Tow and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 14, 2025

Katie McLoughlin, Acting City Attorney, Amy J. Packer, Assistant City Attorney,
Denver, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem

Michael Kovaka, Office of Respondent Parents’ Counsel, Littleton, Colorado, for
Appellant
¶1 D.T.W. (father) appeals the judgment terminating his parent-

child legal relationship with S.J.W. (the child). We affirm.

I. Background

¶2 The Denver Department of Human Services filed a petition in

dependency or neglect alleging that the child was born affected by

substance exposure. Father was arrested shortly after the child’s

birth and remained incarcerated for the duration of the case.

¶3 Father entered an admission, and the juvenile court

adjudicated the child dependent or neglected and adopted a

treatment plan for father. The treatment plan required father to (1)

complete a substance abuse evaluation and recommended

treatment; (2) cooperate with the Department; (3) participate in a

parenting component that included family time, parenting

education, and life skills services; (4) comply with the requirements

of his criminal sentences and refrain from further criminal activity;

and (5) complete a domestic violence evaluation and treatment.

Four months after adoption of the treatment plan, the Department

filed a termination motion.

¶4 The juvenile court issued a writ to allow father to appear in

person at the termination hearing, but father refused to be

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transported. The court found that father voluntarily failed to

appear. After the hearing, the court granted the Department’s

termination motion.

II. Discussion

¶5 Father argues that he received ineffective assistance of

counsel. Because father hasn’t sufficiently alleged a prima facie

case of ineffective assistance of counsel, we discern no basis for a

remand.

A. Applicable Law

¶6 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.

¶7 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

(citing Strickland v. Washington, 466 U.S. 668 (1984)). Under this

test, the parent must establish that (1) counsel’s performance fell

outside the wide range of professionally competent assistance and

(2) the parent was prejudiced by counsel’s deficient performance —

that is, a reasonable probability exists that but for counsel’s

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unprofessional errors, the proceeding’s outcome would have been

different. Id. “If the parent fails to establish either prong of this

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

¶8 An appellate court is required to 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. But if the parent’s allegations

lack sufficient specificity, we may summarily deny the ineffective

assistance claim. Id.; see also People v. Duran, 2015 COA 141, ¶ 9

(a court may summarily deny ineffective assistance claims if (1) the

allegations are bare and conclusory; (2) the allegations, even if true,

don’t warrant relief; or (3) the record directly refutes the claim).

B. Analysis

¶9 Father alleges that his counsel was ineffective at the

termination hearing because counsel made no opening statement,

presented no evidence, didn’t cross-examine any witnesses, made

no objections, and delivered no closing argument. In short, father

argues counsel failed to subject the Department’s case to any

“meaningful adversarial testing.”

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¶ 10 But even if we were to assume, without deciding, that

counsel’s performance fell below the range of professionally

competent assistance, father hasn’t shown that he was prejudiced

by counsel’s deficient performance.

¶ 11 The juvenile court found that father was incarcerated for most

of the case and remained in the Department of Corrections (DOC) at

the time of termination. The court also found that father hadn’t

complied with any of his treatment plan’s requirements because of

his incarceration. The court concluded that father was unfit and

that his conduct or condition was unlikely to change within a

reasonable amount of time. The record supports the court’s

findings.

¶ 12 The caseworker testified that evaluations, treatment, and

family time options weren’t available to father in prison. The

caseworker attempted to contact father’s case manager multiple

times but experienced difficulty getting the DOC facility to

cooperate. The caseworker was also unsuccessful in arranging

family time or other services. And father didn’t communicate with

the caseworker, despite her writing to him regularly and providing

prepaid return envelopes. The caseworker ultimately concluded

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that father didn’t comply with any of his treatment plan’s

requirements and that he couldn’t become a fit parent within a

reasonable time because he would be incarcerated for at least

another six months.

¶ 13 Father doesn’t explain what trial counsel could have done

differently to change the case’s outcome. He doesn’t identify, for

example, questions that counsel should have asked on cross-

examination, evidence that counsel should have presented to rebut

the caseworker’s testimony, or arguments that counsel should have

advanced to counter the evidence of his noncompliance with the

treatment plan. See People In Interest of T.M.S., 2019 COA 136,

¶ 63 (rejecting prejudice argument where parent failed to explain

how testimony by witnesses that counsel should have called would

have refuted the department’s evidence).

¶ 14 Relying on United States v. Cronic, 466 U.S. 648, 659 (1984),

and People v. Robles, 74 P.3d 437, 439 (Colo. App. 2003), father

argues that the familiar Strickland prejudice test doesn’t apply

when an ineffective assistance of counsel claim arises from the total

denial of the assistance of counsel. According to father, we should

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instead “presume prejudice based on counsel’s failure to subject the

case to meaningful adversarial testing.”

¶ 15 For two reasons, we decline to presume prejudice. First, the

supreme court in A.R. recognized that in a dependency and neglect

proceeding, as in a criminal case, a court may sometimes presume

prejudice if counsel “entirely fails to subject the prosecution’s case

to meaningful adversarial testing.” A.R., ¶ 66 (quoting Cronic, 466

U.S. at 659)). But “this presumption of prejudice applies only in

relatively narrow circumstances, as, for example, when counsel was

not made available, was prohibited by the trial court from

participating in a critical aspect of the proceeding, or was acting

under a conflict of interest.” Id. This case doesn’t fit any of these

narrow circumstances. Instead, father complains that his trial

counsel failed to elicit mitigating evidence, make an opening

statement, or deliver a closing argument — alleged errors that are of

the “same ilk” as other errors that are subject to Strickland’s usual

two-prong framework. Bell v. Cone, 535 U.S. 685, 697 (2002).

¶ 16 Second, A.R. makes clear that the Strickland prejudice test

applies in circumstances analogous to those in this case. Indeed,

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the example used by A.R. in adopting the Strickland standard

applies with equal force here:

By way of example, we can readily envision a
case in which it is undisputed that (1) a child
was adjudicated dependent or neglected
because of a parent’s severe and chronic drug
addiction, unemployment, and homelessness
and (2) by the time of the termination
proceeding, the parent had made no effort to
comply with his or her treatment plan and had
remained homeless, unemployed, and addicted
to drugs, with no prospect for any change in
his or her condition in the foreseeable future.
In such a case, counsel’s conduct may have
been deficient in several ways, but the
application of the law to the undisputed facts
would likely require termination of the parent’s
parental rights, despite counsel’s conduct.

A.R., ¶ 58. Accordingly, no presumption of prejudice is warranted.

¶ 17 Having declined to presume prejudice, father’s allegations lack

specificity to demonstrate prejudice. As a result, he hasn’t made a

prima facie showing of ineffective assistance of counsel. See id. at

¶ 63 (“If the parent’s allegations lack sufficient specificity, then the

ineffective assistance of counsel claim may be summarily denied.”).

Consequently, father has failed to show a reasonable probability

that the result of the proceeding would have been different.

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Father’s claim therefore fails to satisfy Strickland’s second prong.

Id.

III. Disposition

¶ 18 We affirm the judgment.

JUDGE TOW and JUDGE YUN concur.

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