People ex rel. N.A.T.
134 P.3d 535, 2006 Colo. App. LEXIS 294 (2006)
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Rule of Law:
A parent's waiver of formal advisement in a dependency or neglect proceeding extends to waiving the right to be heard by a judge, and termination of parental rights is affirmed when there is clear and convincing evidence of parental unfitness, failure of a treatment plan, unlikelihood of change within a reasonable time, and no viable less drastic alternatives, even if an appealing parent alleges a due process violation regarding appellate transcripts without showing specific prejudice.
Facts:
- N.A.T. was hospitalized at two months old with bronchitis and appeared malnourished.
- J.M.T., Jr., two years old, was also underweight, and their Mother arrived at the hospital smelling of alcohol, appearing under the influence, and admitted to drinking during her pregnancy with N.A.T.
- A treatment plan was implemented for Mother, requiring her to cooperate with human services, maintain stable housing and employment, complete parenting classes, participate in mental health and substance abuse evaluations, and ensure the children’s needs were met.
- Mother partially complied with the treatment plan but failed to follow through on a mental health referral, obtain employment, or consistently cooperate with her caseworker; she also repeatedly tested positive for cocaine and relapsed after completing a residential substance abuse program.
- The children had special developmental and educational needs resulting from prenatal alcohol exposure and malnourishment.
- Potential alternative placements for the children, including Mother's cousin, maternal grandmother, and a paternal cousin, were explored but were found not to be viable options due to lack of cooperation, inadequate housing, or unwillingness to provide care.
Procedural Posture:
- A dependency or neglect proceeding was initiated regarding Mother and her children, N.A.T., J.M.T., Jr., and D.B.G., in a juvenile court (trial court).
- Mother made her first appearance in the juvenile court, where she waived her right to formal advisement.
- The juvenile court held hearings concerning the children, including two termination hearings.
- The juvenile court entered a judgment terminating the parent-child legal relationship between Mother and N.A.T. and J.M.T., Jr.
- The juvenile court entered a judgment allocating permanent parental responsibilities of D.B.G. to the child’s father, R.J.G.
- Mother appealed both judgments to the Colorado Court of Appeals.
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Issue:
1. Does a parent's waiver of formal advisement in a dependency or neglect proceeding also waive the right to be advised of a hearing before a judge? 2. Was the evidence sufficient to support the termination of Mother's parental rights for two children and the allocation of permanent parental responsibilities for another child? 3. Is a parent denied due process when required to file an appellate petition without access to a full transcript of the termination hearing, absent a showing of specific prejudice?
Opinions:
Majority - Vogt, J.
1. Yes, a parent's waiver of formal advisement under § 19-3-202(1) includes a waiver of the § 19-1-108(3)(a) advisement of the right to be heard by a judge. The transcript and minute order of Mother's first appearance indicated she waived her right to formal advisement, and precedent supports that this waiver encompasses the right to be heard by a judge. 2. No, the juvenile court did not err in allocating permanent parental responsibilities to D.B.G.'s father or in terminating Mother's parental rights for N.A.T. and J.M.T., Jr. Mother did not object to the allocation of responsibilities for D.B.G. during the hearing and agreed it was in the child's best interests, precluding appellate review of that issue. Regarding termination, the court found, based on clear and convincing evidence, that Mother did not successfully comply with her treatment plan, evidenced by her failure to follow through on mental health recommendations, obtain employment, cooperate with caseworkers, and her continued cocaine use and relapse. These actions rendered her unfit, and her lack of progress showed her condition was unlikely to change within a reasonable time, especially considering the children's special needs. The court also properly considered and eliminated less drastic alternatives, as family members identified were unwilling or unable to provide placement. 3. No, Mother was not denied due process by the absence of a transcript before filing her petition on appeal. Mother failed to demonstrate specific prejudice resulting from the lack of a transcript. Colorado appellate rules for these cases (C.A.R. 3.4) are designed for expeditious filing, allowing petitions without full transcripts and providing for later review of the official record by the court. The court's review of the official transcript revealed that the substantive issues raised in Mother's petition did not entitle her to relief, and Mother had not sought to amend her petition after the official transcript became available. Constitutional issues are not decided unless absolutely necessary and upon a showing of specific harm.
Dissenting - Roman, J.
3. Yes, C.A.R. 3.4 is unconstitutional as applied in this case, and Mother's due process rights were violated. Mother immediately requested transcripts of the termination hearings, but they were not provided before her petition on appeal was due, forcing her to file without them. While typically prejudice must be shown, a procedure that carries such a high probability of prejudice can be considered inherently lacking in due process. It is circular to require a parent to show what the outcome of having the transcript would have been. Parental rights represent a fundamental liberty interest protected by the Fourteenth Amendment, requiring strict scrutiny of state actions. Forcing a parent to file a petition on appeal without any transcript, especially given the state's statutory requirement to provide transcripts for indigent parents, creates an unacceptable risk of an erroneous decision. This process fails to provide fundamentally fair procedures and does not satisfy the appearance of justice, particularly since the court's independent review cannot substitute for the role of an advocate with full access to the record.
Analysis:
This case navigates the challenging balance between the state's compelling interest in child permanency and a parent's fundamental due process rights. The majority's decision reinforces a high burden for litigants to prove specific prejudice in as-applied due process challenges related to appellate procedure, particularly when fundamental rights like parental termination are at stake. Conversely, the dissent advocates for a more protective standard in such cases, arguing that certain procedural deficiencies are inherently prejudicial, regardless of specific proof. This split highlights ongoing debates about the adequacy of expedited appellate processes when fundamental family rights are involved and the degree to which courts can or should compensate for perceived deficiencies in legal representation or access to records on appeal.
