Peo in Interest of TMS

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
August 29, 2019

2019COA136

No. 18CA1164, Peo in Interest of TMS — Juvenile Court —
Dependency and Neglect — Appointment of Guardian Ad Litem
— Impaired Adult

A division of the court of appeals considers whether a

guardian ad litem (GAL) for a parent with an intellectual disability

may properly advocate against the parent’s goal of reunification.

The division concludes that termination of a parent’s parental rights

over the parent’s objection is not in the parent’s best interests. As a

result, the juvenile court erred when it denied a parent’s motion to

remove her GAL after the GAL advocated for positions that

undermined the parent’s goal of reunification over the parent’s

objections. The juvenile court also erred when it allowed the GAL to

give closing argument at the termination hearing because, unlike a

child’s GAL, a parent’s GAL may not participate as a party in
dependency or neglect proceedings. Nonetheless, the juvenile

court’s errors were harmless beyond a reasonable doubt because (1)

ample evidence supported the judgment of termination and (2) the

juvenile court stated that it did not rely on the GAL’s improper

argument.

The division concludes the juvenile court properly denied the

parent’s motions for a continuance because the parent failed to

show good cause for a delay or that a delay would serve the child’s

best interests.

The division also considers the parent’s claims of ineffective

assistance of counsel by her two trial attorneys. Based on its

determination that the GAL’s improper advocacy was harmless, the

division declines to consider the parent’s assertion that her first

attorney rendered ineffective assistance by requesting the

appointment of the GAL and allowing the GAL to advocate against

the parent’s interests. The division rejects the parent’s claim as to

her second attorney because the parent does not explain how the

attorney’s allegedly deficient performance prejudiced her.
COLORADO COURT OF APPEALS 2019COA136

Court of Appeals No. 18CA1164
City and County of Denver Juvenile Court No. 17JV542
Honorable Laurie A. Clark, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of T.M.S., a Child,

and Concerning S.A.S.,

Respondent-Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE ROMÁN
J. Jones and Lipinsky, JJ., concur

Announced August 29, 2019

Kristin M. Bronson, City Attorney, Laura Grzetic Eibsen, Assistant City
Attorney, Denver, Colorado, for Petitioner-Appellee

Josi McCauley, Guardian Ad Litem

The Noble Law Firm, LLC, Antony Noble, Lakewood, Colorado, for Respondent-
Appellant
¶1 Mother, S.A.S., appeals the juvenile court’s judgment

terminating her parent-child relationship with her child, T.M.S. We

are asked to decide what happens in a dependency and neglect

proceeding when the parent’s guardian ad litem (GAL) presents

argument and testimony against the parent’s interest and over the

parent’s objection. We conclude that the juvenile court erred in not

granting the parent’s motion to remove the GAL and in permitting

the GAL’s adverse closing argument. Nonetheless, under the

circumstances of this case, we further conclude that these errors

were harmless and, therefore, affirm.

I. Background

¶2 Mother has an intellectual disability. Shortly after the child

was born, hospital staff contacted the Denver Department of

Human Services to report that mother’s low functioning impairs her

ability to provide proper care for the child. The Department filed a

petition in dependency or neglect citing concerns that mother’s

inability to recognize the child’s basic needs, such as for feeding,

diapering, and swaddling, places him at risk of harm. The juvenile

court placed the child in a foster home when he was released from

the hospital, and he remained there throughout the proceeding.

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¶3 The juvenile court adjudicated the child dependent or

neglected and adopted a treatment plan for mother. One year later,

the juvenile court held a three-day evidentiary hearing and

terminated mother’s parental rights. The child’s father confessed

the motion to terminate his parental rights.

II. Analysis

A. Mother’s GAL

¶4 Mother contends that the juvenile court erred when it denied

her motion to remove her GAL and allowed the GAL to give closing

argument supporting the termination of her parental rights. We

agree that the court erred. But, under the circumstances, we

conclude that the error was harmless.

1. The Role of a Parent’s GAL Is to Assist the Parent

and Protect the Parent’s Best Interests

¶5 A juvenile court may appoint a GAL for a respondent parent

who has an intellectual or developmental disability.

§ 19-1-111(2)(c), C.R.S. 2018. Under the Children’s Code,

“guardian ad litem” means a person appointed by a court “to act in

the best interests of the person whom the [GAL] is representing.”

§ 19-1-103(59), C.R.S. 2018. A GAL must comply with the chief

2
 justice directives (CJD) and other practice standards incorporated

by reference into the GAL statute. § 19-1-111(6). An attorney who

is appointed as a GAL is subject to all of the rules and standards of

the legal profession. See Chief Justice Directive 04-05,

Appointment and Payment Procedures for Court-appointed

Counsel, Guardians ad litem, Child and Family Investigators, and

Court Visitors paid by the Judicial Department, § VI(A) (amended

July 2018).

¶6 The legislature has recognized that the differences between the

respective disabilities and legal incapacities of children and

mentally disabled adults require separate standards regarding the

appointment, duties, and rights of a GAL for these categories of

persons. See People in Interest of M.M., 726 P.2d 1108, 1117 (Colo.

1986). For example, a juvenile court must appoint a GAL for the

child in a dependency or neglect proceeding but has discretion

whether to appoint a GAL for a respondent parent who has an

intellectual or developmental disability. § 19-1-111(1), (2)(c). The

child’s GAL has a statutory right to participate as a party in

dependency or neglect proceedings, but a parent’s GAL does not.

§ 19-1-111(3); cf. People in Interest of A.R.W., 903 P.2d 10, 12 (Colo.

3
 App. 1994) (in contrast to role of child’s GAL in dependency and

neglect proceedings or dissolution of marriage actions, GAL for child

in paternity action is neither a party nor counsel for the child and

has no right to control the proceedings, defend the action, or

appeal). Section 19-3-203(3), C.R.S. 2018, defines the duties of the

child’s GAL, which include making recommendations to the court

concerning the child’s welfare. Conversely, no statute authorizes

the parent’s GAL to make recommendations to the court concerning

the parent’s welfare.

¶7 Juvenile courts must “ensure that guardians ad litem . . .

involved with cases under their jurisdiction are representing the

best interests of . . . impaired adults.” CJD 04-05, § VIII(B).

¶8 To be sure, a respondent parent, the parent’s counsel, and the

parent’s GAL have distinct roles and responsibilities in a

dependency or neglect proceeding. “While it is the [parent’s

counsel’s] duty to provide the parent with legal advice on such

decisions as whether to contest the termination motion and

whether to present particular defenses to the motion, it is the role

and responsibility of the parent to make those decisions.” M.M.,

726 P.2d at 1120.

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¶9 Unlike the parent or parent’s counsel, the GAL does not

participate as a party or a party’s advocate in dependency or neglect

proceedings. Cf. § 19-1-111(3); A.R.W., 903 P.2d at 12. Instead,

the GAL has an assistive role: to facilitate communication between

the parent and counsel and help the parent participate in the

proceeding. A juvenile court must appoint a GAL for a parent who

“lacks the intellectual capacity to communicate with counsel or is

mentally or emotionally incapable of weighing the advice of counsel

on the particular course to pursue in her own interest.” M.M., 726

P.2d at 1120. But a “client who is making decisions that [a] lawyer

considers to be ill-considered is not necessarily unable to act in his

[or her] own interest.” So if

a parent, although mentally disabled to some
degree, understands the nature and
significance of the proceeding, is able to make
decisions in her own behalf, and has the
ability to communicate with and act on the
advice of counsel, then a court might [properly]
conclude . . . that a guardian ad litem could
provide little, if any, service to the parent that
would not be forthcoming from counsel.

Id.

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 2. The Juvenile Court Erred When It Denied

Mother’s Motion to Remove Her GAL

¶ 10 Decisions regarding the appointment of a GAL for a parent lie

within the discretion of the juvenile court. People in Interest of

L.A.C., 97 P.3d 363, 366 (Colo. App. 2004). A court abuses its

discretion when its ruling rests on a misunderstanding or

misapplication of the law. Sinclair Transp. Co. v. Sandberg, 2014

COA 75M, ¶ 26.

¶ 11 Mother was represented by two different attorneys during the

proceeding below. Mother’s first attorney requested the

appointment of a GAL for mother at the temporary custody hearing.

She gave no reason for the request. The magistrate granted the

request “based on the information contained in the [dependency or

neglect] petition.”

¶ 12 Mother’s first attorney withdrew nine months later. At the

next hearing, mother’s second attorney asked the juvenile court to

replace mother’s GAL, asserting that mother’s GAL was acting

outside her role as GAL by advocating against mother’s goal of

reunifying with the child. She also said that mother’s relationship

with the GAL had broken down to the point that the GAL could no

6
 longer fulfill her role. The juvenile court described its

understanding of the GAL’s role as follows:

[Mother] doesn’t get to dictate what [her GAL]
does just like the child doesn’t get to dictate
what [his GAL] does.

....

[Mother’s GAL] can advocate differently [from
mother’s goals] if she believes that . . . such
advocating would not be in her client’s best
interest, meaning that it could put [mother] at
criminal negligence [sic] for child abuse
because [mother] doesn’t have the ability to do
so, she absolutely should not be advocating for
that. As matter of fact they [sic] would be
against her role to do so. No different than if a
[GAL were] representing a teenager, who said
they wanted a return home, and [the GAL]
believed that was not appropriate.

....

So [mother’s GAL] has a du[a]l role. One role
is to help [mother] understand the information
that’s being provided, and, secondly, to
advocate . . . for . . . what that [GAL] believes is
in the best interest of the adult, not what the
adult wants, not what the adult believes is
best, but what the [GAL] believes is best. And
so if [mother] wants me to sift through all the
professionals to find one that’s going to agree
with her, that’s not happening.

¶ 13 Mother then filed a written motion to dismiss the GAL. She

asserted the following grounds for dismissal:

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 (1) The GAL had improperly advocated for positions adverse

to mother’s fundamental right to raise her child. The GAL

had requested a reduction of parenting time and

supported a concurrent permanency goal of adoption

over mother’s objection.

(2) The GAL was ineffective in her role. Mother had difficulty

understanding the GAL because the GAL did not use

simple language or make other accommodations when

presenting information. The GAL’s relationship with

mother was so contentious that mother refused to meet

with the GAL alone or to include the GAL in meetings

with mother’s attorney.

(3) Mother did not need a GAL because she was able to

understand the proceedings and assist her attorney

without one. Mother’s attorney was able to communicate

with her effectively. When necessary, mother’s attorney

employed other protections to support mother, such as

enlisting trusted family and kin.

¶ 14 Mother’s GAL filed a response to the motion, which the

juvenile court accepted and cited in its order. We note, however,

8
 that mother’s GAL lacked standing to file a response to mother’s

motion because she was not a party to the dependency or neglect

proceeding. Cf. Hollingsworth v. Perry, 570 U.S. 693, 694 (2013)

(except in limited circumstances, a litigant may not assert the legal

rights or interests of others); see also C.W.B., Jr. v. A.S., 2018 CO 8,

¶ 38 (statute granting foster parents right to intervene and

participate fully in dependency or neglect proceedings does not

confer standing to appeal juvenile court’s judgment denying motion

to terminate parental rights).

¶ 15 The juvenile court denied mother’s motion to remove the GAL.

The court reasoned that a respondent parent’s GAL, like a child’s

GAL, has a duty to represent what the GAL believes to be in the

parent’s best interests — even over the objection of the parent and

the parent’s counsel.

¶ 16 But the GAL improperly participated in the proceeding when

she purported to represent mother’s best interests in court hearings

and pleadings standing apart from mother and mother’s counsel.

And by advocating for a reduction of parenting time and supporting

a concurrent permanency goal of adoption, the GAL undermined

mother’s constitutional interest in preventing the irretrievable

9
 destruction of the parent-child relationship. See M.M., 726 P.2d at

1122 n.9. The GAL asserted that visitation was stressful for mother

and the baby, mother was exhausted after visits, and mother had

not learned to read the baby’s cues. But these concerns did not

establish that it was in mother’s best interests to reduce her

opportunity to develop her parenting skills or to plan for

permanently severing her contact with the child. And they did not

outweigh mother’s fundamental liberty interest in the care, custody,

and management of her child. See Santosky v. Kramer, 455 U.S.

745, 753-54 (1982). Thus, the juvenile court erred when it

concluded that the GAL’s advocacy served mother’s best interests.

¶ 17 Citing M.M., the juvenile court also noted that courts must

appoint GALs for parents in cases where “the parent is mentally

impaired so as to be incapable of understanding the nature and

significance of the proceeding or incapable of making those critical

decisions that are the parent’s right to make.” 726 P.2d at 1120.

But the court made no findings to support the appointment of a

GAL for mother on this basis, and we find no such support in the

record. To the contrary, mother’s counsel advised the court that

10
 mother understood the proceedings and could work effectively with

counsel.

¶ 18 We conclude that the juvenile court abused its discretion

when it denied mother’s motion to dismiss her GAL.

3. The Juvenile Court Erred When It Allowed Mother’s GAL

to Give Closing Argument and Improper Testimony

¶ 19 Over mother’s objection, mother’s GAL gave a closing

argument at the termination hearing in which the GAL urged the

juvenile court to terminate mother’s parental rights. 1 We agree with

mother that the court erred in permitting this argument for three

reasons.

¶ 20 First, a parent’s GAL has no right to participate as a party in a

dependency or neglect proceeding. See § 19-1-111. So, the GAL

had no right to present closing argument.

1During the termination hearing, mother’s GAL also testified in
opposition to mother’s motion to continue the proceeding because
mother had not been properly accommodated under the Americans
with Disabilities Act. Specifically, mother’s GAL testified, “All of the
accommodations that were necessary have been put into place. I
don’t think there’s anything else that could have been done.”

11
¶ 21 Second, the GAL’s closing argument included improper

testimony. When a GAL makes recommendations “based on an

independent investigation, the facts of which have not otherwise

been introduced into evidence, the guardian functions as a witness

in the proceedings and, thus, should be subject to examination and

cross-examination as to the bases of his or her opinion and

recommendation.” People in Interest of J.E.B., 854 P.2d 1372, 1375

(Colo. App. 1993) (discussing children’s GALs, who may choose to

present recommendations either through closing argument or

through testimony).

¶ 22 The GAL described her observations of mother and the facts

underlying her recommendations. She told the juvenile court that

mother had refused to engage in necessary services. The GAL said

that mother had tried very hard, but mother’s disabilities made it

impossible for her to parent the child. This type of information

could only be offered through the testimony of a witness because it

was based on the GAL’s personal observations and included facts

that had not otherwise been introduced into evidence. See id. And

by appointing a GAL to assist mother and then allowing the GAL to

testify against her, the juvenile court violated mother’s right to

12
 fundamentally fair procedures in the termination proceeding. See

Santosky v. Kramer, 455 U.S. 745, 753 (1982); People in Interest of

D.C.C., 2018 COA 98, ¶ 21.

¶ 23 Third, it was improper for the GAL to advocate against

mother’s goal of protecting her fundamental liberty interest in the

care, custody, and management of her child. See Santosky, 455

U.S. at 753. The termination of mother’s parental rights over her

objection was not in mother’s best interests as a matter of law. Yet

the GAL told the court that termination would be in mother’s best

interests. So, the juvenile court erred when it allowed the GAL to

act against mother’s goals in the proceeding. See CJD 04-05,

§ VIII(B).

¶ 24 Accordingly, we conclude that the juvenile court erred when it

allowed mother’s GAL to give closing argument and testify in

opposition to mother’s interests.

4. The Juvenile Court’s Errors Were Harmless

¶ 25 Mother urges us to apply the constitutional harmless error

standard of reversal, under which we may disregard an error only if

it is harmless beyond a reasonable doubt. An error is harmless if it

does not affect a party’s substantial rights. See C.A.R. 35(c).

13
¶ 26 Our supreme court has not addressed whether the

constitutional harmless error standard applies with respect to a

parent’s constitutional rights in dependency or neglect proceedings.

See A.M. v. A.C., 2013 CO 16, ¶ 16 n.10. For purposes of this

opinion, we will assume that it does. An error is harmless beyond a

reasonable doubt if there is no reasonable possibility that the error

prejudiced the appellant. People v. Trujillo, 114 P.3d 27, 32 (Colo.

App. 2004).

¶ 27 Our review of the record leads us to conclude that there is no

reasonable possibility that the outcome of the proceeding would

have been different if the juvenile court had dismissed mother’s

GAL or precluded the GAL from giving closing argument. We reach

this conclusion for two reasons.

¶ 28 First, the juvenile court said that in considering the success of

the treatment plan, it had “listened to argument by all parties, but

[based] its ruling . . . only [on] the testimony that was provided

during [the] hearing.” Thus, we conclude that the court did not rely

on the improper testimony by mother’s GAL.

¶ 29 Second, ample evidence showed that mother remained unfit to

parent the child despite intensive intervention over a long period of

14
 time, and that her conduct or condition of unfitness was unlikely to

change. This evidence included testimony by a psychologist and

mother’s visitation therapist.

¶ 30 The psychologist, who performed a cognitive evaluation of

mother, testified at the termination hearing that mother’s cognitive

functioning was in the extremely low range — below ninety-nine

percent of people her age. He said this meant she would have

difficulty learning, grasping concepts, and understanding

communications. He recommended intensive support services,

including hands-on parenting skill development such as that

provided by a therapist.

¶ 31 Mother’s visitation therapist testified that she had provided

intensive, hands-on parenting skills training for mother during

visitation. The therapist said she had worked with mother at over

sixty visits — for three to six hours per visit, twice a week, for nine

months. She said she had tailored her teaching style to mother’s

learning style based on the psychologist’s recommendations. She

described accommodations that addressed mother’s memory,

15
 learning style, verbal skills, concrete learning, and scaffolding

techniques. 2

¶ 32 The therapist opined that it was not safe to leave mother alone

with the child for more than five minutes, and even then only if the

child was in a secure setting such as a crib or car seat where he

could not fall. She explained that mother would often freeze if she

did not know how to respond; in one instance, mother froze when

the child began to gag on his saliva, and the therapist had to

intervene. She testified that, despite mother’s effort and desire,

mother was unable to keep up with the child’s growth and

development. She said mother’s parenting skills had peaked,

mother could not consistently meet the child’s needs, and mother

would need twenty-four-hour supervision to parent the child.

¶ 33 The juvenile court also made the following findings and

conclusions, which are supported by testimony at the termination

hearing:

2 “Scaffolding” involves teaching parents new skills with young
children, starting with lots of support and gradually withdrawing
the support as the parent learns to do things on his or her own.

16
¶ 34 Mother had not made enough progress to be able to care for

the child alone for any period of time without creating a grave risk

of death or serious bodily injury to the child.

¶ 35 Mother’s tendency to freeze was unpredictable and put the

child at significant risk due to his young age.

¶ 36 Mother had not been able to maintain a support system that

would allow her to care for the child. She was no longer engaged

with the people who wanted to protect her.

¶ 37 Despite complying with her treatment plan, mother had not

internalized the services provided in such a way as to address the

concerns that brought the case to the Department’s attention.

¶ 38 Even with accommodations, mother’s disability rendered her

unable to meet the child’s needs.

¶ 39 Mother was unfit, and her conduct or condition was unlikely

to change within a reasonable time.

¶ 40 Under these circumstances, we conclude that the juvenile

court’s errors in denying mother’s motion to dismiss the GAL and

allowing the GAL to give closing argument and testimony that

supported the termination of mother’s parental rights were

harmless beyond a reasonable doubt.

17
 B. Ineffective Assistance of Mother’s First Attorney

¶ 41 Mother contends that her first attorney rendered ineffective

assistance by requesting the appointment of the GAL and by

allowing the GAL to advocate against mother’s goal of reunification.

Based on our conclusion that there is no reasonable possibility the

GAL’s conduct prejudiced mother, we need not address this

contention. See People in Interest of A.R., 2018 COA 176, ¶ 7

(parent must demonstrate prejudice to succeed on a claim of

ineffective assistance of counsel) (cert. granted Mar. 4, 2019); People

in Interest of C.H., 166 P.3d 288, 291 (Colo. App. 2007) (same).

C. Motions for Continuance

¶ 42 Mother contends that the juvenile court erred when it denied

her motions to continue the termination hearing. We perceive no

basis for reversal.

1. Standard of Review and Legal Principles

¶ 43 We will uphold a juvenile court’s ruling on a motion for

continuance absent a showing of an abuse of discretion. M.M., 726

P.2d at 1121; People in Interest of T.E.M., 124 P.3d 905, 908 (Colo.

App. 2005). A court abuses its discretion when its ruling is

18
 manifestly arbitrary, unreasonable, or unfair. People in Interest of

A.N-B., 2019 COA 46, ¶ 9.

¶ 44 In ruling on a motion for continuance, a juvenile court “should

balance the need for orderly and expeditious administration of

justice against the facts underlying the motion, while considering

the child’s need for permanency.” T.E.M., 124 P.3d at 908; see also

M.M., 726 P.2d at 1121.

¶ 45 The child was an infant when the Department filed the

petition, so the juvenile court could not delay or continue the

termination hearing absent good cause and a finding that the delay

would serve the best interests of the child. §§ 19-3-104,

19-3-508(3)(a), 19-3-602(1), C.R.S. 2018; see also § 19-1-123,

C.R.S. 2018 (expedited permanency procedures for children under

six years old).

2. Witnesses

¶ 46 Mother contends that the juvenile court erred when it denied

her motion to continue the termination hearing to allow her to

secure the attendance of all her witnesses. We disagree.

¶ 47 The termination hearing was originally scheduled for two days,

but it took three days. The morning of the third day, mother’s

19
 attorney moved for a continuance. Mother’s attorney reported that

three of mother’s witnesses were unavailable to testify that day

because she had not been able to notify them of the additional

hearing date. Mother’s attorney did not explain how a delay would

serve the child’s best interests.

¶ 48 The juvenile court denied the motion. The court noted that

the termination hearing was already in its third day and that the

witnesses could have been taken out of order to accommodate their

schedules. The court found that the lack of availability of witnesses

did not establish good cause to continue the hearing.

¶ 49 The juvenile court’s ruling reflects that it considered the

reasons for mother’s motion and the need to conclude the

termination hearing in a timely manner. The record supports the

juvenile court’s finding that mother did not establish good cause for

granting a delay. And mother provided no basis to find that a delay

would serve the child’s best interests. See § 19-3-104;

§ 19-3-602(1).

¶ 50 Therefore, we conclude that the juvenile court did not abuse

its discretion when it denied mother’s motion to continue the

20
 termination hearing to allow her to secure the attendance of her

remaining witnesses.

¶ 51 To the extent mother contends that the juvenile court erred

when it did not conduct an analysis on the record that balanced the

court’s administrative needs and the child’s need for permanency

against mother’s reasons for requesting the continuance, we

disagree. We are aware of no authority that requires courts to

make such specific findings on the record.

3. Additional Time

¶ 52 Mother contends that the juvenile court erred when it denied

her motion to continue the termination hearing so that she could (1)

have more time to work on her treatment plan and (2) investigate

less drastic alternatives to termination of her parental rights.

Again, we disagree.

¶ 53 We cannot conclude that the juvenile court erred when it did

not give her more time to work on her treatment plan. Mother’s

therapist testified that mother’s parenting skills had peaked and

she remained unfit to parent the child independently for even brief

periods after nine months of intensive intervention.

21
¶ 54 Mother identified two possible alternatives to termination of

her parental rights that she wanted to explore. One was joint

placement for herself and the child in a host home through Rocky

Mountain Health Services. Mother said she had recently accepted a

referral for services and her eligibility was under review. But

testimony at the termination hearing established that mother had

refused to accept a referral for this service during most of the

dependency or neglect proceeding. The delay in evaluating this

option was due to mother’s conduct.

¶ 55 Mother also wanted time for the Department to evaluate her

housemate as a kin provider. But the record shows the Department

did evaluate him. Although the Department did not conduct an

extensive investigation, it determined that the housemate had a

criminal record and a child welfare record that disqualified him

from being involved in the child’s care.

¶ 56 Thus, the record shows that mother did not demonstrate good

cause for a delay or that a delay would have served the child’s best

interests. We therefore conclude that the juvenile court did not

abuse its discretion when it denied mother’s motion to continue the

termination hearing to give her more time to comply with her

22
 treatment plan and investigate less drastic alternatives to

termination.

D. Ineffective Assistance of Mother’s Second Attorney

¶ 57 Mother contends that her second attorney rendered ineffective

assistance by failing to secure the attendance of her witnesses on

the third day of the termination hearing. We perceive no basis for

reversal.

¶ 58 To succeed on a claim of ineffective assistance of counsel,

mother must establish that she was prejudiced by counsel’s

allegedly deficient performance. See A.R., ¶ 7; C.H., 166 P.3d at

291.

¶ 59 Mother contends that counsel’s alleged error prejudiced her

because she was not able to present the following testimony:

¶ 60 The intake social worker would have testified about mother’s

disability, the disability accommodations provided by the

Department at the time of intake, and the accommodations

provided by the hospital where the child was born. But mother

does not specify what this testimony would have been or how it

would have helped her case.

23
¶ 61 The service coordination supervisor from Rocky Mountain

Human Services would have testified about the services the

organization generally provides and the date mother became eligible

for the services. But mother does not suggest that this testimony

would have differed from that provided by other witnesses who

addressed the same issues.

¶ 62 A disability services provider from Rocky Mountain Human

Services would have testified about the timeline for application for

their services and the lack of reasonable efforts by the Department.

See §§ 19-1-103(89), 19-3-100.5, 19-3-604(2)(h), C.R.S. 2018 (state

must make reasonable efforts to rehabilitate parents and reunite

families following out-of-home placement of abused or neglected

children). But mother does not describe how the witness’s

description of the timeline would have differed from other testimony

or specify what efforts the witness would have said were lacking.

¶ 63 Most importantly, mother does not explain how this testimony

would have affected the outcome of the case in light of her

therapist’s testimony that her parenting skills had peaked and she

remained unable to parent the child without constant supervision

after nine months of intensive intervention. Moreover, she does not

24
 suggest that any of these witnesses would have refuted the

therapist’s testimony.

¶ 64 Therefore, we reject mother’s contention that reversal is

warranted because her second counsel rendered ineffective

assistance.

III. Conclusion

¶ 65 The judgment is affirmed.

JUDGE J. JONES and JUDGE LIPINSKY concur.

25