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Latest News: Amicus Curiae Activity

UPDATED Colorado Supreme Court issues decision in amicus case

Wednesday, February 12, 2020   (0 Comments)
Posted by: Kim Dvorchak
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NACC filed an amicus brief in support of Respondent-Appellant mother in Colorado Supreme Court case, A.R. v. D.R.

 

NACC filed an amicus brief in a case before the Colorado Supreme Court.  A mother’s parental rights were terminated in the trial court.  She appealed that decision claiming that her trial counsel was ineffective.  A division of the Colorado Court of Appeals found that the mother’s attorney’s deficient performance rendered the termination proceedings presumptively unfair and unreliable (also known as the “fundamental fairness” test).  It reversed the judgment terminating mother’s parental rights and remanded the case for a new termination hearing.

 

 In doing so, the COA deviated from the prejudice standard that Colorado courts have previously applied to ineffective assistance of counsel claims in termination cases.  Colorado courts have applied the Strickland v. Washington standard, borrowed from criminal cases, in which the mother would have to show: 1) counsel’s performance was outside the range of professionally competent assistance and 2) the parent was prejudiced by counsel’s errors. In assessing the second “prejudice prong” a Court must find “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

 

The GAL filed a petition for writ of certiorari in the Colorado Supreme Court, which the Department joined. The Colorado Supreme Court granted review.  NACC’s amicus brief supported the Court of Appeals decision to apply the fundamental fairness standard in assessing claims of ineffective assistance of counsel in termination of parental rights proceedings.

 

UPDATES:

The Colorado Supreme Court issued its decision in this matter. While the Court held that the appropriate standard for ineffective assistance of counsel claims in dependency actions is the Strickland v. Washington standard, overturning the Court of Appeals, the Court also found that the mother's counsel in this matter was ineffective. Read the decision here.

 

Oral arguments are scheduled for November 12, 2019 at 1:00 pm MST. Oral arguments will be streamed live online. Watch here.


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