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March 5, 2026 Get Citation Alerts Download PDF Add Note

Peo in Interest of SO

Colorado Court of Appeals

• Citations: None known
• Docket Number: 25CA1491

• Precedential Status: Non-Precedential

• Opinion

• Authorities (12)

• Cited By (0)

• Summaries (0)

• Similar Cases (7.7K)

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Combined Opinion

25CA1491 Peo in Interest of SO 03-05-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA1491
Arapahoe County District Court No. 21JV431
Honorable Bonnie H. McLean, Judge

The People of the State of Colorado,

Appellee,

In the Interest of S.O., a Child,

And Concerning R.O.,

Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE LUM
J. Jones and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 5, 2026

Ron Carl, County Attorney, Tamra White, Senior Assistant County Attorney,
Alison A. Bettenberg, Assistant County Attorney, Aurora, Colorado, for Appellee

Brittany Radic, Guardian Ad Litem

Patrick R. Henson, Office of Respondent Parents’ Counsel, Justin Twardowski,
Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant
¶1 In this dependency or neglect proceeding, R.O. (father) appeals

the juvenile court’s order denying his motion for relief from

judgment under C.R.C.P. 60(b). We affirm.

I. Background

¶2 The Arapahoe County Department of Human Services sought

temporary custody of S.O. (the child) shortly after his birth because

the child’s mother, a minor herself, was in the Department’s

custody and father was on pretrial supervision for pending criminal

charges. The juvenile court granted the request and the

Department then filed a petition in dependency or neglect.

¶3 Following father’s no-fault admission, the juvenile court

adjudicated the child dependent and neglected and adopted a

treatment plan for father. Ten months later, the Department moved

to terminate father’s legal relationship with the child.

¶4 On the morning of the second day of the termination hearing,

father’s counsel advised the court that “[t]here [had] been

conversations” about open adoption, and father wanted to confess

the motion to terminate. Counsel then specified that father

understood that “none of that is binding until adoption has been

finalized.” After advising father of his rights and asking additional

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questions, the court found that father’s confession was voluntary

and intelligent and terminated father’s legal relationship with the

child.

¶5 Sixteen months later, father filed a motion for relief from the

termination judgment pursuant to C.R.C.P. 60(b)(3) and (b)(5).

Specifically, father asked the court to either enforce the terms of the

open adoption agreement or allow him to withdraw his confession

because he “did not receive the benefits promised in exchange for

his confession to the termination motion, namely, the

communication and access [to the child] promised to [father] in

exchange for his confession.” The juvenile court denied the motion

as untimely and lacking any basis for relief under C.R.C.P. 60(b).

II. Denial of C.R.C.P. 60(b) Motion

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

C.R.C.P. 60(b) motion.1 We disagree.

1 We note that father’s motion requested relief under C.R.C.P.

60(b)(3) and 60(b)(5). However, father clarified that he “d[oes] not
argue on appeal that the judgment was void, pursuant to C.R.C.P.
60(b)(3).” Accordingly, any claim under C.R.C.P. 60(b)(3) is
abandoned. See People v. Hunsaker, 2020 COA 48, ¶ 10.

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A. Applicable Law and Standard of Review

¶7 C.R.C.P. 60(b)(1)-(4) permit the court to relieve a party from a

final judgment or order for various enumerated reasons. C.R.C.P.

60(b)(5) permits relief from judgment for “any other reason”

justifying relief. C.R.C.P. 60(b)(5).

¶8 A party seeking C.R.C.P. 60(b) relief bears the burden of

establishing grounds for such relief by clear, strong, and

satisfactory proof. Centennial Bank of the W. v. Taylor, 143 P.3d

1140, 1141 (Colo. App. 2006). When moving for relief pursuant to

C.R.C.P. 60(b)(5), the party must do so within a reasonable time.

C.R.C.P. 60(b).

¶9 C.R.C.P. 60(b)(5) is a residuary clause that applies only to

extreme situations or extraordinary circumstances not covered by

the preceding clauses. Davidson v. McClellan, 16 P.3d 233, 237

(Colo. 2001); see also In re Adoption of P.H.A., 899 P.2d 345, 346

(Colo. App. 1995) (finding C.R.C.P. 60(b)(5) inapplicable when the

basis of a motion was the fraudulent acts and misrepresentations of

the other party). This residuary exception “attempts to strike a

balance between the importance of the finality of judgments and the

interests of justice,” SR Condos., LLC v. K.C. Constr., Inc., 176 P.3d

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866, 870 (Colo. App. 2007), and therefore must be interpreted

narrowly, People v. Caro, 753 P.2d 196, 200 (Colo. 1988).

¶ 10 We review the juvenile court’s denial of C.R.C.P. 60(b)(5) relief

for an abuse of discretion. See State Farm Mut. Auto. Ins. Co. v.

McMillan, 925 P.2d 785, 790-91 (Colo. 1996); SR Condos., LLC, 176

P.3d at 868. A court abuses its discretion “when its decision is

manifestly arbitrary, unreasonable, or unfair, or when it misapplies

or misconstrues the law.” People in Interest of E.B., 2022 CO 55,

¶ 14.

B. Rule 60(b)(5)

¶ 11 Father asserts that the juvenile court erred by finding his

motion untimely and denying his relief requested. We perceive no

error.

¶ 12 Father contends that the juvenile court erred by applying the

six-month time frame — applicable only to C.R.C.P. 60(b)(1) and

(b)(2) motions — to his motion. He also argues that the juvenile

court erred by concluding his motion was untimely, given that he

filed it “as quickly as possible” upon learning that there was an

issue with the adoption agreement. We need not address these

arguments because even if we assume, without deciding, that the

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juvenile court erred by denying father’s motion as untimely, any

error was harmless because the court also analyzed, and denied,

the motion on its merits. See Bly v. Story, 241 P.3d 529, 535 (Colo.

2010) (holding that an error that did not substantially influence the

outcome of the case was harmless).

¶ 13 Furthermore, we are not persuaded by father’s argument that

the court erred by denying his requests to enforce an open adoption

agreement or allow him to withdraw his confession.

¶ 14 The juvenile court found that “[t]here [was] absolutely nothing

in the record to support [f]ather’s contention that his confession

was made in exchange for an agreement for an open adoption.” As

a result, the court found there was no basis for his request for relief

under C.R.C.P. 60(b)(5). The record supports this conclusion.

¶ 15 When alerting the court to father’s intention to confess the

termination motion, his counsel referenced the parties’ discussions

regarding an open adoption but confirmed that father “underst[ood]

that none of that [was] binding until adoption ha[d] been finalized.”

Prior to accepting father’s confession, the juvenile court asked if

father understood that an open adoption was not guaranteed. And

father verified his understanding of this fact. Finally, just after

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father confessed his motion, the juvenile court asked the GAL if she

wished to make any record. The GAL added, “I do think that [open

adoption] has been discussed, although certainly not something

that can be fully implemented today, nor is it guaranteed.” Thus, a

core element of an agreement — mutual assent to the terms — was

missing from the alleged open adoption agreement that father seeks

to enforce. See Pierce v. St. Vrain Valley Sch. Dist. RE-1J, 981 P.2d

600, 603 (Colo. 1999); see also Univ. of Denv. v. Doe, 2024 CO 27, ¶

47 (“[W]ithout a meeting of the minds, there can be no contract.”).

¶ 16 Father implies that an agreement had been entered because

his counsel used the phrase “written conversation stipulation” when

describing the parties’ discussions. But counsel’s full statement —

“[t]here have been conversations. And although not binding at this

time, open adoption, written conversation stipulation, so to speak,

[y]our [h]onor, again, [father] understands that none of that is

binding until adoption has been finalized” — supports the court’s

finding that there was no agreement. And it was after this

statement by father’s counsel that he confirmed, in response to the

court’s question, that he understood there was no guarantee of an

open adoption.

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¶ 17 Father endeavors to liken his confession to a plea agreement

because of the “fundamental due process rights” implicated. But

we are not aware of, nor does father cite, any authority applying

plea agreement principles to confessions of motions to terminate.

Nor would such an application be supported by the Children’s

Code. Unlike plea agreements, where the prosecution has the

authority to extend an offer to the defendant and ask the court to

adopt any resulting agreement, see Crim. P. 32(d); People v. Wright,

573 P.2d 551, 552-53 (Colo. 1978), only the adopting party (not the

Department) can request an open adoption agreement under

section 19-5-208(4.5)(b), C.R.S. 2025.

¶ 18 Father concedes that “the government did not have statutory

authority to enter a contract involving open adoption.” Even so, he

asserts that the Department “induced” him into confessing by

making an offer of an open adoption and, therefore, he is entitled to

relief under Rule 60(b)(5). But nothing in the record supports

father’s claim that the Department made the initial offer of an open

adoption agreement. It only shows that father’s counsel had

“conversations” and had spoken “with the other parties” about an

open adoption. Moreover, before accepting father’s confession the

7
court asked if anyone had forced, threatened, coerced, or done

“anything at all to make” him confess. To which father responded

“[n]o.”

¶ 19 Based on the foregoing, we conclude that the juvenile court

didn’t abuse its discretion by denying father’s motion for relief from

judgment.

III. Ineffective Assistance of Counsel

¶ 20 Father alleges that his counsel provided ineffective assistance

because counsel failed to advise him of the statutory provisions that

contradicted the terms of the contemplated open adoption

agreement and, therefore, he was unable to make an informed

decision before confessing to the termination motion. We are not

persuaded.

A. Relevant Law

¶ 21 A parent has a statutory right to appointed counsel in

dependency and neglect proceedings. §§ 19-1-105(2), 19-3-202(1),

C.R.S. 2025. A parent’s statutory right to counsel includes the

right to effective assistance of counsel. A.R. v. D.R., 2020 CO 10,

¶ 47.

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¶ 22 We employ the same Strickland test that is used in criminal

cases to evaluate ineffective assistance of counsel claims in

dependency and neglect proceedings. See id. at ¶¶ 48, 60 (citing

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

establish a claim, the parent must show 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 have been different. Id. at ¶¶ 48-49, 60. “If the parent fails

to establish either prong of this test, the claim fails.” People in

Interest of C.B., 2019 COA 168, ¶ 26.

¶ 23 We 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.

But if the parent’s allegations lack specificity, we may summarily

deny the ineffective assistance claim. Id.

B. Preservation

¶ 24 The Department and GAL urge us to decline to address this

argument because father did not submit it at the first “full and fair

9
opportunity” immediately after the juvenile court terminated his

legal relationship with the child. Id. at ¶ 2. However, we need not

decide this issue because, even if father’s contention is properly

before us, the result would be the same.

C. Analysis

¶ 25 Even if we assume, without deciding, that father’s counsel did

not initially advise him of the statute governing open adoption

agreements, he does not meet the prejudice prong of the Strickland

test.

¶ 26 Father asserts that “had [his] counsel been aware of . . .

statutory provisions and fully advised [him,] . . . he would not have

accepted an agreement which was impermissible under statute.”

But father’s argument is directly refuted by the record. As

described above in section II.B, counsel confirmed father’s

understanding that an open adoption was not “binding.” Father

didn’t contradict counsel. And the court separately advised father

that an open adoption was not guaranteed. Finally, after

confirming his understanding of this fact as well as his

understanding that he could not “take [ ] back” his decision to

“permanently terminate” his parental rights, father proceeded to

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confess the termination motion. In other words, regardless of why

the open adoption did not proceed as father expected, father was

fully advised of this risk prior to entering his confession.

¶ 27 For these reasons, we conclude that father has not raised

sufficiently specific and compelling allegations of prejudice to

constitute a prima facie showing of ineffective assistance of counsel.

A.R., ¶ 63. And we therefore reject his claim.

IV. Disposition

¶ 28 The judgment is affirmed.

JUDGE J. JONES and JUDGE MEIRINK concur.

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