in Interest of B.C , 2018 COA 45 ( 2018 )

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
March 22, 2018
2018COA45
No. 17CA0652, People in Interest of B.C. — Juvenile Court —
Dependency and Neglect — Criteria for Termination
A division of the court of appeals considers whether the
district court erred by terminating parental rights without
conducting a dispositional hearing or adopting a formal treatment
plan that it found to be appropriate. The division concludes that,
pursuant to section 19-3-604(1)(c)(I), C.R.S. 2017, the district court
must find that “an appropriate treatment plan approved by the
court has not been reasonably complied with” before deciding to
terminate parental rights. Because the district court omitted the
important step of finding a treatment plan to be appropriate, it
could not terminate parental rights. Accordingly, the division
reverses the termination order and remands the case for further
proceedings.
The special concurrence further explains how the supreme
court’s decision in People in Interest of J.W., 2017 CO 105, does not
impact the division’s opinion.
COLORADO COURT OF APPEALS 2018COA45
Court of Appeals No. 17CA0652
Pueblo County District Court No. 16JV42
Honorable Deborah R. Eyler, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of B.C., a Child,
and Concerning L.T.,
Respondent-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE RICHMAN
Taubman, J., concurs
Furman, J., specially concurs
Opinion Modified and
Petition for Rehearing DENIED
OPINION PREVIOUSLY ANNOUNCED AS “NOT PUBLISHED PURSUANT TO
C.A.R. 35(e)” ON December 21, 2017, IS NOW MODIFIED AND DESIGNATED
FOR PUBLICATION
Cynthia Mitchell, County Attorney, David A. Roth, Special Assistant County
Attorney, Pueblo, Colorado, for Petitioner-Appellee
Anna N. H. Ulrich, Guardian Ad Litem
Law Office of Roy Wallis, Roy Wallis, Mesa, Arizona, for Respondent-Appellant
¶1 L.T. (mother) appeals the judgment terminating the
parent-child legal relationship with her child, B.C.
¶2 Mother contends that the trial court erred by not conducting a
dispositional hearing or adopting a formal treatment plan that was
found to be appropriate. The Pueblo County Department of Social
Services (the Department) responds that the court substantially
complied with the procedural requirements of sections 19-3-507
and -508(1)(d)(II), C.R.S. 2017. The Department also argues that
mother waived her objections by not raising them in the trial court,
and that she was not prejudiced by any failure to hold a
dispositional hearing. Because we agree with mother, we reverse
the judgment and remand for further proceedings.
I. Background
¶3 The proceedings in this case began when the child and mother
tested positive for methamphetamine after the child was born.
¶4 The Department filed a petition in dependency and neglect,
alleging that there were concerns that mother had continued to use
methamphetamine and was not bonding with the child.
¶5 After a Family Voice Conference, mother stipulated to an
adjudication, admitting that the child’s environment was injurious
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to his welfare. She also stipulated to a preliminary treatment plan
that required her to (1) sign releases of information; (2) participate
in sobriety monitoring; (3) complete substance abuse and mental
health evaluations and follow recommended treatment; (4) attend
parenting classes and the child’s doctor appointments; and (5)
attend visitation.
¶6 Although no dispositional hearing was held, on February 23,
2016, the Department filed a special report with the trial court
containing an attached treatment plan that had the same
requirements. The cover page indicates that the Department sent
mother’s counsel a copy of the formal treatment plan.
¶7 By order dated February 29, 2016, based on mother’s
stipulation, the trial court adjudicated the child dependent and
neglected. The court also ordered the Department to “submit a
formal treatment plan to the Court within twenty (20) days from the
date of the family voice conference.” The order specified that “if no
objections are made to said formal treatment plan, the formal
treatment plan shall be adopted and made an order of the Court.”
The order did not include a finding that the treatment plan was
“appropriate.”
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¶8 Mother did not object to the preliminary treatment plan from
the Family Voice Conference or the formal treatment plan.
¶9 At two subsequent hearings, the trial court entered orders that
stated that, as relevant here, the “Treatment Plan previously
approved by the Court shall remain in full force and effect.”
¶ 10 The Department later moved to terminate mother’s parental
rights. Mother objected to the termination of her parental rights
and asserted that she was in compliance with “the treatment plan.”
She did not specify which treatment plan.
¶ 11 Approximately one year after the petition was filed, following a
contested hearing, the trial court entered judgment terminating
mother’s parental rights.
¶ 12 As pertinent here, the court stated that by its order of
February 29, 2016, it had found the treatment plan dated February
23, 2016, “to be appropriate and in the best interests of the child.”
The court found that mother had not complied with the treatment
plan, and the plan had not been successful. The court then entered
judgment terminating mother’s parental rights.
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II. Analysis
¶ 13 Section 19-3-508(1) requires the court to “approve an
appropriate treatment plan.” Section 19-3-604(1)(c)(I), C.R.S. 2017,
requires a finding that “an appropriate treatment plan approved by
the court has not been reasonably complied with” before deciding to
terminate parental rights.
¶ 14 In this case, not only was there no dispositional hearing, but
the trial court did not approve an “appropriate treatment plan.” In
its termination judgment, the court stated that by orders of
February 29, 2016, and March 30, 2016, it “found the treatment
plans . . . to be appropriate.” However, these orders do not contain
findings of “appropriateness.” Rather, they say the Department
must submit a formal treatment plan, and if no objections are
made, the plan would be adopted. These orders did not conclude
that the plans were appropriate, nor did they set forth the criteria
by which plans are deemed to be appropriate.
¶ 15 Two divisions of the court have held that a parent’s right to
object to the elements of a treatment plan is waived if not raised
before the termination hearing. See People in Interest of D.P., 160
P.3d 351, 354 (Colo. App. 2007); People in Interest of M.S., 129 P.3d
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 1086, 1087 (Colo. App. 2005). Another division has held that
objections to a treatment plan may be raised on appeal even if not
objected to at the termination hearing. See People in Interest of
S.N-V., 300 P.3d 911, 914-18 (Colo. App. 2011).
¶ 16 This difference need not be resolved here. It is correct that
mother did not specify objections to components of the treatment
plan. But the issues raised on appeal are that the plan was
adopted without a dispositional hearing, and that the trial court did
not make a finding that the plan was appropriate. Although we
recognize that the court here may have been attempting to expedite
this proceeding, these formal steps may not be ignored.
¶ 17 Section 19-3-507(1)(a) specifies that at a dispositional hearing
the court shall hear evidence on “the question of the proper
disposition best serving the interests of the child and the public.”
Subsection (1)(b) requires a caseworker to submit details of services
offered or provided to the family to facilitate reunification of the
child and family. These steps are important in their own right, and
subsection (2) adds that if based on this evidence the court has
reason to believe a child may have an intellectual or developmental
disability, specific referrals are required.
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¶ 18 Section 19-3-508 provides for the different dispositions that
the court may reach, timing guidelines for the termination hearing
depending on the disposition, and provisions for placement of the
child.
¶ 19 An appropriate treatment plan has been defined as one that is
“reasonably calculated to render the particular [parent] fit to
provide adequate parenting to the child within a reasonable time
and that relates to the child’s needs.” § 19-1-103(10), C.R.S.
2017.
¶ 20 Finally, section 19-3-604(1)(c) permits the court to terminate
the parent-child relationship only if “an appropriate treatment plan
approved by the court has not been reasonably complied with by
the parent.” The court cannot make such a finding if it has not first
found the treatment plan to be appropriate.
¶ 21 Because of the omission of these important steps in the
proceedings of this case, we reverse the termination order and
remand the case for further proceedings.
¶ 22 The week before we issued our opinion in this case, the
supreme court issued its opinion in People in Interest of J.W., 2017
CO 105, ¶ 32 (holding that the juvenile court’s failure to enter a
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written adjudication order confirming the children’s status before
terminating the parent-child legal relationship did not divest the
court of jurisdiction to terminate). In a petition for rehearing, the
Pueblo County Department of Social Services (Department)
contends that we should reconsider our opinion in light of the
supreme court’s J.W. decision. The Department reasons that not
holding a dispositional hearing before termination is the equivalent
of not entering a written dependency and neglect adjudication. We
requested simultaneous briefing from the parties on the
Department’s petition. Having considered the briefs, we now deny
the petition for rehearing. We conclude that the opinion in People
in Interest of J.W. does not suggest a different result in this case
because J.W. analyzed whether the court had jurisdiction to
terminate parental rights, which was not at issue in this case.
JUDGE TAUBMAN concurs.
JUDGE FURMAN specially concurs.
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JUDGE FURMAN, specially concurring.
¶ 23 I write separately to address why I would not grant the
Department’s petition for rehearing.
¶ 24 Because a termination of parental rights case involves
constitutional and statutory requirements, I address two
fundamental questions: (1) What is the constitutional standard of
proof in proceedings involving termination of a parent-child
relationship? (2) Does People in Interest of J.W., 2017 CO 105 apply
to our opinion? I answer the first question by discussing our
supreme court’s opinion in People in Interest of A.M.D., 648 P.2d
625 (Colo. 1982). I then answer the second question by discussing
the supreme court’s opinion in J.W.
I. Constitutional Standard of Proof
¶ 25 In A.M.D., our supreme court explained constitutional due
process requirements for a juvenile court to terminate parental
rights. First, the court recognized the following:
The fundamental liberty interest of natural
parents in the care, custody, and management
of their child does not evaporate simply
because they have not been model parents or
have lost temporary custody of their child to
the State. Even when blood relationships are
strained, parents retain a vital interest in
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preventing the irretrievable destruction of their
family life. If anything, persons faced with
forced dissolution of their parental rights have
a more critical need for procedural protections
than do those resisting state intervention into
ongoing family affairs. When the State moves
to destroy weakened familial bonds, it must
provide the parents with fundamentally fair
procedures.
A.M.D., 648 P.2d at 632 (quoting Santosky v. Kramer, 455 U.S. 745,
753-54 (1982)).
¶ 26 Second, the court determined that, “in Colorado, a dependency
or neglect proceeding and the resulting adjudication provide the
jurisdictional bases for State intervention to assist the parents and
child in establishing a relationship and home environment that will
preserve the family unit.” A.M.D., 648 P.2d at 640.
¶ 27 Third, the court determined that “clear and convincing
evidence is the appropriate constitutional standard of proof in
proceedings involving termination of a parent-child relationship.”
Id. at 631. But, the court explained that only
when conditions have so deteriorated that a
child is abandoned . . . or a parent is deemed
unfit when tested by demanding standards . . .
is a parent-child relationship to be terminated.
Termination is an unfortunate but necessary
remedy when all reasonable means of
establishing a satisfactory parent-child
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relationship have been tried and found
wanting.
Id. at 640 (citations omitted).
¶ 28 Thus, here, before seeking to terminate parental rights, the
Department must have intervened into the lives of mother and her
child and used all reasonable means of establishing a satisfactory
parent-child relationship. Using all reasonable means of
establishing a satisfactory relationship could only have been
accomplished by developing an appropriate treatment plan
approved by the court at a dispositional hearing. See
§ 19-3-507(1)(a), C.R.S. 2017; see also § 19-1-103(10), C.R.S. 2017
(defining an appropriate treatment plan as one that is “reasonably
calculated to render the particular [parent] fit to provide adequate
parenting to the child within a reasonable time and that relates to
the child’s needs”). Because the court did not approve an
appropriate treatment plan at a dispositional hearing, the
Department did not use all reasonable means of establishing a
satisfactory parent-child relationship. We, therefore, reversed the
judgment terminating parental rights and remanded the case with
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directions for the court to hold a dispositional hearing because the
constitutional and statutory standards of proof had not been met.
II. Application of J.W.
¶ 29 In my opinion, J.W. does not apply to the present case because
J.W. analyzed whether the court had jurisdiction to terminate
parental rights, which was not at issue in this case.
¶ 30 J.W. first held that the failure of the juvenile court to reduce a
dependency and neglect adjudication to writing did not divest the
juvenile court of subject matter jurisdiction to later terminate
mother’s parental rights. Id. at ¶ 4. But, no one here disputed the
subject matter jurisdiction of the juvenile court to hold a
termination of parental rights hearing.
¶ 31 J.W. also held that respondents in dependency and neglect
cases may consent by their words and conduct to the personal
jurisdiction of the juvenile court. Id. at ¶ 25. But, no one here
disputed the personal jurisdiction of the juvenile court to supervise
the Department’s intervention into the lives of mother and her
children to establish a satisfactory parent-child relationship.
¶ 32 The question in this case is not whether mother consented to
the personal jurisdiction of the juvenile court, or whether the
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juvenile court had jurisdiction to terminate her parental rights.
Rather, the question is whether the constitutional and statutory
standards of proof were satisfied. J.W. does not help us answer
that question.
¶ 33 Because the juvenile court did not approve an “appropriate
treatment plan” at a dispositional hearing, the court lacked the
prerequisites to find that mother was unfit. See People in Interest of
S.N-V., 300 P.3d 911, 915 (Colo. App. 2011) (“For a parent’s
‘treatment plan’ to be ‘appropriate,’ it must be ‘approved by the
court’ and be ‘reasonably calculated to render the particular
respondent fit to provide adequate parenting to the child within a
reasonable time and . . . relate[ ] to the child’s needs.’” (quoting
§ 19-1-103(10), C.R.S. 2011)). I, therefore, concur with the majority
and vote to deny the petition for rehearing.
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