in Interest of IJO ( 2019 )

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
October 3, 2019
2019COA151
No. 19CA0244, People in Interest of IJO — Juvenile Court —
Dependency and Neglect — Termination of the Parent-Child
Legal Relationship — Criteria for Termination; Government —
Interstate Compacts and Agreements — Interstate Compact on
Placement of Children
In this case, a division of the court of appeals concludes that a
noncustodial, out-of-state parent’s failure of a home study under
the Interstate Compact on Placement of Children does not absolve
the county Human Services Department of its obligation to exercise
reasonable efforts to rehabilitate that parent and to reunify the
family. Because it is unclear whether the juvenile court concluded
that conducting the home study was sufficient reasonable efforts,
we remand to the juvenile court to clarify its findings and
conclusions.
COLORADO COURT OF APPEALS 2019COA151
Court of Appeals No. 19CA0244
Adams County District Court No. 17JV408
Honorable Katherine R. Delgado, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of I.J.O., a Child,
and Concerning M.S.O.,
Respondent-Appellant.
ORDER OF LIMITED REMAND
Division VII
Opinion by JUDGE TOW
J. Jones and Fox, JJ., concur
Announced October 3, 2019
Heidi M. Miller, County Attorney, Julie Thomerson, Assistant County Attorney,
Westminster, Colorado, for Petitioner-Appellee
Niceta Bradburn, Guardian Ad Litem
James West, Office of Respondent Parents’ Counsel, Longmont, Colorado, for
Respondent-Appellant
¶1 M.S.O. (mother) appeals the juvenile court’s judgment
terminating the parent-child legal relationship between her and
I.J.O. (the child). Mother — who upon the commencement of and
throughout the juvenile court proceedings was the child’s
noncustodial natural parent and lived out of state — frames the
issue as whether the court erred by applying the Interstate Compact
on Placement of Children (ICPC) to the potential placement of the
child with mother. But the substance of her argument is that the
juvenile court erred by permitting the Adams County Human
Services Department to absolve itself of the obligation to exercise
reasonable efforts to rehabilitate mother and to reunify the family
solely because mother failed the ICPC home visit.
¶2 The division, on its own motion, having considered the parties’
briefs, remands the case to the juvenile court for the limited
purpose of allowing the court to clarify its findings supporting
termination of mother’s parental rights.
I. Background
¶3 In December 2017, the Department filed a petition in
dependency and neglect regarding the eight-year-old child. The
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Department alleged that the child’s father was unstable and that he
was planning to take the child back to Ohio to live with mother.
The Department also alleged that “[t]his family has [an] extensive
child welfare history in Ohio including a removal from [both mother
and father].”
¶4 The juvenile court adjudicated the child dependent and
neglected. The court adopted a treatment plan for mother,
requiring that she maintain contact with the Department and
provide necessary releases, engage in initial treatment assessment
and planning, abide by any resulting treatment plan, submit a hair
follicle test to determine whether she had used controlled
substances, and cooperate with an ICPC home study. The plan also
called for mother to have regular telephone contact with the child,
although the juvenile court later suspended these calls because
they were traumatic and dysregulating for the child. 1
1 Dysregulation means “[a]bnormality or impairment in the
regulation of a metabolic, physiological, or psychological process.”
Lexico Dictionary, https://perma.cc/D9P4-5QLG.
2
¶5 In July 2018, the Department moved to terminate mother’s
parental rights. In January 2019, following a hearing, the juvenile
court granted the Department’s motion, terminating mother’s
parental rights. 2
II. Standard of Review
¶6 We review de novo issues of law, including whether the
juvenile court applied the correct legal standard. People in Interest
of A.J.L., 243 P.3d 244, 249 (Colo. 2010). We review the juvenile
court’s factual findings for clear error. Id. The credibility of the
witnesses; the sufficiency, probative effect, and weight of the
evidence; and the inferences and conclusions to be drawn from it
are within the court’s discretion. People in Interest of C.A.K., 652
P.2d 603, 613 (Colo. 1982). Thus, we will not disturb the court’s
findings and conclusions if they have record support. Id.
III. Applicable Law
A. The Termination Statute
¶7 The juvenile court may terminate parental rights if it finds, by
clear and convincing evidence, that (1) the child has been
2 The juvenile court also terminated the child’s father’s parental
rights. That decision is not at issue in this appeal.
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adjudicated dependent and neglected; (2) the parent has not
complied with an appropriate, court-approved treatment plan or the
plan has not been successful; (3) the parent is unfit; and (4) the
parent’s conduct or condition is unlikely to change within a
reasonable time. § 19-3-604(1)(c), C.R.S. 2019.
¶8 In determining whether a parent is unfit, the juvenile court
must consider whether the Department made reasonable efforts to
rehabilitate the parent. § 19-3-604(2)(h). The Department also
must exercise reasonable efforts “to reunify the family whenever
appropriate.” § 19-3-100.5(1), C.R.S. 2019. Reasonable efforts
“means the exercise of diligence and care throughout the state of
Colorado for children who are in out-of-home placement.” § 19-1-
103(89), C.R.S. 2019. The reasonable efforts standard is deemed
met if services are provided in accordance with section 19-3-208,
C.R.S. 2019. § 19-1-103(89); People in Interest of J.A.S., 160 P.3d
257, 262 (Colo. App. 2007). Efforts under section 19-3-208 include
screening, assessments, and individual case plans for the provision
of services; home-based family and crisis counseling; information
and referral services to available public and private assistance
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resources; visitation services for parents with children in out-of-
home placement; and placement services including foster care and
emergency shelter. § 19-3-208(2)(b); see also § 19-3-209, C.R.S.
2019 (requiring that an individual case plan be in place for all
abused and neglected children and their families).
B. The ICPC
¶9 The ICPC is an interstate agreement in which all fifty states,
the District of Columbia, and the U.S. Virgin Islands participate.
Kurtis A. Kemper, Annotation, Construction and Application of
Interstate Compact on the Placement of Children, 5 A.L.R. 6th 193,
§ 2 (2019). In Colorado, the compact is codified at sections 24-60-
1801 to -1803, C.R.S. 2019. The purpose of the compact is to
facilitate interstate cooperation and coordination of placement and
provision of services to children being placed by one state’s child
protective services agency in a home in another state. Kemper, 5
A.L.R. 6th 193, § 2.
¶ 10 The compact defines “placement” as “the arrangement for the
care of a child in a family free or boarding home or in a child-caring
agency or institution but does not include any institution caring for
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the mentally ill, mentally defective or epileptic or any institution
primarily educational in character, and any hospital or other
medical facility.” § 24-60-1802, art. II(d), C.R.S. 2019.
Implementing regulations provide that the ICPC procedures “shall
be initiated for children who are considered for placement out-of-
state for . . . [h]omes of parents . . . .” Soc. Servs. Rule 7.307.31(B),
12 Code Colo. Regs. 2509-4.
¶ 11 Whether placement in an out-of-state, noncustodial parent’s
home falls within the ICPC is an unresolved question in this state.
Nationwide, courts have answered this question both ways.
Compare Kemper, 5 A.L.R. 6th 193, § 6 (discussing cases holding
that the ICPC applies to out-of-state placement with a natural
parent), with id. § 7 (discussing cases holding that the ICPC does
not apply to such placements).
¶ 12 We need not resolve that question now. Even if the ICPC
applies to placement with a natural parent, it cannot be applied in
such a way as to relieve the Department of its obligations to
exercise reasonable efforts to reunify the family. And the juvenile
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court’s findings do not make sufficiently clear whether that
occurred in this case.
IV. Application
¶ 13 Pursuant to the ICPC, the authorities in Ohio conducted a
home study to ensure that mother’s home would be a suitable
environment for the child. After the home study, the Ohio
authorities reported that mother’s home was not approved for
placement of the child. Specifically, they concluded that
[mother] has an extensive history with [the
Ohio child protection agency]. She has had
children removed from her care. [Mother] and
[mother’s cohabiting boyfriend] both tested
positive for marijuana. They were not
forthcoming regarding their use. They initially
reported that they were using marijuana daily
but haven’t used since January. Obviously,
this is not true due to their positive drug
screens. [Mother] was trying to avoid the
random drug screen.
¶ 14 Based on this determination, the Colorado caseworker
concluded that the child could not be lawfully placed with mother.
Consequently, the caseworker did not make any drug treatment
recommendations. Similarly, the Department did not provide
mother with any assistance in obtaining therapy to reintegrate with
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the child. From the Department’s reports and the caseworker’s
testimony, the Department’s view is quite clear: if an out-of-state
parent fails the ICPC home study, the child cannot lawfully be
placed with the parent; thus, the inquiry of whether a parent is
unfit — as well as any obligation on its part to provide services to
the parent — ends.
¶ 15 This is not, and cannot be, the law. Were the Department’s
view correct, the State could terminate a parent’s rights without
making any reasonable efforts to reunify the family. The out-of-
state parent would be placed on equal footing with nonparents.
Such an outcome would violate both federal law (as acknowledged
in section 19-3-100.5) and the parent’s constitutionally protected
interest in his or her parental relationship with the child. See
Santosky v. Kramer, 455 U.S. 745, 753 (1982); People in Interest of
A.M.D., 648 P.2d 625, 632 (Colo. 1982).
¶ 16 Imagine if the Department’s view were applied to a parent
within Colorado. Under this approach, the State could simply
conclude “the parent’s home is unsafe; therefore his or her rights
can be terminated.” This would be antithetical to the very construct
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of the dependency and neglect procedures. These procedures
contemplate that the child would be temporarily removed from the
home, and the Department would make reasonable efforts to
rehabilitate the parent, including making referrals to available
treatment and counseling resources, providing financial assistance
for transportation if necessary, and the like. Yet the Department
offers no justification for why an out-of-state parent whose home is
deemed inappropriate for placement under the ICPC is not entitled
to the same efforts.
¶ 17 To the contrary, rather than end the inquiry, such a
determination begins it. When an out-of-state natural parent fails
an ICPC home study, the Department is obligated to make
reasonable efforts to help that parent rectify the problems so that a
home study can be passed.
¶ 18 That being said, while the Department in this case certainly
misunderstood its obligations, it is less clear whether the juvenile
court did. 3 Its findings reflect that it may have shared the
3The juvenile court clearly considered compliance with the ICPC to
be applicable to a placement in an out-of-state parent’s home.
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Department’s incorrect view of the law. For example, the court
considered the home study to be “the major part of a treatment
plan,” and found that “because of all the issues identified [in the
home study report], there were really no services that the
[D]epartment could have provided to the mother in Ohio. She does
not have the financial ability to participate in services here.” The
court then concluded that the Department had made reasonable
efforts to rehabilitate mother.
¶ 19 Further, the juvenile court made several other findings
focusing on aspects of mother’s fitness that were related to the
home study but arguably had significance independent of the failed
home study. For example, the court noted mother’s positive test for
marijuana and her lack of honesty about her substance use.
¶ 20 But the juvenile court also made findings unrelated to the
home study, observing that the phone calls between mother and the
child had to be suspended because the child became so emotionally
dysregulated by the calls. The court also characterized the trauma
Again, because we are not resolving that issue, we express no
opinion as to the juvenile court’s interpretation.
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this child had experienced throughout his life as “horrific.” And the
court noted mother’s past involvement with child protection
authorities in Ohio related to the child.
¶ 21 Importantly, the juvenile court did not address why the
Colorado caseworker could not have offered the services
enumerated in section 19-3-208. 4 No counseling services were
offered to mother. Nor were any referrals made to public and
private assistance resources. It is unclear why the Department
made no referrals to substance abuse treatment resources in Ohio,
and why it did not consider whether financial assistance was
available to assist mother in travelling to Colorado to attend therapy
with the child. The caseworker acknowledged in her testimony
that, had mother lived in Colorado, such referrals would have been
considered.
¶ 22 We recognize that we review a juvenile court’s finding of
reasonable efforts for clear error. Even so, we must review de novo
4 In its oral findings, the juvenile court did opine that it was “not
sure the Department could have done anything, quite honestly, to
address these issues.” However, this does not appear to be a
finding that an appropriate treatment plan could not be devised.
See § 19-3-604(1)(b), C.R.S. 2019.
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whether the court applied the correct legal standard. See People in
Interest of S.N., 2014 CO 64, ¶ 21 (“Whether a child is dependent
and neglected is a mixed question of fact and law because
resolution of this issue necessitates application of the dependency
and neglect statute to the evidentiary facts.”). We cannot
confidently conduct such a review at this time because it is not
entirely clear whether the juvenile court concluded that conducting
the home study itself was sufficient reasonable efforts.
Consequently, we remand to the juvenile court to clarify its findings
and conclusions. 5
V. Remand
¶ 23 On remand, we direct the juvenile court to make further
findings regarding whether the Department made reasonable efforts
(beyond merely facilitating the ICPC home study). Similarly, if the
5 We note that a limited remand is not, and is not intended to be,
routine. We take this step not because the juvenile court’s factual
findings were unclear, but because we cannot determine whether
the juvenile court applied the correct legal standard in assessing
what qualifies as reasonable efforts where the Department initiates
an ICPC home study for an out-of-state natural parent.
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juvenile court considers any other factor enumerated in section 19-
3-604(2) to be relevant, it shall make explicit findings.
¶ 24 Within seven days of issuance of the juvenile court’s order
clarifying and/or making further findings, mother must forward a
copy of the juvenile court’s order to this court, and the case shall be
recertified. Upon recertification, a supplemental record consisting
of the juvenile court’s order, any pleadings filed on remand, and
transcripts of any hearings held on remand shall be ordered.
¶ 25 The court further orders mother to notify this court in writing
of the status of the court proceedings in the event that this matter
is not concluded within twenty-eight days from the date of this
order, and that mother must do so every twenty-eight days
thereafter until the juvenile court issues its order on remand.
JUDGE J. JONES and JUDGE FOX concur.
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