People ex rel. J.W. and N.W

COLORADO COURT OF APPEALS 2016COA125
Court of Appeals No. 15CA1698
Clear Creek County District Court No. 14JV8
Honorable D. Wayne Patton, Judge
Honorable Ruthanne Polidori, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of J.W. and N.W., Children,
and Concerning C.O.,
Respondent-Appellant.
JUDGMENT AND ORDER VACATED
AND CASE REMANDED WITH DIRECTIONS
Division IV
Opinion by JUDGE ROMÁN
Harris, J., concurs
Hawthorne, J., concurs in part and dissents in part
Announced August 25, 2016
Robert Loeffler, County Attorney, Sue S. Thibault, Assistant County Attorney,
Georgetown, Colorado, for Petitioner-Appellee
Wendy M. Hickey, Guardian Ad Litem
C.O., Pro Se
¶1 C.O. (mother) appeals from the judgment terminating the
parent-child legal relationships between her and J.W. and N.W.
(children) and from the order adjudicating the children dependent
or neglected with respect to her. Because the court issued the
adjudication order after the court entered judgment terminating
mother’s parental rights, and not before, we conclude that the court
did not acquire jurisdiction to terminate the parent-child
relationship. In addition, because the adjudication order was
entered after mother filed her notice of appeal, we also conclude
that the court lacked jurisdiction to enter that order as well.
Accordingly, we vacate both the judgment and the order and
remand for further proceedings.
I. Background
¶2 In May 2014, the Clear Creek County Department of Human
Services (the department) sought temporary protective custody of
J.W., then five years old, and N.W., then ten months old, citing
serious (and ultimately fatal) injuries suffered by an unrelated child
residing in the home and ongoing concerns about mother’s ability to
protect the children. The department noted that the family had
been the subject of several previous referrals concerning drug use,
1
domestic violence, and possible physical abuse of the children,
including an allegation that J.O., the children’s maternal uncle, had
choked J.W. When confronted with the latter allegation, mother
was protective of her brother, denying that he would ever do
anything to hurt the child.
¶3 Soon after being granted temporary custody of the children,
the department filed a petition in dependency or neglect, alleging
that the children were dependent or neglected for the reason set
forth in section 19-3-102(1)(a), C.R.S. 2015, which provides that a
child is dependent or neglected if “[a] parent, guardian, or legal
custodian has abandoned the child or has subjected him or her to
mistreatment or abuse or a parent, guardian, or legal custodian has
suffered or allowed another to mistreat or abuse the child without
taking lawful means to . . . prevent it from recurring.” As factual
support for this allegation, the department cited, among other
things, mother’s lack of protectiveness when faced with the
allegation that her brother had choked J.W. Mother denied the
allegations.
¶4 Shortly before the adjudicatory hearing, the department filed
an amended petition in dependency or neglect. This time the
2
department did not allege that mother had abandoned the children,
subjected them to mistreatment or abuse, or allowed another to
mistreat or abuse them without taking lawful means to prevent it
from recurring. It alleged instead that the children were dependent
or neglected for the reasons set forth in section 19-3-102(1)(b),
which provides that a child is dependent or neglected if “[t]he child
lacks proper parental care through the actions or omissions of the
parent,” and in section 19-3-102(1)(c), which provides that a child is
dependent or neglected if “[t]he child’s environment is injurious to
his or her welfare.”1
¶5 Mother’s adjudicatory trial took place on July 10 and 11,
2014. Following the trial, the jury was asked to decide (1) whether
the children were dependent or neglected because their
environment was injurious to their welfare; and (2) whether the
children were dependent or neglected because they lacked proper
parental care through the actions or omissions of their parent,
guardian, or legal custodian.
¶6 The trial did not result in an adjudication.
1Father entered a “no fault” admission to the petition, and on July
10, 2014, the court adjudicated the children dependent or neglected
with respect to him.
3
¶7 Instead, the jury answered “no” to the question asking
whether the children lacked proper parental care through the
actions or omissions of their parent, guardian, or legal custodian.
It further stated that it was “unable to return an answer” to the
question asking whether the children’s environment was injurious
to their welfare.
¶8 On July 14, 2014, a hearing was held to discuss scheduling a
new adjudication trial for mother. Rather than delay the
proceedings by requesting a retrial, mother chose to admit that the
children’s environment was injurious to their welfare. The trial
court accepted her admission. The parties agree that mother was
not offered a deferred adjudication under section 19-3-505(5)(a),
C.R.S. 2015, and that the court did not enter a formal order
adjudicating the children dependent or neglected at the hearing.
See § 19-3-505(7)(a) (“When the court finds that the allegations of
the petition are supported by a preponderance of the evidence . . .
the court shall sustain the petition and shall make an order of
adjudication setting forth whether the child is neglected or
4
dependent.”). Instead, the court proceeded to adopt the treatment
plan that was already in place as her treatment plan going forward.2
¶9 A few months later, the court terminated mother’s parental
rights, finding that although mother loved the children and had
made efforts to comply with her treatment plan, she could not meet
the children’s needs.
¶ 10 On October 30, 2015, more than a month after mother’s
parental rights were terminated, the court entered a written order
adjudicating the children dependent or neglected with respect to
her.
2 In June 2014, a “Family Services Plan” was submitted to the
court. Among other things, the department recommended that
mother participate in a psychological evaluation and follow the
recommendations of the evaluator; participate in weekly individual
therapy with a provider that she and the department mutually
agreed upon; participate in therapeutic visits with the children and
follow any recommendations made by the visit supervisor; and sign
all necessary releases of information so that the department could
make referrals for services and evaluations, receive information
from the service providers and evaluators, and allow providers to
communicate with one another to coordinate services. On July 10,
2014, the court adopted the department’s recommendations, and
on July 14, the court approved those recommendations as mother’s
treatment plan.
5
II. Timeliness of the Appeal
¶ 11 As an initial matter, we address the department’s contention
that the appeal is untimely with respect to issues arising during the
adjudicatory stage of the proceeding. It argues the appeal of such
issues is untimely because, although the court did not sign a
written order adjudicating the children dependent or neglected with
respect to mother until October 30, 2015, mother acknowledged in
her petition on appeal that the adjudication and disposition order
was “made” on July 14, 2014. We disagree that the appeal is
untimely.
¶ 12 To begin, mother is appealing an order purporting to terminate
her legal relationship with her children; therefore, this is a final
appealable order under section 19-1-109(2)(b), C.R.S. 2015. Simply
put, mother contends that the department did not prove all of the
essential elements under section 19-3-604(1)(c), C.R.S. 2015.
¶ 13 As for the adjudicatory order, it is well established that “an
order or judgment must be reduced to writing and dated and signed
before it is a final, appealable order.” People in Interest of O.J.S.,
844 P.2d 1230, 1233 (Colo. App. 1992) (citing C.R.C.P. 58), aff’d
sub nom. D.A.S. v. People, 863 P.2d 291 (Colo. 1993). Thus, if the
6
court sustains the petition in dependency or neglect and adopts a
treatment plan for a parent, but does not reduce the adjudicatory
and dispositional orders to writing, those orders are not final and
appealable until the entry of a judgment of termination or other
final and appealable order. See People in Interest of T.E.M., 124
P.3d 905, 907-08 (Colo. App. 2005) (holding that where the record
established that children were adjudicated dependent or neglected
and a treatment plan was adopted for the parent, but the orders
were not reduced to writing, the orders became appealable upon
entry of the judgment of termination).
¶ 14 Here, the court entered a written order purporting to
adjudicate the children dependent or neglected with respect to
mother and adopt a treatment plan for her, but it did not do so
until October 30, 2015, more than a month after entering the
judgment terminating her parental rights. Because the termination
order was entered before an adjudicatory order was entered, it was
the termination order that allowed mother to appeal issues arising
during the adjudicatory stage of the proceeding.
7
III. Jurisdiction
A. The Termination Order
¶ 15 We next consider whether the trial court had jurisdiction to
terminate mother’s parental rights before it entered an order
adjudicating the children dependent or neglected with respect to
her. We conclude that it did not.
¶ 16 Although mother did not initially raise this issue, in a
dependency or neglect proceeding the court’s subject matter
jurisdiction is based on the fact of the child being dependent or
neglected, and a challenge to a court’s subject matter jurisdiction
may be raised at any time. See § 19-1-104(1)(b), C.R.S. 2015;
People in Interest of N.D.V., 224 P.3d 410, 414 (Colo. App. 2009).
¶ 17 In supplemental briefing requested by this court,3 mother
argues that the children were not adjudicated dependent or
neglected until after the court entered the written order of
adjudication in October 2015, and, therefore, the court did not have
jurisdiction to terminate her parental rights. We agree that when
3 Under C.A.R. 3.4(j)(2) (2015), in effect at all relevant times during
this appeal, “[a]fter reviewing the petition on appeal, any response,
and the record, the Court of Appeals may . . . set the case for
supplemental briefing on issues raised by the parties or noticed by
the court.”
8
the court terminated mother’s parental rights, it did not have
jurisdiction to do so.
1. Law
¶ 18 For a parent involved in a dependency or neglect proceeding,
the entry of an adjudicatory order is a critically important turning
point. The purpose of the adjudicative process is to “determine
whether the factual allegations in the dependency or neglect
petition are supported by a preponderance of the evidence” such
that the child’s status “warrants intrusive protective or corrective
state intervention into the familial relationship.” People in Interest
of J.G. v. M.L., 2016 CO 39, ¶ 18 (citations omitted). Thus, if a
parent admits the allegations in the petition in dependency or
neglect — or if the state, in a contested case, proves the allegations
— then the court may enter an adjudicatory order, which vests the
court with “extensive and flexible dispositional remedies.” People in
Interest of A.M.D., 648 P.2d 625, 639-40 (Colo. 1982).
¶ 19 Alternatively, if the parent denies the allegations and the state
fails to prove them, the court must order the petition dismissed and
the child, as well as his or her parents, guardian, or legal
custodian, discharged from any restrictions or temporary orders.
9
§ 19-3-505(6); People in Interest of A.H., 271 P.3d 1116, 1121 (Colo.
App. 2011).
¶ 20 Although the purpose of adjudication is to determine whether
state intervention into the familial relationship is necessary to serve
the best interests of the children, the determination must be made
in a manner that protects parental rights. J.G., ¶ 24. Recognizing
“the bedrock principle” that the right to parent one’s children is a
fundamental liberty interest, our supreme court has held that
intervention into that interest requires “fundamentally fair
procedures.” Id. at ¶ 20 (citation omitted).
¶ 21 Discovering what fundamental fairness consists of in a
particular situation is often an “uncertain enterprise,” but due
process requires the court to make the inquiry. A.M. v. A.C., 2013
CO 16, ¶ 28 (citation omitted). Ensuring a fair procedure at the
adjudicatory stage is critical because “termination is impossible
absent the preliminary determination that the child is dependent
and neglected.” Id. at ¶ 29.
¶ 22 The importance of the adjudicatory stage is reflected in the
fact that a parent has a statutory right to a jury trial on the
allegations set forth in the petition in dependency or neglect.
10
§ 19-3-202, C.R.S. 2015; People in Interest of A.M., 786 P.2d 476,
479 (Colo. App. 1989). The parent may elect to waive his or her
right to a jury trial and may confess, stipulate, or elect not to
contest part or all of the allegations in a dependency or neglect
petition. If a parent admits part or all of the allegations in the
petition, “the court may accept the admission after finding that (1)
the parent understands his or her rights, the allegations contained
in the petition, and the effect of the admission; and (2) the
admission is voluntary.” N.D.V., 224 P.3d at 417 (citing C.R.J.P.
4.2(c)). If the court accepts the parent’s admission, the state is
relieved from the burden of proving such admitted allegations at the
adjudicatory hearing. C.R.J.P. 4.2(c); A.M., 786 P.2d at 479. But
the statute does not provide any short cuts. The court must take
the next step after accepting an admission — namely, it must
adjudicate the child dependent or neglected. § 19-3-505(7)(a).
¶ 23 Indeed, in order to terminate parental rights in a dependency
or neglect proceeding, the court must first find that the child who is
the subject of the proceeding “has been adjudicated dependent or
neglected.” § 19-3-604(1)(a), (b), (c). Without an adjudication, a
court does not acquire subject matter jurisdiction to terminate a
11
parent-child relationship. See A.M.D., 648 P.2d at 639-40; N.D.V.,
224 P.3d at 421 (Lichtenstein, J., dissenting). This is because the
General Assembly’s statutory grant of subject matter jurisdiction is
limited until the adjudication order has been entered. N.D.V., 224
P.3d at 421 (Lichtenstein, J., dissenting). Stated differently, while
the General Assembly has provided jurisdiction “[t]o terminate the
legal parent-child relationship,” § 19-1-104(1)(d), “this statutory
provision presupposes an adjudication of the child as dependent or
neglected.” N.D.V., 224 P.3d at 423 (Lichtenstein, J., dissenting);
see also A.M.D., 648 P.2d at 639-40.
2. Application
¶ 24 In this case, an adjudicatory trial was held in July 2014. At
the conclusion of the trial, the jury found in mother’s favor on one
of the questions presented to it and was unable to reach a verdict
on the other question. During a subsequent hearing, mother’s
attorney informed the court that he and mother had discussed
further proceedings with the county attorney, and mother “seem[ed]
to be receptive to admitting” the remaining allegation against her at
that point. He noted, however, that mother wanted very much to
file an administrative challenge to the allegations of child abuse
12
found in the state’s child abuse database because, as a teacher, she
did not want to have a child abuse report on her record. He
explained that she was concerned about the possibility that
entering an admission to the petition in dependency or neglect
would affect the administrative appeal. The attorney admitted that
he did not know the answers to mother’s questions, and so he had
not advised her one way or the other.
¶ 25 The trial court then questioned mother about her
understanding of the proceedings and her desire to enter an
admission that the children were in an injurious environment.
Mother told the court that she wanted to enter an admission
because she “want[ed] to get [her] kids back the speediest way” she
could, and it would take time for a new trial.
¶ 26 The trial court then ruled as follows: “All right, then, I’m
willing to prepare – I’ll make [sic] the admission that the mother’s
entered the admission that the child – children’s environment is
injurious.”
¶ 27 Significantly, the court did not state at any time during the
July 14 hearing — or at any other time prior to the termination
order — that it was adjudicating the children dependent or
13
neglected with respect to mother. § 19-3-505(7)(a). And that the
written order entered on October 30, 2015, states that the order
was “entered and effective on this 14th day of July, 2014,” does not
change the fact that the court actually did not enter an adjudicatory
order on July 14, 2014.
¶ 28 The department and the guardian ad litem (GAL) rely on
N.D.V. for the proposition that formal adjudication prior to
termination is not required. In N.D.V., a division of this court ruled
that a juvenile court’s subject matter jurisdiction in dependency or
neglect cases is based on the fact of the child being dependent or
neglected. 224 P.3d at 414. The division concluded that if a parent
admits that fact, the court’s acceptance of the admission
establishes “the essential factual predicate for the court’s exercise of
its jurisdiction” and the court’s subsequent failure to enter a formal
order sustaining the petition does not divest the court of
jurisdiction. Id.
¶ 29 The N.D.V. majority thus treated the mother’s admission,
together with the court’s acceptance of her admission, as sufficient
to invoke the court’s continuing jurisdiction to terminate parental
rights. The department and GAL ask us to adopt the reasoning of
14
the majority in N.D.V. We decline to do so. See People in Interest of
A.V., 2012 COA 210, ¶ 11 n.1 (“One division [of the court] is not
bound by the holding of another division.”).
¶ 30 Instead, we agree with Judge Lichtenstein’s thoughtful dissent
in N.D.V., specifically that continuing jurisdiction, which a court
must have to enter any orders other than temporary orders, does
not exist unless an adjudication order has been entered. 224 P.3d
at 425 (“A child’s status as dependent or neglected is determined
only by the entry of an order of adjudication.”); see § 19-3-505(7)(a)
(stating that when the court finds that the allegations of the petition
are supported by a preponderance of the evidence, except when the
case is continued as provided in section 19-3-505(5), the court
“shall sustain the petition” and “shall make an order of
adjudication” setting forth whether the child is neglected or
dependent); see also § 19-3-205(1), C.R.S. 2015 (stating that once a
child is adjudicated dependent or neglected, jurisdiction of the
court continues until he becomes twenty-one or jurisdiction is
terminated by court order).
¶ 31 In her dissent, Judge Lichtenstein concluded that when a
parent enters an admission in order to obtain a deferred
15
adjudication, the admission is “conditional” as it is based upon
statutory provisions that do not permit the court to continue the
case beyond one year unless the court enters an adjudication
sustaining the petition. N.D.V., 224 P.3d at 424. She further
concluded that such an admission only authorizes the court’s
temporary intervention in the case pending a dependency or neglect
adjudication; thus, even after entering an admission, a parent has
the right to have an adjudication made either dismissing or
sustaining the petition. Id. (citing section 19-3-505(5)(b)).
¶ 32 Here, mother was not offered a deferred adjudication, nor did
she request one. Nevertheless, we find Judge Lichtenstein’s
analysis persuasive. Assuming, without deciding, that mother’s
admission and the court’s acceptance of it were sufficient to
establish a factual basis for the adjudication of the children as
dependent or neglected children,4 we nevertheless conclude that the
4 Under C.R.J.P. 4.2(c), the court may accept a parent’s admission
after finding, among other things, that the parent understands the
effect of his or her admission. Here, mother’s attorney candidly told
the court that he was unable to answer some questions that mother
had asked about the effect of making an admission. Although the
court questioned mother generally about her understanding of the
proceedings, and offered to give her time to think about what she
should do, the court did not specifically question her about her
16
admission and the court’s acceptance of it did not satisfy section
19-3-505(7)(a), which provides that “the court shall sustain the
petition and shall make an order of adjudication” if the court finds
that the allegations of the petition are supported by a
preponderance of the evidence. (Emphasis added.) Because the
court did not enter an order of adjudication, we conclude that
mother’s admission only authorized the court to continue its
temporary intervention in the case pending an adjudication. In
effect, adjudication was deferred. And, because an adjudication is a
prerequisite to termination under section 19-3-604(1)(c), the trial
court lacked jurisdiction to enter the order terminating mother’s
parental rights. Given the enormous consequences at stake, we
conclude that this is the fairest procedure and the one that most
comports with legislative intent.
understanding of the effect of making an admission. Nor did the
court make a finding as to whether she understood the effect of
making an admission. On this record, we cannot determine
whether mother understood the effect of her admission when she
made it; thus, we cannot determine whether the court could
properly accept her admission. Instead, we assume that mother’s
admission is valid but have concerns based on statements made by
her counsel at the July 14, 2014, hearing and at oral argument
before us concerning the sufficiency of his advice to her and her
understanding of the implications of her admission. See People in
Interest of C.H., 166 P.3d 288, 290 (Colo. App. 2007).
17
B. The Adjudicatory Order
¶ 33 Turning to the October 30, 2015, written adjudicatory order,
we note that it was entered several weeks after mother filed her
notice of appeal. “Unless otherwise authorized by statute or rule,
the filing of a notice of appeal shifts jurisdiction to the appellate
court and divests the trial court of jurisdiction to conduct further
substantive action related to the judgment on appeal.” People in
Interest of K.A., 155 P.3d 558, 561 (Colo. App. 2006) (citing Musick
v. Woznicki, 136 P.3d 244, 246 (Colo. 2006)). Here, mother is
appealing the adjudicatory order; accordingly, we conclude that the
trial court did not have jurisdiction to take any action regarding it
after mother’s notice of appeal shifted jurisdiction to this court.
IV. Mother’s Issues
¶ 34 All of mother’s contentions concern issues that arose at or
after the adjudicatory stage of the proceeding. Because we have
concluded that the trial court did not adjudicate the children
dependent or neglected with respect to mother and, thus, did not
have jurisdiction to proceed beyond the adjudicatory stage, we
conclude that the issues raised by mother in her original petition on
appeal are moot.
18
V. Conclusion
¶ 35 The order adjudicating the children dependent or neglected
with respect to mother and the judgment terminating her parental
rights with respect to the children are vacated. On remand, the
court shall resume proceedings at the adjudicatory stage.
JUDGE HARRIS concurs.
JUDGE HAWTHORNE concurs in part and dissents in part.
19
JUDGE HAWTHORNE concurring in part and dissenting in
part.
¶ 36 In my view, section 19-1-104(1)(b) and (d), C.R.S. 2015, grants
the juvenile court exclusive original subject matter jurisdiction in
proceedings (1) concerning any child who is dependent or neglected
and (2) terminating the legal parent-child relationship. And I
conclude that the failure to enter an adjudication order in
dependency or neglect actions does not divest the juvenile court of
its subject matter jurisdiction to order a termination of the parent-
child relationship under section 19-3-604(1)(c), C.R.S. 2015. So, I
respectfully dissent from Part III.A of the majority opinion, which
vacates the court’s judgment terminating mother’s parent-child
legal relationship with the children and remands to the court to
resume proceedings at the adjudicatory stage; from Part IV, which
concludes that the issues raised by mother are moot; and from the
conclusion in Part V. Otherwise, I concur with Parts I, II, and III.B.
I. Jurisdiction
¶ 37 The majority opinion in People in Interest of N.D.V. concluded
that
20
when, as here, a court accepts a parent’s
admission that the child is neglected or
dependent, the child’s status is established
and the court has jurisdiction to conduct
further proceedings. If, thereafter, the court
fails to enter an adjudicatory order so
reflecting as statutorily required, the court
does not lose jurisdiction in the matter.
224 P.3d 410, 418 (Colo. App. 2009) (cert. denied Feb. 22, 2010). I
agree. Paraphrasing or reformulating the majority opinion’s
analysis could disserve the author and would needlessly lengthen
this opinion. So, I adopt N.D.V.’s analysis here and conclude that
any error in conducting the termination hearing and entering an
order terminating mother’s parent-child relationship with the
children, without first entering an adjudication order, would have
been procedural, not jurisdictional. And because mother did not
raise the issue in the trial court, she has waived it. To the extent
mother argues that section 19-3-505(5) or (7), C.R.S. 2015,
establishes a procedural prerequisite to conducting the termination
hearing or entering a termination order, I conclude that she has
also waived this issue.
¶ 38 To insist that the trial court comply with a procedural rule, a
party must object to the court’s noncompliance in a timely manner
21
or the noncompliance may be waived. N.D.V., 224 P.3d at 417
(holding that because mother did not raise in trial court issue of
error in conducting termination hearing without first entering an
adjudicatory order, she had waived it); see People in Interest of E.H.,
837 P.2d 284, 290 (Colo. App. 1992) (stating that the right to insist
on compliance with procedural rules must be timely exercised or
the noncompliance may be waived); People in Interest of T.S., 781
P.2d 130, 132 (Colo. App. 1989) (explaining that because mother
failed to object on grounds asserted on appeal, she was deemed to
have waived any objection and could not raise it on appeal); see
also People in Interest of Z.P., 167 P.3d 211, 213 (Colo. App. 2007)
(father waived right to counsel by failing to make a timely request).
I conclude that mother waived her right to challenge this procedural
requirement on appeal because she never raised this issue before
the trial court.1
¶ 39 After the first trial, mother admitted the allegations of the
amended petition, and the court accepted her admission. She never
sought to withdraw her admission and never challenged the trial
1Throughout the adjudication, disposition, and termination
proceedings, mother was represented by counsel.
22
court’s subsequent orders on jurisdictional grounds. After mother’s
admission, but before the termination hearing, mother participated
in additional hearings before the trial court. At no point did mother
assert that prior to conducting those hearings the trial court was
required to dismiss or sustain the petition. See § 19-3-505(6)-(7)(a).
¶ 40 During the two-day termination hearing mother did not
demand that the court enter an adjudication order before
conducting further proceedings. And she did not raise this
objection when the court issued its oral termination order in which
the court found that the children had been adjudicated dependent
and neglected. Nor did she object to the court’s later written
termination order finding that “the children have been adjudicated
dependent and neglected.” By her inaction, and under these
circumstances, mother has waived her right to object to any
procedural error arising from the court conducting the termination
hearing without first entering an adjudication order.
¶ 41 Mother does not contend on appeal that the court erred by
accepting her admission or assert that the children were not
dependent or neglected throughout the proceedings. Nor has she
presented any basis on which the court could have properly
23
dismissed the petition or concluded that the children were not
dependent or neglected. Accordingly, I would not disturb the trial
court’s judgment on procedural grounds.
II. Mother’s Other Issues
¶ 42 Because I reject mother’s jurisdictional claim, I respectfully
disagree that the other issues raised in mother’s petition on appeal
are moot. So, I consider and reject each in turn.
A. Effect of Jury’s Inability to Determine Whether Children’s
Environment was Injurious
¶ 43 Mother contends that the trial court erred by refusing to
return the children to her physical custody after the jury in the first
trial rendered a verdict that the children’s environment was not
injurious to their welfare.
¶ 44 I reject this argument because the record belies mother’s
assertion. The jury did not find that the children’s environment
was not injurious to their welfare; it declared that it was unable to
determine whether the environment was injurious.
B. Treatment Plan’s Appropriateness
¶ 45 Mother contends that decisions made by the trial court
rendered her treatment plan inappropriate. First, she contends
24
that the court erred when it failed to order a substitute family
therapist when problems arose in her relationship with the
therapist. Second, she contends that the court erred when it
reduced her visits with the children. I do not agree that these
decisions rendered the treatment plan inappropriate.
¶ 46 An appropriate treatment plan is 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. 2015. A successful
treatment plan renders the parent fit. K.D. v. People, 139 P.3d 695,
699 (Colo. 2006). A treatment plan is not necessarily inappropriate
because it was not successful. In many cases it is virtually
impossible to devise a plan which will guarantee success. People in
Interest of M.M., 726 P.2d 1108, 1121-22 (Colo. 1986).
1. Maintaining Family Therapist
¶ 47 The termination trial record shows that a therapist was
retained to provide therapeutic visitation services to mother and the
children. From the beginning, there were problems between mother
and the therapist. The therapist reported that mother was very
defensive in her parenting and she had difficulty accepting the
25
therapist’s intervention. Mother testified that she had a hard time
understanding the family therapist because the therapist was “too
abstract.”
¶ 48 Mother had requested several times that the therapist be
replaced because she did not believe the therapist was helpful. Her
individual therapist noted that mother did not feel “emotionally
safe” with the family therapist. But, the Clear Creek County
Department of Human Services (CCCDHS) case supervisor testified
that changing to a new family therapist was never seriously
considered because the children were comfortable with the
therapist and a change would have been disruptive for them; the
therapist was regarded as “one of the best” at providing therapeutic
visits; and, in the supervisor’s view, mother’s problem was that she
did not agree with the feedback from the therapist.
¶ 49 The witnesses’ credibility and the evidence’s sufficiency,
probative effect, and weight, as well as the inferences and
conclusions to be drawn from it, are within the trial court’s
discretion. People in Interest of C.A.K., 652 P.2d 603, 613 (Colo.
1982). A trial court’s findings and conclusions will not be disturbed
on review unless they are so clearly erroneous as to find no record
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support. Id. The evidence was conflicting as to whether the family
therapist was helpful to mother. Even so, the trial court found that
mother’s treatment plan was appropriate. I infer from this finding
that the trial court determined that the difficulties between the
therapist and mother were insufficient to render the treatment plan
inappropriate. Because the evidence supports this conclusion, I
would not disturb it. See id.
2. Reducing Weekly Visits
¶ 50 Mother also contends that the trial court erred, and rendered
the treatment plan inappropriate, by reducing visitation between
her and the children. Again, I disagree.
¶ 51 Visitation services are to be provided to parents “as
determined necessary and appropriate by individual case plans.”
§ 19-3-208(2)(b)(IV), C.R.S. 2015.
¶ 52 When deciding whether visitation services should be provided,
the court must bear in mind that a treatment plan’s purpose is to
preserve the parent-child relationship by assisting the parent in
overcoming the problems that required intervention into the family.
People in Interest of D.G., 140 P.3d 299, 304 (Colo. App. 2006). But,
the child’s health and safety remain the “paramount concern” when
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determining whether visitation should be offered as part of the
efforts to reunite the family. § 19-1-103(89).
¶ 53 Questions concerning children’s health and safety are matters
entrusted to the trial court’s sound discretion. People in Interest of
B.C., 122 P.3d 1067, 1070 (Colo. App. 2005). After more than a
year of therapeutic visitation, CCCDHS requested that the visitation
plan be modified. It alleged that the family therapist, J.W.’s
individual therapist, and mother’s individual therapist had raised
concerns that having visits twice a week was detrimental to both
mother and the children. Reports from all three therapists
described their concerns about mother’s and the children’s
emotional condition during and after visits.
¶ 54 Following a hearing, the court reduced visits to once per week,
citing testimony by the family therapist and J.W.’s therapist that
the children were in a state of “hyper arousal” after visits with
mother, and such a state was not healthy for them.
¶ 55 The trial court did not abuse its discretion in reducing
visitation because evidence indicated that visitation twice a week
was emotionally harmful to the children, and I conclude that the
reduction did not render mother’s treatment plan inappropriate.
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C. Adequacy of Factual Findings
¶ 56 Mother contends that the termination order is inadequate
because the court “fail[ed] to make appropriate factual findings or to
identify the deficiencies which rendered termination constitutionally
appropriate.” I disagree.
¶ 57 Under section 19-3-604(1)(c), the parent-child legal
relationship may be terminated if the court finds:
 that the child has been adjudicated dependent or
neglected, and the court finds based on clear and
convincing evidence that the parent did not reasonably
comply with a treatment plan approved by the court or
that the treatment plan has been unsuccessful;
 that the parent is unfit; and
 that the parent’s conduct or condition is unlikely to
change within a reasonable time.
The trial court found by clear and convincing evidence:
 the children had been adjudicated dependent and
neglected as to mother;
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 the court had adopted an appropriate treatment plan and
that plan had not been complied with or had not been
successful;
 mother was unfit;
 reasonable efforts had been made to rehabilitate her, but
they had been unsuccessful; and
 her condition was unlikely to change within a reasonable
time.
¶ 58 The court also made detailed and extensive findings as to the
specific reasons why it concluded that mother’s parental rights
should be terminated. Citing a report prepared by the family
therapist and the testimony of the psychologist who evaluated
mother, the court noted that mother had a history of trauma and
mental health problems that interfered with her ability to meet her
children’s needs.
¶ 59 I conclude that the trial court’s findings show that the court
considered each factor in section 19-3-604(1)(c) and also identified
the specific deficiencies leading the court to terminate mother’s
parental rights.
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III. Conclusion
¶ 60 I would affirm the trial court’s judgment terminating the
parent-child legal relationship between mother and the children.
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