in Interest of S.R.N.J-S

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
January 23, 2020
2020COA12
No. 19CA0439, People in Interest of S.R.N.J-S. — Juvenile
Court — Dependency and Neglect — Termination of the Parent-
Child Legal Relationship — Criteria for Termination
In this termination of parental rights case, a division of the
court of appeals clarifies that the termination of parental rights
statute, section 19-3-604(1)(c), C.R.S. 2019, requires a finding that
a parent is unfit to terminate parental rights, and not “semi-fit” as
the juvenile court found here. It further clarifies that without a
parental unfitness finding supported by the evidence, the need for
permanency is not enough to terminate parental rights.
Because the court’s findings of evidentiary facts are separate
from the court’s fitness conclusion and the evidentiary facts here
are clearly erroneous and do not support a conclusion that the
parents were unfit, the division concludes that the juvenile court
erred in terminating the parents’ parental rights.
COLORADO COURT OF APPEALS 2020COA12
Court of Appeals No. 19CA0439
City and County of Denver Juvenile Court No. 17JV1077
Honorable Laurie A. Clark, Judge
The People of the State of Colorado,
Appellee,
In the Interest of S.R.N.J-S. and M.A.J-S., Children,
and Concerning A.N.J-S. and J.A.G.,
Appellants.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE DUNN
Webb and Lipinsky, JJ., concur
Announced January 23, 2020
Kristin M. Bronson, City Attorney, Laura Grzetic Eibsen, Assistant City
Attorney, Denver, Colorado, for Appellee
Barry Meinster, Guardian Ad Litem
The Law Office of Michael Kovaka, Michael Kovaka, Littleton, Colorado, for
Appellant A.N.J-S.
Pamela K. Streng, Office of Respondent Parents’ Counsel, Georgetown,
Colorado, for Appellant J.A.G.
¶1 Father, J.A.G., and mother, A.N.J-S., appeal the juvenile
court’s judgment terminating their parent-child legal relationships
with their children, S.R.N.J-S. and M.A.J-S. Because the evidence
doesn’t support the juvenile court’s conclusion that the parents
were unfit, we must reverse and remand the case.
I. Background
¶2 This is the family’s second dependency and neglect
proceeding. In the first case, the Denver Department of Human
Services removed the children, a twin boy and girl, shortly after
their births because mother was using controlled substances. The
case was closed a year later, and the Department returned the
children to mother. Father was living in Mexico and visited the
children sporadically.
¶3 The Department initiated this case in July 2017 due to
mother’s possible methamphetamine use and reported domestic
violence and abuse. The juvenile court adjudicated the then-
three-year-old twins dependent or neglected and entered treatment
plans for the parents.
¶4 Father was still living in Mexico when the Department filed the
case. Although the Department served him with notice of the
1
proceeding, father did not contact the Department until March
2018, when he began relocating to Colorado.
¶5 Two weeks after father made his first court appearance, the
children’s guardian ad litem (GAL) moved to terminate the parents’
parental rights. In an uncommon turn, the Department opposed
the motion and moved, instead, to increase parenting time and
transition the children home.
¶6 The juvenile court held a twelve-day hearing on the competing
motions between August 2018 and February 2019. At the end of
the hearing, the court granted the GAL’s motion and terminated
both parents’ parental rights.
II. Termination of Parental Rights
¶7 The goal of a dependency and neglect case is to preserve the
parent-child relationship whenever possible. People in Interest of
C.A.K., 652 P.2d 603, 610 (Colo. 1982). And given that the
termination of the parent-child legal relationship affects a parent’s
fundamental liberty interest in the care and custody of the child,
the state must exercise extreme caution in terminating parental
rights. K.D. v. People, 139 P.3d 695, 700 (Colo. 2006). For this
reason, a juvenile court must strictly comply with the statutory
2
termination criteria. Id.; People in Interest of L.M., 2018 COA 57M,
¶ 18.
¶8 To terminate parental rights, a juvenile court must find, by
clear and convincing evidence, that (1) a child was adjudicated
dependent and neglected; (2) the parent didn’t comply with an
appropriate, court-approved treatment plan or the plan wasn’t
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. The burden of proof lies with the
party seeking termination. People in Interest of S.N-V., 300 P.3d
911, 914 (Colo. App. 2011) (the due process requirements for
a termination hearing place no duty on a respondent parent).
¶9 An unfit parent is one whose conduct or condition renders the
parent unable to give a child reasonable parental care.
§ 19-3-604(2). Reasonable parental care requires, at a minimum,
that the parent provide nurturing and protection adequate to meet
the child’s physical, emotional, and mental health needs. Id.;
accord L.M., ¶ 28.
3
A. Standard of Review
¶ 10 “Whether a juvenile court properly terminated parental rights
presents a mixed question of fact and law because it involves
application of the termination statute to evidentiary facts.” L.M.,
¶ 17. We review the juvenile court’s findings of evidentiary fact —
the raw, historical data underlying the controversy — for clear error
and accept them if they have record support. Id.; see also People in
Interest of S.N. v. S.N., 2014 CO 64, ¶ 21. But we review de novo
the juvenile court’s legal conclusions based on those facts. People
in Interest of S.K., 2019 COA 36, ¶ 41; L.M., ¶ 17.
¶ 11 Whether the evidence establishes that a parent is unfit is
ultimately a legal conclusion because its resolution requires
application of the evidentiary facts to the termination statute. See
§ 19-3-604; S.N., ¶ 21; see also People in Interest of A.J.L., 243 P.3d
244, 246 (Colo. 2010) (evidence supported the juvenile court’s
factual “findings and its legal conclusion that [parent was] unfit”).
¶ 12 Because we review de novo the court’s legal conclusions, we
need not consider mother’s proposal that we conduct an
“independent appellate review” of the juvenile court’s termination
order.
4
B. The Oral and Written Termination Orders
¶ 13 At the end of the termination hearing, the juvenile court
issued a detailed oral order terminating the parents’ parental rights.
Later, it issued a short written termination order that contained
little detail. What’s problematic for our purposes is that the oral
parental fitness findings are different from those in the written
order.
¶ 14 Specifically, in its oral termination order, the juvenile court
found the parents’ “conduct or condition [was] semi-fit at this
time[,] that they can provide reasonable parental care for the
children[,] and additional time will likely not change the conduct or
condition within a reasonable period of time.”1 Despite the
suggestion of parental fitness, and without further explanation as to
fitness, the court terminated father’s and mother’s parental rights.
¶ 15 Shortly after the hearing, the court issued its written
termination order, which recited the parties’ names, the date it
entered its oral ruling, and the required statutory findings.
———————————————————————
1Reading the termination order as a whole, it seems this sentence
contains a typographical error and the court intended to say the
parents “cannot” provide reasonable parental care. But even
assuming such error, it doesn’t affect our analysis.
5
Regarding fitness, the written order merely stated the parents “are
unfit[] as parents for the minor children.” But it doesn’t explain
how or why the court went from “semi-fit” in its oral termination
order to “unfit” in its written one.
¶ 16 Generally, a written order controls over a conflicting oral
ruling. People in Interest of T.B., 2019 COA 89, ¶ 56 n.1 (Webb, J.,
dissenting). Here, however, the written order contained no facts
specific to this case (other than basic identification and procedural
facts). And the court noted in the written order that its oral ruling
“more explicitly detailed” the court’s findings and those “FINDINGS
AND ORDER[] ARE HEREIN INCORPORATED BY REFERENCE.”
¶ 17 So, to the extent the oral order controls, for a couple of
reasons we conclude it’s insufficient to support terminating
parental rights. First, beyond being somewhere between fit and
unfit, we don’t know what “semi-fit” means. Second, even if “semi-
fit” has some generally accepted meaning, “semi-fitness” is not a
basis upon which to terminate parental rights under section 19-3-
604(1)(c)(II). Rather, to terminate parental rights, a court must find
by clear and convincing evidence that a parent is unfit. See
§ 19-3-604(1)(c)(II); see also People in Interest of M.M., 215 P.3d
61237, 1252 (Colo. App. 2009). The oral termination order therefore
lacks the necessary unfitness finding required to terminate the
parents’ parental rights.
¶ 18 Given the parental unfitness findings in the written
termination order, we next consider whether clear and convincing
evidence supports those findings.
C. Father’s Parental Fitness
¶ 19 At the termination hearing, the caseworker testified that she
(1) believed father can provide reasonable parental care; (2) had no
concerns about father’s ability to meet the children’s needs; and (3)
agreed father is willing to provide for the reasonable needs of the
children. She concluded that, in her expert opinion, father “is a fit
and appropriate parent” for the children and termination of father’s
parental rights wasn’t in the children’s best interests. Father’s
visitation supervisor agreed that father could meet the children’s
needs.
¶ 20 Though contending the juvenile court correctly found father
unfit, the GAL points us to no record evidence supporting a
different assessment of father’s parental fitness. Nor did we find
any witness who testified father was unfit.
7
¶ 21 Despite this seemingly uncontradicted evidence that father
was fit and could provide reasonable parental care for the children,
we recognize that the juvenile court made some oral findings that
addressed father’s fitness, including that father (1) had “not used
the assistance and services provided to establish a parental
relationship with his children where he can care for them and meet
their needs on a full-time basis”; (2) “refused to take an active part
in raising these children”; (3) “struggle[s] to visit the children once
per week, [and] is unable to find the time in his week to visit more
often”; and (4) “disputes the encouragement from the professionals
on this case.”
¶ 22 We therefore examine whether clear and convincing evidence
supports these findings, and, if so, whether the findings support the
conclusion father was unfit.
1. Parental Relationship
¶ 23 We are unable to find record support for the court’s finding
that father refused assistance, declined to participate in services, or
lacked a parental relationship with the children. Rather, the
visitation supervisor testified that father consistently exhibited
strong parenting skills, was attuned to the children’s needs, and
8
appeared to have a secure, strong bond with them. And the
supervisor believed that reunification could be achieved in a
reasonable time and would provide the children the permanency
they needed. The visitation supervisor also stated that father had
“consistently remained open to feedback, suggestion, and
collaboration.”
2. Participation and Visitation
¶ 24 Nor do we agree that the record established that father didn’t
actively participate in raising the children, and to the extent the
court found that father struggled to visit them, we can’t agree that
the few missed visits were sufficient to establish by clear and
convincing evidence that father failed to provide reasonable parental
care for the children. See L.M., ¶ 17.
¶ 25 To be sure, father visited the children infrequently before the
case began and did not visit them during the first year of the case.
But the evidence showed that once he relocated to Colorado, father
actively engaged in the case, exhibited good parenting skills,
communicated regularly with the children’s therapist and other
professionals, and otherwise complied with his treatment plan.
9
¶ 26 While father only had one visit per week, the GAL opposed the
Department’s recommendations to increase visitation (seeking
termination instead) and the juvenile court declined requests to
increase visits. Despite the failed efforts to increase father’s visits,
the caseworker and the visitation supervisor testified that father’s
visits went well and that father provided for the children during the
visits.
¶ 27 And we can’t agree that father’s work schedule, which, at
times, limited his availability for visits, rendered him legally unfit.
True, as the juvenile court found, the record shows father had to
cancel some visits because he had to work and was not able to
make up all the visits due to his work schedule. But father’s
visitation supervisor attributed the difficulty in scheduling make-up
dates to the foster parents’ schedule, father’s schedule, and other
circumstances.
¶ 28 We recognize that father had a demanding work schedule, but
nothing we see in the record — and the GAL points us to nothing —
shows that the few missed visits impacted father’s treatment plan
compliance, his ability to meet the children’s reasonable needs, or
his demonstrated success in parenting the children. What’s more,
10
we imagine that most (perhaps all) working parents face similar
scheduling conflicts at one time or another. Grappling with such
conflicts doesn’t, on its own, make them legally unfit.
3. Encouragement
¶ 29 Last, we find no record support for the finding that father
“dispute[d] . . . encouragement from the professionals on this case.”
To the contrary, the children’s therapist testified that father was
receptive to information even when it was difficult to hear. And the
visitation supervisor testified that father took feedback well and
used suggestions from the children’s therapist in visitation.
¶ 30 In sum, under these circumstances, we conclude that the
juvenile court’s findings that bear on father’s fitness lack record
support and are clearly erroneous. To the extent the record
supports the juvenile court’s findings regarding the missed visits,
we can’t conclude that this evidence standing alone established
father’s unfitness by clear and convincing evidence.
D. Mother’s Parental Fitness
¶ 31 When asked about mother, the caseworker opined that
“[mother] is a fit and stable parent” and “is willing to provide” the
11
children reasonable parental care. Explaining the basis for this
opinion, the caseworker testified that
• mother “exhibited every objective in her treatment” and had
demonstrated that “she’s able to implement [these] services
in her parenting practices”;
• as evidenced through her visitations, mother can parent the
children, “meet the children’s needs,” “redirect the children”
as needed, and “appropriately engage with [the] children”;
and
• mother and the children have a bond.
¶ 32 The caseworker further opined that it was not in the children’s
best interests to terminate mother’s parental rights.
¶ 33 The caseworker was not alone in her assessment. Other
providers who had observed mother with the children testified that
(1) mother and the children are bonded and attached to each other;
(2) mother provides for the children’s physical and emotional needs;
and (3) the visits improved over the course of the case, which could
be attributed to mother’s “consistency in parenting.”
¶ 34 Again, the GAL points us to no witness who opined that
mother was unfit. Nor are we able to find one.
12
¶ 35 Still, we again look to the juvenile court’s detailed oral findings
to assess the sufficiency of its conclusion in its written order that
mother was unfit. These findings appear to center on mother’s
noncompliance with her treatment plan. Given that such
noncompliance may be considered in determining parental fitness,
see People in Interest of D.P., 181 P.3d 403, 408 (Colo. App. 2008),
we turn to these findings.
¶ 36 The purpose of a treatment plan is to help a parent overcome
the problems that led the Department to intervene. C.A.K., 652
P.2d at 610. To address the Department’s concerns here
(substance use, domestic violence, and abuse), mother’s treatment
plan required her to (1) complete substance abuse and mental
health treatment; (2) enhance and maintain family bonding and
ties; (3) maintain safe and stable housing; (4) cooperate with the
caseworker, GAL, and treating professionals; and (5) support herself
and the children financially.
¶ 37 The juvenile court found, with record support, that mother
successfully completed substance abuse treatment and mental
health treatment. For the remaining objectives, the court found
that mother was “partially successful,” but ultimately concluded
13
that the treatment plan was unsuccessful. So, we consider the
evidence related to these treatment plan components, but again
conclude that the evidence didn’t support the court’s conclusion
that mother was unfit.
1. Enhance and Maintain Family Bonding and Ties
¶ 38 The juvenile court recognized that mother had attended most
of her visits during the past year, arriving early and prepared. Yet
the court found that mother was “partially successful” in this
objective because of the following:
• The son did not go to mother for comfort as recently as
three months before the court entered its order.
• The son had bathroom accidents while visiting with mother,
but not with father.
• Both children had emotional setbacks when mother became
agitated around the bathroom accidents.
• Mother’s fourth visitation supervisor testified that the son’s
attachment with mother was ambivalent but improving.
¶ 39 But despite the court’s identified concerns, our review of the
record shows that by all accounts the treatment plan had done
what it was supposed to; that is, it improved mother’s bonding and
14
ties with the children. And a treatment plan is successful if “it
corrects or improves the original conduct or condition which led to
intervention by the state.” People in Interest of C.L.I., 710 P.2d
1183, 1185 (Colo. App. 1985) (emphasis added).
¶ 40 In this regard, the caseworker explained that mother’s visits
had been very positive, and she had shown at these visits that “she
can meet the children’s needs[,] [t]hat she can redirect the
children[, and] [t]hat she knows how to appropriately engage with
the children.” And the caseworker testified that mother had
“successfully completed [this] objective . . . of the treatment plan.”
¶ 41 As well, mother’s visitation supervisors generally described
mother implementing parenting techniques with her children that
she had learned through treatment. Importantly, the fourth
visitation supervisor (the most recent one) testified that there had
been steady improvement in the son’s relationship with mother,
explaining that the son had recently sought mother out for play
activities, was listening better to her directions, and was accepting
and seeking her affection. The visitation supervisor also said in
December 2018 that there had been no bathroom accidents for two
months.
15
¶ 42 And we were unable to find any evidence that mother became
agitated in response to bathroom accidents. To the contrary,
mother’s fourth visitation supervisor testified that mother tended to
the son’s needs when he had an accident; she did not yell, raise her
voice, or shame him; and she gave him the choice of whether to
clean himself or have her clean him.
¶ 43 Nor did the fourth visitation supervisor testify that the son had
an ambivalent attachment to mother. Instead, he stated that, in
comparison with the daughter, the son had “a degree of
ambivalence” toward mother. But as the visitation supervisor
explained in conjunction with this statement, their relationship was
improving.
¶ 44 True, the children’s therapist attributed some of the children’s
struggles to their visits with mother. The therapist, however,
admittedly never observed any visits between mother and her
children. What’s more, when the children’s therapist testified a
second time in February 2019 (shortly before the court’s
termination order), she declined to opine that termination of
mother’s parental rights was in the children’s best interests.
16
2. Maintain a Safe, Stable, and Suitable Home
¶ 45 In concluding that mother was “partially successful” in
maintaining safe, stable, and suitable housing, the juvenile court
noted that mother had a lifetime housing voucher and had secured
a suitable home for the children. Still, the court was “reluctant to
make a finding by clear and convincing evidence that [m]other ha[d]
been successful on this component” of her treatment plan because
mother had forfeited a lifetime housing voucher in the past, had
lived in the home less than four weeks, and had lived in thirteen
residences in the past five years.
¶ 46 Despite mother’s past struggles with permanent housing, the
evidence was undisputed that by the end of the termination hearing
mother had obtained the safe, stable, and suitable housing her
treatment plan required. Indeed, the caseworker confirmed the
housing was suitable, safe, and “very appropriate.” Discounting
this evidence by requiring mother to somehow overcome evidence of
her past housing struggles and show that they would not affect the
housing she had secured suggests the court shifted the burden to
mother to show compliance with the housing objective, rather than
requiring the GAL to prove that mother had not reasonably
17
complied with it. See S.N-V., 300 P.3d at 914; see also
§ 19-3-604(1)(c)(I). In this respect, the juvenile court erred.
3. Cooperation
¶ 47 The juvenile court next found that mother was “partially
compliant” in cooperating with the caseworker, GAL, and treating
professionals. It explained that mother completely engaged with
those providers aligned with her but resisted others she perceived
as not being aligned with her. The latter category, the court found,
included the Court Appointed Special Advocate (CASA), the GAL,
the children’s therapist, and mother’s second visitation supervisor.
But the evidence doesn’t support these findings.
¶ 48 To start, a CASA is not a caseworker, GAL, or treating
professional, so it is unclear whether mother’s treatment plan
objective applied to the CASA. In any event, the CASA testified that
mother had been very responsive once she engaged in her treatment
plan and that mother’s progress had been tremendous and
commendable. True, the CASA said mother had not replied to three
recent messages, but the CASA thought that was because the
termination proceeding had begun. She gave no indication that
mother resisted her or thought she was not aligned with mother.
18
¶ 49 We likewise are unable to find any testimony or evidence from
the termination hearing to support the court’s finding that mother
resisted the GAL.
¶ 50 As well, the children’s therapist testified in September 2018
that mother regularly contacted her to discuss the children’s
symptoms and progress in therapy. And in February 2019, she
testified that mother always appeared receptive to information and
continued to contact her regularly after the termination proceedings
began. She explained that when she and mother had trouble
connecting by telephone, they still communicated by text message.
The testimony also showed that, throughout the case, mother
followed through on homework the therapist assigned, used the
techniques she suggested, continued to be receptive to suggestions,
and had fruitful discussions with the therapist.
¶ 51 And, finally, mother’s second visitation supervisor testified to a
single negative interaction in one of the three visits she supervised.
The visitation supervisor testified that, at that visit, she interrupted
mother to provide therapeutic intervention — an approach mother
had never experienced in nineteen previous visits at the agency,
including two with this supervisor — without first explaining the
19
new protocol. According to the supervisor, (1) mother told her not
to interrupt and that they could talk afterward; (2) the visitation
supervisor continued to intervene; and (3) mother became verbally
disrespectful and combative, so the supervisor ended the visit. 2
Even so, this single visit occurred approximately eight months
before the order terminating parental rights and reflected an event
neither repeated nor reported again by any other visitation
supervisor or mother’s caseworker.
¶ 52 Except for this single interaction with mother’s second
visitation supervisor, the record contains no evidence that mother
did not cooperate with (or resisted working with) the professionals
in her case or that she perceived any professional as not aligned
with her. And given the evidence that mother complied with her
treatment plan and was fit, we can’t agree that a single negative
interaction with one visitation supervisor established by clear and
convincing evidence that mother was unfit.
———————————————————————
2 We recognize that another agency employee contradicted the
supervisor’s account of mother’s conduct, but it was the juvenile
court’s prerogative to resolve this evidentiary conflict.
20
4. Financially Support Herself and the Children
¶ 53 The treatment plan required mother to maintain a legal source
of income, ensure that the children’s material needs were met, and
provide proof of income to the Department.
¶ 54 The juvenile court acknowledged that mother had “been
employed for most of this case” but again found that she was only
partially successful in this treatment plan component. It explained
that mother had been unemployed for one three-week period during
the case, had many short-term periods of employment, and had
changed jobs in the past six months.
¶ 55 But, as the evidence showed, mother was employed at the
completion of the termination hearing and no evidence suggested
that her employment was temporary or otherwise unstable. The
caseworker confirmed that mother had provided proof of
employment and testified that mother had successfully complied
with this objective.
¶ 56 We therefore see nothing in the record showing that mother
was unable to financially support herself and the children or that
she failed to comply with this component of the treatment plan.
21
¶ 57 In sum, after reviewing the record, we conclude that (1) many
of the court’s findings on mother’s compliance with her treatment
plan are clearly erroneous and (2) the few findings that are
supported by the record do not support the juvenile court’s
conclusion that the GAL proved by clear and convincing evidence
that mother was unfit.
III. The Children’s Need for Permanency
¶ 58 All that said, we understand the juvenile court’s legitimate
concern for the children’s need for permanency and stability. The
children’s therapist testified that the children had struggled with
the lack of consistency, and the caseworker agreed that the children
needed stability and permanency. Indeed, by the age of four, the
children had changed homes and caregivers four times.
¶ 59 Juvenile courts must give primary consideration to the child’s
physical, mental, and emotional conditions and needs when
considering termination. § 19-3-604(3). And a determination of
parental fitness is intertwined with a determination of the child’s
best interests. K.D., 139 P.3d at 700; see also People in Interest of
E.A., 638 P.2d 278, 285 (Colo. 1981). But a parent may not be
deemed unfit simply to improve the child’s condition. E.A., 638
22
P.2d at 285; L.M., ¶ 29; accord Northland v. Starr, 581 N.W.2d 210,
213 (Iowa Ct. App. 1998) (possible destructive emotional injury of
removing four-year-old child from stepfather’s home after mother’s
death did not outweigh the long-term benefit of shifting custody to
fit father).
¶ 60 Given that the evidence didn’t support a finding that the
parents were unfit, the need for permanency alone wasn’t sufficient
to terminate the parents’ constitutional interest in the care and the
custody of their children. § 19-3-604(1)(c); L.M., ¶ 29; see also
Stanley v. Illinois, 405 U.S. 645, 657-58 (1972) (state has no
interest in separating children from custody of fit parents); cf.
People in Interest of M.D., 2014 COA 121, ¶ 43 (in contrast to
termination of parental rights, section 19-3-702(4), C.R.S. 2019,
allows a juvenile court to award permanent custody to a nonparent
without finding parental unfitness in some circumstances).
IV. Conclusion
¶ 61 The judgment is reversed, and the case is remanded to the
juvenile court.
JUDGE WEBB and JUDGE LIPINSKY concur.
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