in Interest of B.C

2018 COA 45

• Court: Colorado Court of Appeals
• Decided: March 22, 2018
• Docket: 17CA0652, People
• Status: Published

Opinion

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

1 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.”

2 ¶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.

3 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

4 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.

5 ¶ 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

6 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.

7 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

8 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

9 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

10 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

11 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.