in Interest of IJO

2019 COA 151

• Court: Colorado Court of Appeals
• Decided: October 3, 2019
• Docket: 19CA0244, 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 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

1 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.

3 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

4 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

5 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

6 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

7 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

8 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.

9 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.

10 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.

11 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.

12 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.