Original Proceeding Pursuant to C.A.R. 21 Arapahoe County
District Court Case No. 20JV540 Honorable Don Toussaint,
Judge
1
Rule
Made Absolute
Attorneys for Petitioner:
Ronald
A. Carl, Arapahoe County Attorney
Kristi
Erickson, Assistant County Attorney Aurora, Colorado
2
Rebecca M. Taylor, Assistant County Attorney
Littleton, Colorado
Attorney for Child:
Alison
Bettenberg, Guardian ad litem
Centennial, Colorado
Attorneys for Respondent G.L.A.:
Kapoor
Law + Policy Ruchi Kapoor
Denver, Colorado
Attorney for Amicus Curiae Office of Respondent Parents'
Counsel:
Melanie Jordan
No
appearance on behalf of Respondent D.S.
JUSTICE HOOD delivered the Opinion of the Court, in which
CHIEF JUSTICE BOATRIGHT, JUSTICE MÁRQUEZ, JUSTICE
GABRIEL, JUSTICE HART, JUSTICE SAMOUR, and JUSTICE
BERKENKOTTER joined.
3
OPINION
HOOD,
JUSTICE
¶1
In this original proceeding, we consider whether the state
satisfies its burden of proving that an appropriate treatment
plan can't be devised for a respondent parent in a
dependency and neglect case when the state establishes by a
preponderance of evidence a single incident resulting in
serious bodily injury to the child. We conclude that it does.
I.
Facts and Procedural History
¶2
The following factual background is based on the parties'
stipulated motion for relief and the district court's
findings of fact following the dispositional hearing on that
motion.
¶3
G.L.A. ("Mother") brought L.S., who was one year
old at the time, to the hospital for medical treatment.
Hospital staff conducted a skeletal survey, which revealed
that L.S. had a broken tibia; two additional fractures that
were healing; severe bruising and swelling to his groin; and
significant bruising on his back, face, and genitals. The
hospital sent a referral to the Arapahoe County Department of
Human Services, and the state filed a petition for dependent
or neglected children in district court, alleging that Mother
had physically abused L.S.
¶4
The district court adjudicated L.S. dependent or neglected.
About a month later, the court found that an appropriate
treatment plan couldn't be devised for Mother based on
L.S.'s serious bodily injury("SBI"), and Mother
appealed.
4
¶5
Following the appellate court's dismissal of the case for
lack of a final order, People in Int. of L.R.S., No.
21CA432, ¶ 1 (Nov. 18, 2021), the parties filed a
stipulated motion for relief. In the motion, Mother admitted
that L.S. was dependent or neglected because his environment
was injurious to his welfare, and she waived holding an
adjudicatory hearing to determine a factual basis for her
admission. The parties sought a dispositional hearing to
determine whether an appropriate treatment plan could be
devised.
¶6
At the end of the state's presentation of evidence,
Mother moved for directed verdict, asserting that the state
had "failed . . . to prove by clear and convincing
evidence the existence of a single incident of SBI. There has
been no evidence regarding an appropriate treatment plan
whatsoever." The parties debated whether proving an SBI
alone could support a finding that no appropriate treatment
plan could be devised.
¶7
The district court concluded that although the state had
presented evidence that L.S. was adjudicated dependent or
neglected and that he had suffered an SBI, the state
"did not prove by clear and convincing evidence that an
appropriate treatment plan cannot be devised to address the
unfitness of Mother . . . [and,] [s]tanding alone, proof of
serious bodily injury is not evidence that no treatment plan
can be devised." The court then granted Mother's
request for directed verdict.
5
¶8
The state petitioned this court for a rule to show cause,
which we issued.[1]
II.
Discussion
¶9
We first explain this court's original jurisdiction and
our decision to exercise it here. We then briefly discuss the
standards that guide our review in this case and the
framework for dependency and neglect proceedings. Finally, we
interpret the statutory provisions at the heart of this
dispute and conclude that the district court misinterpreted
the law.
A.
Jurisdiction
¶10
Whether to exercise our original jurisdiction under C.A.R. 21
is a matter wholly within our discretion. C.A.R. 21(a)(1).
But C.A.R. 21 provides "an extraordinary remedy that is
limited in both purpose and availability." People v.
Lucy, 2020 CO 68, ¶ 11, 467 P.3d 332, 335 (quoting
People v. Rosas, 2020 CO 22, ¶ 19, 459 P.3d
540, 545). "Thus, in the past, we have exercised our
original jurisdiction
6
in limited circumstances, such as 'when an appellate
remedy would be inadequate, when a party may otherwise suffer
irreparable harm, or when a petition raises issues of
significant public importance that we have not yet
considered.'" People v. Rainey, 2021 CO 53,
¶ 9, 488 P.3d 1081, 1084 (quoting Lucy, ¶
11, 467 P.3d at 335). ¶11 This petition presents all
three grounds for exercising our jurisdiction. First, there
is not a final order that could be appealed. See People
in Int. of E.M., L.M. & E.J.M., 2016 COA 38M,
¶¶ 34-35, 417 P.3d 843, 850 (concluding that where
the district court found that no appropriate treatment plan
could be devised for the parent and didn't otherwise
enter a disposition or terminate the parent-child legal
relationship, there was no appealable order for the appellate
court to review), aff'd sub nom. People in Int. of
L.M., 2018 CO 34, 416 P.3d 875. Second, allowing the
case to proceed on the district court's order will
subject L.S. to an extended period of uncertainty as the
court and the parties attempt to devise and implement a
treatment plan for Mother. And given the history of abuse
presented at the dispositional hearing, as well as the
current SBI evidence, L.S. may suffer irreparable harm if we
decline to intervene. Finally, this court hasn't
previously discussed the evidentiary burden required at a
dispositional hearing when the state asserts that an
appropriate treatment plan can't be devised for a parent
due to the parent's unfitness. See In re Marriage of
Wollert, 2020 CO 47, ¶ 19, 464 P.3d 703, 709
7
(explaining that we may exercise original jurisdiction where
"we deem this a rare opportunity to construe" a
statute).
¶12
Therefore, we exercise our original jurisdiction and proceed
to the merits of the petition.
B.
Standard of Review
¶13
We review de novo a district court's ruling on a motion
for directed verdict. Reigel v. SavaSeniorCare
L.L.C., 292 P.3d 977, 982 (Colo.App. 2011). Even so,
directed verdicts are disfavored; we "must consider all
the facts in the light most favorable to the nonmoving party
and determine whether a reasonable jury could have found in
favor of the nonmoving party." Scholle v.
Ehrichs, 2022 COA 87M, ¶ 21, 519 P.3d 1093, 1101
(quoting State Farm Mut. Auto. Ins. Co. v. Goddard,
2021 COA 15, ¶ 26, 484 P.3d 765, 771).
¶14
Resolution of the motion for directed verdict required the
district court to interpret several statutes, a legal
question that we also review de novo. See Reigel,
292 P.3d at 982 (explaining that because statutory
interpretation presents a question of law, "we 'may
make an independent determination of [the] legal
question'" (alteration in original) (quoting
Omedelena v. Denver Options, Inc., 60 P.3d 717, 722
(Colo.App. 2002))).
¶15
Our primary goal in interpreting statutes is to ascertain and
give effect to the legislature's intent. People in
Int. of J.G., 2016 CO 39, ¶ 13, 370 P.3d 1151,
1157.
8
To do so, we begin with the language of the statute, reading
the words and phrases in context and according to their plain
and ordinary meaning. Bostelman v. People, 162 P.3d
686, 690 (Colo. 2007). We construe provisions of the
Children's Code liberally, favoring interpretations that
produce a harmonious and consistent reading of the scheme as
a whole and avoiding technical readings that would disregard
the child's best interests or the legislative intent.
L.M., ¶ 13, 416 P.3d at 879;
Bostelman, 162 P.3d at 690; see also §
19-1-102(2), C.R.S. (2022) ("[T]he provisions of this
title shall be liberally construed to serve the welfare of
children and the best interests of society.").
C.
Dependency and Neglect Proceedings Overview
¶16
Dependency and neglect proceedings are governed by article
three of the Children's Code. §§ 19-3-100.5 to
-905, C.R.S. (2022). These proceedings are "aimed at
protecting children from emotional and physical harm while at
the same time seeking to repair and maintain family
ties." L.L. v. People, 10 P.3d 1271, 1275
(Colo. 2000). In striving to balance these objectives, the
legislature separated the proceedings into phases. People
in Int. of D.R.W., 91 P.3d 453, 456 (Colo.App. 2004).
¶17
The first phase is adjudication. § 19-3-505(7)(a),
C.R.S. (2022). "The purpose of adjudication is to
determine whether State intervention is necessary to serve
the best interests of the children, but to do so in a manner
that protects parental
9
rights." J.G., ¶ 24, 370 P.3d at 1159.
Until the court has entered an adjudication order, "the
state has limited authority to take action to protect a
child." L.L., 10 P.3d at 1276. If the state
proves the allegations in the petition by a preponderance of
the evidence, the court "shall make an order of
adjudication setting forth whether the child is neglected or
dependent." § 19-3-505(7)(a). ¶18 Once the
court enters an adjudication order, it must hold a
dispositional hearing to determine "the proper
disposition [to] best serv[e] the interests of the child and
the public." § 19-3-507(1)(a), C.R.S. (2022);
see also § 19-1-103(58), C.R.S. (2022); §
19-3-505(7). The dispositional hearing should be held the
same day as the adjudicatory hearing whenever possible.
§ 19-3-508(1), C.R.S. (2022).
¶19
During this dispositional phase, the court determines where
to place the child and whether a treatment plan can be
devised for the parents. Id. The goal is to protect
the child while striving to reunify the family. See
generally § 19-3-508; L.M., ¶ 24, 416
P.3d at 880-81; K.D. v. People, 139 P.3d 695, 699
(Colo. 2006). At the conclusion of this initial dispositional
hearing, the court will enter a "dispositional
decree" that includes both child-placement and
parental-treatment-plan orders; however, that decree may be
reviewed and modified at any point while the case remains
open. § 19-3-508(7); § 19-3-702, C.R.S. (2022);
L.L., 10 P.3d at 1277. ¶20 The legislature has
also recognized that sometimes an appropriate treatment plan
can't be devised. § 19-3-508(1)(e)(I);
K.D., 139 P.3d at 700; People in Int. of
Z.P.S., 2016 COA 20, ¶ 16, 369 P.3d 814, 817.
10
For example, and as relevant here, section 19-3-508(1)(e)(I)
permits a court to find that an appropriate treatment plan
can't be devised "due to the unfitness of the
parents as set forth in section 19-3-604(1)(b)[, C.R.S.
(2022)]." Section 19-3-604(1)(b) lists "[a] single
incident resulting in serious bodily injury or disfigurement
of the child" as one of the bases for parental
unfitness. § 19-3-604(1)(b)(II). Under such
circumstances, a court's dispositional decree may include
a finding that an appropriate treatment plan can't be
devised, thereby "avoiding the futility of proceeding
with a treatment plan doomed to failure."
D.R.W., 91 P.3d at 457.
¶21
After this initial dispositional hearing, and regardless of
whether parents are proceeding under a treatment plan or not,
the court "shall conduct a permanency planning
hearing," in order "to provide stable, permanent
homes for every child or youth placed out of the home, in as
short a time as possible." § 19-3-702(1)(a);
see also § 19-3-508(1)(e)(I).
¶22
Although not immediately at issue here, it is helpful to
understand that dependency and neglect proceedings can
culminate in termination. If it becomes apparent that
"maintaining the family unit is not feasible, . . . the
court may order termination of the parent-child
relationship." L.L., 10 P.3d at 1275;
see § 19-3-602(1), C.R.S. (2022); §
19-3-604. Termination proceedings are governed by separate
rules with heightened burdens. See §§
19-3-601 to -612, C.R.S. (2022)
11
("termination statutes"); see also §
19-3-508(1), (3) (excluding termination from those
provisions).
¶23
With this framework in mind, we turn to the issues presented
here.
D.
Application
¶24
At the dispositional hearing following the court's
adjudication order, the state introduced undisputed evidence
that L.S. had suffered an SBI. The state argued that, based
on sections 19-3-508 and 19-3-604, the incident of SBI
rendered Mother unfit and an appropriate treatment plan
couldn't be devised. Mother moved for directed verdict,
asserting that the state had failed to show by clear and
convincing evidence that a treatment plan couldn't be
devised to address her unfitness, as required under
section 19-3-604.
¶25
The district court agreed with Mother. It found that an SBI
alone is insufficient to forgo devising a treatment plan and
that the state must show by clear and convincing evidence
that no treatment plan could address Mother's unfitness.
In doing so, the district court raised the burden of proof
and added an element not required by the statutes' plain
language.
¶26
The district court relied primarily on People in Interest
of T.W., 797 P.2d 821 (Colo.App. 1990). Although that
decision preceded the current Children's Code and
includes some language that the statutes no longer contain,
it also recognized that a treatment plan is not required in
every case. Id. at 822 ("If a
treatment plan
12
is to be part of this disposition, it must be one
'reasonably calculated to render the particular
respondent fit to provide adequate parenting to the child
within a reasonable time and which is relative to the
child's needs.'" (emphasis added) (quoting
§ 19-3-111(1)(e)(II), 8B C.R.S. (1986))). The
T.W. court concluded that, "[t]o require a
trial court to ignore [the state's evidence of] a
parent's irremediable conduct at a dispositional hearing
and devise a treatment plan that is doomed to failure would
both contravene the purposes of the Children's Code and
elevate form over substance." Id. Thus, a trial
court could conclude that an appropriate treatment plan
can't be devised according to the bases in subsection
604(1)(b). Id. The same rule applies today.
¶27
Because a decision regarding a parent's treatment plan
occurs as part of the dispositional proceedings, the
governing statute is section 19-3-508. The relevant provision
provides that "the court may find that an appropriate
treatment plan cannot be devised . . . due to the unfitness
of the parents as set forth in section
19-3-604(1)(b)." § 19-3-508(1)(e)(I) (emphasis
added).
¶28
By its own terms, section 19-3-604 applies only to
termination proceedings: "The court may order a
termination of the parent-child legal relationship upon the
finding by clear and convincing evidence . . . [t]hat the
child is adjudicated dependent or neglected and the court
finds that an appropriate treatment plan cannot be devised to
address the unfitness of the parent or parents."
13
§ 19-3-604(1)(b). The next sentence of that provision,
however, provides the bases necessary to support a finding of
unfitness: "In making such a determination, the court
shall find one of the following [seven bases] as the basis
for unfitness." Id. This is the portion
referenced in subsection 508 that "set[s] forth"
the bases for unfitness and includes as one of those bases
"[a] single incident resulting in serious bodily injury
or disfigurement of the child." §
19-3-604(1)(b)(II).
¶29
Reading the plain language of subsections 508(1)(e)(I) and
604(1)(b)(II) together, we conclude that the legislature
intended to allow trial courts to find that a parent is unfit
and no appropriate treatment plan can be devised if the state
shows that the child has suffered a "single incident
resulting in [SBI]."[2]
14
§ 19-3-604(1)(b)(II). The state need not also
show that the parent caused the SBI or that no treatment plan
can be devised to address the parent's conduct that
caused the SBI. See J.G., ¶¶ 23-31,
370 P.3d at 1159-61 (concluding that the court of
appeals' statutory interpretation erroneously added an
element that the statute didn't require and thereby
ignored the plain language of the statue). SBI alone
suffices.
¶30
Thus, in light of the uncontested evidence that L.S. had
sustained an SBI, the district court erred in granting
Mother's motion for directed verdict. On remand, the
district court may conclude, based on the SBI evidence alone,
that an appropriate treatment plan can't be devised, or
it may hear further argument and accept additional evidence
before deciding whether a treatment plan is possible.
See § 19-3-508(1)(e)(I) (explaining that
"the court may find that an appropriate
treatment plan cannot be devised," but not requiring
such a finding (emphasis added)).
15
¶31
Although the SBI evidence is uncontested here, we nonetheless
address the burden of proof required to support a
no-treatment-plan finding. The district court, relying on
outdated language in T.W. that the legislature
didn't include in the current Children's Code,
concluded that the state's burden is clear and convincing
evidence. See T.W., 797 P.2d at 822 ("[C]lear
and convincing evidence of irremediable conduct is no less
relevant a consideration at a dispositional hearing following
a dependency and neglect adjudication than it would be at a
termination hearing."). But the requisite burden of
proof "turns in large part on both the nature of the
threatened private interest and the permanency of the
threatened loss," L.L., 10 P.3d at 1276, and
neither the statute nor our case law supports such a high
burden of proof for any stage of proceedings other than
termination.
¶32
The legislature expressly provided a clear and convincing
evidence burden only in the termination statutes.
Compare § 19-3-604(1) (requiring that a
termination order be entered only "upon the finding by
clear and convincing evidence" of one of the enumerated
criteria), with § 19-3-505(1), (6), (7)(a)
(requiring that a court's order of adjudication be
entered where the allegations in the petition are supported
by a preponderance of the evidence), and §
19-3-508(2) (requiring proof by a preponderance of the
evidence that removing a child from the legal custody of a
parent is in the child's best interests). And courts in
this state
16
have consistently upheld a lesser burden-preponderance of the
evidence-in all adjudication and disposition proceedings
other than termination. See J.G., ¶ 30, 370
P.3d at 1160 ("[T]he burden of proof is higher and the
State must prove additional criteria when terminating
parental rights as opposed to determining whether a child is
dependent or neglected."); L.L., 10 P.3d at
1276 ("[W]hile a standard of clear and convincing
evidence is constitutionally mandated in a proceeding for
terminating the parent-child relationship, a standard of a
preponderance of the evidence is sufficient for dependency
and neglect proceedings."); People in Int. of A. M.
D., 648 P.2d 625, 640 (Colo. 1982) ("[T]he
application of the preponderance of the evidence standard for
all purposes in the underlying dependency or neglect
determination comports with due process of law.");
Z.P.S., ¶ 10, 369 P.3d at 816-17 (providing
that the "preponderance of the evidence standard applies
to both the adjudicatory and dispositional stages of a
dependency and neglect proceeding" (quoting People
in Int. of L.B., 254 P.3d 1203, 1208 (Colo.App. 2011))).
¶33
These different burdens exist because termination is the only
disposition that permanently deprives parents of their
fundamental liberty interests in caring for their children.
See L.L., 10 P.3d at 1275-77. All other dispositions
may be subsequently modified if there is a substantial change
in circumstances. Id. at 1277. And so even where a
decision may eventually lead to the termination of parental
17
rights, the initial dispositional hearing decision need be
supported only by a preponderance of the evidence. See A.
M. D., 648 P.2d at 641 n.14. Should the case proceed to
termination, the state will be required to prove by clear and
convincing evidence that termination is in the child's
best interests, including the existence of any relevant
orders entered or evidence presented during prior proceedings
under the preponderance of the evidence standard. See
id.
¶34
Therefore, we conclude the district court erred by imposing a
clear and convincing burden of proof on the state at the
dispositional hearing.
III.
Conclusion
¶35
Because there is no dispute that L.S. sustained an SBI, we
reverse the district court's order granting Mother's
motion for directed verdict, make the rule absolute, and
remand the case to the district court for further
proceedings.
18
---------
Notes:
[1] The state's petition presented the
following issues:
1. Whether the juvenile court erred by requiring
additional evidence that no treatment plan can be devised to
address a parent's unfitness beyond what is specifically
enumerated in sections 19-1-508(1)(e) and 19-3-604(1)(b)(II),
C.R.S. (2022).
2. Whether the juvenile court erred in requiring clear
and convincing evidence to establish that no treatment plan
can be devised at a dispositional proceeding in a dependency
and neglect action instead of preponderance of the
evidence.
[2] We are not persuaded by Mother's
argument that this interpretation of state statutes runs
afoul of the Adoption and Safe Families Act
("ASFA"), 42 U.S.C. §§ 670-679c. First,
ASFA is a funding bill that provides criteria by which a
state must comply to receive federal funding; it does not
create a private, enforceable right for parents or children.
Suter v. Artist M., 503 U.S. 347, 358-64 (1992);
see 42 U.S.C. § 1320a-2 ("[T]his section
is not intended to alter the holding in Suter v. Artist
M. that section 671(a)(15) of this title is not
enforceable in a private right of action."). Second,
states are given broad discretion to determine how best to
comply with the Act's provisions. Suter, 503
U.S. at 360-63. ASFA requires state plans to make reasonable
efforts to preserve and reunify the family before removing
the child from the home, if possible, and to make it possible
for the child to safely return, but all reasonable efforts
shall place the child's health and safety as the
paramount concern. 42 U.S.C. § 671(a)(15)(A)-(B). Such
reasonable efforts aren't required if the parent has
subjected the child to aggravated circumstances, as defined
by state law. 42 U.S.C. § 671(a)(15)(D)(i). Although our
legislature didn't use the same language as
ASFA-"aggravated circumstances"-it defined
specific, limited situations where a court may determine that
reasonable efforts to preserve the family would be futile.
See § 19-3-604(1)(b). This provision complies
with ASFA's requirements. See § 19-3-100.5,
C.R.S. (2022); § 19-1-103(114), C.R.S. (2022) (defining
"reasonable efforts" by explaining that the
child's "health and safety are the paramount
concern" and should not be "construed to conflict
with federal law"); see also Suter, 503 U.S. at
361-63 ("[Federal] regulations provide that to meet the
requirements of § 671(a)(15) the case plan for each
child must 'include a description of the services offered
and the services provided to prevent removal of the child
from the home and to reunify the family.' 45 CFR §
1356.21(d)(4) (1991). . . . [And] [t]he term 'reasonable
efforts' in this context is at least as plausibly read to
impose only a rather generalized duty on the State . . .
.").