in the Interest of H.T. —

2019 COA 72

• Court: Colorado Court of Appeals
• Decided: May 9, 2019
• Docket: 18CA1628, 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 May 9, 2019

2019COA72

No. 18CA1628, People in the Interest of H.T. — Juvenile Court — Dependency and Neglect; Appeals — Final Appealable Order

During the dispositional phase of a child dependency and

neglect proceeding, a juvenile court addresses dispositional

alternatives and adopts a treatment plan in an initial dispositional

order. A division of the court of appeals considers whether such a

dispositional order is final and appealable under section 19-1-

109(2)(c), C.R.S. 2018. The division concludes that a dispositional

order, by itself, is not final and appealable. COLORADO COURT OF APPEALS 2019COA72

Court of Appeals No. 18CA1628 Larimer County District Court No. 17JV42 Honorable Stephen J. Jouard, Judge

The People of the State of Colorado,

Petitioner-Appellant,

In the Interest of H.T., a Child,

and Concerning G.M.,

Respondent-Appellee.

APPEAL DISMISSED

Division V Opinion by JUDGE GROVE Terry and J. Jones, JJ., concur

Announced May 9, 2019

Jeannine S. Haag, City Attorney, Arthur J. Spicciati, Assistant City Attorney, Fort Collins, Colorado, for Petitioner-Appellant

Josi McCauley, Guardian Ad Litem

Chelsea Carr, Office of Respondent Parents’ Counsel, Longmont, Colorado, for Respondent-Appellee ¶1 In this dependency and neglect proceeding, the Larimer

County Department of Human Services appeals the juvenile court’s

dispositional order directing the Department to pay for father’s

offense specific treatment. Because we conclude that initial

dispositional orders, by themselves, are not final and appealable, we

dismiss the appeal.

I. Background

¶2 In February 2017, the Larimer County Department of Human

Services filed a petition in dependency or neglect after the

eight-year-old child, H.T., acted out sexually with her sister and

alleged sexual abuse by her father during a forensic interview.

¶3 On March 20, 2017, father, G.M., received a copy of the

proposed treatment plan. The plan required father to complete an

offense specific evaluation and comply with its recommendations.

Although the child had yet to be adjudicated dependent or

neglected, father submitted a “position statement” requesting the

court to order the Department to pay for the evaluation and

treatment. The Department responded that it lacked the money to

pay for the evaluation and treatment and “its policy is to not pay for

such evaluations and recommendations.”

1 ¶4 In July 2017, father stipulated to a deferred adjudication. The

stipulation stated that “the parties agree and consent that the

Court shall hold a hearing regarding financial responsibility for the

costs” of treatment.

¶5 A month after father stipulated to the deferred adjudication,

the Department filed what appears to be a modified treatment plan

incorporating recommendations from an offense specific evaluation.

Father again filed a motion requesting, in relevant part, that the

Department bear the costs for the recommended treatment. The

Department again responded that it was unable to pay for the

treatment “per Department policy.”

¶6 Five months later, the court heard evidence about father’s

need for offense specific treatment and inability to pay for it. After

the hearing, the Department requested an additional week “to file a

written statement regarding the County’s position on payment for

funds.” The Department then filed a statement that it did not have

funding to pay for father’s offense specific therapy, that it provided

father with rent money to offset the cost of the initial offense

specific evaluation, that it could not be reimbursed by the state for

2 offense specific treatment, and that no statutory authority existed

for the court to order the Department to pay for a certain service.

¶7 The court found that father was financially unable to pay for

the treatment and ordered the Department to “either pay for the

appropriate treatment or modify or eliminate the requirements from

the treatment plan so that [father] has a reasonable opportunity to

comply with the treatment plan and progress forward.” The next

day, father agreed to the entry of a formal adjudication.

¶8 The court then entered a dispositional order that father’s

initial treatment plan dated March 20, 2017 — not the amended

treatment plan — was approved and adopted as an order of the

court. The Department acknowledged the court’s order that it pay

for treatment but maintained its objection.

¶9 The Department filed a notice of appeal of the juvenile court’s

order directing it to pay for treatment. We issued an order to show

cause why the appeal should not be dismissed for lack of a final,

appealable order, noting that it did not appear to “end[] the

particular action in which it is entered, leaving nothing further for

the court pronouncing it to do in order to completely determine the

rights of the parties involved in the proceeding.” People in Interest

3 of S.M.O., 931 P.2d 572, 573 (Colo. App. 1996). In response, the

Department stated that the order was appealable and final because

it was part of the initial dispositional order and determined the

rights of the Department. Father’s response argued that the order

to pay was not a dispositional order, and, in the alternative, that

Colorado law does not permit an appeal from the dispositional order

itself. The guardian ad litem argued that the order was

interlocutory and not a final order. Based on the parties’

responses, a motions division of this court allowed the

Department’s appeal to proceed and for the issue of finality to be

considered on the merits. We now consider the Department’s

arguments and conclude that the dispositional order itself is not a

final, appealable order. Therefore, we need not address whether an

order to pay for treatment is part of a dispositional order.

¶ 10 Accordingly, we dismiss the Department’s appeal.

II. An Initial Dispositional Order, By Itself, Is Not a Final and Appealable Order

¶ 11 The Department contends that the initial dispositional order is

final and appealable under section 19-1-109(2)(c), C.R.S. 2018. We

disagree.

4 A. Standard of Review

¶ 12 When construing a statute, a court must give effect to the

intent of the General Assembly and adopt the construction that best

effectuates the purpose of the statutory scheme. People in Interest

of A.E., 994 P.2d 465, 466 (Colo. App. 1999). To determine intent, a

court should look first to the language of the statute and give words

their plain and ordinary meanings. People in Interest of G.W.R., 943

P.2d 466, 468 (Colo. App. 1997). Words or phrases should not be

added to a statute or rule, and the inclusion of certain terms in a

statute or rule implies the exclusion of others. See People in

Interest of J.J.M., 2013 COA 159, ¶ 7. In interpreting a statute, we

must also presume that the General Assembly intended a just and

reasonable result, and we must seek to avoid interpretations

leading to absurd results. People in Interest of J.L.R., 895 P.2d

1151, 1154 (Colo. App. 1995).

¶ 13 We review questions of statutory construction de novo. Smith

v. Colo. Motor Vehicle Dealer Bd., 200 P.3d 1115, 1116 (Colo. App.

2008).

5 B. The Adjudication and Disposition

¶ 14 The Children’s Code provides for a bifurcated proceeding in

dependency and neglect actions. E.O. v. People in Interest of C.O.A.,

854 P.2d 797, 800 (Colo. 1993). In the first phase, after a petition

in dependency or neglect is filed, the court determines if there are

grounds to adjudicate the child dependent or neglected. If a parent

contests the allegations in the petition, then he or she can request a

bench or jury trial where the Department must prove the

allegations by a preponderance of the evidence. §§ 19-3-202, -505,

C.R.S. 2018; People in Interest of A.M.D., 648 P.2d 625, 641 (Colo.

1982). If the Department fails to carry its burden, then the juvenile

court “shall order the petition dismissed,” vacate all orders

regarding the child, and relinquish its jurisdiction. § 19-3-505(6).

But, if the Department proves the allegations by a preponderance of

the evidence, the court will sustain the petition and adjudicate the

child dependent or neglected. § 19-3-505(7).

¶ 15 If the court sustains the petition, the second phase — the

dispositional phase — addresses dispositional alternatives and

adopts a treatment plan. § 19-3-507, C.R.S. 2018; see People in

Interest of C.L.S., 934 P.2d 851, 853 (Colo. App. 1996). The goal of

6 the dispositional hearing is to determine the proper dispositional

order serving the interests of the child and the public. § 19-1-

103(43), C.R.S. 2018; § 19-3-507(1)(a). Specifically, the court

determines the child’s legal custody, decides whether a treatment

plan can be devised to address the issues that led to the

Department’s involvement, and, if so, approves an appropriate

treatment plan. Before the dispositional hearing, the Department

must provide the court and the parties a statement about the

services offered to the family to prevent unnecessary out-of-home

placement and to facilitate reunification. § 19-3-507(1)(b). The

treatment plan is designed to correct the problems that led the

court to adjudicate the child dependent and neglected with the goal

of reunifying the family and discharging the government’s

intervention into the family. E.O., 854 P.2d at 799.

C. Adjudicatory Appeals

¶ 16 Colorado Appellate Rule 3.4(a), which governs appeals in

dependency and neglect cases, provides that a party may appeal

orders from dependency or neglect proceedings as permitted by

section 19-1-109. As relevant here, section 19-1-109(2)(c) provides

that “[a]n order decreeing a child to be neglected or dependent shall

7 be a final and appealable order after the entry of the disposition

pursuant to section 19-3-508,” C.R.S. 2018.

¶ 17 Before the enactment of 19-1-109(2)(c), case law governed

when an adjudication was final for appeal. “The adjudication of a

child as dependent or neglected, with the dispositional hearing

continued to a future date, does not become a final judgment until

a decree of disposition is entered.” E.O., 854 P.2d at 800; see also

People in Interest of F.M., 44 Colo. App. 142, 144, 609 P.2d 1123,

1124 (1980) (“The adjudication of a child as dependent and

neglected, in the absence of some sort of dispositional order is not a

final order.”).

¶ 18 So, we ask, what constitutes a decree of disposition? In People

in Interest of B.M., 738 P.2d 45, 46 (Colo. App. 1987), a division of

this court stated that “[t]he approval of a treatment plan which

addresses the placement of a minor child following an adjudication

of dependency and neglect constitutes a disposition . . . .” Other

cases have similarly held that a “decree of disposition” is the initial

dispositional order adopting a treatment plan. E.O., 854 P.2d at

800; C.L.S., 934 P.2d at 854.

8 D. C.L.S. and Section 19-1-109(2)(c)

¶ 19 What was considered appealable after an adjudication

expanded with the decision in People in Interest of C.L.S. in 1996.

There, the supreme court held that “following an adjudication of

dependency and neglect, the initial dispositional order adopting a

treatment plan constitutes a ‘decree of disposition’ and renders the

adjudication and the initial dispositional order final for purposes of

appeal.” C.L.S., 934 P.2d at 854 (emphasis added). The court

reasoned:

If we were to conclude that no appeal lies upon the entry of the initial dispositional order, the result would be that a child could be adjudicated dependent and neglected, removed from the parent, and placed outside the family home for many months if not years with neither the parent nor the child having a right to appeal. No later correction of an improper adjudication or dispositional order could undo the harm caused by the unjust disruption of the parent-child relationship.

Id.

¶ 20 Section 19-1-109(2) was amended shortly after the C.L.S.

decision. See Ch. 254, sec. 7, § 19-1-109(2), 1997 Colo. Sess. Laws

1433 (adding subsections (2)(b) and (2)(c) to section 19-1-109).

Prior to the amendment, section 19-1-109(2) simply stated that

9 “[t]he people of the state of Colorado shall have the same right to

appeal questions of law in delinquency cases as exists in criminal

cases.” § 19-1-109(2), C.R.S. 1996. It did not address termination

judgments or adjudications.

¶ 21 The amended statute now reads:

An order decreeing a child to be neglected or dependent shall be a final and appealable order after the entry of the disposition pursuant to section 19-3-508. Any appeal shall not affect the jurisdiction of the trial court to enter such further dispositional orders as the court believes to be in the best interests of the child.

§ 19-1-109(2)(c), C.R.S. 2018.

¶ 22 We construe this statute to provide that adjudicatory orders

are final and appealable but dispositional orders, by themselves, are

not. We reach this conclusion for several reasons.

¶ 23 First, the plain language of the statute establishes that only

the order “decreeing a child to be neglected or dependent” is final

and appealable. Id. As the Colorado Supreme Court recently held,

section 19-1-109(2)(c) creates a narrow exception to the general rule

of finality “by authorizing the appeal of certain orders from

dependency or neglect proceedings that would not otherwise be

10 considered ‘final.’” People in Interest of R.S., 2018 CO 31, ¶ 20.

Because section 19-1-109(2)(c) does not identify treatment plan

orders or any other dispositional orders entered pursuant to section

19-3-508 as final orders for the purposes of appeal, those types of

orders are outside the scope of the statutory exception.

¶ 24 Second, unlike adjudicatory judgments, dispositional orders

placing a child outside of the home pursuant to section 19-3-508

are temporary and subject to periodic review by the juvenile court.

People in Interest of K.A., 155 P.3d 558, 561 (Colo. App. 2006);

People in Interest of C.M., 116 P.3d 1278, 1281 (Colo. App. 2005).

Likewise, treatment plans adopted at the dispositional stage are

interlocutory and can be changed after periodic review by the court

or by motion of a party.

¶ 25 Third, given the emphasis on prompt conclusions of

dependency and neglect cases, see, e.g., §§ 19-1-102(1.6), 19-1-

123, 19-3-703, C.R.S. 2018, allowing dispositional orders to be

appealable as a matter of right seems contrary to the General

11 Assembly’s intent. 1 Allowing such appeals would interject lengthy

delays in the proceedings if a parent, the Department, a guardian

ad litem, or another named party disagreed with the dispositional

order. And, given the fluid nature of dependency and neglect cases,

the circumstances surrounding the order being appealed may be

drastically different — if not moot — by the time the merits of the

appeal are addressed.

¶ 26 We note that our holding is not in conflict with C.L.S. We

agree that a party has a right to appeal both the adjudicatory order

and the initial dispositional order. This is because how the merits

are reached on an adjudicatory order will also affect the merits of

the dispositional order. Our holding simply clarifies that an initial

dispositional order, by itself, is not a final, appealable order.

¶ 27 For all of these reasons, we dismiss the appeal.

III. Conclusion

¶ 28 The appeal is dismissed.

JUDGE TERRY and JUDGE J. JONES concur.

1We note that in extraordinary circumstances, a party that is seriously aggrieved by a dispositional order may still ask the Colorado Supreme Court to review it under C.A.R. 21. 12