People ex rel. D.G.

140 P.3d 299, 2006 Colo. App. LEXIS 696
Colorado Court of Appeals·Decided May 18, 2006·No. No. 05CA2418·Published·Cited by 35 cases

Opinion

TAUBMAN, J.

L.G. (mother) appeals from a judgment terminating the parent-child legal relationship between her and her children, D.G., M.G., and S.G. G.D. (father) appeals from the judgment terminating his parental rights as to D.G. and M.G. We reverse as to mother and affirm as to father.

We hold that absent safety concerns, a parent is entitled to face-to-face visitation, and correspondence between parents and children does not constitute visitation. We further hold that the trial court may not delegate the determination of entitlement to visitation to caseworkers, therapists, and others.

I. Mother’s Appeal

Mother contends that the trial court erred in terminating her parental rights based on its finding that the El Paso County Department of Human Services (department) made reasonable efforts to rehabilitate her and to reunite the family. Specifically, she argues that the department prevented reunification by prohibiting face-to-face visitation between mother and her children after she was released from prison and sentenced to a community corrections facility (ComCor). We agree.

In determining a parent’s unfitness for the purposes of § 19-3-604(l)(c)(II), C.R.S.2005, the trial court may consider whether reasonable efforts by child-caring agencies have been unable to rehabilitate the parent. Section 19-3-604(2)(h), C.R.S.2005.

Section 19-3-208, C.R.S.2005, sets forth the services to be provided to meet the reasonable efforts standard. See §§ 19-1-103(89), 19-3-100.5, C.R.S.2005. Pursuant to that statute, visitation services for parents with children in out-of-home placements must be provided as determined necessary and appropriate by a case assessment and the individual case plan. Section 19-3-208(1), (2)(b)(IV), C.R.S.2005; People in Interest of B.C., 122 P.3d 1067 (Colo.App.2005).

In determining whether visitation services are necessary and appropriate, the health and safety of the children are the paramount concerns. Sections 19-1-103(89), 19-3-100.5(2), C.R.S.2005; People in Interest of B.C., supra. Questions concerning the child’s health and safety are matters entrusted to the sound discretion of the trial court. People in Interest of B.C., supra. Nevertheless, the Children’s Code requires the trial court itself to make decisions regarding visitation, and it may not delegate this function to third parties. People in Interest of B.C., supra.

The record here reveals that this was the third dependency and neglect proceeding involving mother and her children. After each of the two prior dependency and neglect cases was closed, the children were returned to mother and father.

When this case was filed in June 2004, mother was incarcerated. In May 2005, she was transferred to ComCor, where it was undisputed that face-to-face visitation with the children could have taken place.

Nonetheless, during the course of this case, mother was not afforded the opportunity for any face-to-face visitation. The original treatment plan, filed September 13, 2004, [303] provided in part that mother “will participate in visitation with her children, as arranged by the Caseworker, GAL [guardian ad litem] and CASA [court appointed special advocate] and approved by the Court.” The trial court’s order of September 16, 2004 provided that the caseworker and the GAL would have the authority to set up and modify the visitation among the children, mother and father. It provided, however, that the children could not visit mother in jail. In addition, it provided that the children would have no contact with mother except as set up and approved by the caseworker and the GAL. On October 1, 2004, the department submitted an addendum to the treatment plan which provided in part that mother would have weekly, supervised, face-to-face visitation of ninety minutes. The amended treatment plan also provided that “there is to be no discussion of the case or promises regarding when the children will return home.”

In addition, the amended treatment plan provided: “Visitation plan may be modified through the agreement of the following parties or by the Department in emergency situations for child safety reasons: The Caseworker, the CASA, the GAL and any therapists involved.”

On October 26, 2004, the court entered an order approving the proposed treatment plan described above. The order noted that, according to the caseworker, the children were desperate to see their parents, that the CASA disagreed with any visitation between the children and mother, and that the GAL wanted mother to begin the treatment plan before the initiation of visitation between mother and the children. It also noted that the GAL wanted to talk with the children’s therapist before the commencement of visitation.

On December 13, 2004, the department filed a Family Services Plan, which provided in part that mother “will participate in parenting time with her children according to the visitation plan Part III B, with contact increasing as return home nears.” However, Part III B, the visitation plan, provided only for written communication between mother and her children and required that “letters must go through the children’s therapist.” Just as the amended treatment plan provided, the family services plan included a provision that “visitation plan may be modified through the agreement of the following parties or by the Department in emergency situations for child safety reasons: The Caseworker, the GAL, the CASA and any therapists involved.”

Following a permanency planning hearing in December 2004, the court entered an order on January 13, 2005, again approving the treatment plan, as amended. The court also approved the department’s permanency plan and noted that there was a substantial probability that the children would not be returned to the physical custody of the parents within six months. The order noted that mother had been sentenced to the Department of Corrections for four years and that it was anticipated that she would be back in the community and able to work on her treatment plan in the spring of 2005, but she would not have a home for some time after that. The order also noted that the department projected that the children would be adopted by December 17, 2005 and that “procedural safeguards to preserve parental rights have been applied in connection with any change in placement or any determination affecting parental visitation.”

During the hearing on the department’s motion for termination of parental rights in October 2005, much of the testimony focused on mother’s inability to visit her children during the previous five months, when she had been in ComCor. The thrust of the testimony of the caseworker, the CASA, and the children’s therapist was that allowing any visitation between mother and her children would make it more difficult for the children to adjust to their placement with the foster parents. For example, the caseworker testified that although she knew that mother had requested visitation, she did not agree that visitation should occur. She further explained that she proposed the letter writing because she felt it would help the children adjust better to their foster care placement.

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People ex rel. D.G., 140 P.3d 299, 2006 Colo. App. LEXIS 696 (Colo. Ct. App. 2006).

140 P.3d 299 (People ex rel. D.G.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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