People ex rel. E.D.

221 P.3d 65, 2009 Colo. App. LEXIS 1865
Colorado Court of Appeals·Decided October 29, 2009·No. No. 09CA0576·Published·Cited by 3 cases

Opinion

Opinion by

Judge FURMAN.

In this dependency and neglect case, the children, through their guardian ad litem, appeal from an order dismissing the Arapahoe County Department of Human Services (the department), and keeping the case open under the supervision of the guardian. We affirm in part, reverse in part, and remand for the court to close the dependency and neglect case and terminate jurisdiction.

I. The Permanent Order

The department became involved with the family after receiving information that one of the children needed specialized mental health treatment. The parents were separated. The children remained in father's custody, while the department supervised visits with their mother and worked with both parents to ensure adequate therapy and services were provided.

The department subsequently moved to allocate parental responsibilities, alleging the children "have done very well in [father's] care" and mother "maintains consistent contact with the children."

At the hearing on the allocation motion, the department moved to be dismissed from the case, stating, "[We have parents that are cooperative, we have parents that are doing what is requested, we have parents that love the children very much, they're following, they're following through [with] what is requested. They have the medical care, they have the therapeutic care, we don't have protective issues." The department stated that it was "providing no services" and that in-home services were being provided to the family through Tri-County Health.

The guardian ad litem objected to the department's allocation and dismissal motions, arguing they were premature because "serious issues" were "going on" in the case, the children had special needs, and the oldest child was not doing well. The guardian also stated that the previous Friday mother had left one of the children in the car while picking up another child at school, resulting in bystanders calling the police. While the other parties requested to proceed on an offer of proof, the guardian sought to have the oldest child's special education teacher testify that she "has numerous concerns about [the oldest child's] behavior and things going [on] in the school, and the parents' reactions to those concerns."

The court accepted the guardian's statements as an offer of proof in lieu of testimony, agreed with the department, and entered an order permanently allocating parental responsibilities of the children jointly to father and mother, with the children residing the majority of the time with father, who was designated as the primary caretaker. See § 19-1-104(6), C.R.S.2009 (in dependency and neglect case, the juvenile court may enter an order allocating parental responsibilities). The court ordered father "to file this case as a Domestic Relations case and obtain a Domestic Relations case number for any future proceedings regarding the children." The court also granted the department's motion to be dismissed from the case, but ordered "the case remain open under the supervision of the [guardian ad litem]." The case was then referred back to the magistrate's division "for any further proceedings that may be necessary."

The guardian ad litem challenges the court's dismissal order, and argues the court erred in proceeding with an offer of proof at the allocation of parental rights hearing. We first consider the offer of proof issue.

II. Offer of Proof

The guardian ad litem contends the court erred in proceeding with an offer of proof instead of hearing testimony from the oldest child's special education teacher at the allocation of parental rights hearing. However, the court did not restrict the guardian's extensive offer of proof, and the guardian does not state what additional evidence the teacher would have provided apart from that proof. Therefore, because the court had suf[68]*68ficient information to evaluate the department's motions, an evidentiary hearing was not necessary. See People v. Groves, 854 P.2d 1310, 1313 (Colo.App.1992) (trial court did not abuse its discretion by giving each party the opportunity to present all of the evidence pertinent to the pretrial motion in offers of proof). Accordingly, we conclude the court did not err in proceeding as it did.

III. Dismissing the Department

In this issue of first impression, the guardian ad litem contends the court committed reversible error in dismissing the department from the case because, according to the guardian, the department is required to provide reasonable efforts, devise a case plan and a treatment plan, and either provide, contract for the provision of, or make referrals for services. We disagree.

"Parties may be dropped ... by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just." CRCP. Rule 21. The decision to drop parties will not be reversed on appeal absent an abuse of discretion. Cobbin v. City & County of Denver, 735 P.2d 214, 217 (Colo.App.1987). To determine whether the court abused its discretion, we determine whether evidence supports the court's decision. Id. at 217-18; see C.R.J.P. 1 ("[pjroceedings [under the Children's Code] are civil in nature and where not governed by these rules or the procedures set forth in Title 19 ... shall be conducted according to the Colorado Rules of Civil Procedure").

We conclude evidence supports the court's dismissal of the department from the dependency and neglect case because (1) the department stated there were no child protective issues remaining in the case; (2) the department was not providing any services for the family; and (8) the guardian ad litem did not object to the children's remaining in their parents' custody; did not argue the parents had not complied with their treatment plans; and did not specify additional services the department could or would provide, that were not already being provided by therapists and school professionals.

Moreover, there was no indication in the record that school professionals would not fulfill their duty to report to the appropriate authorities any child protection concerns. See § 19-8-304(1)-(2), C.R.98.2009 (school official or employee "who has reasonable cause to know or suspect that a child has been subjected to abuse or neglect ... shall immediately ... cause a report to be made of such fact to the county department or local law enforcement agency"); § 19-8-812(1), C.R.S. 2009 ("[the county department or local law enforcement agency receiving a report under section 19-8-804 ... shall inform, within seventy-two hours, the appropriate juvenile court or district court with juvenile jurisdiction that the child appears to be within the court's jurisdiction").

IV. Supervision by Guardian Ad Litem

Because we conclude the court did not err in dismissing the department from the case, we now turn to the question of whether it was proper for the court to order the case to remain open under the supervision of the guardian ad litem, and conclude it was not.

The Colorado Children's Code provides statutory authority for a district court with juvenile jurisdiction to order a case to remain open under protective supervision.

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People ex rel. E.D., 221 P.3d 65, 2009 Colo. App. LEXIS 1865 (Colo. Ct. App. 2009).

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