People ex rel. N.A.T.

134 P.3d 535, 2006 Colo. App. LEXIS 294

• Court: Colorado Court of Appeals
• Decided: March 9, 2006
• Docket: No. 05CA1512
• Status: Published

Opinions

VOGT, J.

T.T.C. (mother) appeals from a judgment terminating the parent-child legal relationship between her and her children N.A.T. and J.M.T., Jr., and from a judgment allocating permanent parental responsibilities of her child D.B.G. to the child’s father, R.J.G. We affirm.

I.

Mother contends that reversal is required because she was not advised of her right to a hearing before a judge. We disagree.

At the first appearance in a dependency or neglect proceeding, a parent must be fully advised of his or her legal rights. Section 19-3-202(1), C.R.S.2005; C.R.J.P. 4.2(a); see People in Interest of A.M.D., 648 P.2d 625 (Colo.1982). If the parent’s first appearance is before a magistrate, the magistrate must also advise the parent that he or she has the right to a hearing before a judge. Section 19-1-108(3)(a), C.R.S.2005; In re R.G.B., 98 P.3d 958 (Colo.App.2004).

Waiver of the formal advisement pursuant to § 19-3-202(1) includes a waiver of the § 19-l-108(3)(a) advisement of the right to be heard by a judge. People in Interest of T.E.M., 124 P.3d 905 (Colo.App.2005).

Here, the transcript of the hearing during which mother first appeared and the minute order of that hearing show that mother waived her right to formal advisement. Accordingly, we reject mother’s contention.

II.

Mother contends that the juvenile court erred in finding that it was in D.B.G.’s best interests to allocate permanent parental responsibilities to D.B.G.’s father. However, mother did not object to allocation of permanent parental responsibilities to father during the hearing before the juvenile court. Rather, she agreed that that disposition was in the child’s best interests. Accordingly, we will not consider her contention on appeal. See People in Interest of C.T., 746 P.2d 56 (Colo.App.1987).

III.

Mother next contends that the evidence was insufficient to support the criteria for termination of her parent-child legal relationship with N.A.T. and J.M.T., Jr. She asserts that she completed the significant portions of the treatment plan and that she would be available to parent the children within six months. We disagree.

To terminate the parent-child legal relationship pursuant to § 19 — 3—604(l)(c), C.R.S.2005, clear and convincing evidence must establish that the child has been adjudicated dependent or neglected; that an appropriate treatment plan, approved by the trial court, has not been complied with by the parent or has not been successful in rehabilitating the parent; that the parent is unfit; and that the parent’s conduct or condition is unlikely to change within a reasonable time. See People in Interest of A.M.D., supra.

The parent is responsible for assuring compliance with and success of a treatment plan. People in Interest of A.H., 736 P.2d 425 (Colo.App.1987). Although absolute compliance is not required, partial compliance, or even substantial compliance, may not result in a successful plan that renders the parent fit. People in Interest of D.L.C., 70 P.3d 584 (Colo.App.2003); see People in Interest of C.A.K., 652 P.2d 603 (Colo.1982).

In determining whether a parent can become fit within a reasonable time, a trial court may consider whether any change has occurred during the pendency of the dependency or neglect proceeding, the parent’s social history, and the chronic or long-term nature of the parent’s conduct or condition. People in Interest of D.L.C., supra. A reasonable time is not an indefinite time, and it must be determined by considering the physical, mental, and emotional conditions and needs of the child. People in Interest of D.L.C., supra; see § 19-3-604(3), C.R.S. 2005.

The People have the burden to establish the criteria for termination. People in Interest of A.N.W., 976 P.2d 365 (Colo.App.1999). The credibility of the witnesses and the sufficiency, probative effect, and weight of the evidence, as well as the inferences and conclusions to be drawn from it, are within the discretion of the trial court. Thus, a trial court’s findings and conclusions will not be disturbed on review if the record supports them. People in Interest of C.A.K., supra.

Intervention here was necessitated when N.A.T. was hospitalized at the age of two months with bronchitis and appeared malnourished. Two-year-old J.M.T., Jr. was also underweight. In addition, mother had arrived at the hospital smelling of alcohol, appeared to be under the influence of substances, and she admitted that she drank alcohol during her pregnancy with N.A.T.

To address these concerns, the treatment plan required that mother (1) cooperate with the Denver Department of Human Services and all treatment providers; (2) maintain stable housing and employment; (3) complete parenting classes or individual parenting instruction; (4) participate in a mental health evaluation, if deemed necessary, and follow any recommendations; (5) complete a substance abuse evaluation and follow any recommendations; and (6) ensure that the children’s physical, developmental, medical, and educational needs were met upon their return to her custody.

Mother partially complied with the treatment plan. However, she did not follow through on a referral for a mental health evaluation, obtain employment, or cooperate with her caseworker or treatment providers. Further, mother repeatedly tested positive for cocaine and was discharged unsuccessfully from outpatient treatment programs. Although she completed a three-week residential substance abuse treatment program, she did not comply with the recommended outpatient treatment after her release and she relapsed within weeks.

The caseworker testified that, despite having completed parenting classes, mother was unable to attend to the children’s needs during her visits with them. The children had special developmental and educational needs resulting from prenatal alcohol exposure and malnourishment. The child protection worker testified that they needed stable permanent homes, with nurturing caregivers, as soon as possible.

Relying on this evidence, the juvenile court found that mother did not successfully comply with the treatment plan; that mother’s continuing use of cocaine interfered with her ability to provide reasonable parental care and rendered her unfit; and that, in light of her lack of progress during the pendency of the proceeding, she would not likely change within a reasonable time. These findings have support in the record and therefore will not be disturbed on review. See People in Interest of C.A.K., supra.

IV.

Mother further contends that the juvenile court erred in failing to consider less drastic alternatives to termination. Again, we disagree.

Implicit in the statutory scheme for termination set forth in § 19 — 3—604(l)(c) is a requirement that the trial court consider and eliminate less drastic alternatives before entering an order of termination. People in Interest of M.M., 726 P.2d 1108 (Colo.1986). In so doing, the trial court must give primary consideration to the physical, mental, and emotional conditions and needs of the child. People in Interest of D.B-J., 89 P.3d 530 (Colo.App.2004); see § 19-3-604(3).

Mother identified her cousin as a possible placement alternative for the children a few days before the termination hearing. The caseworker made an appointment to discuss the matter with the cousin, but the cousin failed to attend. Likewise, the cousin did not appear at the termination hearing or otherwise indicate that she was willing to provide permanent care for the children.

The maternal grandmother was considered as a placement alternative early in the proceeding. However, a home study rejected placement of the children with her because of inadequate housing. When she was contacted later about having another home study, she responded that she still had “several adults living in the home and ... [wasn’t] able to be a placement option for the kids.”

A paternal cousin had also been identified as a placement option. However, when contacted, the cousin indicated that she would not be able to care for the children.

Thus, the juvenile court’s finding that there were no viable alternatives to termination is supported by the evidence. Accordingly, that finding may not be disturbed on review. See People in Interest of C.A.K., supra.

V.

Finally, mother asserts that the time limitations in C.A.R. 3.4 are “too stringent to allow counsel to properly prepare an opening brief on her behalf,” and that she has been denied her right to due process by the absence of a proper transcript to aid in preparation of her arguments. She also requests leave to amend or expand her petition on appeal within a reasonable time after the official transcript becomes available. In support of this contention, mother states:

In order to determine if Mother was properly advised and therefore granted a fundamentally fair proceeding, counsel requires a copy of the transcript of the hearings held February 9, 2004 and February 18, 2004. These hearings were digitally recorded, and counsel was unable to obtain transcripts prior to preparation of the within petition.

Further, counsel requires a copy of the transcript of the termination hearing in order to verify that her notes taken during trial were adequate. Counsel had contacted both court reporters immediately after the hearing to request a transcript so that it would be available prior to the date the petition was due to be filed. Said transcripts were not ready as promised. Counsel believes that it is impossible to prepare an adequate opening brief without proper transcripts available.

The People point out, in their response, that the applicable rules permit the use of unedited transcripts in preparing a petition on appeal and that mother has not indicated whether she ever requested an unedited transcript.

Upon consideration of mother’s arguments, we perceive no basis for finding a due process violation or for affording other relief.

The petition on appeal is an abbreviated pleading, designed to be completed in an expeditious manner. See C.A.R. 3.4(g)(3) & Form 4. The petition need only state the issues on appeal and identify the material facts and supporting legal authorities. References to page and line numbers in the record are not required. C.A.R. 3.4(g)(3)(D)-(F). Counsel may request a copy of the unedited transcript to aid in preparation of the petition. C.A.R. 3.4(e)(6). Full review of the record, including the official transcript, is undertaken by this court, which may “set the ease for supplemental briefing on issues raised by the parties or noticed by the court.” C.A.R. 3.4(j)(2).

Mother’s counsel represented mother throughout the juvenile court proceedings. Counsel states that she needs transcripts, first, to determine whether mother was properly advised. However, although she raised the advisement issue in her petition and supported it with appropriate legal authority, our review of the record has established that mother is not entitled to relief on this basis. See Part I, above.

The only other reason given in support of this argument is that counsel requires a transcript “in order to verify that her notes taken during trial were adequate.” Again, however, review of the official transcript has demonstrated that the substantive issues raised by mother on appeal, while properly set forth in her petition, do not entitle her to relief. Moreover, the official transcript has long since been available for review, but mother has at no time attempted to amend the issues raised in her petition or to urge new grounds for reversal of the judgments.

“Axiomatic to the exercise of judicial authority is the principle that a court should not decide a constitutional issue unless and until such issue is actually raised by a party to the controversy and the necessity for such decision is clear and inescapable.” People v. Lybarger, 700 P.2d 910, 915 (Colo.1985); see also United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960)(appellate court should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied).

Colorado decisions have consistently recognized that a party may not obtain relief on an as-applied due process challenge absent a showing of harm or prejudice. This principle applies regardless of the nature of the constitutionally protected interest at stake. See, e.g., People v. Rodriguez, 914 P.2d 230, 301 (Colo.1996)(rejecting due process challenge to sufficiency of appellate record by defendant sentenced to death, and stating: “We ... hold that, to obtain relief on a due process claim arising from an incomplete record, a defendant must always demonstrate specific prejudice resulting from the state of that record” — emphasis in original); see also In re Smith, 989 P.2d 165 (Colo.1999)(attorney’s ability to practice law and earn a living); People ex rel. A.L.B., 994 P.2d 476 (Colo.App.1999)(father’s right to parent-child relationship with his son).

Thus, where there is no showing of prejudice, there is no “clear and inescapable necessity” to decide whether the challenged process might violate another parent’s rights in a different case — let alone, whether the process is facially constitutional. For this reason, we do not address the issues raised in the dissent.

Mother has not demonstrated prejudice here. Therefore, she is not entitled to relief on this contention.

The judgments are affirmed.

CRISWELL *, J., concurs. ROMÁN, J., dissents.