139 P.3d 695 (Colo. 2006), 05SC808, K.D. v. People

Docket Nº:05SC808.
Citation:139 P.3d 695
Opinion Judge:MARTINEZ, Justice.
Party Name:In the Interest of K.D., a minor child. K.D., Petitioner v. The PEOPLE of the State of Colorado, Respondent.
Attorney:Leo L. Finkelstein, Colorado Springs, Colorado, Attorney for Petitioner. Nancy J. Walker-Johnson, Monument, Colorado, Guardian ad litem for K.D., a minor child. El Paso County Department of Human Services, Andrew C. Gorgey, Chief Deputy County Attorney, William Louis, County Attorney, Colorado Sp...
Case Date:July 31, 2006
Court:Supreme Court of Colorado
 
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Page 695

139 P.3d 695 (Colo. 2006)

In the Interest of K.D., a minor child.

K.D., Petitioner

v.

The PEOPLE of the State of Colorado, Respondent.

No. 05SC808.

Supreme Court of Colorado, En Banc.

July 31, 2006

Page 696

Leo L. Finkelstein, Colorado Springs, Colorado, Attorney for Petitioner.

Nancy J. Walker-Johnson, Monument, Colorado, Guardian ad litem for K.D., a minor child.

El Paso County Department of Human Services, Andrew C. Gorgey, Chief Deputy County Attorney, William Louis, County Attorney, Colorado Springs, Colorado, Attorneys for Respondent.

OPINION

MARTINEZ, Justice.

In this termination of parental rights case, Petitioner-Father, K.D. ("Father"), seeks review of the court of appeals holding affirming the trial court's order terminating the parent-child legal relationship between him and his son, infant K.D. ("K.D."). People ex rel. K.D., No. 05CA0199, 2005 WL 2803114 (Oct. 27, 2005) (not selected for official publication). We consider whether the trial court improperly relied upon Father's criminal conviction and resulting incarceration to work a forfeiture of parental rights under section 19-3-604(1)(c), C.R.S. (2005). 1 We conclude it did not and affirm the court of appeals.

I. Facts and Proceedings

On May 13, 2002, the El Paso County Department of Human Services (the "County") filed a Petition in Dependency and Neglect for K.D., the two-year-old child of J.M. ("Mother") and Father. 2 At all times relevant to these proceedings, K.D. was under six years of age.

The Petition alleged that because of Mother's suicidal ideations and depression, she

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was unable to provide a safe and stable environment for K.D. Mother admitted the allegations in the Petition and K.D. was adjudicated dependent and neglected as to Mother.

Father's whereabouts were unknown. Mother requested that service by publication of the petition in dependency and neglect be held in abeyance as to Father based on a safety risk to Mother. Mother feared for her safety due to an alleged history of domestic violence between Mother and Father. Father was found residing in a Texas prison, where he was serving a four-year sentence for two counts of domestic violence causing bodily injury and one count of driving while intoxicated.

K.D. was adjudicated dependent and neglected as to Father on or about October 29, 2002. A treatment plan was subsequently approved by the trial court. The treatment plan required Father to take a parenting class, maintain a job, complete a mental health evaluation, and participate in group therapy during his incarceration.

The legal and physical custody of K.D. was returned to Mother on August 1, 2003. However, K.D. was placed back in foster care on April 21, 2004, upon Mother's request.

On May 19, 2004, the County moved to terminate the parent-child legal relationship between K.D. and Mother and Father. The County asserted the trial court had approved an appropriate treatment plan for K.D. and Father, but that Father failed to reasonably comply with the terms of the treatment plan and that the plan had failed to rehabilitate Father. In addition, the motion alleged Father had had no contact with K.D. since his incarceration, that he had surrendered physical custody of K.D. for a period of more than six months and had not manifested the firm intention to resume physical custody of K.D. or made permanent legal arrangements for the care of K.D. during this period of time. Thus, the County alleged, pursuant to C.R.S. section 19-3-604(1)(a)(I) (2005), no appropriate treatment plan could be devised for Father and his parental rights should be terminated. Finally, the County asserted Father was an unfit parent and the conduct or condition rendering him unfit was unlikely to change in a reasonable time.

The County also moved for a permanency placement hearing under section 19-3-702, C.R.S. (2005), on the basis that there was not a substantial probability that K.D. would be returned to the physical custody of his parents within six months because Father was incarcerated and Mother previously relinquished her parental rights.

The court denied the motion for termination of the parent-child relationship as to Father on the basis that it was not proved by clear and convincing evidence that Father had abandoned K.D. The court found Father had reasonably complied with the treatment plan.

The court did note, however, that Father's testimony raised concerns regarding domestic violence and his criminal history. The court ordered the County to prepare an amended treatment plan of a short-term duration, with treatment goals approximately ninety days from the time of its adoption. The amended treatment plan was approved by the court on July 23, 2004, and required Father to enroll and participate in a parenting class, to secure a job upon his release from prison, to find appropriate housing for him and his son after prison, to establish a healthy relationship with his son while he was in prison, to attend a thirty-six week domestic violence class, and to enroll and participate in a drug and alcohol program.

The County filed a second motion for termination of the parent-child relationship on October 27, 2004. In its motion, the County alleged numerous statutory bases for terminating Father's parental rights, including the factors for termination addressed in section 19-3-604(1)(c).

Father was denied parole on December 3, 2004. At the second hearing to terminate Father's parental rights, the court heard the testimony of William Seigman of the Texas Department of Criminal Justice, who testified by telephone regarding the denial of Father's parole. Seigman indicated that Father was denied parole, in part, because the parole board considered him a continued threat to society. The court also heard the testimony of the caseworker and K.D.'s therapist. The caseworker stated that Father

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had not complied with the treatment plan. K.D.'s therapist indicated that K.D. had a strong relationship with his foster-adopt family. Both the caseworker and therapist urged the immediate placement of K.D. in a permanent home. Father testified via telephone during the hearing.

The court terminated Father's parental rights pursuant to section 19-3-604(1)(c). In this regard, the court found K.D. was adjudicated dependent and neglected, the court had adopted an appropriate treatment plan and the County filed a timely motion for termination. The court further found by clear and convincing evidence that Father failed to reasonably comply with the treatment plan and that the plan failed to rehabilitate him.

For these reasons, the court found Father an unfit parent and concluded he was unlikely to change within a reasonable time. The court also found termination of the parent-child legal relationship to be in K.D.'s best interests.

Father appealed. In an unpublished opinion, the court of appeals affirmed the termination. Recognizing that the trial court considered Father's continued incarceration as a significant factor affecting his ability to parent K.D. and that Father was not in a position to parent K.D. due in part to Father's continued incarceration, the court of appeals observed:

[A]lthough [F]ather had completed numerous programs in prison, and even if we agree[d] with his argument that he had substantially complied with the amended treatment plan, he still was not in a...

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