People ex rel. D.P.

Decision Date08 March 2007
Docket NumberNo. 06CA1808.,06CA1808.
Citation160 P.3d 351
PartiesThe PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of D.P., a Child, and Concerning T.N. and T.P., Respondents-Appellants.
CourtColorado Court of Appeals

Maurice Lyle Dechant, County Attorney, Andrea Nina Atencio, Assistant County Attorney, Grand Junction, Colorado, for Petitioner-Appellee.

Rennard E. Hailey, Grand Junction, Colorado, for Respondent-Appellant T.N.

Leigh C. Taylor, Grand Junction, Colorado, for Respondent-Appellant T.P.

Opinion by Judge TAUBMAN.

T.N. (father) and T.P. (mother) separately appeal from the judgment terminating their parent-child legal relationship with their son, D.P. We affirm.

D.P. came to the attention of the Mesa County Department of Human Services (the department) when mother was found wandering the streets with him on a hot day. They had been wandering for several hours, during which he had not been changed or fed. The department filed a petition on the child's behalf.

The department learned mother was developmentally delayed and father was low functioning. The parents had been receiving services from Mesa Developmental Services (MDS) to assist them with life skills and parenting during the year preceding the filing of the petition.

Pursuant to stipulation, the court adjudicated D.P. to be dependent and neglected and contemporaneously adopted a treatment plan for each parent.

Five months after the court approved the treatment plans, the department filed a motion to terminate the parent-child legal relationship. After a contested hearing, the court granted the motion.

I. Fitness Within a Reasonable Time

Each parent asserts the court erred in terminating parental rights because the evidence did not support the finding that he or she was not fit or could not become fit within a reasonable time. We disagree.

Section 19-3-604(1)(c), C.R.S.2006, provides for termination of parental rights after a child has been adjudicated dependent or neglected if the court finds the parent is unfit. People in Interest of A.M.D., 648 P.2d 625 (Colo.1982). We review the court's finding that a parent is unfit to determine whether the record supports it. People in Interest of B.C., 122 P.3d 1067 (Colo.App.2005).

An unfit parent is one whose condition or conduct renders him or her unable to give a child reasonable parental care. People in Interest of M.T., 121 P.3d 309 (Colo.App. 2005). In determining unfitness, the trial court may consider whether a parent has been rehabilitated. Section 19-3-604(2)(h), C.R.S.2006. In determining whether a parent can become fit within a reasonable time, the court may consider whether any changes occurred during the dependency and 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., 70 P.3d 584 (Colo.App.2003).

The caseworker testified that neither parent was fit and that the parents could not meet the child's needs consistently or grow and change with him.

The behavior and early childhood development specialist who worked with the family testified that neither parent could read D.P.'s cues or meet his needs. She observed "just minimal" improvement in their parenting skills in the two years she had been working with the family.

The caseworker testified that D.P. needed the parents to become fit within one year or less. Father was unable to do so because, although he put forth maximum effort and completed his treatment plan, he had not corrected the problems that led to the department's involvement. His intellectual functioning prevented him from consistently meeting the child's cognitive, emotional, and social needs. The psychologist who evaluated the parents testified father could not parent D.P. because his personality disorder impaired his ability to be a minimally adequate parent.

The caseworker testified mother could not become a fit parent within a reasonable time. According to the caseworker, mother's intellectual functioning and mental health issues limited her ability to recognize, and therefore meet, D.P.'s needs. Her abilities were unlikely to change in the future. The psychologist who evaluated the parents testified mother was unlikely to provide "minimally adequate care" for D.P. and she might not ever be able to parent the child.

Thus, the evidence supports the court's finding that the parents were unfit. Because that finding has record support, we may not disturb it on appeal. See People in Interest of C.A.K., 652 P.2d 603 (Colo.1982).

II. Appropriateness of Treatment Plan

Each parent asserts the evidence did not support the finding that his or her treatment plan was appropriate. We conclude each has waived the right to raise this argument.

When a parent acquiesces in the treatment plan and does not request subsequent modification of it, he or she is precluded from challenging the appropriateness of the plan at the termination hearing. People in Interest of M.S., 129 P.3d 1086 (Colo.App. 2005).

Here, the record shows the parents stipulated that the treatment plans were appropriate and were reasonably calculated to render each of them fit to provide adequate parenting within a reasonable time. There is no evidence that the parents subsequently complained about the adequacy of the plans or sought modification of them. The parents' acquiescence in, and subsequent failure to request modification of, the plans precludes them from arguing here that those plans were inappropriate.

III. Compliance with Treatment Plan

Father asserts the court erred in terminating his parental rights because there was not clear and convincing evidence that he had not successfully complied with his treatment plan. We disagree.

To terminate parental rights under § 19-3-604(1)(c), the court must find, in part, that an appropriate treatment plan approved by the court has not been reasonably complied with by the parent or has not been successful. A treatment plan is successful if it renders a parent fit or corrects the conduct or condition that led to state intervention. People in Interest of C.A.K., supra. It is the parent's responsibility to ensure compliance with, and success of, the treatment plan. People in Interest of A.H., 736 P.2d 425 (Colo.App.1987).

The plan is not necessarily inappropriate even if it fails to resolve the parent's problems or reunite the family. People in Interest of M.M., 726 P.2d 1108 (Colo.1986). Further, although a parent need not absolutely comply with the treatment plan, even substantial compliance may not sufficiently improve the parent's conduct such that the family may be reunited. People in Interest of M.T., supra.

The caseworker testified the primary issue that needed to be addressed was whether father could meet D.P.'s needs. The plan addressed that issue by requiring him to undergo a psychological evaluation, a mental health assessment, and a "capacity to parent" evaluation. In creating the plan, she considered the other services he was receiving from MDS and the home health nurse, including assistance with parenting and life skills. The caseworker testified she was focusing on father's capacity to parent because he had not been benefiting from those services.

The caseworker testified that, although father improved his parenting skills, she still had concerns about his ability to parent. He had difficulty applying what he had learned and, therefore, could not meet D.P.'s needs. He had not successfully addressed the problems that led to the department's involvement.

Thus, the evidence supports the court's finding that father had not successfully complied with the plan. Consequently, we may not disturb it on appeal. See People in Interest of C.A.K., supra.

IV. Reasonable Efforts to Reunite Family

Mother asserts the department did not make reasonable efforts to rehabilitate her and to reunite the family. We conclude mother has waived this argument.

The state must make reasonable efforts to prevent out-of-home placement of abused or neglected children and reasonable efforts to reunite the family. Sections 19-1-103(89), 19-3-100.5, 19-3-604(2)(h), C.R.S. 2006; see People in Interest of J.M., 74 P.3d 475 (Colo.App.2003).

The department must assess the family and develop a case plan for the provision of necessary services. Section 19-3-208(2)(b), C.R.S.2006. The department must also devise an appropriate treatment plan for the parent. Section 19-3-508(1)(e), C.R.S.2006.

Statutory rights accorded to respondent parents in dependency and neglect proceedings are subject to waiver. See People in Interest of N.A.T., 134 P.3d 535 (Colo.App. 2006) (mother waived right to formal advisement, and that waiver encompassed right to be heard by judge rather than by magistrate); People in Interest of T.E.M., 124 P.3d 905 (Colo.App.2005) (same); People in Interest of L.A.C., 97 P.3d 363 (Colo.App.2004) (respondent mother waived right to counsel during initial hearing); People in Interest of T.L.D., 809 P.2d 1120 (Colo.App.1991) (statutory requirement that dependency and neglect proceeding be filed in county of child's residence or where child was present was subject to waiver). Similarly, in People in Interest of M.S., supra, a...

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