300 P.3d 911 (Colo.App.Div. 3 2011), 10CA2303, People ex rel. S.N-V.

Docket Nº:10CA2303.
Citation:300 P.3d 911
Opinion Judge:FURMAN, Judge.
Party Name:The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of S.N-V., a Child, and Concerning B.A.N., Respondent-Appellant.
Attorney:Douglas J. Friednash, City Attorney, Laura Grzetic Eibsen, Assistant City Attorney, Denver, Colorado, for Petitioner-Appellee. Terry Ross, Guardian Ad Litem. Susan P. Halloran, Littleton, Colorado, for Respondent-Appellant.
Judge Panel:Judge ROY and Judge LICHTENSTEIN concur.
Case Date:December 22, 2011
Court:Court of Appeals of Colorado, Third Division
 
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Page 911

300 P.3d 911 (Colo.App.Div. 3 2011)

The PEOPLE of the State of Colorado, Petitioner-Appellee,

In the Interest of S.N-V., a Child,

and

Concerning B.A.N., Respondent-Appellant.

No. 10CA2303.

Court of Appeals of Colorado, Third Division.

December 22, 2011

Page 912

Douglas J. Friednash, City Attorney, Laura Grzetic Eibsen, Assistant City Attorney, Denver, Colorado, for Petitioner-Appellee.

Terry Ross, Guardian Ad Litem.

Susan P. Halloran, Littleton, Colorado, for Respondent-Appellant.

OPINION

FURMAN, Judge.

B.A.N. (father) appeals the judgment terminating the parental relationship with his daughter, S.N-V. We affirm.

I. Introduction

Father raises two arguments in support of his appeal: the juvenile court erred in finding (1) that he was unfit because the Department did not make reasonable efforts to rehabilitate him (father wanted a neuropsychological evaluation) and (2) that no less drastic alternative to termination existed. The nature of father's appeal is a challenge to the sufficiency of the evidence underlying the juvenile court's judgment terminating his parental rights.

Our review of sufficiency claims is based on the settled principle that, at a termination hearing, the credibility of the witnesses; the sufficiency, probative effect, and weight of the evidence; and the inferences and conclusions to be drawn from the evidence are within the discretion of the juvenile court, and we will not disturb these conclusions unless they are so clearly erroneous as to find no support in the record. People in Interest of A.J.L., 243 P.3d 244, 250 (Colo.2010);

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People in Interest of C.A.K., 652 P.2d 603, 613 (Colo.1982). We adhere to such a principle because the juvenile court uniquely has the opportunity " to judge the credibility of the witnesses." A.J.L., 243 P.3d at 249 (quoting C.R.C.P. 52).

The Denver Department of Human Services (Department) and S.N-V.'s guardian ad litem (GAL) (collectively, the Department) initially contend we should not engage in such a review of the evidence supporting the reasonable efforts finding because father never " filed any written motions complaining of the Department's reasonable efforts" and never " sought a court hearing to address the issue." The Department relies on opinions from other divisions of our court that barred a parent from challenging the sufficiency of the evidence supporting the juvenile court's finding that reasonable efforts were made to rehabilitate the parent. These opinions applied various estoppel doctrines because the parent acquiesced in, and subsequently failed to request modification of, his or her treatment plan prior to the termination hearing. See People in Interest of M.S., 129 P.3d 1086 (Colo.App.2005) (applying estoppel doctrine of invited error); see also People in Interest of D.P., 160 P.3d 351 (Colo.App.2007) (citing M.S. but applying estoppel doctrine of waiver).

Estoppel doctrines generally bar a party from asserting a claim or right that contradicts what that party has said or done before or what has been legally established as true. Brian A. Garner, Black's Law Dictionary 624 (9th ed.2009).

We hold that estoppel doctrines do not apply as a bar in this case. As we will discuss, father's acquiescence to his treatment plan at the dispositional hearing, and his subsequent failure to object to the services supporting the reasonable efforts to rehabilitate him, may not be used to bar our review of the evidence supporting the juvenile court's finding that the Department proved by clear and convincing evidence that reasonable efforts were unsuccessful in rehabilitating father. See § 19-3-604(2)(h), C.R.S.2011; see also § 19-1-103(89), C.R.S.2011 (" Services provided by a county or city and county in accordance with section 19-3-208 [C.R.S.2011] are deemed to meet the reasonable efforts standard." ). Before we address father's substantive challenges on appeal, therefore, we must consider why estoppel doctrines do not bar him from bringing those challenges.

II. Father's Challenges on Appeal

To put this case in context, we begin with a few observations about father's treatment needs. To help father obtain custody of S.N-V. as a fit parent, the juvenile court adopted an appropriate treatment plan involving S.N-V. and father, requiring, inter alia, that father improve his parenting skills, demonstrate the ability to use appropriate communication and anger management skills (because of prior incidents of domestic violence), and attend visits with S.N-V. As part of the treatment plan, the court determined father needed a domestic violence evaluation and ordered the Department to perform such an evaluation of him. At the time, father did not object to that plan.

Several months before the termination hearing, the juvenile court authorized a full neuropsychological evaluation of father.

Instead of the full neuropsychological evaluation, the Department paid for a psychological evaluation of father. That evaluation revealed that he had suffered a traumatic brain injury in childhood; that he had a full scale IQ of 79— which put him in the borderline range of overall intellectual abilities; that he had a cognitive disorder; and that he had a generalized seizure disorder from his youth.

Father's challenge to the juvenile court's reasonable efforts finding is based on the Department's decision not to provide him with a full neuropsychological evaluation. He contends this evaluation was necessary to determine whether appropriate services were being rendered to him.

In its initial response to father's petition on appeal, the Department argued that father waived his right to challenge, on appeal, the juvenile court's reasonable efforts findings because he did not assert his request for a full neuropsychological evaluation before the termination hearing. To adequately address this response, we directed the parties to provide supplemental briefing. See

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C.A.R. 3.4(j)(2) (" After reviewing the petition on appeal, any response, and the record, the Court of Appeals may ... set the case for supplemental briefing on issues raised by the parties...." ).

A. Estoppel Doctrines

In its supplemental brief, the Department urges us to apply the estoppel doctrines of invited error or forfeiture. While this position is supported by the holding in M.S., we decline to follow it. See People v. Wolfe, 213 P.3d 1035, 1036 (Colo.App.2009) (one division of court of appeals not bound by decision of another division).

The Department's position is based on two seemingly contradictory premises. On the one hand, the Department argues that a parent invites error by not " rais[ing] the appropriateness of his treatment plan at the time of its adoption [invoking the invited error doctrine] or at any point thereafter [invoking the forfeiture doctrine], prior to the termination hearing."

On the other hand, the Department argues that, regardless of what a parent does before the termination hearing, the juvenile court maintains the " solemn duty to find that each and every statutory criterion of termination has been proved by clear and convincing evidence," which includes a finding that " reasonable efforts have been made to rehabilitate the parent."

The Department provides a solution to this contradiction by asking us to apply " plain error" review to a juvenile court's findings following a termination hearing when a parent fails to challenge the appropriateness of his or her treatment plan before that hearing. We disagree with the Department's underlying premise— that a respondent parent's failure to so challenge constitutes error. The constitutional and statutory due process requirements for a termination hearing place no duty on a respondent parent. That is because the petitioner (here, the Department) has the duty of proving, by clear and convincing evidence, the treatment plan's appropriateness. Therefore, we decline to apply plain error review.

1. Constitutional and Statutory Due Process

When the State seeks to sever the parent-child legal relationship, it must employ " fundamentally fair procedures," Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), because parents have a fundamental liberty interest in the " care, custody, and management of their child" that must be respected even if " they have not been model parents or have lost temporary custody of their child to the State." Id. at 753, 102 S.Ct. 1388.

The procedures at the termination hearing...

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