People in Interest of C.A.K.

• Decision Date: 31 December 1980
• Docket Number: No. 79CA0791,79CA0791
• Citation: 628 P.2d 136
• Parties: The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of C.A.K., a Child, and Concerning, K.D.K., Respondent-Appellant. . II
• Court: Colorado Court of Appeals

Page 136

628 P.2d 136

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

In the Interest of C.A.K., a Child,

and Concerning,

K.D.K., Respondent-Appellant.

No. 79CA0791.

Colorado Court of Appeals, Div. II.

Dec. 31, 1980.

Rehearing Denied Feb. 26, 1981.

Certiorari Granted May 18, 1981.

Harden, Schmidt & Hass, P.C., Rick Zier and George Hass, Fort Collins, for petitioner-appellee.

Rebecca Elliott, Fort Collins, for respondent-appellant.

SMITH, Judge.

This is an appeal by K.D.K. from a decree terminating her parental rights relative to C.A.K., her daughter. We order that decree set aside.

K.D.K. is the natural mother of C.A.K., who was born on July 2, 1971. C.A.K. was reared by her mother until the age of five years, at which time K.D.K. voluntarily placed C.A.K. with the Larimer County Department of Social Services. On February 9, 1978, the People filed a petition alleging that C.A.K. was a neglected or dependent child in that the child lacked proper parental care and that her mother had failed to provide proper medical care for the child. Five days later, on February 14, 1978, the People filed a motion to terminate parental rights, alleging that K.D.K. was unfit as a parent in that her condition of borderline mental retardation rendered her unable to afford the child reasonable care and guidance, and that all attempts at treatment of, and help for, K.D.K. had been unsuccessful.

At a hearing on November 1, 1978, the court found C.A.K. to be a dependent or neglected child as defined by § 19-1-103(20), C.R.S.1973 (1978 Repl. Vol. 8). On the following day, a second hearing was held to consider whether C.A.K. should be permitted to accompany the foster family, with whom she had resided for the previous nine months, to the State of Oregon, where they were permanently locating. At the conclusion of the hearing, the court directed that the child accompany the foster family to Oregon. The natural mother, who resided in Larimer County, continued in the programs ordered by the court to improve her parenting ability.

On June 14, 1979, a hearing was held on the question of termination of the parent-child legal relationship. At the conclusion of the hearing, the court terminated the parent-child relationship between K.D.K. and C.A.K.

I.

Rights of parents in their natural children are fundamental rights protected by the United States Constitution: The United States Supreme Court in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), addressed this issue, as follows:

"The rights to conceive and raise one's children have been deemed 'essential.' Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), 'Basic Civil Rights of Man,' Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), and '(r)ights far more precious ... than property rights,' May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953). 'It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.' Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra, the equal protection clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra, and the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965)."

The Colorado appellate courts have likewise consistently considered termination of parental rights as a decision of the utmost gravity and seriousness. Overturf v. District Court, Colo., 602 P.2d 850 (1979); People in the Interest of M.B., 188 Colo. 370, 535 P.2d 192 (1975); People in the Interest of S.S.T., 38 Colo.App. 110, 553 P.2d 82 (1976); People in the Interest of K.S., 33 Colo.App. 72, 515 P.2d 130 (1973).

The public policy of Colorado directed toward preservation of the family unit is clearly expressed in the legislative declaration of purpose found in § 19-1-102(1), C.R.S.1973, (1978 Repl. Vol. 8) of the Children's Code:

"(1) (a) To secure for each child subject to these provisions such care and guidance, preferably in his own home, as will best serve his welfare and the interests of society;

(b) To preserve and strengthen family ties whenever possible, including improvements of home environment;

(c) To remove a child from the custody of his parents only when his welfare and safety or the protection of the public would otherwise be endangered ....

(d) To secure for any child removed from the custody of his parents the necessary care, guidance, and discipline to assist him in becoming a responsible and productive member of society."

II.

Termination of the parent-child legal relationship is governed by § 19-11-101 et seq., C.R.S.1973 (1978 Repl. Vol. 8) of the Children's Code. Section 19-11-105, C.R.S.1973 (1978 Repl. Vol. 8) reads in pertinent part as follows:

(1) The court may order a termination of the parent-child legal relationship upon the finding of either of the following:

(a) That the child is adjudicated dependent or neglected and all of the following exist :

(I) That an appropriate treatment plan approved by the court has not been reasonably complied with by the parent or parents or has not been successful ;

(II) That the parent is unfit ;

(III) That the conduct or condition of the parent or parents is unlikely to change within a reasonable time.

(2) In determining unfitness, conduct, or condition, the court shall find that continuation of the legal relationship between parent and child is likely to result in grave risk of death or serious injury to the child or that the conduct or condition of the parent or parents renders the parent or parents unable or unwilling to give the child reasonable parental care. In making such determinations, the court shall consider, but not be limited to, the following:

(a) Emotional illness, mental illness, or mental deficiency of the parent of such duration or nature as to render the parent unlikely within a reasonable time to care for the ongoing physical, mental, and emotional needs of the child;

(b) Conduct toward the child of a physically or sexually abusive nature;

(c) History of violent behavior;

(d) A single incident of life-threatening or gravely disabling injury or disfigurement of the child;

(e) Excessive use of intoxicating liquors or narcotic or dangerous drugs which affect the ability to care and provide for the child;

(f) Neglect of the child;

(g) Long-term confinement of the parent;

(h) Injury or death of a sibling due to proven parental abuse or neglect;

(i) Reasonable efforts by child-caring agencies which have been unable to rehabilitate the parent or parents.

(3) In considering any of the factors in subsection (2) of this section in terminating the parent-child legal relationship, the court shall give primary consideration to the physical, mental, and emotional conditions and needs of the child ...." (emphasis supplied)

Section 19-3-106(1), C.R.S.1973 (1978 Repl. Vol. 8), and C.R.J.P. 1 places the burden of proof upon the People to sustain their petition for termination by a preponderance of the evidence.

Appellant contends, inter alia, that the conclusions of the trial court that: (1) the treatment plan was unsuccessful, and (2) that the respondent's mental deficiency is of such duration and nature as to render her unlikely within a reasonable time to provide reasonable care for her child, are not supported by the evidence. We agree.

A. The Treatment Plan

At the termination hearing the court determined that the third and final treatment plan "although reasonably complied with by the respondent ... has not been successful as to her ...." The treatment plan provided as follows:

"1. (K.D.K.) will write two letters per month to her daughter, one by the 15th of the month and the other by the 30th of the month. She will contact her caseworker upon the completion of the letter, at which time her caseworker will visit the respondent and mail the letter. In this way, the respondent will be in touch with both her daughter and Social Services on a bi-monthly basis. This is to continue for a period of five months.

2. The (respondent) will be responsible for picking up the child and returning her on time for the visits that shall be arranged through the Court in the Spring of 1979.

3. During each of (the child's) visits home, a member of the Larimer County Mental Health Clinic will observe the interactions between (the respondent and her husband) and between (the child) and her mother, the latter for purposes of evaluating the mother/child attachment and parenting skills. This person will make appropriate recommendations as to parenting skills, and will provide a letter to the Court concerning all observations. In the event that this person determines that the respondent and her husband should participate in marital counselling and recommends same, they shall participate on a regular basis with marital counselling or parental skills counselling as recommended.

4. (The respondent) will take responsibility for her own health by consulting a physician and maintaining any advised schedule of taking medication for a period of five months.

5. (The respondent) is responsible for obtaining a pediatrician for (the child) providing him with (the child's) medical records, and for responding in an appropriate way to any medical problems which may arise when (the child) is in her care.

6. (The respondent) will maintain the personal hygiene of (the child) when she is visiting. She will bathe her daily and return her in the same condition she was in at the start of the visit.

7. (The respondent) will attend counselling sessions at the Larimer County Mental Health Clinic on a bi-monthly basis. The emphasis of the therapy will be on self-sufficiency and parenting for a period of five months.

8. Due to...