652 P.2d 603 (Colo. 1982), 81SC85, People in Interest of C.A.K.

Docket Nº:81SC85, 81SC86.
Citation:652 P.2d 603
Opinion Judge:ROVIRA, Justice.
Party Name:The PEOPLE of the State of Colorado, Petitioner, In the Interest of C.A.K., A Child, and Concerning K.D.K., Respondent.
Attorney:Harden, Schmidt & Hass, Rick Zier, Fort Collins, for petitioner., David Bye, Fort Collins, for C.A.K. in No. 81SC86., Lach & Elliott, P.C., Rebecca Elliott, Fort Collins, for respondent. Harden, Schmidt & Hass, Rick Zier, Fort Collins, for petitioner.
Case Date:October 18, 1982
Court:Supreme Court of Colorado
 
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Page 603

652 P.2d 603 (Colo. 1982)

The PEOPLE of the State of Colorado, Petitioner, In the Interest of C.A.K., A Child, and Concerning K.D.K., Respondent.

Nos. 81SC85, 81SC86.

Supreme Court of Colorado, En Banc

October 18, 1982

Page 604

Harden, Schmidt & Hass, Rick Zier, Fort Collins, for petitioner.

David Bye, Fort Collins, for C.A.K. in No. 81SC86.

Lach & Elliott, P.C., Rebecca Elliott, Fort Collins, for respondent.

ROVIRA, Justice.

We granted certiorari to review a decision of the Colorado Court of Appeals which reversed a judgment of the district court terminating the parental rights of K.D.K. See People in the Interest of C.A.K., 628 P.2d 136 (Colo.App.1980). We reverse.

I.

K.D.K. is the mother of C.A.K. who was born in July 1971 when K.D.K. was fifteen years old and unmarried. In 1972 K.D.K. had another child who was relinquished by K.D.K. shortly after its birth.

The paternity of C.A.K. has never been established. The alleged father has failed to enter an appearance, and his default was entered early in the proceedings.

K.D.K.'s first contact with the Department of Social Services was in Adams County in 1972 when she was pregnant with her second child. At that time, she applied for Aid to Dependent Children for C.A.K. and herself. Subsequently, she left the state with C.A.K. Upon returning in 1974, she again applied for assistance, and C.A.K. was placed in day care as a protective service due to her physical condition.

In August 1975 K.D.K. voluntarily placed C.A.K. in foster care, and she remained with a foster family until December 1976. From December 1976 to March 1977, K.D.K. and C.A.K. lived with K.D.K.'s father and stepmother, but this arrangement was not satisfactory, and in April 1977 C.A.K. was placed in the care of another foster family. This arrangement lasted until December 1977 when K.D.K. once again made arrangements to have C.A.K. live with her. This time mother and daughter were together

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approximately six weeks. In January 1978 K.D.K. placed C.A.K. with her parents, and K.D.K. went to live with her grandfather. In February 1978 C.A.K. was once again placed with a foster family.

On February 9, 1978, the People filed a Petition for Neglected or Dependent Children in which they alleged that C.A.K. lacked proper parental care through the actions and omissions of her parent; K.D.K. failed to provide C.A.K. with proper and necessary medical care; C.A.K.'s environment was injurious to her health; and K.D.K. had allowed others to mistreat and abuse C.A.K. without taking lawful means to stop such mistreatment. The petition stated that termination of the parent-child relationship was a possible remedy if the petition was sustained.

Contemporaneously, the People filed a "Motion for Temporary Custody" and attached to their motion a report of the Larimer County Department of Social Services (LCDSS) and a report of the Thompson School District R-2 school psychologist. 1 In support of their motion, the People alleged that the child was living in an unstable home situation, was exposed to abusive and violent conditions, and that C.A.K. had suffered serious regression in her social and academic development.

K.D.K. waived her right to a hearing as to temporary custody. The court ordered temporary custody of C.A.K. to be placed in the LCDSS and appointed guardians ad litem for both K.D.K. and C.A.K. and counsel to represent K.D.K. On February 14, 1978, the People filed a "Motion to Terminate Parental Rights," alleging, inter alia, that K.D.K. was an unfit parent due to brain damage which rendered her unable to give the child reasonable care; that K.D.K. had neglected the child's medical needs; and that the child's home environment was injurious.

In June 1978 a treatment plan 2 was approved by all parties, and the court ordered both K.D.K. and C.A.K. to be examined by a psychologist or psychiatrist and C.A.K. to undergo a medical examination.

K.D.K. demanded a jury trial on the issue of whether C.A.K. was a dependent or neglected child, but on November 1, 1978, the day set for trial, K.D.K. admitted paragraph 5(b) of the petition, to-wit, that C.A.K. lacked proper parental care through the omission of her parent. Counsel for K.D.K. stipulated that the reports in the court's file could be considered as the factual basis for paragraph 5(b), and the court sustained the petition. 3

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A placement hearing was then conducted to determine whether C.A.K. should remain in the home of the foster parents with whom she had been living since February 1978. These parents were, due to the husband's employment, being transferred to Oregon. K.D.K. objected to the child's leaving the state, and substantial testimony was heard concerning the appropriate placement of C.A.K. All counsel stipulated that the testimony presented at the placement hearing could be considered by the court at any future hearing regarding termination of parental rights.

In its extensive findings of fact, the trial court stated that prior to placement with the foster parents C.A.K.'s physical and mental condition had deteriorated to a critical state due to the omissions of K.D.K.; subsequent to her placement with the foster parents, there was a dramatic improvement in C.A.K.'s physical and mental condition; and although K.D.K. expressed her love for C.A.K. and wanted the child to live with her, allowing C.A.K. to be in the custody of her mother would not be in the best interests of the child. The court ordered that C.A.K. be allowed to move to Oregon with her foster parents and requested that the parties propose a plan of visitation for the court's consideration.

A short time later, a second treatment plan was developed with participation of counsel for C.A.K., K.D.K., and the People. The parties stipulated to its approval by the court.

The treatment plan recognized that it was in the best interest of C.A.K. and in furtherance of the goal of reconciliation of the child with K.D.K. that K.D.K. comply with the plan. The plan required K.D.K. to write two letters per month to her daughter and contact her caseworker upon the completion of the letters so that K.D.K. would keep in touch with both her daughter and the Department of Social Services. Further, K.D.K. would be responsible for picking up and returning C.A.K. on her visits, and representatives of the Larimer County Mental Health Clinic would observe both C.A.K. and K.D.K. during these visits. The plan required K.D.K. to be responsible for her own health care and that of C.A.K. when she was in her care; to attend counseling sessions at the Larimer County Mental Health Clinic; and to establish, along with her present husband, the ability to provide for basic minimal needs of a three-person family.

In June 1979 a hearing was held to determine whether the child-parent relationship between C.A.K. and K.D.K. should be terminated. At this hearing, pursuant to stipulation, the court considered testimony given at the November 1978 placement hearing. There was conflicting testimony as to whether K.D.K. successfully completed the treatment plan and whether her mental condition had improved sufficiently to allow her to care for C.A.K. properly.

The trial court concluded that the treatment plan had not been successful, that K.D.K.'s condition was unlikely to change within a reasonable time, and that she was an unfit parent. Consequently, the court ordered her parental rights terminated.

K.D.K. filed a motion to amend judgment or for a new trial. She alleged there was insufficient evidence to support the court's findings of fact and the court erred in applying sections 19-1-102, 19-3-111, 19-11-103, and 19-11-105, C.R.S.1973 (1978 Repl.Vol. 8). The motion was denied. The court of appeals reversed, holding that the treatment plan was insufficient because it did not specify what the relevant criteria would be to determine success and the evidence did not support the trial court's determination that K.D.K.'s mental deficiency was of such duration and nature as to render her unlikely within a reasonable time to provide reasonable care for C.A.K.

II.

In her motion for new trial, K.D.K. did not raise the issue of whether the termination of her parental rights under a preponderance of the evidence standard violated due process of law. However, we elect to address the issue because of its constitutional significance.

Page 607

In People in the Interest of A.M.D., 648 P.2d 625 (Colo.1982), we held that the preponderance of the evidence standard violates due process of law and, consistent with Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), clear and convincing evidence is the appropriate constitutional standard in proceedings involving termination of a parent-child relationship.

The question left unanswered in People in the Interest of A.M.D., supra...

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