People in Interest of L.L., 85SA147

• Decision Date: 10 March 1986
• Docket Number: No. 85SA147,85SA147
• Citation: 715 P.2d 334
• Parties: The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of L.L., C.L., K.L., and L.L., Children, And Concerning J.T., Respondent-Appellant.
• Court: Colorado Supreme Court

Page 334

715 P.2d 334

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

the Interest of L.L., C.L., K.L., and L.L., Children,

And Concerning J.T., Respondent-Appellant.

No. 85SA147.

Supreme Court of Colorado,

En Banc.

March 10, 1986.

George Reddin, Fort Morgan, for petitioner-appellee.

Robert B. Chapin, Brush, for respondent-appellant.

VOLLACK, Justice.

This appeal involves the termination of the parental relationship between a mother, J.T., and her four children, L.L., C.L., K.L., and L.L. The Morgan County District Court adjudicated the children dependent or neglected, and later entered an order terminating the parent-child relationships pursuant to section 19-11-105, 8 C.R.S. (1978 & 1985 Supp.). While the appellant raises several issues on appeal, we affirm the order of termination.

I.

J.T. is the mother of six children, four of whom are minors: L.L., C.L., K.L., and L.L. The children's father is deceased. On March 16, 1982, the Morgan County Department of Social Services commenced a dependency or neglect action in the Morgan County District Court, alleging that the six children (all six were minors at that time) were dependent or neglected because the mother had failed to provide proper parental care and had failed to provide proper subsistence necessary for the children's health and well-being. Further, the department alleged the children's environment to be injurious to their welfare.

At the detention hearing, J.T. was advised of her legal and constitutional rights, including an advisement of her right to counsel. The record provides no indication that J.T. requested counsel for the detention hearing. However, immediately after the hearing, counsel was assigned to J.T.

On April 28, 1982, the district court found, by a preponderance of the evidence, that all the children were dependent and neglected. The children were placed in the physical and legal custody of the Department of Social Services and have been in foster care. Four treatment plans were filed and approved by the court, the last of which was adopted on November 10, 1983. On August 14, 1984, the court issued an order of termination.

Included in the court's factual basis of its termination ruling were four reports prepared by various doctors. Dr. Joan P. Gillespie prepared one of the reports, but because she died prior to the termination proceedings, she was not available for cross-examination. As a result, the trial judge did not allow any specific reference to this particular report. However, because the report was part of the court file and because it was paid for by the court and prepared at the court's direction, the judge did not strike the report from the file and referred to it in the order of termination.

In accordance with section 19-11-105(1)(b) through (3), 8 C.R.S. (1978 & 1985 Supp.), the court found (1) that a proper treatment plan had not been complied with; (2) that J.T. was "unfit"; (3) that the conduct or condition of J.T. was unlikely to change within a reasonable time; and (4) that the primary concerns for the emotional needs of the children warranted against visitation, which, in all likelihood, would prolong foster care and delay or prevent the successful adoption of the children. Accordingly, the court ordered that there be only one meeting between the children and J.T. and, thereafter, no contact. The order was made nunc pro tunc August 8, 1984.

J.T. filed this appeal. We affirm the termination of parental rights.

II.

J.T. first argues that because she was without counsel at the detention hearing, she was denied her statutory right to have counsel at every stage of the proceedings. J.T. contends this was reversible error. We disagree.

Section 19-1-106(1)(a), 8 C.R.S. (1978 & 1985 Supp.), provides the respondent with the right to be represented by counsel at every stage of the proceedings. This section is made applicable to parents in dependency or neglect actions by section 19-1-106(1)(d), 8 C.R.S. (1978 & 1985 Supp.).

The court of appeals in People in Interest of J.B., 702 P.2d 753 (Colo.App.1985), held that, under the statute above, the failure to provide a parent with counsel at a proceeding for review of out-of-home placement was reversible error. Unlike the present proceeding, People in Interest of J.B. did not deal with a detention hearing. Rather, it involved the absence of counsel after counsel had already been appointed. The respondent's counsel had been discharged by the court after an adjudication of dependency and neglect had been entered. Three review hearings without the respondent having counsel followed. Thereafter, counsel was reappointed, and the matter proceeded to a termination hearing whereupon the court terminated the respondent's parental rights.

Here, the record shows that on March 16, 1982, at the detention hearing, J.T. was advised of her legal and constitutional rights, including her right of counsel. Neither does J.T. allege nor does the record show that a request was made by J.T. for an attorney during the detention hearing. Immediately following the hearing, J.T. requested and was appointed counsel. Because J.T., while advised of her legal right of counsel, failed to request an attorney at the detention hearing, we hold that J.T.'s lack of counsel at the detention hearing was not reversible error.

III.

J.T. next argues that it is constitutionally impermissible for a decree of dependency or neglect based on facts found under the preponderance of the evidence standard to serve as a predicate for termination of parental rights, which requires the higher constitutional standard of proof of clear and convincing. We answered this very question in People in Interest of A.M.D., 648 P.2d 625 (Colo.1982). We held that due process of law is accorded to the parties in a termination of parental rights proceeding under Colorado law when the grounds for termination under section 19-11-105, 8 C.R.S. (1978 & 1985 Supp.), are established by clear and convincing evidence and the underlying dependency or neglect determination is established by a preponderance of the evidence. Because we find the holding of that decision well-reasoned and proper, we need not readdress the issue here.

IV.

The next issue is whether the trial court committed reversible error in refusing to strike Dr. Gillespie's report from the record since Dr. Gillespie was unavailable to testify. In People in Interest of A.M.D., 648 P.2d 625, 641 (Colo.1982), we noted that dispositional and evaluative reports which fall within the purview of section 19-1-108, 8 C.R.S. (1978 & 1985 Supp.), may be admitted into evidence so long as the reports are furnished to counsel in advance of the termination hearing and the persons who wrote the reports or prepared the material contained therein are available for direct or cross-examination upon the request of the respondent or any other interested party. Here, the court considered the report in its factual basis to support its legal conclusions for termination.

The People argue that the report was part of the court file, was paid for by the court, and prepared at the court's direction; and, therefore, the court properly refused to strike the report from the file and properly stipulated that, in view of the fact that Dr. Gillespie was not available for cross-examination, there should be no specific reference or testimony related to this report.

The court file contained three other reports which recommended termination of the parental rights of the respondent. The court file also contained the final placement and treatment plan which recommended termination of parental rights.

While a more proper course would have been for the trial court to have stricken the report from the file, any error committed was harmless. Notwithstanding the inclusion of Dr. Gillespie's report, the evidence...