LL v. People, 99SC799.

• Decision Date: 18 September 2000
• Docket Number: No. 99SC799.,99SC799.
• Citation: 10 P.3d 1271
• Parties: L.L., Petitioner, v. The PEOPLE of the State of Colorado, Respondent, In the Interest of R.W. and T.W, and R.B. and B.S., Interested Parties Below.
• Court: Colorado Supreme Court

10 P.3d 1271

L.L., Petitioner, v. The PEOPLE of the State of Colorado, Respondent,

In the Interest of R.W. and T.W, and

R.B. and B.S., Interested Parties Below.

No. 99SC799.

Supreme Court of Colorado, En Banc.

September 18, 2000.

Davide C. Migliaccio, Colorado Springs, Colorado, Attorney for Petitioner.

Michael A. Lucas, office of the El Paso County Attorney, Johnny Bohnen, El Paso County Department of Human Services,, Colorado Springs, Colorado Attorneys for Respondent. Justice RICE delivered the Opinion of the Court.

This court granted certiorari to address whether the court of appeals erred when it affirmed the trial court and held that a parent's due process rights are not violated when the majority of her parental rights, including the right to custody and visitation, are suspended until her children are eighteen years of age, pursuant to findings of fact made under a preponderance of the evidence standard. People in Interest of R.W. and T.W., 989 P.2d 240 (Colo.App.1999)(Criswell, J., dissenting)(hereinafter R.W. and T.W.). We affirm the court of appeals and hold that Petitioner's due process rights were not violated when the trial court significantly limited her parental rights in a guardianship hearing based on findings of fact under a preponderance of the evidence standard.

I. Facts and Procedural History

In 1994, Petitioner was convicted of a drug-related offense and sentenced to a brief period of incarceration. The El Paso County Department of Human Services ("DHS") issued a Notice of Temporary Custody Hearing and on February 2, 1994, the district court placed Petitioner's two children, R.W. and T.W., in the temporary custody of their maternal grandmother ("Grandmother"). The father of both children ("Father") was incarcerated at the time. R.W. was nine years old and T.W. was four.

Upon release from prison, Petitioner sought to end the temporary custody arrangement and DHS recommended that the custody of the children be returned to Petitioner. On January 30, 1995, the court ordered temporary custody to be shared by both Petitioner and Grandmother.

In February 1995, DHS filed a petition in dependency and neglect based on a belief that neither Petitioner nor Grandmother was adequately caring for the children. At a hearing on the petition, DHS presented evidence that Grandmother allegedly permitted Petitioner to take the children to her home while she was under the influence of various illegal drugs. The district court placed the children in the legal and physical custody of DHS, granting Petitioner and Grandmother supervised visitation only.

On April 19, 1995, the court placed custody of the children with Grandmother, with DHS exercising protective supervision. On June 22, 1995, the court revoked Grandmother's custody due to her failure to follow court orders, and the children were again placed in the legal and physical custody of DHS. The court ordered that the children be placed in foster care, granted Petitioner and Grandmother supervised visitation, and ordered Petitioner and Grandmother to refrain from disparaging each other or the foster parents to the children, and to refrain from discussing court proceedings with the children. On August 24, 1995, the court adjudicated the children dependent and neglected, adopted a proposed treatment plan, and continued custody of the children with DHS.

On September 10, 1996, DHS petitioned the court to grant permanent guardianship of the children to the foster parents. The court scheduled the permanency planning and guardianship hearings for October 4, 1996, but continued the hearings several times at the request of Petitioner, Father, and Grandmother.

On April 28, 1997, the court held a permanency planning hearing, determined that there was no substantial probability that the children could be returned to Petitioner within six months, and continued foster care placement.

On December 16, 1997, DHS filed a motion to terminate the parent-child legal relationship of Petitioner and Father. See § 19-3-602, 6 C.R.S. (1999). On February 18, 1998, the court ordered mediation, but the parties could not reach a resolution. However, DHS subsequently decided to seek only permanent guardianship of the children, rather than termination of the parent-child legal relationship.

On March 4, 1998, the court held a hearing on permanent guardianship. Father consented to permanent guardianship being placed in the foster parents, with no visitation rights, but Petitioner opposed both the entry of permanent guardianship and the proposed no contact order. The court found that the children needed ongoing treatment, that they were being harmed by the continued contact with Petitioner and Grandmother, that theyneeded stability and permanency, and that it was in the children's best interests to be placed in the permanent guardianship of the foster parents. Accordingly, the court ordered:

That custody of the subject children shall continue with [DHS];

That the foster parents are hereby appointed as permanent legal guardians of the subject children;

That as permanent guardians, said custodians have:

a) The authority to consent to marriage, to enlistment in the armed forces and to medical and surgical treatment;

b) The authority to represent the children in legal actions and to make other decisions of substantial significance concerning said children;

c) The rights and responsibility [sic] of legal and physical custody when such custody has not been vested in another person, agency, or institution;

That [Respondent] and [Grandmother] are to have no contact with the subject children;

That there shall be one termination visit between said parties and the subject children;

. . . .

That this matter is continued to June 5, 1998, for written review; [and]

That the Court shall retain jurisdiction herein as provided by law. . . .

(R. at 454-56).

Petitioner appealed to the court of appeals, asserting that the trial court violated her due process rights when it ordered the functional equivalent of a termination of her parental rights without applying the "clear and convincing evidence" standard of proof. The court of appeals affirmed the district court order. In a divided panel, the court found that the district court order did not act as the functional equivalent of a termination of Petitioner's parental rights.¹R.W. and T.W.,989 P.2d at 244. The majority stated that Petitioner still retains various rights, including the right to consent or withhold consent to the children's adoption, the right to determine the children's religious affiliation, the right to reasonable parenting time, except as restricted by a court,² and the right to seek a modification of the disposition in order to regain custody and increase parenting time. Id. The court of appeals concluded that the district court order "reflects a careful consideration of the children's present needs while leaving open the possibility of the mother's increased involvement with the children in the future." Id. The dissent disagreed with the majority opinion, arguing that the effect of the district order was "so restrictive of [Petitioner's] parental rights that it cannot pass constitutional muster unless it is premised on facts proved under an enhanced standard." Id. at 245.

Petitioner filed a petition for a writ of certiorari, arguing that the district court violated her due process rights when it drastically restricted her parental rights based on findings obtained under a preponderance of the evidence standard. We granted certiorari to address whether the trial court's order deprived Petitioner of due process by drastically restricting her parental rights based on findings obtained under a preponderance of the evidence standard.

II. Dependency and Neglect Proceedings

Article 3 of the Colorado Children's Code, titled "Dependency and Neglect," provides specific provisions whereby the state can intercede to protect the health, safety, and welfare of minors from abuse, neglect, or abandonment. In particular, Article 3 governs child abuse and neglect proceedings, temporary custody and shelter of minors, and termination of the parent-child legal relationship. See § 19-3-100.5 to 703, 6 C.R.S. (1999). The Article states in its legislative declaration that "the stability and preservation of the families of this state and the safety and protection of children are matters of statewide concern," and to that end, that the state shall "make a commitment to make `reasonable efforts' to prevent the placement of abused and neglected children out of the home and to reunify the family whenever appropriate." § 19-3-100.5(1). To that end, the Children's Code encompasses a number of procedures aimed at protecting children from emotional and physical harm while at the same time seeking to repair and maintain family ties.

Often, the process begins with a report of abuse or neglect.³ The state may file a petition alleging that a child is dependent or neglected under section 19-3-501.⁴ An adjudicatory hearing is then held, where the state must establish by a preponderance of the evidence that a child is dependent or neglected. See § 19-3-505(1). Once the court determines a child is dependent or neglected, the court has the authority to order a variety of dispositions, including: placement of legal custody in the parents or guardian, with or without protective supervision; placement of legal custody in a relative, with or without protective supervision; placement of legal custody in the county department of social services, a foster home, or other child care facility; and mental and physical examinations of a child. See § 19-3-508. In addition, the court must approve a treatment plan that seeks to resolve family difficulties and preserve the family unit. See § 19-3-508(1)(e)(I). However, when a court determines that the goal of maintaining the family unit is not feasible, for any of the reasons listed in section 19-3-604, the court may...