PEOPLE EX REL. AWR

• Decision Date: 14 September 2000
• Docket Number: No. 99CA1188.,99CA1188.
• Parties: The PEOPLE of the State of Colorado, In the Interest of A.W.R., a Child, Upon the Petition of the Denver Department of Human Services, Petitioner-Appellee, and Concerning S.L.F. and L.L.R., Respondents, and Concerning P.E., Intervenor-Appellant.
• Court: Colorado Court of Appeals

17 P.3d 192

The PEOPLE of the State of Colorado,

In the Interest of A.W.R., a Child,

Upon the Petition of the Denver Department of Human Services, Petitioner-Appellee, and

Concerning S.L.F. and L.L.R., Respondents, and

Concerning P.E., Intervenor-Appellant.

No. 99CA1188.

Colorado Court of Appeals, Div. II.

September 14, 2000.

Certiorari Denied January 22, 2001.¹

Daniel E. Muse, City Attorney, Laura Grzetic Eibsen, Assistant City Attorney, Denver, Colorado, for Petitioner-Appellee.

Ruth A. Buechler, Guardian ad litem

Rocky Mountain Children's Law Center, Seth A. Grob, Alison Wheeler, Denver, Colorado; James McDonough, P.C., James McDonough, Englewood, Colorado, for Intervenor-Appellant.

Holme Roberts & Owen, Donald I.J. Kelso, Denver, Colorado, for Amicus Curiae Colorado State Foster Parent Association.

Opinion by Judge PLANK.

In this dependency and neglect proceeding, P.E. (foster mother/intervenor) appeals from a juvenile court order returning permanent custody of the child, A.W.R., to S.L.F. (mother) and dismissing P.E.'s motion for permanent custody. We affirm the order and dismiss the appeal of the interlocutory order.

In early 1996, the Denver Department of Human Services (department) filed a petition in dependency and neglect concerning the child, then six months old. Two months later mother gave custody of the child to the department, and a month later, the child was adjudicated dependent or neglected. Soon thereafter, the department placed the child with the foster mother.

A dispositional hearing was held on June 14, 1996, after which the juvenile court ordered that the department retain legal custody of the child and that the child remain in the same foster home. The juvenile court also approved a treatment plan which required, as pertinent here, (1) that the mother participate in individual therapy; (2) that she undergo a psychiatric evaluation; and (3) that she attend two one-hour supervised visits each week.

A review hearing in January 1997 revealed that the mother was visiting the child regularly and that she interacted well with him. However, the mother was not participating in individual therapy and requested that the requirement be deleted from the treatment plan. The juvenile court denied her request.

In August 1997, a permanency planning hearing was conducted. At that time, the mother was having unsupervised visits with the child, which occurred two times a week and ranged from two to four hours in length. The social services caseworker noted that the mother and the child were bonded.

Over the next two years, multiple hearings were held concerning the relationship of the mother and child. In general, these showed the mother and child to be bonded with progress by the mother in parenting skills. But she continued to resist participation in any mental health treatment.

During this period the child remained in the custody of the foster mother, who was permitted to intervene in the proceedings. Also, the mother was granted increasing visitation privileges.

Ultimately, in October 1998, the juvenile court, over objections of the foster mother and the guardian ad litem, adopted a recommendation of the department and ordered that temporary custody of the child be given to the mother. Acknowledging the relationship that had developed between the foster mother and the child, the juvenile court ordered that the foster mother have five overnight visits with the child each month. It further ordered the mother to participate in another parent-child interactional evaluation.

On February 2, 1999, the combined permanency planning/custody hearing began. The foster mother and guardian raised issues concerning the foster mother's interest in a continuing relationship with the child; the issues, procedure, and standard of proof under the permanency planning statute, § 19-3-702, C.R.S.2000; and the need for another psychological evaluation of the mother under C.R.C.P. 35.

First, the juvenile court rejected the foster mother's contention that she had a protected liberty interest in maintaining her relationship with the child. Next, the juvenile court determined that, under § 19-3-702, it must first decide whether the child could be returned to the mother immediately or within the next six months; only if the court found that it could not return the child could it consider the foster mother's motion for custody and the future status or placement of the child. The court also found that § 19-3-702 required it to assess the mother's fitness, applying the preponderance of the evidence standard, and to consider the child's best interests in determining whether the child could be returned home. Lastly, the juvenile court denied the foster mother's motion for another psychological evaluation of the mother, ordered a developmental assessment of the child, and continued the hearing at the request of the foster mother.

During a status conference on April 6, 1999, the department sought to limit the role of the foster mother in the permanency planning hearing. The foster mother objected to the timeliness of the motion and argued that, having intervened as a matter of right, she was entitled to full party status. While confirming the foster mother's intervenor status, the juvenile court ruled that the foster mother's participation in the permanency planning hearing would be limited to her own direct testimony as to the child's physical, mental, and emotional conditions. It further ordered that the foster mother could not present other witnesses or evidence, examine or cross-examine any witnesses, or make any motions, objections, or legal argument.

At the permanency planning hearing conducted later that month, the evidence presented included an August 1998 updated psychological evaluation of the mother, a January 1999 parent-child interactional evaluation, and an April 1999 developmental assessment of the child.

On May 20, 1999, the juvenile court ruled that the mother was fit despite her failure to participate in individual therapy and that it was in the child's best interest to remain in the mother's custody. It then awarded permanent custody of the child to the mother and dismissed the foster mother's motion for custody.

I.

The foster mother contends that the juvenile court erred in limiting her participation in the permanency planning hearing. We find no error.

A.

First, the foster mother argues that because she had a constitutionally protected liberty interest in the continuation of her relationship with the child, she was entitled to participate fully in the hearings in accordance with her right to procedural due process. We disagree.

The Fourteenth Amendment and Colo. Const. art. II, § 25, protect individuals from arbitrary governmental restrictions on liberty interests. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Watso v. Colorado Department of Social Services, 841 P.2d 299 (Colo.1992).

To establish a violation of procedural due process, a person must show that he or she has a constitutionally protected liberty interest. Watso v. Department of Social Services, supra; People in Interest of A.M.D., 648 P.2d 625 (Colo.1982)

.

The question of the presence of a constitutionally protected liberty interest in a foster family has been addressed by other courts with mixed results.

In Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977), the Supreme Court addressed the issue without deciding it. There, the Supreme Court noted that the importance of a familial relationship stemmed from the emotional ties derived from the intimacy of daily association, which could arise in a foster family as well as in a biological family. However, in dictum, it indicated that if a foster family's "claimed interest derives from a knowingly assumed contractual relation with the State, it is appropriate to ascertain from state law the expectations and entitlements of the parties." Smith v. Organization of Foster Families for Equality & Reform, supra, 431 U.S. at 845-846, 97 S.Ct. at 2110, 53 L.Ed.2d at 36.

The Smith Court also warned that whatever liberty interest a foster family may have in its continuation, such interest must be substantially weakened where the state proposes to remove the child from the foster family and return it to its natural parents whose constitutionally protected liberty interest derives from the blood relationship, state law sanction, and basic human rights.

Some courts have found that a foster family has a constitutionally protected interest in certain limited situations. See Rivera v. Marcus, 696 F.2d 1016 (2d Cir.1982)

(holding that custodial relatives, who later enter into foster parent agreements with the state, have a liberty interest in preserving the family when it is unlikely the biological parent will ever petition for custody); Brown v. San Joaquin County, 601 F.Supp. 653 (E.D.Cal. 1985) (stating that foster family's procedural due process rights do not come into existence until natural parents abdicate their responsibility to the child); Berhow v. Crow, 423 So.2d 371 (1982) (holding that foster parents, selected by the mother and approved of by the father permanently to care for their infant, have a liberty interest).

More courts have found that foster parents do not have a protected liberty interest. See Rodriguez v. McLoughlin, 214 F.3d 328 (2nd Cir.2000 (no such liberty interest prior to finalization of adoption)

; Procopio v. Johnson, 994 F.2d 325 (7th Cir.1993) (rejecting such a liberty interest under either the Fourteenth Amendment, federal Adoption Act, or 42 U.S.C. § 1983 (1998)); Renfro v. Cuyahoga County Department of Human Services, 884 F.2d 943 (6th Cir.1989) (no such interest created after six year foster care relationship); Kyees v. County Department of Public Welfare of Tippecanoe County, 600 F.2d 693 7th Cir.1979) (foster families enjoy a more limited liberty interest than...