PEOPLE EX REL. DRW
| Decision Date | 11 March 2004 |
| Docket Number | No. 03CA0559.,03CA0559. |
| Parties | The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of D.R.W., a Child, and Concerning J.R.J., Respondent-Appellant. |
| Court | Colorado Court of Appeals |
Furman, Kerns, & Bauer, LLC, Steven M. Furman, Clayton B. Farrell, Fort Morgan, Colorado, for Petitioner-Appellee.
Law Office of Douglas J. Marston, Douglas J. Marston, Fort Morgan, Colorado, for Respondent-Appellant.
Opinion by Judge WEBB.
J.R.J. (father) appeals from a judgment terminating the parent-child relationship between him and his child, D.R.W. (child). Because the trial court terminated father's parental rights without having conducted a dispositional hearing after the child was adjudicated dependent and neglected as to father, we reverse and remand.
The child's guardian contacted the Washington County Department of Social Services (Department) in the fall of 2000 when she could not control the child, who was then three years old. On November 13, 2000, the Department filed a petition in dependency and neglect and began to assess the child's particular mental health needs.
According to the petition, termination of the parent-child legal relationship was "a possible remedy." Attached to the petition was a "NOTICE — LEGAL RIGHTS AND PRIVILEGES," which included the statement:
The Department prepared and filed a treatment plan on November 20, 2000. As to father, who was then incarcerated on bad check charges, the plan required only that he aid the Department in providing the child with appropriate treatment, that he provide the Department with information and documents in aid of treatment, that he sign releases for necessary information, and that he keep the Department advised of his incarceration status. The Department never proposed any changes to this treatment plan, nor did father ever request any changes.
The child was placed at a residential treatment center on March 1, 2001. As of March 14, 2001, the single permanency goal in the Department's family services plan was permanent kinship placement. During the child's year-long stay at the treatment center, his maternal grandmother participated in his treatment and became his primary attachment figure.
On April 4, 2001, father, who remained incarcerated, signed a stipulation to continue the adjudication, which the court accepted by a written order that approved both the treatment plan and the recommendations in the Department's family services plan. The stipulation provided that the court would review the matter in six months and that, if father successfully complied with the conditions of the continued adjudication, which included the treatment plan, or there was no need for continued court involvement, "the matter shall be dismissed."
On July 25, 2001, the court adopted the Department's revised family services plan, which reflected the same primary permanency goal of guardianship or permanent custody and a new concurrent goal of permanent placement with relatives through adoption. Father took no action in response to this change in the family services plan.
On September 17, 2001, the court reviewed the matter and, after a hearing, entered an adjudication of dependency and neglect over father's objection. The parties agreed that father had complied with the minimal conditions of the continued adjudication. Nevertheless, based on the child's serious ongoing behavioral problems, the court entered an adjudication order because continuing court involvement was required. The court did not hold a dispositional hearing, either in connection with the adjudication hearing or at any time thereafter.
In February 2002, the child was discharged from the residential treatment center and placed with his maternal grandmother. Father then informed the Department that although he agreed with the placement and did not intend to seek custody, he was unwilling to relinquish his parental rights because he hoped to exercise visitation with the child. The Department referred father for a psychological evaluation to determine whether he could learn the needed parenting skills, in light of the child's unusual needs. The Department told father that following the evaluation it would either work with him to devise and implement a treatment plan consistent with his continued incarceration or seek termination of his parental rights.
On April 19, 2002, after father's evaluation identified serious psychological problems, the Department moved to terminate his parental rights under § 19-3-604(1)(b)(I), C.R.S.2003. The Department asserted that no appropriate treatment plan could be devised to address father's unfitness in a reasonable time, based on his mental condition and in light of the ongoing physical, mental, and emotional needs of the child. The Department never asserted that father posed a threat to the child's health or safety.
Father opposed termination, arguing that at the time he entered into the stipulation to continued adjudication in April 2001, the Department's only permanency goal was permanent placement with relatives through guardianship or permanent custody. According to father, because he did not object to the relative placement he then had no reason to demand, and the Department never thereafter offered, a treatment plan reasonably calculated to reunite him with his child.
Father was released from DOC to a halfway house in late 2002. The Department forbade visitation. Father filed a motion for visitation, which the Department opposed. At the January 30, 2003, termination hearing, father testified that he would be released from the halfway house on March 8, 2003.
In its decree of termination, the court rejected father's assertion that he had been misled, finding that the Department had made reasonable efforts at reunification and that "termination was at least on the table as a potential option when the permanency planning was conducted on June 25, of 2001."
The court further found that father was a virtual stranger to the child because of his incarceration since the child's birth; that father's treatment plan was appropriate because he had been incarcerated until shortly before the hearing and therefore "did not have the ability to engage in any treatment or therapy"; that the child has profound needs beyond the ability of most parents; that because of father's psychological illness, no treatment plan could be devised which would establish the necessary parenting skills within a reasonable time; and that given the child's attachment to the maternal grandmother, his best interests required termination of father's parental rights. The court explained that merely awarding permanent custody to the maternal grandmother, and not terminating father's parental rights, would create future problems for both her and the child.
Father challenges the termination of his parental rights on the basis that the trial court did not hold a dispositional hearing after adjudication, at which an appropriate treatment plan should have been considered and adopted, unless the court then determined that no appropriate plan could be devised. On this record, we agree that the trial court did not substantially comply with the procedural requirements of the Parent-Child Legal Relationship Termination Act of 1987, § 19-3-601, et seq., C.R.S.2003. We therefore reverse the judgment terminating father's parental rights and remand for further proceedings.
Under the Children's Code, § 19-1-101, et seq., C.R.S.2003, dependency and neglect proceedings are bifurcated: E.O. v. People in Interest of C.O.A., 854 P.2d 797, 800 (Colo.1993)(footnote omitted). Section 19-3-507(1)(a), C.R.S. 2003, provides that "[a]fter making an order of adjudication, the court shall hear evidence on the question of the proper disposition best serving the interests of the child and the public" (emphasis added).
The Children's Code treats the initial hearing following an adjudication of dependency and neglect as a "dispositional hearing." People in Interest of C.L.S., 934 P.2d 851, 853-54 (Colo.App.1996)("The statutory scheme is thus clear in treating an initial dispositional order adopting a treatment plan as a `decree of disposition'" for the purpose of finality.) The resulting "decree of disposition" may postpone a decision about termination of parental rights and instead order placement of the child. See § 19-3-508(1)(a)-(c), C.R.S.2003. However "[r]egardless of placement, the court `shall' approve an appropriate treatment plan," People in Interest of C.L.S., supra, 934 P.2d at 854, unless it finds that no appropriate treatment plan could be devised. Section 19-3-508(1)(e)(I), C.R.S.2003.
Section 19-3-508(1), C.R.S.2003, provides that the court may enter a decree of disposition the same day as the adjudication, but in any event the court "shall" do so within forty-five days, or thirty days in expedited circumstances, unless the court finds that the best interests of the child will be served by granting a delay. "It is the intent of the general assembly that the dispositional hearing be held on the same day as the adjudicatory hearing, whenever possible." Section 19-3-508(1). However, these time periods are not jurisdictional. People in Interest of A.M., 786 P.2d 476 (Colo.App.1989).
The statute further provides that when the "proposed disposition" is termination of the parent-child legal relationship, the...
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