People ex rel. M.D., Court of Appeals No. 14CA0522

• Decision Date: 11 September 2014
• Docket Number: Court of Appeals No. 14CA0522
• Citation: 2014 COA 121,338 P.3d 1120
• Parties: The PEOPLE of the State of Colorado, Petitioner–Appellee, IN the INTEREST OF M.D., a Child, and Concerning C.D., Respondent–Appellant, and V.S. and C.S., Intervenors.
• Court: Colorado Court of Appeals

338 P.3d 1120

2014 COA 121

The PEOPLE of the State of Colorado, Petitioner–Appellee IN the INTEREST OF M.D., a Child and Concerning C.D., Respondent–Appellant and V.S. and C.S., Intervenors.

Court of Appeals No. 14CA0522

Colorado Court of Appeals, Div. VI.

Announced September 11, 2014

Sheryl Rogers, County Attorney, Linda L. Boulder, Special County Attorney, Durango, Colorado, for Petitioner–Appellee.

Beth Padilla, Guardian Ad Litem.

Jon Lewis Kelly, PC, Jon L. Kelly, Dolores, Colorado, for Respondent–Appellant.

Dianne A. Pacheco–VanVoorhees, Denver, Colorado, for Intervenors.

Opinion

Opinion by JUDGE RICHMAN

¶ 1 In this dependency and neglect proceeding, C.D. (father) appeals from a judgment allocating a majority of parenting time and sole decision making authority for M.D. (the child) to V.S. and C.S. (the foster parents). We affirm.

I. Background

¶ 2 In May 2011, the La Plata County Department of Human Services (department) filed a petition in dependency and neglect due to its concerns about the parents' domestic violence and substance abuse. That same month, the child was placed in the foster home, briefly returned to father, and then re-placed in the foster home, where she remained throughout the case. The child's mother is not involved in this appeal—her rights were terminated when she stopped visiting the child after June 2012 and failed to comply with her treatment plan.

¶ 3 Based on father's admission to certain allegations in the petition, including that he tested positive for methamphetamine, the court adjudicated the child dependent and neglected and adopted a treatment plan for father. Father did not initially comply with his treatment plan, but after he was arrested and placed on probation for a domestic violence conviction, he began to fulfill the tasks outlined in the plan.

¶ 4 In July 2012, to achieve permanency for the child within the twelve-month guideline set out in section 19–3–703, C.R.S. 2013, the department moved to terminate the parent-child legal relationship between father and child. The child, then three years old, had been in foster care for over a year. However, the termination hearing did not conclude until February 2013.

¶ 5 During the long delay between the filing of the termination motion and the conclusion of the termination hearing, father completed his treatment plan. Nonetheless, after the termination hearing, the court terminated his rights. Father appealed the termination order.

¶ 6 In People in Interest of M.D., 2013 WL 5574513 (Colo.App. No. 13CA0515, Oct. 10, 2013) (not published pursuant to C.A.R. 35(f) ) (M.D. I ), a division of this court reversed the judgment terminating the parent-child legal relationship between father and child because the court could not determine the basis for the order. The division remanded the case to the trial court to reexamine the evidence, hear new argument and evidence of circumstances occurring since the termination hearing, and make new findings under the termination statute, section 19–3–604(1)(c), C.R.S. 2013.

¶ 7 Upon remand, neither the department nor the guardian ad litem (GAL) pursued termination of father's rights. The department acknowledged that, under then-current circumstances, it would have difficulty proving that father was unfit. Both the department and the GAL asserted that the child needed permanency and, instead of termination, requested that the court enter permanent orders allocating parental responsibilities to the foster parents with parenting time for father. The foster parents had also filed a petition for allocation of parental responsibilities in a separate domestic relations case, which was certified into the dependency and neglect case under section 19–1–104(4)(a), C.R.S. 2013, so that the juvenile court could determine custody.

¶ 8 The juvenile court held a permanency hearing under section 19–3–702, C.R.S. 2013 (the permanency hearing statute). Father, represented by counsel, fully participated in the hearing and initially requested that full custody of the child be returned to him. Although he acknowledged that the foster parents had served an important role in the child's life, that the child loved them, and that he was willing to have the court order visitation with them, he continued to request primary custody.

¶ 9 The court determined that “it must evaluate the question of whether there [was] a compelling reason not to return [the child's] custody to [father] based upon the totality of circumstances,” stating, “[T]he [c]ourt can consider not just [father's] capacity as a parent, but also factors that bear upon the child's best interests, including [the child's] need for permanency, her attachment to her current foster family, and the risk of emotional and psychological harm that may occasion disruption of that attachment.” The court found several compelling reasons not to return the child to father's care.

¶ 10 Consequently, the court granted to the foster parents sole decision making and a majority of parenting time, and to father parenting time pursuant to a step-up parenting schedule, which was proposed by a mediator and endorsed by the department and provided for increasing visitation by father. The court then directed the foster parents to file a proposed order to be certified into a domestic relations case and directed the clerk to close the dependency and neglect case.

¶ 11 On appeal, father contends that the court erred in concluding that it need only find a compelling reason to allocate parental responsibility to a nonparent under the permanency hearing statute. He asserts six ways in which the court's order was insufficient. We address each in turn.

II. Law

¶ 12 As noted by father, one purpose of the Children's Code is the preservation of family ties whenever possible. § 19–1–102(1)(b), C.R.S. 2013. But, its overriding purpose is to protect the welfare and safety of children by providing procedures through which their best interests can be served. L.G. v. People, 890 P.2d 647, 654 (Colo.1995). To this end, a dependency and neglect action focuses primarily on the protection and shelter of children who are susceptible to harm from the effects of abuse and neglect. Id. at 655. Consequently, the supreme court has declared that the safety of the child and not the custodial interest of the parent is the paramount concern. Id.

¶ 13 In addition, the General Assembly has declared that children removed from their home should be offered certain guarantees. § 19–1–102(1.5). Among these is assurance of long-term permanency planning. § 19–1–102(1.5)(III).

¶ 14 The permanency hearing statute applies whenever a child is placed in foster care. People in Interest of M.B., 70 P.3d 618, 623 (Colo.App.2003) ; see also § 19–1–103 (83.5), C.R.S. 2013. It provides for the adoption and implementation of a specific permanency plan for a child placed into foster care during the pendency of a dependency or neglect proceeding. People in Interest of C.M., 116 P.3d 1278, 1281–82 (Colo.App.2005). Its stated purpose is “to provide stable permanent homes for children in as short a time as possible.” § 19–3–702(1).

¶ 15 The permanency hearing statute seeks to ensure that there is a plan for the child to achieve permanency. M.B., 70 P.3d at 623. It also requires periodic review of the child's placement and the department's efforts to achieve the child's permanency plan. Id. The permanency hearing statute is separate from the statutory scheme governing termination of parental rights. Id .

¶ 16 Because the child in this case was less than six years old when she was removed from the home, she was subject to expedited permanency planning statutes, “which are intended to swiftly place the youngest—and thereby most vulnerable—children in permanent homes.” A.M. v. A.C., 2013 CO 16, ¶ 19, 296 P.3d 1026 ; see also §§ 19–1–102(1.6), 19–1–123, 19–3–703, C.R.S. 2013. As noted by the supreme court, “[a] critical bonding and attachment process occurs before children reach six years of age, and children who have not bonded with a primary adult during that time suffer emotional damage that can lead to chronic psychological problems and antisocial behavior.” People in Interest of A.J.L., 243 P.3d 244, 250 (Colo.2010).

III. Failure to Comply with the Mandate

¶ 17 First, father contends that the court erred because it failed to comply with the mandate in M.D. I . Specifically, he asserts that the court erred in disregarding M.D. I's direction to provide father the opportunity to work toward reunification, even though the department withdrew the termination motion. We disagree.

¶ 18 When an appellate court remands a case with specific directions to enter a particular judgment or to pursue a prescribed course, a trial court has no discretion except to comply with the instructions. Musgrave v. Indus. Claim Appeals Office, 762 P.2d 686, 687–88 (Colo.App.1988). However, when a case is remanded for further proceedings consistent with the appellate court's opinion, it is a general remand. Id. at 688. A general remand authorizes the trial court to make new findings and conclusions so long as there is no conflict with the appellate court ruling. Id.

¶ 19 Here, this court reversed and remanded the case for further findings consistent with the termination statute. Although the opinion stated, “[I]f the trial court determines that the termination criteria have not been proven by clear and convincing evidence, then the trial court is directed to order father to comply with an appropriate treatment plan [and] also provide him with a reasonable period of time to comply with the treatment plan,” the outcome of the termination motion was left to the court's discretion. Thus, it was a general remand, and the court was not required to pursue a prescribed course.

¶ 20 Since no party moved to terminate father's rights on remand, we conclude that the court did not err in failing to reexamine the evidence, take additional evidence, and make findings consistent with the termination statute....