PEOPLE EX REL. MB, No. 01CA2451.

• Decision Date: 10 April 2003
• Docket Number: No. 01CA2451.
• Citation: 70 P.3d 618
• Parties: The PEOPLE of the State of Colorado, Petitioner-Appellee, and In the Interest of M.B., a Child, Concerning T.B., Respondent-Appellant.
• Court: Colorado Court of Appeals

70 P.3d 618

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

In the Interest of M.B., a Child,

Concerning T.B., Respondent-Appellant.

No. 01CA2451.

Colorado Court of Appeals, Division V.

April 10, 2003.

George H. Hass, County Attorney, David P. Ayraud, Assistant County Attorney, Fort Collins, Colorado, for Petitioner-Appellee.

Randall C. Lococo, Guardian Ad Litem.

Mark K. Workman, Fort Collins, Colorado, for Respondent-Appellant.

Opinion by Judge ROTHENBERG.

In this dependency and neglect proceeding, T.B. (mother), appeals from a judgment terminating her legal relationship with her child, M.B. The primary issue in this appeal is whether mother's right to due process was violated during the review process conducted before the magistrate pursuant to Colorado's permanency hearing statute, § 19-3-702, C.R.S.2002, and requires that the order of termination later entered by the district court be vacated. Because mother had a full and fair opportunity to be heard at the termination hearing, we conclude her right to due process was not violated. Accordingly, we affirm.

I.

On September 12, 2000, the child, who was then two years old, was found wandering the streets. She was hungry and her body was covered with numerous and severe bruises. The police department took the child into protective custody and then released her to the county department of social services for placement in foster care.

Several hours later, mother was located and interviewed. She reported she had entrusted the care and discipline of the child to her boyfriend and he had caused the bruising. However, she stated she was present while the boyfriend beat the child and she heard the child screaming.

Because of the nature and extent of the child's bruises, medical and sexual abuse examinations were conducted, and the examination revealed numerous abrasions on and adjacent to the child's hymen. The examiner concluded they were "consistent with sexual abuse" and could have been caused by digital or penile contact.

When the boyfriend was interviewed, he admitted he had severely abused the child physically and sexually.

On September 15, 2000, a petition in dependency and neglect was filed naming mother and the boyfriend as respondents. Mother admitted the allegations in the petition, and the child was adjudicated dependent and neglected. On November 11, 2000, mother married the boyfriend, who is hereinafter referred to as the husband.

In November 2000, the magistrate approved a treatment plan for mother. The husband's treatment plan was approved in January 2001, at which time a dispositional order entered as to both mother and the husband. Also, in January 2001, mother was sent a written advisement of her legal and constitutional rights and written notice that a permanency hearing was set for March 1.

On March 1, as relevant here, the magistrate found that mother was working on the issues addressed by the treatment plan, but that it was too soon to determine whether the child could be returned to her. The magistrate continued the permanency hearing until April 12. At the April 12 hearing, issues were raised concerning the child's placement, but the magistrate deferred ruling on placement until the next hearing, which was set for April 24.

On April 24, the parties entered into an agreement to maintain the child in her foster care placement and to change the permanency plan to establish the goal of reunification. The agreement required mother to prohibit contact between the child and her husband, to obtain her own residence, and to participate in a parent-child interactional evaluation. The magistrate adopted the agreement and set the matter for review on May 17.

At the May 17 hearing, the magistrate formally changed the permanency plan to reflect the goal of reunification between the mother and child and signed a written order approving the child's ongoing foster care placement. However, on May 18, the People moved to suspend unsupervised visits, citing concerns that arose during an evaluation.

On June 4, a review hearing was held and, as relevant here, the parties stipulated to, and the magistrate approved, a visitation schedule that included unsupervised visits. After the review hearing, mother and the department submitted proposed visitation orders, and on June 27, the magistrate signed the order submitted by the department. Mother objected, contending it did not accurately reflect the agreement, and at her request, a review hearing was set for June 28.

On June 27, the People filed an amended notice of hearing that referred to the June 28 hearing as a "permanency planning" hearing. On the same date, the department submitted a report to the magistrate designated "EXPEDITED PERMANENCY PLANNING CASE PERMANENCY PLAN REVIEW."

The department's June 27 report recited the facts set forth above and described the current situation of mother and the child. The department expressed several major concerns, including that mother had married the husband so soon after the severe abuse of her daughter and mother was still residing with him. The department also was concerned "[with mother's] role in her abuse of her daughter and the lack of ability to protect her daughter." The report added that mother had "a tendency to minimize the severity of the abuse"; her continued involvement with the husband had put "consistent pressure on [the child] to accept [him] as a father"; and mother "does not appear to have the motivation to make the significant behavioral changes which would be needed to ensure the child's safety."

The department recommended that a motion for termination of parental rights be filed because, as relevant here, "[Mother] has been presented with information in order to assist her in being able to reunify with her child. She has chosen to defend [the husband], continue a relationship with [him,] and is reportedly very enmeshed in her relationship with [him]."

On June 28, the parties appeared before the magistrate, but no evidence was received. After the People advised the magistrate of their intention to file a motion to terminate the parent-child relationship, the magistrate ordered that the case be transferred to the district court for a hearing.

On July 11, the magistrate's June 28 approval of the permanency plan and transfer to the district court were memorialized in a written order designated "Permanency Planning Order and Order Approving Ongoing Placement." The July 11 written order recited that the matter had come before the magistrate on June 28 for a "permanency planning hearing" and that the magistrate had reviewed the "permanency plan prepared by [the department] and set forth in a letter dated June 27, 2001."

The July 11 order concluded, as relevant here, that:

3. Reasonable efforts have been made to prevent out-of-home placement and to finalize the permanency plan. Pursuant to the facts and circumstances set forth in the permanency plan prepared by [the department] and set forth in a letter dated June 27, 2001, it would be contrary to the best interests of the [c]hild to be returned to the custody of [mother] at this time. Further, there is not a substantial probability that the [c]hild will be returned to the physical custody of [mother] within six months of the date this Order is executed.

4. In light of the above, the [magistrate] finds the permanency plan prepared by [the department] and set forth in a letter dated June 27, 2001, which by this reference is incorporated herein to be appropriate and in the best interests of the [c]hild.

5. The [magistrate] finds that the permanency plan for the [c]hild is a determination of whether the parent/child relationships should be terminated....

Mother filed a petition for review in the district court, contending the magistrate had violated her right to due process by failing to conduct a permanency hearing before changing the permanency plan goal from reunification to termination.

In September 2001, on the date set for the termination hearing, the district court rejected mother's due process argument, denied her petition for review, and proceeded to conduct a termination hearing. The court also stated that it would consider any relevant issues at the termination hearing that could have been raised before the magistrate.

After hearing the evidence, the district court entered the judgment terminating mother's parental rights.

II.

Mother contends she was deprived of her right to due process when the magistrate changed the permanency plan and ordered the transfer to district court without first conducting a permanency hearing. According to mother, the June 28 proceeding did not constitute a "permanency hearing," and such a hearing was necessary to determine whether the permanency goal of reunification should have been changed to termination. Mother thus urges us to conclude the magistrate's order of July 11 transferring the case to the district court for hearing on the motion to terminate violated her right to due process.

We conclude that because mother had a full and fair opportunity to be heard at the termination hearing, her right to due process was not violated, and we therefore perceive no basis for reversal.

Due process is flexible and calls for such procedural protections as the particular situation demands. People v. Taylor, 618 P.2d 1127, 1135 (Colo.1980); see People in Interest of Dveirin, 755 P.2d 1207, 1211 (Colo.1988)

(holding that "certification proceedings [conducted] subsequent to the certification for short-term [mental health] treatment adequately protected the respondent's due process rights"); Eason v. Bd. of County Comm'rs, 70 P.3d 600, 2003 WL 1562228 (Colo.App.2003).

A parent has a constitutionally protected liberty interest in the care, custody, and management of his or her child. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); B.B. v. People, 785 P.2d 132 (Colo.1990).

Termination of the parent-child legal...