People ex rel. S.R.N.J-S., 012320 COCA, 19CA0439

Docket Nº:19CA0439
Opinion Judge:DUNN JUDGE
Party Name:The People of the State of Colorado, Appellee, In the Interest of S.R.N.J-S. and M.A.J-S., Children, and Concerning A.N.J-S. and J.A.G., Appellants.
Attorney:Kristin M. Bronson, City Attorney, Laura Grzetic Eibsen, Assistant City Attorney, Denver, Colorado, for Appellee Barry Meinster, Guardian Ad Litem The Law Office of Michael Kovaka, Michael Kovaka, Littleton, Colorado, for Appellant A.N.J-S. Pamela K. Streng, Office of Respondent Parents' Counsel,...
Judge Panel:JUDGE WEBB and JUDGE LIPINSKY concur.
Case Date:January 23, 2020
Court:Court of Appeals of Colorado, Third Division
 
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2020 COA 12

The People of the State of Colorado, Appellee,

In the Interest of S.R.N.J-S. and M.A.J-S., Children, and Concerning A.N.J-S. and J.A.G., Appellants.

No. 19CA0439

Court of Appeals of Colorado, Third Division

January 23, 2020

City and County of Denver Juvenile Court No. 17JV1077 Honorable Laurie A. Clark, Judge

Kristin M. Bronson, City Attorney, Laura Grzetic Eibsen, Assistant City Attorney, Denver, Colorado, for Appellee

Barry Meinster, Guardian Ad Litem

The Law Office of Michael Kovaka, Michael Kovaka, Littleton, Colorado, for Appellant A.N.J-S.

Pamela K. Streng, Office of Respondent Parents' Counsel, Georgetown, Colorado, for Appellant J.A.G.

OPINION

DUNN JUDGE

¶ 1 Father, J.A.G., and mother, A.N.J-S., appeal the juvenile court's judgment terminating their parent-child legal relationships with their children, S.R.N.J-S. and M.A.J-S. Because the evidence doesn't support the juvenile court's conclusion that the parents were unfit, we must reverse and remand the case.

I. Background

¶ 2 This is the family's second dependency and neglect proceeding. In the first case, the Denver Department of Human Services removed the children, a twin boy and girl, shortly after their births because mother was using controlled substances. The case was closed a year later, and the Department returned the children to mother. Father was living in Mexico and visited the children sporadically.

¶ 3 The Department initiated this case in July 2017 due to mother's possible methamphetamine use and reported domestic violence and abuse. The juvenile court adjudicated the then-three-year-old twins dependent or neglected and entered treatment plans for the parents.

¶ 4 Father was still living in Mexico when the Department filed the case. Although the Department served him with notice of the proceeding, father did not contact the Department until March 2018, when he began relocating to Colorado.

¶ 5 Two weeks after father made his first court appearance, the children's guardian ad litem (GAL) moved to terminate the parents' parental rights. In an uncommon turn, the Department opposed the motion and moved, instead, to increase parenting time and transition the children home.

¶ 6 The juvenile court held a twelve-day hearing on the competing motions between August 2018 and February 2019. At the end of the hearing, the court granted the GAL's motion and terminated both parents' parental rights.

II. Termination of Parental Rights

¶ 7 The goal of a dependency and neglect case is to preserve the parent-child relationship whenever possible. People in Interest of C.A.K., 652 P.2d 603, 610 (Colo. 1982). And given that the termination of the parent-child legal relationship affects a parent's fundamental liberty interest in the care and custody of the child, the state must exercise extreme caution in terminating parental rights. K.D. v. People, 139 P.3d 695, 700 (Colo. 2006). For this reason, a juvenile court must strictly comply with the statutory termination criteria. Id.; People in Interest of L.M., 2018 COA 57M, ¶ 18.

¶ 8 To terminate parental rights, a juvenile court must find, by clear and convincing evidence, that (1) a child was adjudicated dependent and neglected; (2) the parent didn't comply with an appropriate, court-approved treatment plan or the plan wasn't successful; (3) the parent is unfit; and (4) the parent's conduct or condition is unlikely to change within a reasonable time. § 19-3-604(1)(c), C.R.S. 2019. The burden of proof lies with the party seeking termination. People in Interest of S.N-V., 300 P.3d 911, 914 (Colo.App. 2011) (the due process requirements for a termination hearing place no duty on a respondent parent).

¶ 9 An unfit parent is one whose conduct or condition renders the parent unable to give a child reasonable parental care. § 19-3-604(2). Reasonable parental care requires, at a minimum, that the parent provide nurturing and protection adequate to meet the child's physical, emotional, and mental health needs. Id.; accord L.M., ¶ 28.

A. Standard of Review

¶ 10 "Whether a juvenile court properly terminated parental rights presents a mixed question of fact and law because it involves application of the termination statute to evidentiary facts." L.M., ¶ 17. We review the juvenile court's findings of evidentiary fact - the raw, historical data underlying the controversy - for clear error and accept them if they have record support. Id.; see also People in Interest of S.N. v. S.N., 2014 CO 64, ¶ 21. But we review de novo the juvenile court's legal conclusions based on those facts. People in Interest of S.K., 2019 COA 36, ¶ 41; L.M., ¶ 17.

¶ 11 Whether the evidence establishes that a parent is unfit is ultimately a legal conclusion because its resolution requires application of the evidentiary facts to the termination statute. See § 19-3-604; S.N., ¶ 21; see also People in Interest of A.J.L., 243 P.3d 244, 246 (Colo. 2010) (evidence supported the juvenile court's factual "findings and its legal conclusion that [parent was] unfit").

¶ 12 Because we review de novo the court's legal conclusions, we need not consider mother's proposal that we conduct an "independent appellate review" of the juvenile court's termination order.

B. The Oral and Written Termination Orders

¶ 13 At the end of the termination hearing, the juvenile court issued a detailed oral order terminating the parents' parental rights. Later, it issued a short written termination order that contained little detail. What's problematic for our purposes is that the oral parental fitness findings are different from those in the written order.

¶ 14 Specifically, in its oral termination order, the juvenile court found the parents' "conduct or condition [was] semi-fit at this time[, ] that they can provide reasonable parental care for the children[, ] and additional time will likely not change the conduct or condition within a reasonable period of time."1 Despite the suggestion of parental fitness, and without further explanation as to fitness, the court terminated father's and mother's parental rights.

¶ 15 Shortly after the hearing, the court issued its written termination order, which recited the parties' names, the date it entered its oral ruling, and the required statutory findings. Regarding fitness, the written order merely stated the parents "are unfit[] as parents for the minor children." But it doesn't explain how or why the court went from "semi-fit" in its oral termination order to...

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