People in Interest of E. A.

• Decision Date: 14 December 1981
• Docket Number: No. 80SA496,80SA496
• Citation: 638 P.2d 278
• Parties: The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of E.A., K.A., a/k/a A.A. and M.A., Children, and Concerning, G.A., Respondent and S.A.O., Respondent-Appellant.
• Court: Colorado Supreme Court

Page 278

638 P.2d 278

The PEOPLE of the State of Colorado, Petitioner-Appellee In the Interest of E.A., K.A., a/k/a A.A. and M.A., Children and Concerning, G.A., Respondent and S.A.O., Respondent-Appellant.

No. 80SA496.

Supreme Court of Colorado, En Banc.

Dec. 14, 1981.

As Modified on Denial of Rehearing Jan. 4, 1982.

James M. Downey, Asst. County Atty., Boulder, for People and the Boulder County Dept. of Social Services, petitioner-appellee.

John P. Tracy, Guardian Ad Litem for M.A., Boulder, for petitioner-appellee.

Harriet Templer Moskovit, Boulder, for respondent-appellant.

Neil E. Piller, Longmont, for Foster Parents, intervenors.

QUINN, Justice.

This appeal is another phase of protracted litigation involving the termination of a parental relationship between a mother, S.A.O., and her eight year old son, M.A. ¹ We addressed the pre-termination phase of this case in Overturf v. District Court of the Twentieth Judicial District, 198 Colo. 516, 602 P.2d 850 (1979), wherein we ordered the juvenile division of the district court to promptly resolve the question of termination of parental rights which had been pending since 1977. On December 21, 1979, the district court terminated the parent-child relationship and S.A.O. now appeals the decree of termination. Because the district court failed to apply the appropriate standards for termination of parental rights we reverse and remand. ²

I.

The facts antedating the present phase of this controversy were outlined in Overturf v. District Court, supra, and we briefly summarize them here. In 1972 S.A.O. was experiencing financial and psychological problems and had separated from her husband. She was advised by Ms. Jan Pollman, a social worker with the Boulder County Social Services Department (department), to place her five year old son, E.A., and her two year old daughter, K.A., in a foster home. S.A.O. followed this advice and thereafter was required by the social worker to meet with her before each visitation with the children. Finding these sessions somewhat intimidating, S.A.O.'s visits with her children became less frequent.

On August 4, 1973, S.A.O. gave birth to a son, M.A. After being charged with and imprisoned for a bad check offense in July 1974, S.A.O. voluntarily placed M.A. with the department for foster care until her release from jail in November 1974. Upon her release the social worker informed her that she could visit M.A. if she wanted to work towards his return but refused to tell the mother where her child was.

On May 27, 1975, the department initiated a dependency proceeding based on S.A.O.'s failure to maintain contact with her children and her neglect of M.A. before placing him with the department in July 1974. The court on September 17, 1975, determined that the children had not received proper parental care, entered an adjudication of dependency, and ordered that the children be retained in foster care pending a dispositional hearing. S.A.O., who was represented by counsel at the dependency hearing, was denied any visitation with her children until she was evaluated by a psychiatrist. The court's order remained effective until the latter part of 1978 with respect to E.A., the oldest child, and until mid-1979 in the case of K.A., the second child. The order denying visitation with M.A., the youngest child, remained in effect throughout the entire proceedings in this case.

In the early part of 1977 the department requested termination of the parental relationship between S.A.O. and G.A., the natural father, and their three children, E.A., K.A. and M.A. Termination of S.A.O.'s parental rights was sought primarily because she had failed to visit the children although, as noted previously, she had been denied visitation by the court order of September 17, 1975. The dispositional hearing was set on April 6, 1977, but was continued upon S.A.O.'s request until September 21, 1977. After the dispositional hearing the court took the matter under consideration. While the court had the matter under advisement S.A.O. remarried and in this intervening period she gave birth to a fourth child. In September 1979, when no decision yet had been made by the court on the issue of termination, S.A.O. commenced an original proceeding in this court. On November 13, 1979, we ordered the district court to promptly determine whether S.A.O.'s parental rights should be terminated. Overturf v. District Court, supra.

A second dispositional hearing was held before a different judge on December 14, 1979. The court reviewed the transcripts of prior hearings, received testimony from various witnesses, and considered psychiatric and psychological evaluations of S.A.O. and her children which had been made during the pendency of the dispositional hearing. ³ The court issued its decree on December 21, 1979. It found that the oldest child, E.A., had experienced significant improvement in his mental condition after having been placed in a residential treatment center in 1978 and returned E.A. to S.A.O. The middle child, K.A., was continued under foster care pending a visitation program calculated to reestablish the parent-child relationship. The court expressly noted that the condition which resulted in K.A.'s dependency no longer existed and the child's best interests would not be served by terminating S.A.O.'s parental rights, especially since all of the alternatives to termination had not been eliminated.

With respect to M.A., the eight year old son, the court made the following pertinent findings: although S.A.O. experienced severe emotional problems in the past and was generally unreliable, she has since reordered her life with a new marriage and the birth of a fourth child; S.A.O. never had the opportunity to develop a mother-son relationship with M.A. primarily as the result of the social worker's refusal to inform S.A.O. of her son's whereabouts and the court's previous mishandling of the case; S.A.O. was capable of functioning as a proper parent in a non-hostile environment and, with proper parental counseling, would be able to discharge her duties as a mother; M.A. requires special education and psychotherapy to overcome serious emotional problems stemming from repeated disruptions and separations in his early life; M.A. has lived with his current foster parents for two years and they desire to adopt him; ⁴ the initiation of a visitation program between S.A.O. and M.A. at this time would cause M.A. increased emotional problems and retard his intellectual and emotional development.

Based on these findings the court terminated the parental relationship between M.A. and the boy's natural parents, S.A.O. and G.A. ⁵ The court acknowledged this court's decision in People in the Interest of M.M., 184 Colo. 298, 520 P.2d 128 (1974), which promulgated standards for termination of parental rights in cases such as this, but nevertheless declined to apply those standards because, as the court stated, "the result dictated would not be consistent with the overriding public policy of the Children's Code (which) can be achieved only by determining what disposition will best serve (M.A.)'s welfare and interests." The court concluded that "because of the conduct of the juvenile court and the department, (S.A.O.)'s parental rights have been effectively terminated" and "(u)nder no reasonable circumstances can the welfare of (M.A.) be served by a continuation of a parent-child relationship with (S.A.O.)." S.A.O. thereafter filed a motion to alter or amend the decree and upon its denial this appeal followed.

S.A.O. urges three principal arguments for reversal of the decree of termination. First, she asserts that there was insufficient evidence to support the 1975 dependency adjudication upon which the 1979 decree of termination was based. Second, she argues that she was never adequately notified of the factual basis for the termination proceeding in violation of due process of law. Last, she contends that the court failed to apply the appropriate legal standard for termination of her parental relationship with M.A. We agree with her last contention and reverse the judgment and remand the case for a resolution of the department's petition for termination in accordance with the appropriate legal standard.

II.

Before considering S.A.O.'s arguments relating to the decree of termination, we address a preliminary matter of procedure raised by the department, the guardian ad litem for M.A., and the intervening foster parents of M.A., namely that S.A.O.'s failure to file a motion for a new trial after the 1975 dependency adjudication and to appeal therefrom precludes her from challenging the dependency adjudication at this time.

An appeal lies from any final judgment entered by a juvenile court. C.A.R. 1(a)(1). A final judgment is "one which ends the particular action in which it is entered, leaving nothing further for the court pronouncing it to do in order to completely determine the rights of the parties involved in the proceedings." D.H. v. People, 192 Colo. 542, 561 P.2d 5 (1977), quoting Stillings v. Davis, 158 Colo. 308, 310, 406 P.2d 337, 338 (1965). The Children's Code permits the court to bifurcate the adjudicatory and dispositional hearings and to continue the dispositional hearing to some future date. See People in the Interest of M.B., 188 Colo. 370, 535 P.2d 192 (1975); sections 19-3-106(3) and (6)(b), C.R.S.1973 (1978 Repl.Vol. 8). The adjudication of a child as dependent or neglected, with the dispositional hearing continued to a future date, does not become a final judgment until a decree of disposition is entered. People in the Interest of F.M., Colo.App., 609 P.2d 1123 (1980); People in the Interest of B.W., Colo.App., 601 P.2d 1086 (1979). The time for filing a motion for a new trial or for a modification of judgment does not commence to run until the entry of a final order, judgment or decree. People in the Interest of F.M., supra ; C.R.C.P. 59(b) and 59...