People v. , Court of Appeals Nos. 14CA2454

• Decision Date: 10 March 2016
• Docket Number: 14CA2455,14CA2456 & 14CA1457,Court of Appeals Nos. 14CA2454
• Citation: 417 P.3d 843
• Parties: The PEOPLE of the State of Colorado, Petitioner–Appellee, IN the INTEREST OF E.M., L.M., AND E.J.M., Children, and Concerning L.G.M., Respondent–Appellant.
• Court: Colorado Court of Appeals

417 P.3d 843

The PEOPLE of the State of Colorado, Petitioner–Appellee, IN the INTEREST OF E.M., L.M., AND E.J.M., Children, and Concerning L.G.M., Respondent–Appellant.

Court of Appeals Nos. 14CA2454

14CA2455

14CA2456 & 14CA1457

Colorado Court of Appeals, Division A.

Announced March 10, 2016

Rehearing Denied March 31, 2016

As Modified April 7, 2016

Jason T. Kelly, County Attorney, Alamosa, Colorado, for Petitioner–Appellee.

Raymond K. Miller, Guardian Ad Litum.

Zerbi Law Firm, PC, Merida I. Zerbi, Monte Vista, Colorado, for Respondent–Appellant.

Opinion by JUDGE ASHBY

¶ 1 This case, which comprises four consolidated appeals, requires us to examine the interrelationship between two articles of the Children's Code. Article three, sections 19–3–100.5 to –703, C.R.S. 2015, relates to dependency and neglect proceedings. Article five, sections 19–5–100.2 to –403, C.R.S. 2015, relates to relinquishment and adoption proceedings. As an issue of first impression, we address whether a county department of social services may move to involuntarily terminate a parent's parental rights in a relinquishment case under article five when the children are the subject of a pending dependency and neglect case under article three.¹ We conclude it cannot.

I. Background

¶ 2 This proceeding began under article three of the Children's Code when the Alamosa County Department of Human Services (department) filed a petition alleging that the children, E.M., L.M., and E.J.M., were dependent or neglected because mother was addicted to pain pills and father, L.G.M. (the appellant), was incarcerated. See § 19–3–502, C.R.S. 2015. The court granted temporary custody of the children to the department after a shelter hearing, and the department placed the children with relatives. See §§ 19–3–403, 19–3–404, C.R.S. 2015.

¶ 3 Thereafter, both father and mother admitted the petition's allegations, and the court adjudicated the children dependent and neglected. See § 19–3–505, C.R.S. 2015. The court adopted a treatment plan for mother that required her to participate in family drug court. § 19–3–508(1), C.R.S. 2015. As to father, the court found that he did not agree with his proposed treatment plan and, since he was incarcerated and unwilling to discuss a proposed treatment plan, the court determined that no appropriate treatment plan could be devised for him. The court made no finding that because of the length of father's incarceration no appropriate treatment plan could be devised. See §§ 19–3–508(1)(e)(I), 19–3–604(1)(b)(III), C.R.S. 2015. However, no dispositional order for father was entered at that time because no party moved to terminate father's parental rights. See § 19–3–508(1) ; see also People in Interest of M.S., 2012 COA 211, ¶¶ 2–4, 292 P.3d 1247 ("When the proposed disposition is termination of the parent-child legal relationship, the termination hearing serves as the dispositional hearing.") (emphasis added).

¶ 4 A year after the case was opened, the guardian ad litem (GAL) moved to terminate the parent-child legal relationship between each parent and the children under article three, section 19–3–604, C.R.S. 2015, and cited two of the three statutory grounds for termination. See § 19–3–602, C.R.S. 2015. First, the motion asserted that the parents had abandoned the children. See § 19–3–604(1)(a). Second, and notwithstanding the court's prior finding that a treatment plan could not be devised for father, the motion alleged that an appropriate treatment plan approved by the court had not been complied with by the parents or had not been successful, the parents were unfit, and their conduct or condition was unlikely to change within a reasonable time.See § 19–3–604(1)(c). The motion did not cite the court's determination that no appropriate treatment plan could be devised to address father's unfitness as a ground for terminating his parental rights. See § 19–3–604(1)(b).

¶ 5 At the hearing on the GAL's termination motion, mother decided to relinquish her parental rights.² See § 19–5–103, C.R.S. 2015. Once mother made this decision, the department believed that the relinquishment statute compelled it to move to terminate father's parental rights in a relinquishment case under article five of the Children's Code. See § 19–5–105(1), C.R.S. 2015 ("If one parent relinquishes ..., the agency or person having custody of the child shall file a petition in the juvenile court to terminate the parent-child legal relationship of the other parent...."). In three separate relinquishment cases (one for each child), the department filed petitions to terminate the parent-child legal relationship between father and each child under the relinquishment statute, section 19–5–105. But, the dependency and neglect case remained open and pending, although no action was taken on the GAL's article three termination motion. With the court's approval, the GAL and the department pursued termination of father's parental rights entirely through the relinquishment cases.

¶ 6 After a hearing, the court terminated father's parental rights under the relinquishment statute. And, at the same time, the court also issued an order establishing a new permanency planning goal and setting a review hearing in the dependency and neglect case. See § 19–3–702, C.R.S. 2015.

¶ 7 Father appeals the three judgments terminating his parent-child legal relationship with the children in the relinquishment cases. We reverse these judgments and remand for further proceedings in the dependency and neglect case.

II. Discussion

¶ 8 Father contends that the court erred in interpreting the Children's Code to permit the department to file its termination motion in an article five (adoption and relinquishment) proceeding rather than proceeding under article three (dependency and neglect).

¶ 9 We agree with father that the Children's Code does not permit the involuntary termination of parental rights through a relinquishment case when the parents and child are parties to an open dependency and neglect case. Thus, we hold that, under the Children's Code, the dependency and neglect court maintains continuing, exclusive jurisdiction over the status of a child who is alleged to be dependent and neglected until the child reaches majority or until the court's jurisdiction over the case is otherwise terminated. As a result, we conclude that the trial court erred in terminating father's parental rights under the relinquishment statute. We reach this conclusion for three reasons.

A. Article Three Must Govern Dependent and Neglected Children Because the Legislative Declarations Illustrate Distinct Purposes Behind Articles Three and Five

¶ 10 First, we begin by examining the purposes of article three and article five, which are set forth in the legislative declarations. Close examination of these purposes reveals that article three proceedings in dependency and neglect "are distinct in purpose, policy, and procedure" from relinquishment proceedings under article five. See In re B.D.G., 881 P.2d 375, 377 (Colo. App. 1993). We conclude that these separate and distinct purposes are not well served when an attempt is made to intertwine them.

¶ 11 Article three actions in dependency and neglect are initiated exclusively by the state through a county human services department, and the purpose of the proceeding is not to adjudicate the parents' rights, but to protect the safety of the children and preserve family ties if possible. L.G. v. People, 890 P.2d 647, 655 (Colo. 1995) ; see also § 19–1–102(1), C.R.S. 2015. In this context, the General Assembly has declared "that the stability and preservation of the families of this state and the safety and protection of children are matters of statewide concern." § 19–3–100.5(1). In support of these goals, an appropriate treatment plan "reasonably calculated to render [a] parent fit to provide adequate parenting" is to be adopted except in limited and exceptional circumstances. See §§ 19–1–103(10), 19–3–508(1)(e)(I), C.R.S. 2015. And it has also noted that federal law "requires that each state make a commitment to make ‘reasonable efforts’ to prevent the placement of abused and neglected children out of the home and to reunify the family whenever appropriate." Id. Indeed, rehabilitative services provided through a dependency and neglect proceeding are designed to accomplish these purposes. § 19–3–208(2)(a)(I), (IV), C.R.S. 2015.

¶ 12 A dependency and neglect case focuses on securing safety and protection for children through state intervention by correcting, when possible, the problems that endanger them so that they can remain in (or return to) their homes. Unlike the informality and swiftness of relinquishment, parents are afforded "significant protections" when facing termination of the parent-child legal relationship in a dependency and neglect case. See A.M. v. A.C., 2013 CO 16, ¶¶ 28–29, 296 P.3d 1026 (identifying eleven different procedural protections provided to parents including, among others, the right to counsel, the right to an expert of an indigent parent's choosing, and the right to have the court consider and eliminate less drastic alternatives to termination).

¶ 13 In contrast, under article five, the General Assembly has declared that "parental relinquishment and adoption of children are important and necessary options to facilitate the permanent placement of minor children if the birth parents are unable or unwilling to provide proper parental care." § 19–5–100.2(1). Relinquishment and adoption cases commence not by the state acting to protect the child but by one parent's decision to give up his or her parental rights. The express purpose of the relinquishment and adoption scheme is to promote the integrity and finality of adoption to ensure that children whose parents are unable or unwilling to provide proper parental care will be raised in stable, loving, and permanent families. In re D.S.L., 18 P.3d 856, 858 (Colo. App. 2001).

¶ 14 When one parent decides to voluntarily...