People v. A.M., No. 10CA0522.

Docket NºNo. 10CA0522.
Citation310 P.3d 89
Case DateDecember 23, 2010
CourtCourt of Appeals of Colorado

310 P.3d 89

The PEOPLE of the State of Colorado, Petitioner–Appellee and Cross–Appellant,
In the Interest of A.M., a Child, and Concerning A.C. and N.M., Respondents–Appellants and Cross–Appellees,
L.H. and R.H., Intervenors.

No. 10CA0522.

Colorado Court of Appeals,

Dec. 23, 2010.

[310 P.3d 92]

Bob D. Slough, County Attorney, Cortez, Colorado, for Petitioner–Appellee and Cross–Appellant.

James A. Shaner, Guardian Ad Litem.

Law Office of Cameron C. Secrist, P.C., Cameron C. Secrist, Cortez, Colorado, for Respondent–Appellant and Cross–Appellee A.C.

Jon Lewis Kelly, P.C., Jon L. Kelly, Dolores, Colorado, for Respondent–Appellant and Cross–Appellee N.M.

Timothy J. Eirich, Denver, Colorado, for Intervenors.

Opinion by Judge TAUBMAN.

In this dependency and neglect proceeding, A.C. (mother) and N.M. (father) appeal the judgment terminating their parental rights with respect to their child, A.M. The Montezuma County Department of Social Services (MCDSS) separately appeals the judgment terminating mother's parental rights, but it supports the judgment terminating father's parental rights. Both the child's guardian ad litem (the GAL) and the child's foster parents, L.H. and R.H., who were permitted to intervene in the dependency and neglect proceeding, support the judgment with respect to both parents. On appeal, both parents and MCDSS challenge the right of the foster parents to fully participate as parties in the termination proceedings.

We initially announced our decisions in this case on November 24, 2010. However, in response to the supreme court's decision in People in Interest of A.J.L., 243 P.3d 244 (Colo.2010), we withdrew our opinions. We did so because the supreme court held that a trial court may, but need not, accord greater weight to more recent evidence in a dependency and neglect proceeding to terminate parental rights. The majority had reached a contrary conclusion in response to an argument raised by mother and MCDSS.

Accordingly, we requested that the parties submit supplemental briefs regarding the impact of A.J.L., and after considering them, we have revised our opinions, nevertheless keeping our ultimate disposition the same.

In this rare case in which a county department of social services opposes a judgment terminating parental rights, we conclude that the trial court erred in permitting the foster parents to participate fully as intervenors in the termination proceedings. We further conclude this error was reversible with respect to the termination of mother's parental rights and harmless with respect to the termination of father's parental rights. Accordingly, we reverse the judgment with respect to mother, affirm as to father, and remand for further proceedings.

I. Background

A.M. was born on August 28, 2007, to mother and father, who were seventeen and twenty years old, respectively. In April 2008, his parents brought him to the emergency room to determine the cause of his elbow pain. He was removed from his parents' care and placed in foster care after an emergency room doctor reported finding evidence of possible abuse.

After MCDSS filed a dependency and neglect petition, the court approved treatment plans for both parents in June 2008, and they entered into a deferred adjudication the same day. In September 2008, the child was placed with L.H. and R.H., after the initial foster placement proved unsatisfactory.

MCDSS submitted reports to the court in August and October 2008 indicating that both parents were participating in parenting programs, both were attending couples counseling, and they were planning to be tested for attention deficit hyperactivity disorder (ADHD). The caseworker noted that visitation was “going well.”

Reports submitted to the court in December 2008 were less positive. In November, both parents had been evaluated for ADHD by Dr. Raney, a psychiatrist. Dr. Raney concurred with the opinion of Dr. Irwin, a clinical psychologist, that father suffered from ADHD, and she recommended medication

[310 P.3d 93]

to treat that condition, as well as individual psychotherapy. She did not agree with Dr. Irwin's assessment of mother. She diagnosed mother with post-traumatic stress disorder (PTSD) and “personality disorder with borderline traits.” She was so concerned about her findings that she immediately called the caseworker to express her concern about mother's “untreated mental illness” and to recommend that the child should not be returned home because of it. She recommended that mother receive dialectical behavior therapy (DBT) and medication.

Dr. Raney's diagnosis of mother was soon called into question. The therapist who was to provide mother with DBT therapy determined that it was “unnecessary” because “her coping skills were more than adequate.” He diagnosed mother with “adjustment disorder, with mixed anxiety and depressed mood.” After providing therapy for her for several months, during which she did “very well,” and “made moderate progress in learning to effectively manage anxiety and depression,” he and the MCDSS caseworker determined that he would close mother's case and her work with her private therapist would continue.

In January 2009, mother's private therapist, Mr. Holton, reported that she was “cooperative and engaged in her treatment.” Mr. Holton also saw father individually, and treatment of both mother and father as a couple was scheduled to begin later in the month.

Meanwhile, MCDSS was becoming concerned about visitation based upon information received from the child's foster parents, L.H. and R.H. In early January, L.H. described a number of concerns about the parents' “performance” in a letter sent to the MCDSS caseworker, the GAL, the child's Court Appointed Special Advocate (the CASA), and the child's doctor. Among other things, she reported that the parents were often late picking the child up or returning him; they had missed several visits altogether; and the child was often hungry or dirty when returned to his foster home.

The court ordered mediation between the natural and foster parents, and in February the parties reached an agreement. The parents agreed to pick up the child on time and comply with their treatment plans. They also agreed to continue working with their therapists and treatment providers. In return, MCDSS agreed to allow one overnight visit per week with the child. Overnight visits were to be increased if the parents remained in compliance with their treatment plans. On April 1, 2009, a second mediation resulted in a “memorandum of understanding” similar to the earlier mediation agreement. All parties agreed that overnight visits, which had not been provided, should “resume immediately.” They also agreed that the DBT treatment ordered for mother could be “put on the ‘back burner.’ ”

On May 29, and after reviewing reports submitted by MCDSS and the CASA and hearing the comments of the parents' therapist and others, the court ordered the parties to develop a plan for the child to return home.

Less than a week later, on June 4, 2009, the GAL filed an emergency motion to restrict parenting time, citing reports received from the CASA and the foster mother alleging, among other things, that the child had lost 13.5 ounces of weight after being in the parents' care over the weekend of May 30–31, a loss that the GAL called “shocking”; that the parents had been involved in a domestic violence incident on the night of June 1 for which law enforcement officers had been called; that father had stopped taking his medication; that father continued to view pornography in the home; that father had left the child alone in a room and closed the door; that on June 3, mother had left the child with an “unidentified person” when she went to work; and that later that day the child was delivered to the foster mother “dirty, hungry, and wet.” The GAL stated that he had been informed that the parents had decided to temporarily separate. The court immediately ordered that all visits of either parent with the child should be supervised.

On July 23, 2009, the foster parents moved to intervene in the proceedings pursuant to

[310 P.3d 94]

section 19–3–507(5)(a), C.R.S.2010, which provides, as pertinent here:

Parents, grandparents, relatives, or foster parents who have the child in their care for more than three months who have information or knowledge concerning the care and protection of the child may intervene as a matter of right following adjudication with or without counsel.

The foster parents asserted that they sought to intervene because they had “specific knowledge and information about [the child] and what is in his best interest.” Mother objected to the intervention, noting that the foster parents had expressed a desire to adopt the child if an opportunity to do so arose and arguing that there was an “inherent conflict of interest” in allowing the foster parents to continue with the foster care placement while actively advancing their own interests in court. She requested that the court order the immediate removal of the child from the foster parents' care because of the conflict. The foster parents denied the existence of a conflict of interest, asserting that their sole concern was “achieving a safe and permanent home for [the child] as soon as possible.” On August 24, 2009, the court ordered that the foster parents be named intervenors “with full party status.”

In September 2009, the Kempe Child Protection Team, affiliated with The Children's Hospital in Denver, became involved in the case after the court expressed concern that conflicting mental health recommendations had been made with respect to mother.

In October, the GAL moved to terminate mother's and father's parental rights.

In November, the Kempe Child Protection Team became further involved in the case when MCDSS requested a Kempe State and Regional Referral Team (START) review of the case. Dr. McIlhany, a physician and member of the Kempe Team, reviewed the child's medical...

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