The Colorado Court of Appeals issued its opinion in People in the Interest of N.G., and Concerning J.P.W. on August 2, 2012.
Dependency and Neglect—Deferred Adjudication—Parental Presumption.
In this dependency and neglect (D&N) proceeding, father appealed from the magistrate’s order allocating permanent custody and parental responsibilities for his child to the child’s maternal uncle, and from the district court’s order denying his petition for review of the magistrate’s order. The orders were vacated.
In June 2010, the El Paso County Department of Human Services (DHS) removed N.G., then 5 years old, from his mother’s care because of concerns about her drug use. The child was placed in the care of his maternal uncle. Father, a resident of Arizona, learned of the removal from mother. He had not seen the child in three years, but court-ordered testing had confirmed his paternity and he was voluntarily paying child support. Father expressed no interest in becoming a part of child’s life when contacted by DHS.
On August 23, 2010, father admitted to the Amended Petition in Dependency and Neglect, which alleged that father did not reside in the home of mother and the child, and that the incidents that had led to the removal “placed the welfare of the child at risk,” but were “beyond his immediate control.” Based on this admission, the magistrate found the child dependent and neglected.
A treatment plan for father also was approved by the court. A favorable report regarding father’s performance in this plan was submitted to the court in January 2011. Two days later, father moved for placement and custody of the child. In February, a mediation was held to consider placing the child with father, during which it was decided that father should come to Colorado “for at least a couple visits” to see the child. In late May, DHS concluded that the child should be placed in the permanent custody of uncle because father did not make the required visits with the child. The magistrate entered an order adjudicating the child dependent and neglected as to mother, nunc pro tunc August 23, 2010.
In September 2011, a magistrate granted the motion to allocate parental responsibilities to uncle. Father moved for review in the district court. The district court upheld the magistrate’s order and revoked the deferred adjudication as to father. Father appealed.
The Court of Appeals first reviewed the law under Article 3 of the Children’s Code. It concluded that (1) in permitting a continuation of the adjudicatory hearing, CRS § 19-3-505(5) contemplates reconsidering the child’s status before entering the adjudicatory order; (2) reconsideration may be requested expressly or impliedly; and (3) reconsideration should be accompanied by any additional findings required to address new evidence and the child’s current status. Consequently, during the deferral period, the parent may seek to present evidence probative of the current status of the child as to that parent and/or the continued vitality of any admission to a petition alleging D&N.
The Court then reviewed Troxel v. Granville, 530 U.S. 57, 66 (2000). In an issue of first impression concerning the status of this presumption during a D&N proceeding that has gone forward on the basis of a deferred adjudication, the Court concluded: (1) the mere judicial authorization to file a petition alleging D&N does not overcome the Troxel presumption; and (2) where the adjudication has been deferred, the preponderance determination is not final as to the merits of the allegations set forth in the D&N petition. Therefore, the Troxel presumption will generally survive such a determination.
The Court then applied the foregoing conclusions. First, it rejected DHS’s argument that the Children’s Code requires only an adjudication as to one parent. It then held that by entering into the deferred adjudication agreement, father did not waive his right to request an adjudicatory hearing or further findings on the child’s current status. Therefore, it was error for the magistrate not to address father’s evidence presented at the hearing before allocating parental rights to uncle.
It also was error for the magistrate to fail to rule on father’s motion for placement and custody of the child and to decline to address the Troxel presumption. The Court also ruled that the Troxel presumption survived the deferred adjudication agreement and must be addressed.
Accordingly, the Court vacated the district court’s order denying father the relief he requested in his petition for review of the magistrate’s order and vacated the magistrate’s order. The case was remanded to the district court with instructions to remand the case to the magistrate to conduct further proceedings regarding father’s motion for placement and custody of the child.
Summary and full case available here.
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