April 19, 2018

Colorado Court of Appeals: Judge Committed Reversable Error by Not Recusing Where Judge Was Previously GAL in Different Case Involving Mother

The Colorado Court of Appeals issued its opinion in People in Interest of C.Y. and J.O. on Thursday, April 5, 2018.

Dependency and Neglect—Recusal—Disqualification.

In this dependency and neglect proceeding, during the termination hearing, the judge realized she had served as a guardian ad litem (GAL) on a different case involving mother’s oldest child. The judge declined to recuse herself from the case over mother’s objection and terminated mother’s parental rights.

On appeal, mother contended that the judge erred by not recusing herself from the termination hearing based on her having served as the GAL of mother’s older child in 2005. The Code of Judicial Conduct requires judges to disqualify themselves in any proceeding in which their impartiality might reasonably be questioned. Here, both the GAL and the Department of Human Services discussed the 2005 case and urged the court to rely on it when ruling on the termination motion, which the court did. Under these circumstances, the judge created the appearance of impropriety by presiding over the case and abused her discretion by not recusing herself.

The judgment was reversed and the case was remanded for a new termination hearing before a different judicial officer.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: District Court Erred by Terminating Parental Rights Without Establishing Treatment Plan

The Colorado Court of Appeals issued its opinion in People in Interest of B.C. on Thursday, March 22, 2018.

Dependency and Neglect—Required Findings—Termination of Parental Rights—Appropriate Treatment Plan.

In this dependency and neglect proceeding, mother admitted that the child’s environment was injurious to his welfare and stipulated to an adjudication. She also stipulated to a preliminary treatment plan, but no dispositional hearing was held. Based on the stipulation, the trial court entered an order adjudicating the child dependent and neglected. The court further ordered the Pueblo County Department of Social Services to submit a formal treatment plan within 20 days that would be adopted and made an order of the court if no objections were filed. There was no finding that the plan was “appropriate.” Mother did not object to the submitted treatment plan.

The Department later moved to terminate mother’s parental rights. Mother objected and asserted she was in compliance with the treatment plan. Approximately a year after the petition was filed, following a contested hearing, the court entered judgment terminating mother’s parental rights. The court found that mother had not complied with the treatment plan.

On appeal, mother contended that the trial court erred by not conducting a dispositional hearing or adopting a formal treatment plan that was found to be appropriate. C.R.S. § 19-3-508(1) requires the court to “approve an appropriate treatment plan,” and C.R.S. § 19-3-604(1)(c)(I) requires a finding that “an appropriate treatment plan approved by the court has not been reasonably complied with” before parental rights are terminated. Here, there was no dispositional hearing, and the trial court did not approve an appropriate treatment plan nor make a finding that the proposed plan was appropriate.

The order was reversed and the case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: ICWA Notice Should be Sent to All Tribes in Ancestral Group if Only Ancestral Group Indicated

The Colorado Court of Appeals issued its opinion in People in Interest of L.H. on Thursday, February 22, 2018.

Dependency and Neglect—Indian Child Welfare Act—Notice Requirement.

In this dependency and neglect proceeding, mother initially denied Native American heritage but then informed the Jefferson County Department of Human Services (Department) that her biological brother is registered with “Navajo-Deni.” The Department sent six separate notices to the Navajo Nation at six different addresses. The Navajo Nation responded that there was no record of the family with the Navajo Nation, and therefore the child was not enrolled or eligible for enrollment with the Navajo Nation. Based on this response, at the termination hearing the trial court found that the Indian Child Welfare Act (ICWA) did not apply in this case.

Mother appealed the judgment terminating the parent–child legal relationship with her child. Based on its review of the record, the Court of Appeals could not determine whether the Department complied with the ICWA. A review of the Bureau of Indian Affairs (BIA) list of Tribal Agents by Affiliation shows that the Colorado River Indian Tribes are also tribes historically affiliated with the Navajo. The Court concluded that because mother had made a general reference to Navajo, and not just the Navajo Nation, the Department was required to also notify the Colorado River Indian Tribes. The notice to only the Navajo Nation was insufficient to satisfy the ICWA’s notice requirement.

The case was remanded with instructions for the limited purpose of directing the Department to send appropriate notice to the Colorado River Indian Tribes.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Written Advisement Form Does Not Satisfy ICWA Notice Requirements

The Colorado Court of Appeals issued its opinion in People in Interest of J.L. on Thursday, January 25, 2018.

Dependency and Neglect—Indian Child Welfare Act—Tribal Notification Requirements.

In this dependency and neglect proceeding, the trial court first inquired about the applicability of the Indian Child Welfare Act (ICWA) at the termination hearing after orally ordering termination of parental rights. When the inquiry was made, mother responded that both she and the father had Native American blood and she and her family had been “kicked off the tribe.” At a subsequent hearing, mother indicated she had Indian heritage through her biological family and named several tribes. She stated she was an adoptee, but her biological mother would know of her tribal affiliation. The Alamosa County Department of Human Services (Department) stated it did not believe the ICWA applied, but failed to describe the efforts it had made to determine whether any of the children was an Indian child, and the record contained no evidence that the Department sent notice to the tribes named. Mother appealed the judgment terminating her parent–child legal relationship with her children.

C.R.S. § 19-1-126(1)(a) requires the petitioning party to make continuing inquiries to determine whether the child subject to the proceeding is an Indian child. The petitioning party must also disclose in the commencing pleading whether the child is an Indian child and the identity of the child’s tribe, or what efforts the petitioner made to determine whether the child is an Indian child. The Bureau of Indian Affairs regulations and guidelines also contain notice and inquiry provisions for trial courts and require trial courts to ask participants in emergency or voluntary or involuntary child-custody proceedings whether they know or have reason to know that the child is an Indian child. This inquiry is made at the commencement of the proceeding, and all responses should be on the record. Departments must directly notify each concerned tribe by registered mail with return receipt of the pending proceedings and its right to intervene.

Here, the trial court’s inquiry should have been made at the first hearing after the petition in dependency and neglect was filed and again at the start of the termination proceeding. Mother’s disclosures gave the trial court reason to believe the children were Indian children. The Department did not comply with the ICWA’s notice requirements.

The Department contended that mother’s signing of a written advisement of her rights, which included a question about the ICWA, served as the court’s initial inquiry. The inquiry should be made on the record. Regardless, the Court of Appeals found that the Department failed to send notice to the appropriate tribes when mother identified a reason to believe the children were Indian children.

The case was remanded with instructions for the limited purpose of directing the Department to send appropriate notice to the Kiowa Indian Tribe of Oklahoma and the Pueblo of Taos.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Order Dismissing Dependency and Neglect Proceeding Not Final, Appealable Order

The Colorado Court of Appeals issued its opinion in People in Interest of M.R.M. on Thursday, January 25, 2018.

Dependency and Neglect—Final and Appealable Order—Lack of Jurisdiction.

The Garfield County Department of Human Services (Department) filed a petition in dependency and neglect, naming mother and M.M. (father of two children and stepfather to the third, M.A.M.) as respondents. The children were initially placed with their maternal grandmother, but then M.M. moved from Florida to Colorado and sought custody of all three children. The children were placed with him under the protective supervision of the Department. The court adjudicated the three children dependent and neglected with respect to mother. The court adopted treatment plans for mother and M.M., but shortly thereafter he moved to modify the order under which he shared custody of the children with mother and to dismiss the dependency and neglect case. M.M. shared custody of the two older children with mother under a domestic relations order and asserted he should have custody of M.A.M. as her psychological parent. The juvenile court entered an order allocating parental responsibilities for the children between M.M. and mother (the APR order). The court concluded it had jurisdiction to allocate parental responsibilities as to M.A.M. pursuant to C.R.S. 14-10-123(1)(d), which provides that a proceeding concerning allocation of parental responsibilities may be commenced by someone other than a parent who has been allocated parental responsibilities through a juvenile court order. Approximately two weeks later, the court entered an order terminating its jurisdiction and closing the case, from which order mother appealed.

The Colorado Court of Appeals requested supplemental briefs addressing whether mother’s appeal was timely and determined that the appealable order was the APR order. C.R.S. § 19-1-104(6) provides that entry of an order allocating parental responsibilities for a child who is the subject of a dependency and neglect proceeding requested by a party to the case, once filed in the county where the child will permanently reside, will be treated as any other decree in a proceeding allocating parental responsibilities. This action ends the dependency and neglect proceeding and transfers jurisdiction over the child to the district court. Such an order is final and appealable, and a party who wishes to appeal must file a notice of appeal within 21 days of entry of the order. Here, the juvenile court entered an APR order and ordered that it be certified into an existing custody proceeding in the district court as to M.M.’s children, and certified into a new domestic relations case as to M.A.M. Mother did not appeal from that order but rather appealed from the order purportedly terminating its jurisdiction and closing the dependency and neglect case. Mother’s appeal was untimely, and the court lacked jurisdiction to hear it.

However, mother argued the APR order wasn’t a final, appealable order because the juvenile court didn’t have jurisdiction to make the findings needed to grant APR to a nonparent. She contended that because the court did not adjudicate M.A.M. dependent and neglected with respect to her biological father, and the adjudication of the two older children with respect to father M.M. was still in “deferred” status, the APR order was invalid. The court rejected this argument, reasoning that the question was not whether the court had jurisdiction to enter the order, but whether it was final and appealable. The APR order here was final and appealable

Similarly, because mother failed to timely appeal the APR order, the court rejected mother’s argument that because the court failed to commence a paternity action it did not have independent jurisdiction under the Uniform Parentage Act (UPA) to enter an order allocating parental responsibilities.

Finally, mother argued the APR order was not a final, appealable order because it did not fully resolve the right and liabilities of the parties as to paternity, support, and parental responsibilities with respect to M.A.M. Analyzing the issue under the UPA, the court concluded there was no need for a paternity proceeding as to M.A.M. The court rejected mother’s argument that the APR order did not fully resolve the rights and liabilities of the parties because it didn’t find anything else that needed to be resolved; the order addressed visitation, parenting time, and other matters relevant to the allocation or parental responsibilities between mother and M.M.

Mother also argued that the APR order was not final because it was subject to revision. Once it was entered and certified to the district court, jurisdiction to modify it was transferred to the district court, leaving nothing for the juvenile court to do. The court further noted that all orders concerning parenting time and decision-making responsibility may be modified when circumstances warrant a change.

Mother also raised an issue about noncompliance with the Indian Child Welfare Act. The court declined to address this because it lacked jurisdiction due to the untimeliness of the appeal.

The appeal was dismissed with prejudice for lack of an appealable order.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Parent’s Counsel Not Necessarily Entitled to be Present at In Camera Interview of Children

The Colorado Court of Appeals issued its opinion in People in Interest of S.L. on Thursday, December 28, 2017.

Dependency and Neglect—Due Process—In Camera Review—Ineffective Assistance of Counsel—Disclosures—Expert Witness.

The Rio Blanco County Department of Human Services (Department) became involved with the parents in this case as a result of concerns about the children’s welfare due to the condition of the family home, the parents’ use of methamphetamine, and criminal cases involving the parents. Attempts at voluntary services failed, and on the Department’s petition for dependency and neglect, the district court ultimately terminated the parents’ rights.

On appeal, the parents contended that the Department failed to make reasonable efforts to reunify them with their children. Specifically, the parents contended that the Department did not give them sufficient time to complete the services under their treatment plans and failed to accommodate their drug testing needs. The termination hearing was not held until more than a year after the motion to terminate was filed. For nine months before the motion to terminate was filed, the Department provided numerous services to the parents, including substance abuse therapy, therapeutic visitation supervision, drug abuse monitoring, and a parental capacity evaluation. The Department also provided counseling for the children. Both parents missed drug tests and tested positive during the testing period, and both were arrested for possession of methamphetamine during the pendency of the case. The Department made reasonable accommodations to meet the parents’ needs and the parents had sufficient time to comply with their treatment plans. The record supports the trial court’s findings that termination was appropriate because (1) the court-approved appropriate treatment plan had not been complied with by the parents or had not been successful in rehabilitating them; (2) the parents were unfit; and (3) the conduct or condition of the parents was unlikely to change within a reasonable time.

Father also contended that the trial court’s decision to interview the 9-year-old twin children together in chambers fundamentally and seriously affected the basic fairness and integrity of the proceedings and violated his due process rights. Father also argued that answers the judge gave to the children’s questions during the interview were improper. More than five months before the termination hearing, the court interviewed the children in chambers. The interview was recorded and transcribed, and a copy of the transcript was provided to the parties before the termination hearing. Whether counsel may be present during an in camera interview of a child in a dependency and neglect proceeding is determined on a case-by-case basis and is within the trial court’s discretion. In making this determination, the trial court should consider, among other things, the child’s age and maturity, the nature of the information to be obtained from the child, the relationship between the parents, the child’s relationship with the parents, any potential harm to the child, and ultimately any impact on the court’s ability to obtain information from the child. In addition, in the interests of fairness and to allow for the record to be fully developed, the trial court should allow the parents or trial counsel to submit questions to the child, which the court may ask in its discretion. Further, the interview, regardless of whether counsel is present, must be on the record, and a transcript of the interview must be made available to the parties before a termination hearing. Here, the trial court did not abuse its discretion in the interview procedures that it followed nor in the weight it accorded to the information solicited.

Father next contended that he was provided ineffective assistance of counsel. Although his trial counsel failed to meet discovery and disclosure deadlines for an expert witness, the record fails to demonstrate the necessary prejudice to establish a claim based on ineffective assistance.

Father further contended that the trial court abused its discretion and violated his due process rights in allowing five of the Department’s witnesses to testify as experts despite the Department failing to comply with C.R.C.P. 26(a). Despite inadequacies in the C.R.C.P. 26 disclosures, the bases for the experts’ testimony at the hearing had been disclosed to father. Therefore, the trial court did not abuse its discretion in concluding that father was not prejudiced by the inadequate C.R.C.P. 26(a) disclosures.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Mother Had No Administrative Right to be Present at Child’s Placement Meeting

The Colorado Court of Appeals issued its opinion in People in Interest of C.J. on Thursday, December 14, 2017.

JuvenileDependency and NeglectKinship PlacementDue Process.

The Department of Human Services (Department) filed a petition in dependency and neglect after the child was born addicted to methadone and opiates. Several months later, the Department placed the child in foster care due to mother’s continued substance abuse. About six months later, a paternal aunt contacted the Department and expressed interest in caring for the child. Following a home study to evaluate the aunt as a placement option for the child and an administrative review, the Department decided not to recommend placement with the aunt. The trial court, citing the child’s emotional needs, her bond with her foster parents, and her lack of attachment with the aunt, denied mother’s request to permanently place the child with the aunt. Thereafter, the court terminated mother’s parental rights.

On appeal, mother argued that her due process rights were violated because she was denied the opportunity to be heard on the issue of the child’s placement. She asserted that if she or her attorney had been present at the Department’s administrative review, she could have provided evidence or alternatives to refute the Department’s reasons for disapproving the aunt’s home study. Mother’s due process rights were protected by her opportunity to challenge the Department’s recommendation at both the motions and termination hearings. The record establishes that the trial court afforded mother a full opportunity to be heard and to present evidence in contravention of the Department’s placement recommendation. Mother was not entitled to participate in the Department’s administrative review and thus had no right to assistance of counsel during that administrative review.

Mother also asserted that she did not timely receive a copy of the home study and thus had no notice of the basis for the Department’s decision and could not properly challenge it. Mother knew the home study had been completed and the burden was on her to request a copy of it. Mother failed to avail herself of the procedures that existed by which she could have timely obtained the information she sought and challenged the Department’s recommendation.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Juvenile Court Did Not Err in Failing to Make Written Finding of Dependency & Neglect

The Colorado Supreme Court issued its opinion in People in Interest of J.W. on Monday, December 11, 2017.

Children’s Code—Dependency or Neglect Proceedings—Jurisdiction.

The supreme court reviewed whether a juvenile court validly terminated a mother’s parent-child legal relationship without first entering a formal written order adjudicating her children as dependent or neglected. The juvenile court accepted mother’s admission that her children were neglected or dependent, but did not enter a formal order adjudicating the children’s status as to mother before it terminated mother’s parental rights approximately a year later. The court of appeals held that the juvenile court lacked jurisdiction to terminate mother’s parental rights because it had not entered an order adjudicating the children’s status as dependent or neglected.

The supreme court held that the juvenile court’s acceptance of mother’s admission established the children’s status as dependent or neglected, thus fulfilling the purpose of the adjudicative process and permitting state intervention into the familial relationship. The juvenile court’s failure to enter an adjudicative order confirming the children’s status did not divest the juvenile court of jurisdiction to terminate mother’s parental rights in this case, nor did it impair the fundamental fairness of the proceedings or deprive the mother of due process under the circumstances of this case. Accordingly, the court reversed the court of appeals’ judgment and remanded the case to the court of appeals to consider mother’s other contentions on appeal.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Fault-Based Grounds for Dependency and Neglect Must Be Proved as to Each Parent

The Colorado Court of Appeals issued its opinion in People in Interest of M.M. and P.M. III on Thursday, November 16, 2017.

Dependency and Neglect—No Fault—Summary Judgment.

The Fremont County Department of Human Services (Department) filed a dependency and neglect petition concerning M.M. and P.M. III. Mother admitted that the children were dependent and neglected. Although father did not dispute that the children were in an injurious environment and were without proper parental care through no fault of a parent, he denied the allegations in the petition against him and requested an adjudicatory trial before a jury. The Department moved to adjudicate the children dependent and neglected by summary judgment. The trial court granted summary judgment and adjudicated the children dependent and neglected.

On appeal, father asserted that the trial court erred in granting summary judgment. He contended that the facts concerning him were disputed, the remaining undisputed facts concerned only mother, and the children could not be adjudicated dependent and neglected simply because the Department established that mother was a danger to the children. There are four statutory grounds for adjudication, two of which require a showing of fault as to each parent. The undisputed facts established that, with respect to the “no-fault” grounds, C.R.S. § 19-3-102(1)(c) and (e), the children were dependent and neglected and the trial court properly granted summary judgment on those statutory grounds. With respect to C.R.S. § 19-3-102(1)(a) and (b), however, the material facts concerning father’s conduct were disputed and thus the trial court erred in granting summary judgment on those grounds.

The judgment was affirmed in part and reversed in part. The case was remanded for the trial court to amend the order of adjudication to reflect that the children were adjudicated dependent and neglected only under C.R.S. § 19-3-102(1)(c) and (e).

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Expert Witness Need Not Recite Exact Statutory Language for ICWA Finding

The Colorado Court of Appeals issued its opinion in People in Interest of D.B. on Thursday, November 2, 2017.

Dependency and Neglect—Indian Child Welfare Act—Termination—Expert Witness—Hearsay.

This dependency and neglect proceeding was governed by the Indian Child Welfare Act (ICWA). Mother’s parental rights were terminated after the trial court determined that continued custody of the child by one of the parents would likely result in serious emotional or physical damage to the child due to the parents’ extensive substance abuse, extensive domestic violence, lack of housing, and lack of income to meet the child’s needs.

On appeal, mother contended that the trial court erred in terminating her parental rights without testimony from a qualified expert witness that her continued custody of the child would likely result in serious emotional or physical damage to the child, as required by the ICWA. The ICWA provides that a court may only terminate parental rights if it determines that there is proof beyond a reasonable doubt that the child is likely to suffer serious emotional or physical damage if the child remains in the parent’s care. Such determination must be supported by evidence that includes testimony from qualified expert witnesses. The statute does not mandate, however, that an expert witness specifically opine that the child is likely to suffer emotional or physical damage in the parent’s custody. Rather, the expert testimony must constitute some of the evidence that supports the court’s finding of the likelihood of serious emotional or physical damage to the child. Here, although the expert witness’s testimony did not track the ICWA language, the record as a whole contains sufficient evidence, including testimony from a qualified expert witness, to support the trial court’s determination that the child would likely suffer serious emotional or physical damage if placed in mother’s care.

Mother also contended that the trial court erred in relying on inadmissible hearsay statements in the termination report to conclude that she had failed to maintain sobriety and that the child would thus likely suffer serious emotional or physical damage if he remained in her custody. The trial court, however, had access to other admissible evidence to support its determination that mother had failed to maintain sobriety. Further, this was not the sole basis to terminate mother’s parental rights.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court Must Make Inquiry Into Whether Indian Child Welfare Act Applies in Dependency and Neglect Proceeding

The Colorado Court of Appeals issued its opinion in People in Interest of C.A. on Thursday, October 19, 2017.

Dependency and Neglect—Termination of Parental Rights—Indian Child Welfare Act Inquiry Provisions.

The Montrose Department of Health and Human Services (Department) initiated a dependency and neglect petition on behalf of C.A. At the initial hearing, the trial court asked the parties generally if the child was a Native American and if the child had any Native American heritage. Father said he did not, and mother offered no response. Father and mother were not represented by counsel at this time. The Department ultimately moved to terminate mother’s and father’s parental rights. The Department’s motion did not state the efforts the Department made to determine if C.A. is an Indian child and the trial court did not inquire on the record whether the child is an Indian child. Following a contested hearing, the trial court terminated parental rights and determined that the child was not subject to the Indian Child Welfare Act (ICWA).

On appeal, mother contended that the trial court did not comply with the ICWA’s inquiry provisions. The Colorado Court of Appeals concluded that when a trial court inquires at an initial temporary custody hearing at the commencement of a dependency and neglect proceeding whether there is a reason to know that a child is an Indian child, it must make another inquiry when termination is sought, at least when the court has not already identified the child as an Indian child and the petitioning party has not disclosed what efforts it has made to determine if the child is an Indian child.

Because the record did not show that the trial court made the proper inquiry at the termination proceeding, the case was remanded for the limited purpose of making the ICWA inquiry. The trial court was further directed to make appropriate findings and proceed accordingly with any actions necessary to comply with ICWA. In addition, court of appeals gave the parties detailed directions to take further actions, based on the trial court’s determination, within a specified timeframe.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: UCCJEA Required Trial Court to Conduct Further Inquiries Before Assuming Jurisdiction

The Colorado Court of Appeals issued its opinion in People in Interest of C.L.T. on Thursday, September 7, 2017.

Termination of Parental Rights—Dependency and Neglect—Jurisdiction—Uniform Child Custody Jurisdiction and Enforcement Act—Emergency Jurisdiction.

C.L.T., a child, was adjudicated dependent and neglected. Thereafter, the Denver Department of Health and Human Services moved to terminate the parental rights of mother and father, alleging that they had not complied with their treatment plans and that both of them were unfit parents. The trial court found that although reasonable efforts had been made to rehabilitate mother, her treatment plan had not been successful, she was not fit to parent the child, and she was not likely to become fit within a reasonable period of time. The court made similar findings regarding father. Then it terminated the parental rights of both mother and father.

On appeal, mother contended that the trial court lacked jurisdiction to terminate her parental rights because it failed to comply with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). She argued that because a child welfare case remained open in Texas when the Colorado case was filed, the Colorado court could exercise only emergency jurisdiction unless and until it acquired ongoing jurisdiction under the UCCJEA. The information in the record, which was limited but contained at least some indication that the court may not have had the requisite jurisdiction, was insufficient to establish whether the trial court had jurisdiction to enter any order beyond the temporary emergency order.

The judgment was vacated, and the case was remanded for the trial court to undertake further inquiries about proceedings concerning the child in other states, confer with courts in other states as appropriate, and make express findings about its UCCJEA jurisdiction.

Summary provided courtesy of Colorado Lawyer.