May 25, 2017

Colorado Court of Appeals: Court Overrides Presumption of Fit Parent by Specifying Methods to be Used for Punishment

The Colorado Court of Appeals issued its opinion in In re Marriage of Dean and Cook on Thursday, April 20, 2017.

Parenting TimeContemptEvidenceTranscriptsMagistrateExceeding AuthorityHearingAttorney FeesReasonableness.

Dean (mother) and Cook (father) divorced in 2006. Father filed a contempt motion on the basis that mother denied his parenting time. On May 19, 2014, the court set the contempt hearing over and ordered mother to engage in therapy. On November 3, 2014, the court found mother in contempt of court, ordered that she could purge the contempt by allowing father to have the children during their 2014 Thanksgiving break, and ordered her to pay father’s attorney fees. Sentencing occurred on January 8, 2015, at which time the court ordered mother to pay father’s attorney fees.

On appeal, mother first contended that the magistrate improperly reconsidered the May 19 order when, on November 3, she changed the nature of the sanctions imposed. On May 19, the magistrate simply adopted the parties’ stipulation for mother to engage in therapy; the order was not imposed to force mother to comply with the parenting time stipulation. No sanctions were imposed until November 3, when the magistrate found mother guilty of remedial contempt.

Mother also challenged the evidence presented at the contempt and sentencing hearings, the weight the magistrate placed on that evidence, and the findings and inferences the magistrate made in her orders. Mother failed to provide a copy of the transcripts from the contempt and sentencing hearings to the district court when she sought review of the magistrate’s orders under C.R.M. 7(a). Therefore, it is presumed that the record supports the magistrate’s orders that mother failed to comply with the parties’ stipulation and was thus in remedial contempt.

Mother also contended that the magistrate exceeded her authority when she ordered mother to restrict the children’s privileges if they did not comply with her instructions to go to father’s home for parenting time. By specifying the methods mother must employ to obtain the children’s compliance, the magistrate’s order improperly disregards the presumption that fit parents act in the best interests of their children. Therefore, that portion of the order was stricken.

Mother further argued that the magistrate demonstrated bias against her and should have been disqualified. Mother’s allegations were based only on the magistrate’s legal rulings and the resolution of conflicting evidence, which are not bases for disqualification. Further, mother did not seek to have the magistrate disqualified under C.R.C.P. 97.

Lastly, mother argued that the magistrate should have held a hearing on the reasonableness of father’s attorney fee affidavit. Mother objected to father’s fee affidavit on the basis that it was ambiguous and lacked clarity, and she requested a hearing on the issue of reasonableness. Once she raised these assertions, the magistrate should have held a hearing on this issue.

The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Treatment Plan Must Be Appropriate to Rehabilitate Parent

The Colorado Court of Appeals issued its opinion in People in Interest of K.B. on Thursday, February 11, 2016.

In March 2013, the Mesa County Department of Human Services opened a dependency and neglect case concerning 16-year-old K.S., 13-year-old Mi.B., 11-year-old K.B., and 9-year-old Ma.B. The Department alleged that Mother and Father fought frequently; Father yelled at the children, called them names, and physically abused them; Mi.B. had threatened one of his sisters with a knife after an argument; and K.S., who had cerebral palsy, was not receiving physical therapy she needed. Treatment plans were adopted for both Mother and Father, who was the father to the three older children. The parents’ treatment plans were amended from time to time, including requiring both parents to actively participate in individual therapy.

In August 2013, the children were removed from the parents’ home due to renewed concerns about domestic violence, and in October 2013 the deferred adjudication was converted to an order of adjudication. In December 2014, the Department filed a motion to terminate the parent-child relationships between each of the parents and the two younger children. In July 2015, after a hearing, the court granted the motion to terminate parental rights, and both parents appealed.

On appeal, Mother contended the treatment plan was not appropriate because although domestic violence was a feature of her relationship with Father from the beginning, no domestic violence counseling or treatment was ever offered to her, and she was not told to separate from Father. The court of appeals concluded further findings were required on the issue. The court noted that in order to be appropriate, a treatment plan must relate to the child’s needs and provide treatment objectives that are reasonably calculated to render a parent fit to provide adequate parenting within a reasonable time. The court noted that the fact that a treatment plan was not successful does not mean that it was not appropriate.

Both Mother and Father had expressly stipulated that their treatment plans were appropriate, and the court found that the standard for preserving a challenge to the appropriateness of a treatment plan is not clear. Mother contended that her treatment plan was inappropriate because it failed to address the domestic violence concerns. The trial court concluded Mother could not challenge the treatment plan’s appropriateness for the first time at the termination hearing, but she could challenge the reasonableness of the efforts to rehabilitate her. The trial court found that Mother’s treatment plan failed because she did not actively participate in therapy, but it did not make explicit findings as to whether the Department fulfilled its obligation to show by clear and convincing evidence that it had provided Mother with a treatment plan that was reasonably calculated to render her fit to provide adequate parenting within a reasonable time, and whether the services were appropriate to support Mother’s treatment plan but were unsuccessful in accomplishing the plan’s purpose. The court of appeals remanded for explicit findings about the reasonableness of the treatment plan and whether the services were appropriate.

The court of appeals addressed Mother’s remaining contentions on appeal because the trial court may conclude on remand that the services were appropriate. Mother contended the record did not support the trial court’s finding that she did not comply with her treatment plan. The court of appeals disagreed. Department case managers testified that Mother did not have adequate housing for her family at the end of the case, she did not progress beyond supervised visitation, and her attendance at individual therapy was very poor. The Department employees also testified that a significant concern about Mother’s sexual boundaries with the children was supposed to be addressed at individual therapy, but Mother’s attendance at therapy was “almost nonexistent.” The court of appeals noted that these findings were more than sufficient to support the trial court’s order. Mother also contended the findings were inadequate to support the trial court’s finding that she is unfit. The court of appeals again disagreed. The current case manager testified that Mother was unfit due to her poor sexual boundaries and failure to attend individual therapy, and she was unlikely to become fit due to her poor progress with the treatment plan. The court of appeals found this testimony adequate to support the trial court’s findings of unfitness, and noted that if the court finds on appeal that the treatment plan was adequate, it may reinstate the termination order.

Both parents argued the trial court failed to evaluate less drastic alternatives to termination. The court of appeals disagreed. The Department had investigated the possibility of placing Ma.B. with her paternal grandparents in Florida, but she was frightened to be separated from the rest of her family, and the grandparents never completed the screening process. No other family members were found who were willing and able placements for Ma.B. or K.B. The trial court further found that because permanency was important to both Ma.B. and K.B., continued foster care was not a viable less drastic alternative to adoption. The court of appeals found no error in the trial court’s findings. Mother also argued that termination was not in the children’s best interests, and that instead she should be given more time to comply with her treatment plan. The trial court concluded that the benefits of termination outweighed the risks, and the court of appeals found no error in this conclusion.

The court of appeals next evaluated Father’s appeal. Father contended that the Department failed to make reasonable efforts to reunite him with Ma.B. or that his treatment plan was reasonable. He argued that the trial court erred in suspending his visitations in March 2015 and in relying on that suspension to terminate his parental rights. The court of appeals disagreed. The trial court found that Father, like Mother, had only complied in part with the treatment plan but had failed to comply with the plan’s substantive requirements. Father’s parenting time with Ma.B. had been suspended due to his angry outbursts and their effect on Ma.B. He was told he needed to resume individual therapy for his visits to continue, and he did not do so. The court found the evidence sufficient to support that the Department made reasonable efforts to reunite Father and Ma.B.

The court of appeals remanded for further findings as to whether Mother’s treatment plan was adequately crafted to render her a fit parent within a reasonable time. The court affirmed on all other points.

Colorado Court of Appeals: Permanency for Child in D&N Proceeding More Important than Reestablishing Familial Ties

The Colorado Court of Appeals issued its opinion in People in Interest of M.D. on Thursday, September 11, 2014.

Dependency and Neglect—Foster Parents—Permanency Hearing—Compelling Reason.

The La Plata County Department of Human Services (Department) filed a petition in dependency and neglect regarding M.D. due to its concerns about the parents’ history of domestic violence and substance abuse. M.D. was placed with foster parents and, based on father’s admission to certain allegations in the petition, including that he tested positive for methamphetamine, the court adjudicated the child dependent and neglected and adopted a treatment plan for father (mother’s rights were not at issue in this case). The district court later entered judgment allocating a majority of parenting time and sole decision making authority for M.D. to the foster parents.

On appeal, father contended that the court erred in concluding that it need only find a compelling reason to allocate parental responsibility to a nonparent under the permanency hearing statute. Because CRS §19-1-115 concerns only temporary custody awards and the court’s order here was a permanent custody order, the findings under §19-1-115(6.5) were not required. Further, there was evidence in the record that the child needed permanency and that a complete transition back to father would be difficult and probably result in harm to the child.

The record also reflects that the Department made reasonable efforts to finalize permanent placement of the child and that procedural safeguards were in place to protect father’s rights. In addition, because father was not deprived of all of his parental rights, and because the trial court retained jurisdiction to modify its existing order, the trial court order relating to father’s custody and visitation rights did not require a finding of unfitness to protect his fundamental liberty interest. The record supports the court’s findings regarding several compelling reasons as to why the child could not be returned home under §19-3-702(4). Therefore, the court did not abuse it’s authority to award permanent custody to the foster parents. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

HB 13-1259: Making Several Amendments to Procedures for Civil Actions Involving Parental Rights and Responsibilities in Cases Involving Abuse and Neglect

On March 11, 2013, Rep. Beth McCann and Sen. Linda Newell introduced HB 13-1259 – Concerning Civil Actions, and, in Connection Therewith, Procedures for Allocating Parental Rights and Responsibilities in the Best Interests of the Child in Cases Involving Child Abuse and Neglect and Domestic Violence; Provisions Relating to Parenting Time Orders; Provisions Relating to Parenting Time Evaluations and Reports; and Amending and Relocating Provisions Relating to Civil Protection Orders. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill makes amendments to various provisions of law relating to civil actions and orders.

The bill amends provisions of article 10 of title 14, Colorado Revised Statutes (C.R.S.), as follows:

  • Includes additional rights of children with respect to the determination of parenting time in section 14-10-123.4, C.R.S.;
  • In the determination of the best interests of a child with respect to the allocation of parental rights and responsibilities pursuant to section 14-10-124, C.R.S.:
    • Requires a court to follow certain procedures in actions where a claim of child abuse or neglect or domestic violence has been made to the court or when the court has reason to believe that a party has committed child abuse or neglect or domestic violence;
    • In contested hearings on final orders, requires the court to make findings on the record concerning the factors the court considered and the reasons for the allocation of rights and responsibilities;
    • Permits the court to allocate mutual decision-making for a child in a case that involves domestic violence, over objections, if the court makes certain findings;
    • Requires the court to consider the current statutory factors concerning the best interests of the child in light of any finding of child abuse or neglect or domestic violence;
    • Includes certain factors that the court may consider when formulating or approving a parenting plan in cases where one of the parties has committed child abuse or neglect or domestic violence;
    • Permits the court to order a domestic violence evaluation and subsequent evaluations and to require a party to participate in domestic violence treatment; and
    • Includes general procedures that may be included in parenting plans;
  • Provides that a court is not required to order a parenting time evaluation pursuant to section 14-10-127, C.R.S., and includes a list of factors that the court shall consider in determining whether to order an evaluation; and
  • In section 14-10-129, C.R.S., expands language relating to domestic violence and increases the time within which the court must hear and rule on an emergency motion to restrict parenting time from 7 days to 14 days.

The bill amends, repeals, and relocates the provisions of part 1 of article 14 of title 13 relating to civil protection orders, as follows:

  • Moves the legislative declaration currently contained in section 13-14-102 (1), C.R.S., to a new section and adds additional language to the legislative declaration;
  • Amends section 13-14-101, C.R.S., containing definitions for article 14 to include a new definition for “contact” and “sexual assault or abuse,” and amends existing definitions for “domestic abuse,” “protection order,” and “stalking”;
  • Repeals section 14-13-102, C.R.S., and relocates provisions of that section, with amendments, to other sections in article 14;
  • Adds additional behaviors to the list of behaviors for which a court may enter an emergency protection order;
  • Repeals section 13-14-104, C.R.S., relating to foreign protection orders and relocates those provisions, with amendments, to the new section 13-14-110, C.R.S.;
  • Creates a new section 13-14-104.5, C.R.S., that includes provisions relating to temporary civil protection orders that are relocated from 13-14-102, C.R.S., with amendments, that:
    • Adds to the list of behaviors for which a temporary civil protection order may be entered;
    • Clarifies that a petitioner is not required to show that: he or she has reported the act that is the subject of the complaint to law enforcement, that charges have been filed, or that he or she is participating in the prosecution of the criminal matter; and
    • An order awarding temporary care and control of the child may be extended for not more than one year;
  • Creates a new section 13-14-105, C.R.S., that contains provisions that are relocated from section 13-14-102, C.R.S., with amendments, and adding additional provisions that a court may include as part of a civil protection order;
  • Creates a new section 13-14-106, C.R.S., that contains provisions that are relocated from section 13-14-102, C.R.S., with amendments, relating to procedures for permanent civil protection orders and clarifies that the court need not find that the petitioner is in imminent danger in order to grant a permanent civil protection order; and that the court may continue a temporary civil protection order and the show cause hearing for one year for good cause;
  • Creates a new section 13-14-107, C.R.S., that contains provisions that are relocated from section 13-14-102, C.R.S., with amendments, relating to enforcement of protection orders and duties of peace officers;
  • Creates a new section 13-14-108, C.R.S., that contains provisions that are relocated from section 13-14-102, C.R.S., with amendments, relating to the modification and termination of civil protection orders that:
    • Allows a restrained party to file for modification or dismissal of a permanent civil protection order 2 years after the order was entered or after the disposition of a prior motion; and
    • Permits the court to consider whether the protection order has been successful in preventing harm to the protected person as grounds to deny the modification or dismissal of a permanent civil protection order;
  • Creates a new section 13-14-109, C.R.S., that contains provisions that are relocated from section 13-14-102, C.R.S., with amendments, relating to civil protection orders fees and costs; and
  • Creates a new section 13-14-110, C.R.S., that contains provisions that are relocated from section 13-14-104, C.R.S., with amendments, relating to foreign protection orders.

At the request of the Family Law Section, the CBA Legislative Policy has voted to oppose the bill in its current form. On April 4, the Public Health Care & Human Services Committee amended the bill and sent it to the Appropriations Committee for consideration of the fiscal impact.

HB 13-1243: Requiring Specific Findings of Fact for Restrictions of Parenting Time

On February 28, 2013, Rep. Dave Young and Sen. Jessie Ulibarri introduced HB 13-1243 – Concerning Factual Findings Included in Parenting Time Orders. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires a court restricting parenting time based upon a finding that parenting time would endanger the child’s physical health or significantly impair the child’s emotional development to enumerate in its order the specific findings supporting the restriction on parenting time. The bill passed out of the House on March 18 and is assigned to the Judiciary Committee in the Senate.

Since this summary, the bill was laid over for Second Reading in the Senate on April 4.