April 19, 2019

Colorado Court of Appeals: Foster Parents Do Not Have Constitutionally Protected Liberty Interest in a Continued Relationship with a Foster Child; Rights Derived from Contractual Relationship with the State

The Colorado Court of Appeals issued its opinion in People In the Interest of A.C., and Concerning M.S. on September 15, 2011.

Post-Termination of Parental Rights—Foster Child Placement.

M.S. and S.S. (foster parents) appealed from the order changing the placement of A.C., a foster child formerly in their care, to another foster home. The judgment was affirmed in part and the case was remanded with directions.

The juvenile court placed A.C. in foster care days after he was born and terminated the parent–child legal relationship between A.C. and his mother less than a year later. The Denver Department of Human Services (Department) moved A.C. from his first foster home to his second foster home before his first birthday. The Department placed A.C. in a third respite home with the appellant foster parents shortly after he turned one. The Department certified foster parents’ home as a “24-hour foster home” for the term of one year.

After seven months with foster parents, the Department reported to the juvenile court that (1) A.C. had made positive progress; (2) the placement was appropriate; (3) foster parents were meeting A.C.’s needs; and (4) the Department had no safety concerns. The Department recommended that A.C. remain with foster parents until his adoption was finalized. The court adopted these recommendations.

The following week, A.C.’s therapist reported concerns about foster mother. Based on the report, a Department Certification Review Committee concluded it needed to remove A.C. from foster parents’ care. The Department did not notify or consult A.C.’s guardian ad litem (GAL) or the juvenile court before removing A.C. from foster parents’ home.

The GAL filed a motion for a forthwith hearing. At that hearing, the juvenile court stated it was “appalled” by the removal. It found that the removal was “extremely unusual” and that the Department had violated CRS § 19-3-203(2) because it had not kept the GAL informed of any significant developments in the case.

At a subsequent hearing, a psychologist testified about her concerns with foster mother and recommended A.C. not be returned to foster parents. The juvenile court adopted that recommendation. Foster parents appealed.

Foster parents argued that their due process rights were violated because they had a constitutionally protected liberty interest in a continued relationship with A.C. The Court of Appeals disagreed. Foster parents’ rights are derived from a contractual relationship with the state of Colorado to act as parens patriae to safeguard the interests of vulnerable children within the state. These rights are not those from which a protected liberty interest might be derived.

Foster parents also argued that the juvenile court erred in its application of the best interests standard at the removal hearing. Under the Colorado Children’s Code, the best interests of a removed child is: (1) to be placed in a stable and secure environment; (2) not to be indiscriminately moved from foster home to foster home; and (3) to have assurance of long-term permanency planning. Children under the age of 6 should be placed in permanent homes as expeditiously as possible. Any delay in placement to a permanent home must be in the child’s best interests. To make such a finding, the court must be shown, by clear and convincing evidence, that either (1) reasonable efforts were made to find the child an appropriate permanent home and such a home was not currently available; or (2) the child’s mental or physical needs or conditions deem it improbable that such child would have a successful permanent placement.

The Court concluded that the Department did not make either of the required showings by clear and convincing evidence. On remand, the juvenile court must determine whether A.C. is now in a permanent home; if so, he may not be removed absent the Department showing one of the foregoing conditions by clear and convincing evidence. If the juvenile court determines that A.C. is not in a permanent home, it must determine whether foster parents’ home is still available as a foster home and, if so, must return him to that home unless the Department shows, by clear and convincing evidence, that concerns about foster mother rendered the home “not currently available.”

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on September 15, 2011, can be found here.

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