October 21, 2018

Colorado Supreme Court: State May Not Terminate Parental Rights Under Relinquishment Statute when Dependency and Neglect Proceeding Underway

The Colorado Supreme Court issued its opinion in People in Interest of L.M. on Monday, April 30, 2018.

Children’s Code—Dependency and Neglect—Relinquishment—Termination of Parental Rights—C.R.S. § 19-3-602—C.R.S. § 19-5-105.

This case required the supreme court to determine whether the State may seek to terminate a parent’s parental rights under the relinquishment provision of the Colorado Children’s Code, C.R.S. § 19-5-105, when the child is already subject to a dependency and neglect proceeding under Article 3 of the Code, C.R.S. §§ 19-3-100.5 to -805.

The court concluded that when a dependency and neglect proceeding is pending, the State can terminate parental rights only through the procedures set forth in Article 3 of the Code and cannot use the more limited processes provided in Article 5.

The court affirmed the court of appeals division’s judgment.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Where Father Acquitted of Underlying Sexual Abuse Charges, Juvenile Court Erred in Terminating Parental Rights

The Colorado Court of Appeals issued its opinion in People in Interest of L.M. on Thursday, April 19, 2018.

Dependency and Neglect—Juvenile Court—Termination of Parent-Child Legal Relationship.

The juvenile court found by a preponderance of the evidence that father had sexually abused L.M. and that M.M. was suffering secondary trauma as a result of the abuse. The court adjudicated L.M. and M.M. dependent and neglected. The court granted temporary custody to mother and prohibited father from having any contact with the children during the pendency of the case.

Father’s treatment plan was predicated on his guilt, but he was later acquitted in the criminal case. The juvenile court could not find that the assault allegations had been established by clear and convincing evidence and further concluded that it could not discount the possibility that no abuse occurred. Even so, the juvenile court terminated father’s parental rights, finding there were no less drastic alternatives because the children continued to experience trauma specific to father, which he did not recognize.

On appeal, father challenged the finding that there were no less drastic alternatives to terminating his parental rights. When considering termination under C.R.S. § 19-3-604(1)(c), the court must also consider and eliminate less drastic alternatives. The determination of whether there is a less drastic alternative to termination is influenced by a parent’s fitness to care for his or her child. Here, there is no indication in the record that father was offered treatment or a path to becoming a fit parent other than to acknowledge sexual abuse of L.M. It was error to terminate his parental rights.

Although not raised on appeal, the court of appeals also determined that the juvenile court failed to make the required inquiry of father under the Indian Child Welfare Act.

The judgment was reversed and the case was remanded with instructions that before considering termination of parental rights, the court must adopt an appropriate treatment plan under C.R.S. § 19-3-508(1)(e)(I) that relates to the children’s trauma and is reasonably calculated to render father a fit parent. If the court again considers termination of father’s parental rights, it must confirm whether he knows or has reason to know or believe that the children are Indian children.

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: 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 Court of Appeals: Foster Parents Allowed to Intervene to Appeal Non-termination of Mother’s Parental Rights

The Colorado Court of Appeals issued its opinion in People in Interest of C.W.B. on Thursday, May 18, 2017.

Dependency and NeglectTreatment Plan—Guardian ad Litem—Termination of Parental Rights.

A petition in dependency and neglect was filed for C.W.B., Jr., and the child was placed with foster parents (intervenors). Father’s parental rights were terminated. After a hearing, the court denied the motion to terminate mother’s parental rights over the guardian ad litem’s objection.

On appeal, the intervenors first contended that the trial court abused its discretion by failing to give primary consideration to the physical, mental, and emotional conditions and needs of the child when denying the motion to terminate mother’s parental rights. Colorado law requires that the child’s needs and the parent’s ability to meet the child’s needs be considered together. Here, although there were concerns about mother’s ability to parent the child, the trial court concluded that mother’s treatment plan was appropriate, and she had substantially complied with it. Additionally, the court found that the evidence showed that mother would provide nurturing and protection adequate to meet the child’s physical, emotional, and mental health needs. The court properly assessed the child’s needs and the parent’s ability to meet the child’s needs and applied the correct legal standard in denying the motion to terminate mother’s parental rights.

Intervenors also contended that the court erred in refusing to require the Montezuma County Department of Social Services to comply with the expedited procedures under C.R.S. § 19-3-703. The trial court’s findings were adequate to show that there was good cause to delay permanency in this case.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Court Lacked Jurisdiction to Terminate Parent-Child Relationship

The Colorado Court of Appeals issued its opinion in People in Interest of J.W. on Thursday, August 25, 2016.

Termination of Parent–Child Relationship—Lack of Jurisdiction.

The Clear Creek Department of Human Services (department) filed a petition in dependency or neglect concerning J.W. and N.W. Following a jury trial concerning mother, the jury answered “no” to the question of whether the children lacked proper parental care and stated that it was “unable to return an answer” as to whether the children’s environment was injurious to their welfare. Immediately following the jury trial, a hearing was held to discuss scheduling a new adjudication trial for mother. Mother instead chose to admit the children’s environment was injurious to their welfare, and the court accepted her admission. No order adjudicating the children dependent or neglected was entered. The court adopted the treatment plan already in place as the plan going forward. A few months later, the court terminated mother’s parental rights. More than a month after mother’s parental rights were terminated, the court entered a written order adjudicating the children dependent or neglected with respect to her.

Mother appealed the order purporting to terminate her legal relationship with her children. The Court of Appeals considered whether the trial court had jurisdiction to terminate mother’s parental rights before it entered an order adjudicating the children dependent or neglected with respect to her and concluded it did not. Without adjudication, a court does not acquire subject matter jurisdiction to terminate a parent–child relationship.

In addition, the Court found that the written adjudicatory order was entered several weeks after mother filed her notice of appeal. Once the notice of appeal was filed, the trial court lacked jurisdiction to take any action because jurisdiction had been shifted to the Court of Appeals.

The order adjudicating the children dependent or neglected with respect to mother and the judgment terminating her parental rights with respect to the children were vacated. The case was remanded for the trial court to resume proceedings at the adjudicatory stage.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Proof of Alleged Abuse Not Required Where Child Adjudicated Dependent Based on Lack of Parental Care

The Colorado Court of Appeals issued its opinion in People in Interest of L.K. on Thursday, July 14, 2016.

Dependency and Neglect—Sexual Abuse—Polygraph Examination—Treatment Plan—Testimony—Evidence—Attorney Fees—Discovery Violations—Sovereign Immunity.

L.K. alleged sexual abuse by her father, C.K. Although C.K. denied the allegations, he stipulated that L.K. was dependent and neglected because she lacked proper parental care. The court accepted his admission and adjudicated L.K. dependent and neglected. The Moffat County Department of Social Services (MCDSS) devised a treatment plan for C.K., which required, among other things, that C.K. take a polygraph examination as part of denier’s treatment. Moffat later moved to terminate C.K.’s parental rights. Among other things, the court found that C.K. had been referred for a polygraph examination but did not appear for it, and it granted the termination motion, citing C.K.’s failure to successfully complete treatment designed to address the allegations of sexual misbehavior with L.K. as sufficient evidence that he was unable or unwilling to provide nurturing and safe parenting to adequately address her needs.

On appeal, C.K. contended that the trial court committed reversible error by considering the denier’s treatment polygraph examination as evidence supporting its determination that he failed to successfully complete his treatment plan. He did not dispute either that his treatment plan required him to participate in denier’s treatment or that a polygraph examination was required in denier’s treatment. For these reasons, the court properly admitted evidence of efforts to schedule an appointment for a polygraph examination and evidence that C.K. did not keep the appointment, and the court did not err in considering this evidence in terminating C.K.’s parental rights.

Next, C.K. contended that MCDSS had the burden to prove by clear and convincing evidence that his parental rights should be terminated, but the trial court erred by unfairly shifting the burden of proof to him when he decided not to testify in the termination hearing. When C.K. failed to present evidence, the court did not improperly shift the burden of proof, infringe on his privilege against self-incrimination, or draw impermissible adverse inferences.

Finally, C.K. contended that MCDSS did not prove its case by clear and convincing evidence, asserting the absence of such evidence that he had sexually abused L.K., which was the basis for the petition in dependency and neglect. However, the factual basis for adjudicating L.K. dependent and neglected had already been established, and MCDSS’s burden was to prove the criteria for termination, including C.K.’s failure to comply with his treatment plan. The Court of Appeals rejected the contention that the evidence was insufficient to support the judgment.

On cross-appeal, MCDSS contended that the trial court erred in assessing attorney fees against it for discovery violations. Sovereign immunity precludes orders assessing attorney fees against a governmental entity for discovery violations.

The judgment was affirmed and the sanctions order was reversed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Ample Evidence Supported District Court’s Order Terminating Parental Rights

The Colorado Supreme Court issued its opinion in E.S.V. v. People in Interest of C.E.M. on Monday, May 23, 2016.

Termination of Parental Rights.

In this case involving a termination of parental rights, a mother’s treatment plan  included as one of its objectives that the mother would “demonstrate appropriate  protective capacities to ensure her children’s safety.” To achieve this objective, the mother was required to report to her caseworker and the guardian ad litem any contact that she had with the children’s abusive father. The district court found that the mother did not report numerous contacts with the father and was unable or unwilling to internalize the safety concerns at which her treatment plan was directed, despite the efforts of many professionals and treatment providers to assist her. The court thus found that the mother’s treatment plan was unsuccessful and the court terminated the mother’s parental rights as to the children. A division of the Court of Appeals affirmed, and the Supreme Court affirmed the division’s judgment, concluding that the evidence amply supported the district court’s  findings and conclusions.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Relinquishment-based Termination Not Allowed when Parent is Party to Dependency and Neglect Action

The Colorado Court of Appeals issued its opinion in People in Interest of E.M. on Thursday, March 10, 2016.

Children’s Code—Dependency and Neglect—Relinquishment and Adoption— Jurisdiction.

In a question of first impression, the Court of Appeals decided that a county department of social services may not move to involuntarily terminate parental rights in a relinquishment case under article 5 of the Children’s Code when the children are the subject of a pending dependency and neglect case under article 3.

The Alamosa County Department of Human Services (department) filed a petition alleging that three children were dependent or neglected because their mother was addicted to pain pills and their father was incarcerated. The court granted temporary custody of the children to the department and placed them with relatives.

Subsequently, both parents admitted the petition’s allegations and the court adjudicated the children dependent and neglected. The court adopted a treatment plan for mother and found that no appropriate treatment plan could be devised for father.

A year after the initiation of the case, the guardian at litem (GAL) moved to terminate the parental rights of both parents under article 3. Mother relinquished her parental rights at the hearing. The department then filed three separate relinquishment cases (one for each child) under article 5. The article 3 case remained open and pending. The court terminated father’s parental rights under the relinquishment statute. At the same time, the court also issued an order establishing a new permanency planning goal and setting a review hearing in the dependency and neglect case. Father appealed the three judgments terminating his parental rights.

Father argued that the Children’s Code does not permit the department to file its termination motion in an article 5 proceeding rather than proceeding in the article 3 case. The Court agreed, holding that the dependency and neglect court maintains continuing, exclusive jurisdiction over the status of a child who is alleged to be dependent and neglected until the child reaches majority or its jurisdiction is otherwise terminated.

The Court based its holding on three grounds. First, the separate and distinct purposes of article 3 and article 5 are not well served if they are intertwined. Second, the statutes make clear that the dependency and neglect court maintains continuing, exclusive jurisdiction over any child who has been adjudicated dependent and neglected. Third, under article 3, parental rights may be terminated only through the Parent-Child Legal Relationship Termination Act of 1987, not under article 5.

The judgments were dismissed in part and reversed in part, and the case was remanded with directions.

Summary and full case available here, 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: Trial Court Within Discretion to Terminate Parental Rights After Developing Treatment Plan

The Colorado Court of Appeals issued its opinion in People in Interest of Z.P.S. on Thursday, February 11, 2016.

A.M.H.’s one-month-old infant, O.S., was found unresponsive and flown to Children’s Hospital, suffering from malnutrition. O.S.’s twin, M.J.S., was admitted at the same time as O.S., and was also suffering malnutrition and failure to thrive. The Phillips County Department of Social Services filed a dependency and neglect petition and assumed temporary custody of the twins and their siblings, three-year-old Z.P.S. and one-year-old N.S. Later, O.S., who had suffered brain damage from malnutrition, died after she was removed from life support.

Mother and father filed written stipulations that the children lacked proper parental care through their actions or omissions. Based on the stipulation, the court entered an order adjudicating the children dependent and neglected. One week later, the court held a dispositional hearing and entered a treatment plan for mother, which was later amended. At a later permanency hearing, the Department asked the court to terminate Mother’s parental rights based on a finding that no appropriate treatment plan could be devised. The court held a contested dispositional hearing at which it found that no appropriate treatment plan could be devised, and it terminated Mother’s parental rights. It allowed Father to relinquish his parental rights to children at the same hearing. Following a termination hearing, the court found by clear and convincing evidence that no appropriate treatment plan could be crafted for Mother because she had an emotional illness that was likely to render her unable to care for the children, M.J.S. had suffered serious bodily injury, and O.S. had died due to parental abuse and neglect.

On appeal, Mother challenged the trial court’s “no appropriate treatment plan” finding, arguing that (1) it was error for the court to find that no appropriate treatment plan could be devised after it had already approved one, and (2) the trial court erred by modifying the dispositional order by relying on information that was already before the court. The Colorado Court of Appeals evaluated whether the trial court had authority to enter a “no appropriate treatment plan” order after approving a treatment plan, and found that it did. The court of appeals noted that allowing the trial court to modify or enter new dispositional orders comports with the Colorado Children’s Code because it protects the best interests of the children. The court also held that the trial court was not required to modify the existing parenting plan before terminating parental rights.

The court of appeals similarly rejected Mother’s argument that the trial court erred in terminating her rights based on evidence that was before it at previous dispositional hearings. The court of appeals held that a trial court’s ability to modify a dispositional order is not limited to situations in which circumstances have changed. Mother also contended her due process rights were violated because the “no appropriate treatment plan” order precluded her from offering evidence of her compliance with the existing treatment plan. The court found no error, holding that Mother was on notice that the Department sought to terminate her parental rights and she was afforded ample opportunity to defend against termination.

The court of appeals affirmed the trial court.