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People ex rel. M.D.

Court of Appeals of Colorado, Sixth Division

September 11, 2014

The People of the State of Colorado, Petitioner-Appellee,
V. S. and C.S., Intervenors In the Interest of M.D., a Child, and Concerning C.D., Respondent-Appellant, AND

Page 1121

Court of Appeals No. 14CA0522. La Plata County District Court No. 11JV34. Honorable William L. Herringer, Judge.

Sheryl Rogers, County Attorney, Linda L. Boulder, Special County Attorney, Durango, Colorado, for Petitioner-Appellee.

Beth Padilla, Guardian Ad Litem.

Jon Lewis Kelly, PC, Jon L. Kelly, Dolores, Colorado, for Respondent-Appellant.

Dianne A. Pacheco-VanVoorhees, Denver, Colorado, for Intervenors.

Opinion by JUDGE RICHMAN. Romá n and Booras, JJ., concur.


Page 1122


In this dependency and neglect proceeding, C.D. (father) appeals from a judgment allocating a majority of parenting time and sole decision making authority for M.D. (the child) to V.S. and C.S. (the foster parents). We affirm.

I. Background

In May 2011, the La Plata County Department of Human Services (department) filed a petition in dependency and neglect due to its concerns about the parents' domestic violence and substance abuse. That same month, the child was placed in the foster home, briefly returned to father, and then re-placed in the foster home, where she remained throughout the case. The child's mother is not involved in this appeal -- her rights were terminated when she stopped visiting the child after June 2012 and failed to comply with her treatment plan.

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. Father did not initially comply with his treatment plan, but after he was arrested and placed on probation for a domestic violence conviction, he began to fulfill the tasks outlined in the plan.

In July 2012, to achieve permanency for the child within the twelve-month guideline set out in section 19-3-703, C.R.S. 2013, the department moved to terminate the parent-child legal relationship between father and child. The child, then three years old, had been in foster care for over a year. However, the termination hearing did not conclude until February 2013.

During the long delay between the filing of the termination motion and the conclusion of the termination hearing, father completed his treatment plan. Nonetheless, after the termination hearing, the court terminated his rights. Father appealed the termination order.

In People in Interest of M.D., (Colo. App. No. 13CA0515, Oct. 10, 2013) (not published pursuant to C.A.R. 35(f)) ( M.D. I ), a division of this court reversed the judgment terminating the parent-child legal relationship between father and child because the court could not determine the basis for the order. The division remanded the case to the trial court to reexamine the evidence, hear new argument and evidence of circumstances occurring since the termination hearing, and make new findings under the termination statute, section 19-3-604(1)(c), C.R.S. 2013.

Upon remand, neither the department nor the guardian ad litem (GAL) pursued termination of father's rights. The department acknowledged that, under then-current circumstances, it would have difficulty proving that father was unfit. Both the department and the GAL asserted that the child needed permanency and, instead of termination, requested that the court enter permanent orders allocating parental responsibilities to the foster parents with parenting time for father. The foster parents had also filed a petition for allocation of parental responsibilities in a separate domestic relations case, which was certified into the dependency and neglect case under section 19-1-104(4)(a), C.R.S. 2013, so that the juvenile court could determine custody.

The juvenile court held a permanency hearing under section 19-3-702, C.R.S. 2013 (the permanency hearing statute). Father, represented by counsel, fully participated in the hearing and initially requested that full custody of the child be returned to him. Although he acknowledged that the foster parents had served an important role in the child's life, that the child loved them, and that he was willing to have the court order visitation with them, he continued to request primary custody.

The court determined that " it must evaluate the question of whether there [was] a compelling reason not to return [the child's] custody to [father] based upon the totality of circumstances," stating, " [T]he [c]ourt can consider not just [father's] capacity as a parent, but also factors that bear upon the child's best interests, including [the child's] need for permanency, her attachment to her current foster family, and the risk of emotional and psychological harm that may

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occasion disruption of that attachment." The court found several compelling reasons not to return the child to father's care.

Consequently, the court granted to the foster parents sole decision making and a majority of parenting time, and to father parenting time pursuant to a step-up parenting schedule, which was proposed by a mediator and endorsed by the department and provided for increasing visitation by father. The court then directed the foster parents to file a proposed order to be certified into a domestic relations case and directed the clerk to close the dependency and neglect case.

On appeal, father contends 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. He asserts six ways in which the court's order was insufficient. We address each in turn.

II. Law

As noted by father, one purpose of the Children's Code is the preservation of family ties whenever possible. § 19-1-102(1)(b), C.R.S. 2013. But, its overriding purpose is to protect the welfare and safety of children by providing procedures through which their best interests can be served. L.G. v. People, 890 P.2d 647, 654 (Colo. 1995). To this end, a dependency and neglect action focuses primarily on the protection and shelter of children who are susceptible to harm from the effects of abuse and neglect. Id. at 655. Consequently, the supreme court has declared that the safety of the child and not the custodial interest of the parent is the paramount concern. Id.

In addition, the General Assembly has declared that children removed from their home should be offered certain guarantees. ยง 19-1-102(1.5). Among these is assurance of long-term ...

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