The People of the State of Colorado, Petitioner-Appellee, In the Interest of C.Z., a Child, and Concerning J.E.Z. and M.E.Z., Respondents-Appellants
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Weld County District Court No. 13JV1151. Honorable Elizabeth Strobel, Judge.
Robert J. Frick, County Attorney, Tomi L. Hanson, Assistant County Attorney, Greeley, Colorado, for Petitioner-Appellee.
Jennifer Clegern, Guardian Ad Litem.
Ginger V. Geissinger, Greeley, Colorado, for Respondent-Appellant J.E.Z.
Carrie Ann Lucas, Windsor, Colorado, for Respondent-Appellant M.E.Z.
Opinion by JUDGE TAUBMAN. Gabriel and Booras, JJ., concur.
[¶1] In this dependency and neglect action, M.E.Z. (mother) and J.E.Z. (father) appeal the trial court's judgment terminating their parent-child legal relationship with C.Z. (the child). We consider, as a matter of first impression, whether the Americans with Disabilities Act (ADA) pre-empts section 19-3-604(1)(b)(I), C.R.S. 2014, which authorizes termination based on a finding that no appropriate treatment plan can be devised to address a parent's unfitness caused by mental impairment. We conclude that it does not and affirm the judgment.
[¶2] In November 2013, the Weld County Department of Human Services (Department) filed a dependency and neglect petition after mother was unwilling to follow through with treatment to address her multiple mental health diagnoses. The Department also asserted that father had been diagnosed with severe depression, and mother and father had previously had their rights terminated as to older children. Approximately one week later, the court granted the Department custody of the child.
[¶3] Thereafter, the court adjudicated the child dependent and neglected and approved a treatment plan for the parents. The treatment plan required mother and father, among other things, to engage in therapeutic parenting time with the child, complete psychological and parent-child interactional evaluations and follow the evaluator's recommendations, and participate in individual therapy.
[¶4] However, after receiving the psychological and parent-child interactional evaluations in July 2014, the Department moved to terminate mother's and father's parental rights, asserting that no appropriate treatment plan could be devised to address their alleged unfitness.
[¶5] Following a contested hearing, the trial court found that no appropriate treatment plan could be devised to address mother's and father's unfitness due to their emotional illnesses, mental illnesses, or mental deficiencies. Accordingly, it terminated the parent-child legal relationship between the child and mother and father.
[¶6] Mother and father now appeal.
II. Termination Criteria
[¶7] A court may terminate parental rights under section 19-3-604(1)(b) if it finds that the child has been adjudicated dependent and neglected and no appropriate treatment plan can be devised to address the parent's unfitness. One basis for unfitness is that the parent has an emotional illness, mental illness, or mental deficiency of such duration or nature as to render the parent unlikely within a reasonable time to be able to care for the child's ongoing physical, mental, and emotional needs and conditions. § 19-3-604(1)(b)(I); People in Interest of K.D., 155 P.3d 634, 638 (Colo.App. 2007).
III. The ADA and Termination of Parental Rights
[¶8] Mother and father contend that section 19-3-604(1)(b)(I) conflicts with the ADA because it allows the court to terminate parental rights of disabled parents without requiring the Department to provide them with the rehabilitative services that other parents receive. As we understand their argument,
they contend that section 19-3-604(1)(b)(I) is pre-empted by the ADA. We are not persuaded.
[¶9] Initially, we reject the Department's argument that mother and father failed to preserve the issue for appeal because they " did not present any evidence or object to any evidence as discriminatory or violating the [ADA]." To the contrary, mother and father preserved this issue for review by presenting it to the trial court in closing argument. See Estate of Keenan v. Colo. State Bank & Trust, 252 P.3d 539, 548 (Colo.App. 2011).
A. Standard of Review
[¶10] We will not disturb the trial court's factual findings supporting a termination judgment unless they are so clearly erroneous as to find no support in the record. People in Interest of A.J.L., 243 P.3d 244, 250 (Colo. 2010). However, we review de novo whether a state statute is pre-empted by federal law. See In re Marriage of Anderson, 252 P.3d 490, 493 (Colo.App. 2010).
B. The ADA
[¶11] Title II of the ADA, 42 U.S.C. § § 12131-12134 (2012), prohibits a public entity from discriminating against a " qualified" person with disabilities in the provision or operation of public services, programs, or activities. Tennessee v. Lane, 541 U.S. 509, 517, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004). Specifically, it provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132. " Qualified individuals" under the ADA are those individuals with disabilities who can meet a public entity's essential eligibility requirement," if provided reasonable accommodation. 28 C.F.R. § 35.104. A public entity includes any department or agency of a state or local government. 42 U.S.C. § 12131(1)(B).
[¶12] The ADA was enacted not only to remedy discrimination in the form of intentional exclusion, but also to mandate reasonable modifications to existing policies and to otherwise reasonably accommodate individuals with disabilities. 42 U.S.C. § 12101(a)(5); Colo. State Bd. of Med. Exam'rs v. Ogin, 56 P.3d 1233, 1236 (Colo.App. 2002). Thus, the ADA imposes an affirmative duty on a public entity to make reasonable accommodations for ...