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People ex rel. Z.P.S.

Court of Appeals of Colorado, Fifth Division

February 11, 2016

The People of the State of Colorado, Petitioner-Appellee, In the Interest of Z.P.S., N.S., and M.J.S., Children, and Concerning A.M.H., Respondent-Appellant

          Phillips County District Court No. 13JV7. Honorable Charles M. Hobbs, Judge.

         Bauer & Furman, P.C., Steven M. Furman, Fort Morgan, Colorado, for Petitioner-Appellee.

         Lori J. Hulbert, Guardian Ad Litem.

         Brian D. Thomas, Sterling, Colorado, for Respondent-Appellant.

         Opinion by JUDGE FURMAN. Hawthorne and Richman, JJ., concur.

          OPINION

         FURMAN, JUDGE.

          [¶1] In this dependency and neglect proceeding, A.M.H. (mother) appeals from the judgment terminating the parent-child legal relationship between her and her children, Z.P.S., N.S., and M.J.S. (children). The court found that no appropriate treatment plan could be devised for her.

          [¶2] Many parents involved in a dependency and neglect case receive a treatment plan that provides the parent with an opportunity to rehabilitate and reunite with his or her children. Even so, in limited circumstances, the Children's Code authorizes the termination of a parent's rights based on a finding that no appropriate treatment plan can be devised to address the parent's unfitness. See § 19-3-604(1)(b), C.R.S. 2015. Although this case presents at least two of these circumstances -- one child's death caused by parental neglect and a second's child's serious bodily injury caused by malnutrition -- the trial court initially approved a treatment plan for mother. But, at a later dispositional hearing, the court found that no appropriate treatment plan could be devised to address mother's unfitness. The court ultimately terminated mother's parental rights.

          [¶3] The central issue on appeal is mother's challenge to the trial court's " no appropriate treatment plan can be devised" finding, both at the dispositional hearing and at the termination of parental rights hearing. Mother also contends this finding denied her due process because it precluded her from offering evidence at the termination hearing that she had successfully complied with the treatment plan. Because we disagree with both of her contentions, we affirm the judgment terminating mother's parental rights.

         I. The Dependency and Neglect Proceeding

          [¶4] In November 2013, one-month-old O.S. was flown to Children's Hospital in Aurora after she was found unresponsive in her mother's home and had to be resuscitated at a local hospital. O.S.'s condition was attributed to failure to thrive. At the same time, O.S.'s twin brother, M.J.S., was admitted to the intensive care unit because he also had signs of failure to thrive. As a result, the Phillips County Department of Social Services (Department) 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.

          [¶5] Shortly thereafter, O.S., who had suffered severe brain damage, died after she was removed from life support.

          [¶6] Mother and the children's father filed written stipulations that the children lacked proper parental care through their actions or omissions. See § 19-3-102(1)(b), C.R.S. 2015 (providing that a child is neglected or dependent if the " child lacks proper parental care through the actions or omissions of the parent" ). Based on the stipulation, the court entered an order adjudicating the children dependent and neglected.

          [¶7] Within one week of the adjudicatory order, the court held a dispositional hearing and approved a treatment plan for mother, requiring her to (1) take accountability for what happened to the twins and for not adequately feeding them; and (2) participate in various evaluations -- a psychological evaluation, a parent-child interactional assessment, a substance abuse assessment, and a hair follicle drug test -- and complete any recommended treatment.

          [¶8] The treatment plan was later amended, requiring mother to understand her role in contributing to O.S.'s and M.J.S.'s conditions rather than take accountability for their conditions.

          [¶9] But, at a later permanency planning hearing the Department asked the court to change the disposition to termination based on a finding that no appropriate treatment plan could be devised.

          [¶10] The court then held a contested dispositional hearing where it found by a preponderance of the evidence that no appropriate treatment plan could be devised for mother. See People in Interest of L.B., 254 P.3d 1203, 1208 (Colo.App. 2011) (recognizing that " the preponderance of the evidence standard applies to both the adjudicatory and dispositional stages of a dependency and neglect proceeding" ). Because the court permitted the children's father to relinquish his parental rights to the children at the same hearing, it entered the order only as to mother. The Department then sought to terminate the parent-child legal relationship between mother and the children.

          [¶11] After a termination hearing, the trial court found by clear and convincing evidence that " no appropriate treatment plan can be devised to address the unfitness of . . . mother" because (1) she had " an emotional illness of such duration or nature as to render her unlikely to care" for the children's needs within a reasonable time; (2) M.J.S. had suffered a single incident of serious bodily injury; and (3) the children's sibling, O.S., had died due to " proven parental abuse and neglect." The court also found by clear and convincing evidence that (1) mother's treatment plan was unsuccessful; (2) mother was unfit; and (3) mother's condition was unlikely to change in a reasonable time. Based on these findings, it entered judgment terminating her parental rights under section 19-3-604(1)(b) and (c).

         II. Dispositional Hearings

          [¶12] Mother challenges the trial court's " no appropriate treatment plan can be devised" finding on two grounds. She first contends that it was error for the trial court to hold a dispositional hearing and find that no appropriate treatment plan can be devised for a parent after it has already approved a treatment plan for the parent. She also contends that the trial court erred when it modified the dispositional order by relying on evidence that had already been considered by the court, or could have been presented to the court, at the earlier dispositional hearings. We are not persuaded.

         A. The Statutory Framework

          [¶13] Dependency and neglect proceedings are brought under article three of the Children's Code to, among other things, protect a child's welfare and safety. § 19-3-100.5, C.R.S. 2015; A.M. v. A.C., 296 P.3d 1026, 2013 CO 16, ¶ 10. And, if a child is adjudicated dependent and neglected, the state gains authority to intervene into the familial relationship. People in Interest of S.N. v. S.N., 329 P.3d 276, 2014 CO 64, ¶ 10; People in Interest of S.N., 338 P.3d 508, 2014 COA 116, ¶ 12.

          [¶14] Accordingly, following the adjudication, the court must conduct a hearing and hear evidence to determine the proper disposition that will serve the best interests of the child and the public. § § 19-3-507(1)(a), 19-3-508(1), C.R.S. 2015; People in Interest of C.L.S., 934 P.2d 851, 855 (Colo.App. 1996). When, as here, the expedited permanency planning (EPP) provisions apply, the court must hold the dispositional hearing contemporaneously with the adjudication or within thirty days after the adjudication, unless the disposition is termination of parental rights. § 19-3-508(1), C.R.S. 2015.

          [¶15] When the proposed disposition is not termination of parental rights, the court must approve an appropriate treatment plan for the parent. § 19-3-508(1)(e)(I). An " appropriate treatment plan" is one that is " reasonably calculated to render the particular [parent] fit to provide adequate parenting to the child within a reasonable time and that relates to the child's needs." § 19-1-103(10), C.R.S. 2015; SeePeople in the Interest of ...


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