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.
Furman, P.C., Steven M. Furman, Fort Morgan, Colorado, for
Hulbert, Guardian Ad Litem.
D. Thomas, Sterling, Colorado, for Respondent-Appellant.
by JUDGE FURMAN. Hawthorne and Richman, JJ., concur.
[¶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.
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
[¶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
[¶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
[¶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).
[¶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.
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.
[¶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 ...