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E.S.V. v. People

Supreme Court of Colorado, En Banc

May 23, 2016

E.S.V., Petitioner
v.
The People of the State of Colorado, Respondent
v.
In the Interest of Minor Children: C.E.M. and M.F.M.

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 14CA1527

          Attorney for Petitioner: Deborah Gans Denver, Colorado

          Attorneys for Respondent: D. Scott Martinez, Denver City Attorney Laura Grzetic Eibsen, Assistant City Attorney Denver, Colorado

          Guardian ad Litem for the Minor Children: Anna N. H. Ulrich, Attorney at Law, LLC Anna N. H. Ulrich Salida, Colorado

          JUSTICE EID dissents, and CHIEF JUSTICE RICE and JUSTICE COATS join in the dissent.

          OPINION

          GABRIEL JUSTICE.

         ¶1 In this case, E.S.V. ("mother") challenges the termination of her parental rights with respect to C.E.M. and M.F.M. ("children"). Mother's treatment plan included as one of its objectives that mother would "demonstrate appropriate protective capacities to ensure her children's safety." To achieve this objective, mother was required to report to her caseworker and the guardian ad litem ("GAL") any contact that she had with the children's abusive father ("father").

         ¶2 The district court found that mother had failed to report numerous contacts with father and was unable or unwilling to internalize the safety concerns at which the treatment plan was directed, despite the efforts of many professionals and treatment providers. The court thus found that (1) mother's conduct prevented her from providing protection adequate to meet the children's needs, (2) the treatment plan was unsuccessful, (3) mother was unfit, and (4) mother's deficiencies regarding her ability to demonstrate appropriate protective capacities were unlikely to change within a reasonable time. The court therefore terminated mother's parental rights as to the children.

         ¶3 Mother appealed this ruling, a division of the court of appeals affirmed, People in the Interest of C.E.M., No. 14CA1527, slip op. at 5–13, 22 (May 28, 2015), and we granted certiorari.[1] Like the division, we now conclude that the evidence amply supported the district court's decision to terminate mother's parental rights. Accordingly, we affirm.

         I. Facts and Procedural History

         ¶4 Two years before this case began, the Denver Department of Human Services (the "department") filed a dependency and neglect petition against mother and father based on allegations of substance abuse, domestic violence, improper sexual contacts between father and mother's teenage daughter, and mental health issues. That case closed with an allocation of parental responsibilities to mother and an order that father have no contact with C.E.M. and certain other children until he completed the recommendations resulting from certain evaluations.

         ¶5 The day after the prior case was closed, the department received a report that mother had used methamphetamine in her home while one of the children was crying and unattended and the other was eating dry ramen noodles. After mother refused to cooperate with the department's efforts to investigate these allegations, the department filed the dependency and neglect petition that led to these termination proceedings.

         ¶6 The district court subsequently adjudicated the children dependent and neglected and as pertinent here, adopted a treatment plan for mother that included as one of its objectives that mother would "demonstrate appropriate protective capacities to ensure her children's safety." To achieve this objective, mother was required, among other things, to "report to the caseworker and GAL any contact that she [had] with [father]."

         ¶7 After giving mother time to comply with her treatment plan, and after she was unable to do so, the department moved to terminate mother's parental rights. In this motion, the department contended that (1) mother had not complied with her treatment plan, (2) she was unfit, (3) her conduct rendered her unwilling or unable to give the children reasonable parental care, and (4) her conduct or condition was unlikely to change within a reasonable time.

         ¶8 The matter proceeded to a hearing, and the evidence established the following:

         ¶9 Rather than imposing a no-contact order between mother and father, which was an approach that had failed in the prior dependency and neglect case, mother's caseworker wanted to allow mother and father the opportunity to be a couple and to be truthful about it, so that they could work on their treatment plans together. Accordingly, the caseworker asked that mother report any contact that she had with father, and such a requirement was incorporated into mother's treatment plan.

         ¶10 Thereafter and throughout this case, mother repeatedly and adamantly denied that she and father were a couple. Indeed, whenever the caseworker raised the issue of whether mother and father were together, mother would get very upset with the caseworker for bringing up the subject.

         ¶11 Contrary to mother's adamant denials, overwhelming evidence established that mother had, in fact, had extensive contacts with father, reported very few of these contacts, and was repeatedly untruthful about such contacts. For example, the department uncovered evidence that mother had had 180 telephone calls with father but reported only six or seven of such calls. Moreover, at the same time that mother was denying contact with father, she was pregnant with father's child (not one of the children at issue here), although she initially delayed disclosing that pregnancy and then told an elaborate, fabricated story concerning another man whom she alleged to be the father. And after father was stopped for a traffic violation while driving a car registered to mother, he told the police officer that he was driving "his girl's car" and that he had been staying at her house. When the caseworker then spoke with him about this incident, he shared information with the caseworker that made it obvious that he had been in communication with mother.

         ¶12 The record further established that mother was unable to demonstrate the "appropriate protective capacities to ensure her children's safety" at which her treatment plan was directed. For example, a psychologist diagnosed mother with a mood disorder, partner relational disorder, and histrionic personality disorder, and mother's therapist opined that it is "critical" for someone with histrionic personality disorder to be honest with himself or herself in treatment. Mother, however, was not honest, particularly regarding her desires and intentions concerning her relationship with father, and mother's therapist opined that mother's dishonesty compromised the integrity of the therapeutic process. These circumstances, coupled with mother's personality disorder, suggested to the therapist that mother was "comfortable in creating havoc and chaos, " and this made the therapist "really ...


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