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People ex rel. L.M.

Court of Appeals of Colorado, Sixth Division

April 19, 2018

The People of the State of Colorado, Petitioner-Appellee, In the Interest of L.M. and M.M., Children, and Concerning K.M., Respondent-Appellant, and E.L., Respondent-Appellee.

          Larimer County District Court No. 15JV143 Honorable Stephen E. Howard, Judge

          Jeannine Haag, County Attorney, Jennifer A. Stewart, Senior County Attorney, Fort Collins, Colorado, for Petitioner-Appellee

          Claire Havelda, Julie M. Yates, Guardians Ad Litem Stout Law Firm, LLC, Stephanie Stout, Greeley, Colorado, for Respondent-Appellant

          The Christiansen Law Firm LLC, Dina M. Christiansen, Fort Collins, Colorado, for Respondent-Appellee

          OPINION

          FURMAN, JUDGE

         ¶ 1 In this dependency and neglect proceeding, K.M. (father) appeals the juvenile court judgment terminating his parent-child legal relationships with his children, L.M. and M.M.

         ¶ 2 This case poses an unusual situation. The juvenile court adjudicated the children dependent and neglected, finding by a preponderance of the evidence that father had sexually abused L.M. and that M.M. was suffering secondary trauma as a result of the abuse. The court granted temporary custody of the children to E.L. (mother) and prohibited father from having any contact with the children during the pendency of this case.

         ¶ 3 Father's treatment plan was premised on his guilt. But he was later acquitted in the companion criminal case, and, following the termination hearing, the juvenile court could not find that the assault allegations had been established by clear and convincing evidence.

         ¶ 4 Even so, the juvenile court terminated father's parental rights. In so doing, it found that there were no less drastic alternatives to termination because the children continued to experience trauma specific to father, which he did not recognize. On appeal, father challenges this finding.

         ¶ 5 To address father's challenge, we examine the legal standard for determining whether there is a less drastic alternative to termination. As shown by the record in this case, the standard for considering less drastic alternatives to termination is often intertwined with a determination of whether an appropriate treatment plan can be devised for a parent and whether the parent is fit or can become fit in a reasonable time.

         ¶ 6 Because the record does not support the juvenile court's decision to terminate father's parental rights, we reverse the judgment and remand.

         I. The Dependency and Neglect Case

         ¶ 7 In March 2015, the Larimer County Department of Human Services (Department) became involved in this case after six-year-old L.M. had disclosed that "she woke up to [father] touching her in her private" while she was at his home. L.M. and eight-year-old M.M. primarily lived with mother, but spent overnights at father's home. The juvenile court granted temporary custody of the children to mother and prohibited father from having any contact with them.

         ¶ 8 In early May 2015, father was criminally charged with aggravated incest in relation to L.M.'s disclosure.

         ¶ 9 Meanwhile, mother admitted that the children's environment was injurious. But, father denied the allegations in the petition. After a multi-day hearing in August 2015, the juvenile court adjudicated the children dependent and neglected, finding by a preponderance of evidence that father had sexually abused L.M. and that M.M. was suffering from secondary trauma as a result of the abuse.

         ¶ 10 The next month, the court adopted the parties' stipulated treatment plan for father. The treatment plan required father to (1) participate in a psychosexual evaluation within thirty days and follow any recommended offense-specific treatment and (2) maintain contact with the Department.

         ¶ 11 Father completed the psychosexual evaluation in June 2016, after the Department authorized a one-way release so that the caseworker could provide information to the evaluator without the evaluator automatically releasing the assessment to the Department. That same month, the Department moved to terminate the parent-child legal relationships between father and the children.

         ¶ 12 Two months later, a jury acquitted father of the criminal charge arising from L.M.'s outcry. Immediately after the verdict, father released the psychosexual evaluation to the Department.

         ¶ 13 The court held a four-day termination hearing in October and December 2016. Although the children remained in mother's care, the court concluded that granting permanent custody of the children to her was not a less drastic alternative. The court then entered a judgment terminating father's parental rights.

         II. Less Drastic Alternative and Termination of Parental Rights

         ¶ 14 Father contends that the juvenile court erred in terminating his parental rights by determining that there was no less drastic alternative. We agree that the record does not support the juvenile court's decision to terminate father's parental rights.

         A. Standard of Review

         ¶ 15 Whether a juvenile court properly terminated parental rights presents a mixed question of fact and law because it involves application of the termination statute to evidentiary facts. See People in Interest of S.N. v. S.N., 2014 CO 64, ¶ 21. We will not set aside a juvenile court's factual findings when they have support in the record. People in Interest of A.J.L., 243 P.3d 244, 250 (Colo. 2010). Indeed, the credibility of the witnesses; the sufficiency, probative value, and weight of the evidence; and the inferences and conclusions to be drawn from it are within the juvenile court's discretion. Id. at 249-50. But, we review the legal conclusions de novo when deciding mixed questions of fact and law. State Farm Mut. Auto. Ins. Co. v. Johnson, 2017 CO 68, ¶ 12.

         B. Statutory Criteria for Termination of Parental Rights

         ¶ 16 Termination of parental rights is a decision of paramount gravity affecting a parent's fundamental interest in the care, custody, and management of his or her child. K.D. v. People, 139 P.3d 695, 700 (Colo. 2006). The state must exercise extreme caution in terminating parental rights. Id. Consequently, a juvenile court must strictly comply with the appropriate standards for termination. Id.

         ¶ 17 The Children's Code sets forth three separate bases under which the court may terminate the parent-child legal relationship following a child's adjudication as dependent and neglected. Id.; see also § 19-3-604(1), C.R.S. 2017. First, a juvenile court may terminate parental rights when the parent has abandoned the child as defined by section 19-3-604(1)(a). K.D., 139 P.3d at 700. When termination is sought based on abandonment, there is no requirement for the parent to have been provided with a treatment plan. See § 19-3-508(1)(e)(I), C.R.S. 2017 (stating that a court may find that an appropriate treatment plan cannot be devised as to a particular parent because the child has been abandoned as set forth in section 19-3-604(1)(a)).

         ¶ 18 Second, the juvenile court may terminate parental rights when it finds, by clear and convincing evidence, that no appropriate treatment plan can be devised to address the parent's unfitness. § 19-3-604(1)(b). But a determination that no appropriate treatment plan can be devised to address a parent's unfitness is not wide open. Just the opposite - it is limited to very specific circumstances defined by statute. See § 19-3-508(1)(e)(I).

         ¶ 19 A conclusion that no appropriate treatment plan can be devised to address a parent's unfitness may be based on any one of the following:

. the parent's emotional illness, behavioral or mental health disorder, or intellectual and developmental disability of such duration or nature as to render the parent unlikely within a reasonable time to care for the child's ongoing physical, mental, and emotional needs and conditions;
. a single incident resulting in serious bodily injury or disfigurement of the child;
. the parent's long-term confinement of such duration that the parent is not eligible for parole for at least six years after the date the child was adjudicated dependent or neglected, or in an expedited permanency planning case, the long-term confinement of the parent is of such duration that the parent is not eligible for parole for at least ...

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