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
Havelda, Julie M. Yates, Guardians Ad Litem Stout Law Firm,
LLC, Stephanie Stout, Greeley, Colorado, for
Christiansen Law Firm LLC, Dina M. Christiansen, Fort
Collins, Colorado, for Respondent-Appellee
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
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
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
6 Because the record does not support the juvenile
court's decision to terminate father's parental
rights, we reverse the judgment and remand.
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
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
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
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.
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.
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.
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.
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 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 ...