The People of the State of Colorado In the Interest of Minor Children L.M., E.M., and E.J.M., and Concerning Respondent: L.G.M. Petitioner
Certiorari to the Colorado Court of Appeals Court of Appeals
Case Nos. 14CA2454, 14CA2455, 14CA2456, & 14CA2457
Attorney for Petitioner: Jason T. Kelly Alamosa, Colorado.
Guardian ad Litem for the Minor Children: Anna N. H. Ulrich,
Attorney at Law, L.L.C. Anna N. H. Ulrich Salida, Colorado.
Attorneys for Respondent: Zerbi Law Firm, PC Mérida I.
Zerbi Monte Vista, Colorado.
This case requires us to decide whether the State may seek to
terminate a parent's parental rights under the
relinquishment provision of the Colorado Children's Code
(the "Code"), § 19-5-105, C.R.S. (2017), when
the child is already subject to a dependency and neglect
proceeding under Article 3 of the Code, §§
19-3-100.5 to -805, C.R.S. (2017). We conclude that when a
dependency and neglect proceeding is pending, the State can
terminate parental rights only through the procedures set
forth in Article 3 of the Code and cannot use the more
limited processes provided in Article 5.
Accordingly, we affirm the court of appeals division's
Facts and Procedural Background
The Alamosa County Department of Human Services (the
"Department") received a call from a
"concerned party" who reported that the mother of
the children at issue ("Mother") had given birth to
a child, E.J.M., and that during prenatal visits Mother had
tested positive for opiates. The Department also received the
results of a meconium drug screen, performed after
E.J.M.'s birth, which indicated the presence of opiates,
oxycodone, and oxymorphone. And the Department received an
additional report that Mother had been seen selling pills out
of her home in the presence of her children and that her
infant "appeared to be going through withdrawals."
The Department interviewed Mother, who admitted that she was
addicted to prescription medications, although she denied
selling drugs from her home. Mother had a history of prior
referrals to the Department, and her older children had
previously been temporarily removed from her home due to her
Meanwhile, the father of the children, respondent L.G.M.
("Father"), had been incarcerated following a
criminal conviction and remained in custody at the time the
Department conducted its investigation. Father had a history
of methamphetamine use.
In light of the foregoing, the Department filed a dependency
and neglect petition with regard to E.M., L.M., and E.J.M.
(the "Children"). Although both Mother and Father
initially denied the allegations contained in the petition,
they subsequently entered admissions, and the court
adjudicated the Children dependent and neglected.
The court then conducted a dispositional hearing and adopted
a treatment plan for Mother. After discussions with Father
(who appeared pro se, having dismissed his appointed
counsel), however, the court found that no treatment plan
could be developed for Father at that time. The court based
this finding on Father's non-responsive answers to the
court's questions, which the court construed as an
objection to the proposed treatment plan. Nonetheless, the
court informed Father that if at any point, he decided that
he was ready to work on a treatment plan, then he could ask
and the court would have the Department prepare one for him.
But the court warned Father that there could come a time when
it would be too late for him to make such a request.
A few months later, the case came before a new judge for a
permanency planning hearing. During that hearing, the court
informed Father that the permanency plan for the children
remained reunification with the parents and stated that the
court would allow the Department to continue to work with
Father's prison case manager to see if Father could take
advantage of whatever programs the prison had available.
Ultimately, the guardian ad litem filed a motion to terminate
both parents' legal rights. Mother chose not to contest
this motion and subsequently relinquished her rights. Once
Mother did so, the Department filed its own petition,
pursuant to the relinquishment provisions in Article 5 of the
Code, to terminate Father's parental rights. Father
continued to indicate his desire for reunification with the
Children and some willingness to participate in treatment.
Nevertheless, the matter proceeded to a hearing in accordance
with the Article 5 relinquishment provisions. After hearing
testimony from the Children's therapist, Father, and
Father's mother, the juvenile court terminated
Father's parental rights pursuant to Article 5 (the
relinquishment provisions) of the Code and made the Children
available for adoption.
Father appealed, and in a unanimous, published decision, a
division of the court of appeals reversed. People ex rel.
E.M., 2016 COA 38M, ¶ 7, __P.3d__. In its opinion,
the division concluded that Article 3 and Article 5 of the
Code serve distinct purposes and that "these separate
and distinct purposes are not well served when an attempt is
made to intertwine them." Id. at ¶ 10. The
division characterized Article 3's purpose as the
protection of children and the preservation of family ties,
if possible. Id. at ¶ 11. The division
described Article 5, in contrast, as designed "to
promote the integrity and finality of adoption to ensure that
children whose parents are unable or unwilling to provide
proper parental care will be raised in stable, loving, and
permanent families." Id. at ¶ 13. The
division further concluded that "the dependency and
neglect court maintains continuing, exclusive jurisdiction
over any child who has been adjudicated dependent and
neglected." Id. at ¶ 18. Therefore, it
reasoned, "[T]he dependency and neglect case is that
which controls the status of an alleged dependent and
neglected child. In sum, when a child is dependent and
neglected, matters related to that child's status must be
addressed through the open dependency and neglect case."
Id. at ¶ 24 (citation omitted). The division
thus reversed the termination under Article 5 and remanded
for further proceedings in the dependency and neglect case.
Id. at ¶¶ 36-37.
The Department then filed a petition for certiorari, which we
We begin by discussing the standard of review and the
applicable principles of statutory construction. We then
consider whether Article 3 and Article 5 of the Code
conflict. To this end, we review the differing purposes of
Article 3 and Article 5. We further examine the procedures
set out in each section to effectuate those purposes and note
that Article 5 implicitly presumes both that the
relinquishing parent is fit and acting in the best interests
of the relinquished child and that no dependency and neglect
proceeding is ongoing. We then consider the Department's
and guardian ad litem's arguments, ultimately finding
them unpersuasive, and we conclude that in the circumstances
presented here, Article 3 and Article 5 conflict and that the
General Assembly did not intend to allow the State to
circumvent the substantive and procedural protections
available to the parties in a pending Article 3 proceeding.
Accordingly, we conclude that the Department could not
proceed with a termination motion under Article 5 in this
case, and we remand for further proceedings in the dependency
and neglect action.
Standard of Review and Principles of Statutory
We review questions of statutory interpretation de novo.
UMB Bank, N.A. v. Landmark Towers Ass'n, 2017 CO
107, ¶ 22, 408 P.3d 836, 840. In construing a statute,
we look at the entire statutory scheme "in order to give
consistent, harmonious, and sensible effect to all of its
parts, and we apply words and phrases in accordance with
their plain and ordinary meanings." Id. In
addition, "[w]e construe statutes related to the same
subject matter alongside one another . . ., [and] [w]e strive
to avoid statutory interpretations that render certain words
or provisions superfluous or ineffective." Kinder
Morgan CO2 Co. v. Montezuma Cty. Bd. of Comm'rs,
2017 CO 72, ¶ 24, 396 P.3d 657, 664 (citation omitted).
We likewise avoid constructions that lead to absurd results.
See In re S.O., 795 P.2d 254, 258 (Colo. 1990). Our
goal is to adopt an interpretation that achieves consistency
across a comprehensive statutory scheme. People ex rel.
D.R.W., 91 P.3d 453, 457 (Colo.App. 2004).
Article 3 and Article 5 of the Code
The General Assembly has declared that the purposes of the
Code generally include (1) securing for each child subject to
the Code "such care and guidance, preferably in his own
home, as will best serve his welfare and the interests of
society"; (2) preserving and strengthening family ties
whenever possible; (3) removing children from the custody of
their parents only when their welfare and safety or the
protection of the public would otherwise be endangered; and
(4) securing for any child removed from his parents'
custody "the necessary care, guidance, and discipline to
assist him in becoming a responsible and productive member of
society." § 19-1-102(1), C.R.S. (2017). The Code