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People ex rel. S.K.

Court of Appeals of Colorado, Third Division

March 7, 2019

The People of the State of Colorado, Petitioner-Appellee, In the Interest of S.K., a Child, and Concerning C.K. and S.R., Respondents-Appellants.

          Gunnison County District Court No. 16JV8 Honorable J. Steven Patrick, Judge

          David Baumgarten, County Attorney, Gunnison, Colorado, for Petitioner-Appellee

          Robert G. Tweedell, Guardian Ad Litem

          Susan C. Baker, Office of Respondent Parents' Counsel, El Prado, New Mexico; James Plumhoff, Guardian Ad Litem, for Respondent-Appellant C.K.

          Pamela K. Streng, Office of Respondent Parents' Counsel, Georgetown, Colorado; Barbara Remmenga, Guardian Ad Litem, for Respondent-Appellant S.R.

          OPINION

          WEBB JUDGE

          ¶ 1 In this dependency and neglect proceeding, S.R. (mother) and C.K. (father) appeal the juvenile court judgment terminating their parent-child legal relationships with S.K. (the child). To resolve the parents' arguments on appeal, we must consider the requirements of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213 (2018), and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (2018). The ADA, and in limited circumstances, section 504 require public entities to make reasonable accommodations for qualified individuals with disabilities.

         ¶ 2 A division of this court has considered this requirement of the ADA in the context of termination because an appropriate treatment plan could not be devised to address the parent's mental impairment. See People in Interest of C.Z., 2015 COA 87, ¶ 1. But this case presents a different question under the ADA, which has not yet been addressed in Colorado - How does the requirement to make reasonable accommodations relate to termination based on a disabled parent's lack of success with a treatment plan, unfitness, and unlikelihood of change? We conclude that a juvenile court must consider reasonable accommodations in deciding whether such a parent's treatment plan was appropriate and whether reasonable efforts were made to rehabilitate the parent.

         ¶ 3 Ultimately, we hold that the juvenile court properly considered reasonable accommodations for the parents' disabilities as part of its conclusions that the parents' treatment plans were appropriate and the Gunnison County Department of Health and Human Services (Department) had made reasonable efforts to rehabilitate them. These conclusions are supported by the record. We also reject the parents' remaining arguments regarding parental fitness, likelihood of change, and a less drastic alternative to termination. Therefore, we affirm the termination judgment.

         I. The Dependency and Neglect Case

         ¶ 4 In June 2016, the Department began receiving reports that the child, then less than three months old, was not gaining weight and the parents were not feeding her often enough. Later that month, the child was admitted to a local hospital for failure to thrive. The next day, the child was transferred to Children's Hospital because she had lost more weight even while being fed every two hours by hospital staff.

          ¶ 5 The medical team at Children's Hospital believed that the child's failure to thrive was a combination of organic and inorganic reasons. During the child's stay, the medical team observed that the parents

• continued to feed the child only two to three times a day;
• did not spend the night with the child;
• missed the child's occupational therapy appointment;
• placed unsafe items in the child's crib; and
• seemed to have difficulty retaining information regarding the child's care.

         Based on these concerns, the Department initiated a dependency and neglect case and took custody of the child.

         ¶ 6 The parents both stipulated that the child was dependent and neglected because she was without proper care through no fault of their own. In August 2016, the juvenile court adopted treatment plans that required each parent to (1) consistently attend visits with the child; (2) meet with an in-home parenting support provider and learn skills to safely care for the child; (3) sign releases of information; (4) meet the child's needs and provide her with an appropriate living environment; and (5) complete recommended assessments, including neuropsychological and capacity to parent evaluations, to determine appropriate services.

         ¶ 7 The parents completed the capacity to parent and neuropsychological evaluations in the fall of 2016. An administrative review division, an outside entity that reviewed the Department's work, advised the caseworker to rewrite the treatment plans to include recommendations from the evaluations.

         ¶ 8 In late May 2017, the Department moved to amend the treatment plans to include more specific language regarding the plans' requirements. The proposed amendments included requirements for the parents to continue working with a parenting coach; comply with recommendations from the capacity to parent evaluator, including mental health treatment; and follow the recommendations of the neuropsychological evaluator, including therapy and inpatient substance abuse treatment for father and dialectical behavior therapy for mother. The Department also asked the court to appoint a guardian ad litem (GAL) for mother and father based on their mental illnesses or developmental disabilities.

         ¶ 9 A few weeks later, the juvenile court appointed a GAL for each parent and held an evidentiary hearing on the Department's proposal to amend the treatment plans. At the hearing, the parents argued that they were not opposed to having more specifics in the treatment plans, but that because the deadline to have permanency for the child was close and the Department had indicated it would be pursuing termination shortly, it was too late to amend the plans.

         ¶ 10 The child's GAL also took the position that if the court was going to adopt the amended treatment plans, it would need to extend the permanency deadline. The Department responded that if amending the plans would require an extension of the permanency deadline, it would withdraw the request. In the end, the juvenile court denied the Department's motion to amend the treatment plans and continued the existing plans in place.

         ¶ 11 The next month, the Department moved to terminate the legal relationships between the child and the parents. Before the start of the termination hearing, mother and father filed a joint motion asking the court to find that the Department had not made reasonable efforts to reunify them with the child, dismiss the termination motion, and amend the treatment plans to provide reasonable accommodations under the ADA. After a four-day hearing, the court rejected the parents' arguments, and in January 2018, terminated their parental rights.

         II. Termination of Parental Rights and the ADA

         ¶ 12 Mother and father challenge the appropriateness of their treatment plans, the efforts that the Department made to reunify them with the child, and the extent of reasonable accommodations required under the ADA. Mother contends the juvenile court erred in concluding that her treatment plan was appropriate and the Department had made reasonable efforts to rehabilitate her in light of the ADA and section 504 of the Rehabilitation Act. Father contends the juvenile court erred in granting termination because the Department failed to make reasonable efforts to provide him with an appropriate treatment plan and reasonable accommodations under the ADA in creating and implementing his treatment plan. We reject these contentions.

         A. Termination Criteria

         ¶ 13 As pertinent here, the juvenile court may terminate parental rights if it finds, by clear and convincing evidence, that (1) the child was adjudicated dependent and neglected; (2) the parent has not complied with an appropriate, court-approved treatment plan or the plan has not been successful; (3) the parent is unfit; and (4) the parent's conduct or condition is unlikely to change in a reasonable time. § 19-3-604(1)(c), C.R.S. 2018; People in Interest of C.H., 166 P.3d 288, 289 (Colo.App. 2007).

         ¶ 14 The purpose of a treatment plan is to preserve the parent-child legal relationship by assisting the parent in overcoming the problems that required intervention into the family. People in Interest of K.B., 2016 COA 21, ¶ 11. Thus, an appropriate treatment plan is one that is approved by the court and is reasonably calculated to render the 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. 2018; People in Interest of M.M., 726 P.2d 1108, 1123 (Colo. 1986).

         ¶ 15 In determining parental unfitness and the likelihood that a parent's conduct or condition will change, the court must consider whether reasonable efforts have been unable to rehabilitate the parent. § 19-3-604(2)(h); People in Interest of S.N-V., 300 P.3d 911, 915 (Colo.App. 2011). "Reasonable efforts" means the "exercise of diligence and care" for a child who is in out-of-home placement. § 19-1-103(89).

          ¶ 16 The reasonable efforts standard is satisfied when services are provided in accordance with section 19-3-208, C.R.S. 2018. § 19-1-103(89). Among other things, the Department must offer screening, assessments, and individual case plans; information and referrals to available public and private assistance resources; and visitation services. § 19-3-208(2)(b)(I), (III)-(IV). If funding is available, it must also provide mental health and substance abuse treatment services. § 19-3-208(2)(d)(IV)-(V).

         B. The ADA and Section 504

         ¶ 17 Title II of the ADA, 42 U.S.C. §§ 12131-12134 (2018), prohibits a public entity from discriminating against a qualified individual with disabilities in the provision or operation of public services, programs, or activities. Tennessee v. Lane, 541 U.S. 509, 517 (2004). Section 504 of the Rehabilitation Act applies the same requirement to entities that receive federal financial assistance.[1]See In re H.C., 187 A.3d 1254, 1265 (D.C. 2018). It provides that a qualified person with a disability shall not, "solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a).

         ¶ 18 The ADA was enacted not only to remedy discrimination in the form of intentional exclusion, but also to mandate reasonable modifications to existing policies and to otherwise reasonably accommodate individuals with disabilities. 42 U.S.C. § 12101(a)(5) (2018); C.Z., ¶ 12. Consequently, it imposes an affirmative duty on a public entity to make reasonable accommodations for qualified individuals with disabilities. 28 C.F.R. § 35.130(b)(7) (2018); C.Z., ¶ 12.

         C. Qualified Individual

         ¶ 19 Under the ADA, a qualified individual with ...


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