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.
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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
Opinion
by JUDGE WEBB
[¶
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 parents mental impairment. See People in
Interest of C.Z., 2015 COA 87, ¶ 1, 360 P.3d 228. 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 parents 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 parents 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 Childrens Hospital because she had lost more
weight even while being fed every two hours by hospital
staff.
[¶
5] The medical team at Childrens Hospital believed
that the childs failure to thrive was a combination of
organic and inorganic
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reasons. During the childs 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 childs occupational therapy appointment;
• placed unsafe items in the childs crib; and
• seemed to have difficulty retaining information
regarding the childs 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 childs 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 Departments 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
Departments 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 childs 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
Departments 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
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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
parents 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, 369 P.3d 822. 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 childs 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 parents 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 ...