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
Baumgarten, County Attorney, Gunnison, Colorado, for
G. Tweedell, Guardian Ad Litem
C. Baker, Office of Respondent Parents' Counsel, El
Prado, New Mexico; James Plumhoff, Guardian Ad Litem, for
K. Streng, Office of Respondent Parents' Counsel,
Georgetown, Colorado; Barbara Remmenga, Guardian Ad Litem,
for Respondent-Appellant S.R.
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
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.
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
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
• did not spend the night with the child;
• missed the child's occupational therapy
• placed unsafe items in the child's crib; and
• seemed to have difficulty retaining information
regarding the child's care.
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
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
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.
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
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).
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.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., ¶
19 Under the ADA, a qualified individual with ...