2018 COA 58
Colo. Ct. App.2018Background
- In 2015 Larimer County DHS filed a dependency and neglect petition after 6-year-old L.M. reported father touched her; children were placed with mother and father was prohibited contact.
- August 2015: juvenile court adjudicated the children dependent and neglected by a preponderance, finding father sexually abused L.M.; mother received temporary custody; father denied the allegations.
- Father was criminally charged with aggravated incest but was acquitted by a jury in August 2016; father completed a psychosexual evaluation and later participated in denier’s intervention and individual therapy.
- The Department moved to terminate father’s parental rights in June 2016; a four‑day termination hearing was held October–December 2016.
- The juvenile court found father unfit, concluded there were no less drastic alternatives (including custody to mother), and terminated parental rights; the court also acknowledged it could not find the abuse proven by clear and convincing evidence.
- On appeal the Court of Appeals reversed, holding the record did not support termination because the approved treatment plan and the court’s findings were incompatible with father’s acquittal and the heightened evidentiary standard required for termination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether termination was proper because no less drastic alternative existed | DHS/People: children continued to experience trauma specific to father; father denied/failed to recognize trauma so reunification was not viable | Father: acquittal and lack of clear-and-convincing proof of abuse; treatment plan unworkable because it required admission of guilt | Reversed — record did not support finding no less drastic alternative; court erred. |
| Whether the court permissibly relied on father’s failure to complete SOMB/offense-specific treatment | DHS: evaluator recommended SOMB-based therapy and victim-empathy module to address children’s trauma | Father: SOMB protocols are for convicted sex offenders; evaluating/treating under presumption of guilt is inappropriate after acquittal | Reversed — requiring admission of abuse as precondition to treatment was unreasonable and conflicted with acquittal and clear-and-convincing standard. |
| Whether father’s denial of abuse rendered him per se unfit | DHS: denial showed lack of insight/empathy and inability to meet children’s emotional needs | Father: denial stems from innocence; no other treatment pathway was offered to address trauma or parenting deficits | Reversed — court’s finding of unfitness unsupported because no tailored, court‑approved plan (short of an admission) was offered to render father fit. |
| Whether ICWA inquiry/compliance was adequate | (Not raised by father) DHS/court: attempted inquiry at hearings | Father: (on remand) must be asked on record whether he knows or has reason to know children are Indian | Remand: record does not show full ICWA compliance; court must confirm ICWA inquiry of father before reconsidering termination. |
Key Cases Cited
- K.D. v. People, 139 P.3d 695 (Colo. 2006) (termination requires strict compliance because it severs fundamental parental rights)
- People in Interest of A.J.L., 243 P.3d 244 (Colo. 2010) (appellate review deference to juvenile court’s factual findings)
- People in Interest of M.M., 726 P.2d 1108 (Colo. 1986) (court must consider and reject less drastic alternatives before terminating parental rights)
- People in Interest of C.H., 166 P.3d 288 (Colo. App. 2007) (statutory termination criteria under § 19-3-604 summarized)
- People in Interest of E.A., 638 P.2d 278 (Colo. 1981) (parental rights may not be terminated merely to improve the child’s condition)
- B.H. v. People in Interest of X.H., 138 P.3d 299 (Colo. 2006) (ICWA protects tribal interests and requires meaningful tribal notice and participation)