2019 COA 36
Colo. Ct. App.2019Background
- Infant S.K. removed from parents C.K. (father) and S.R. (mother) after failure-to-thrive and hospital findings suggesting inadequate feeding and unsafe care; child adjudicated dependent and neglected.
- Court-ordered treatment plans (2016) required parenting visits, in-home parenting support, releases, meeting child’s needs, and recommended assessments (capacity-to-parent and neuropsychological). Parents completed evaluations showing low/ borderline intellectual functioning and other mental-health deficits.
- Department sought to amend plans (May 2017) to add specific therapy/substance-treatment requirements; court denied amendment and left original plans in place.
- Department later moved to terminate parental rights; parents argued termination was improper because Department failed to provide ADA/Section 504 reasonable accommodations and reasonable reunification efforts.
- Four-day termination hearing; juvenile court found (1) plans were appropriate, (2) Department made reasonable efforts and reasonable accommodations, (3) parents unfit and unlikely to change in a reasonable time, and (4) no less-drastic alternative; appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ADA/§504 require consideration of reasonable accommodations in creating/implementing treatment plans before termination | Parents: Department failed to identify and provide reasonable accommodations required by ADA/§504; plans were therefore inappropriate and termination premature | State: ADA/§504 apply to services but do not bar termination; Department provided services and accommodations as appropriate | Court: ADA/§504 require consideration and, where appropriate, reasonable accommodations in devising/providing treatment plans and assessing reasonable efforts; juvenile court must consider accommodations when deciding plan appropriateness and reasonable efforts. |
| Whether the treatment plans were appropriate given parents’ disabilities | Parents: Plans lacked individualized accommodations and specific services (e.g., medical care training, couples therapy, DBT for mother, inpatient substance treatment for father) | State: Plans included in-home parenting support, assessments, parenting coaching, OT, mental-health referrals; parents failed to identify specific missing accommodations | Court: Plans were appropriate; parents failed to identify specific additional reasonable accommodations that should have been included. |
| Whether Department made reasonable efforts to rehabilitate (including reasonable accommodations) | Parents: Department delayed/limited services, only sought to implement some recommendations after deciding to pursue termination; services were insufficient or inconsistent | State: Department provided assessments, increased visitation, parenting coaching, occupational therapy, mental-health referrals, coordinated supports and attempted to secure inpatient care for father | Court: Record supports juvenile court finding that Department made reasonable efforts and provided accommodations reasonably tailored to parents’ disabilities. |
| Parental fitness / likelihood of change and less-drastic alternatives (placement with grandmother) | Parents: Parents made progress and could become fit with additional, disability-tailored services; grandmother placement was viable alternative | State: Improvements were insufficient, longstanding deficits and safety concerns persisted; grandmother unable to care without parental assistance and was denied placement | Court: Parents were unfit and unlikely to become fit within a reasonable time given child’s need for permanency; grandmother placement not viable. |
Key Cases Cited
- Tennessee v. Lane, 541 U.S. 509 (2004) (Title II of ADA prohibits public-entity discrimination in services/activities)
- Lucy J. v. State, Dep’t of Health & Soc. Servs., 244 P.3d 1099 (Alaska 2010) (reunification services must account for parents’ disabilities under ADA)
- In re Terry, 610 N.W.2d 563 (Mich. Ct. App. 2000) (reunification services must comply with ADA)
- In re H.C., 187 A.3d 1254 (D.C. 2018) (ADA accommodations relevant to reunification services and reasonable efforts)
- Nat’l Fed’n of the Blind v. Lamone, 813 F.3d 494 (4th Cir. 2016) (reasonable modification standard excludes accommodations causing undue hardship)
- Pruett v. Arizona, 606 F. Supp. 2d 1065 (D. Ariz. 2009) (ADA does not require fundamental alteration of public services)