2022 COA 133
Colo. Ct. App.2022Background:
- April 2020: Boulder County Department of Housing and Human Services removed the newborn and filed a dependency and neglect petition (alleging home birth without proper care and a positive marijuana test).
- Father was added later by amended petition, served by publication, default adjudicated; a treatment plan was adopted for him.
- Mother was tried by jury, adjudicated dependent and neglected, and given a court-approved treatment plan; a psychological evaluation (June 2021) recommended services but did not diagnose a DSM disorder.
- The Department moved to terminate parental rights in September 2021; father first contacted the caseworker months later, paternity confirmed in December 2021, and an amended plan for father was adopted in January 2022.
- February 2022 termination hearing resulted in termination of mother under § 19-3-604(1)(c) (failure to comply/treatment plan/unfitness) and termination of father under § 19-3-604(1)(a) (abandonment).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dept. failed to make reasonable accommodations for mother's ADA disability, undermining reasonable efforts | Mother: Dept. didn’t implement psychologist’s recommendations and thus failed ADA accommodations and reasonable efforts | Dept.: Mother did not preserve an ADA claim for the court to consider on appeal | Not preserved; mother didn’t timely raise ADA or show an obvious ADA-cognizable disability, so appellate review declined |
| Whether mother could become fit within a reasonable time | Mother: Substantial compliance and would be fit with reasonable accommodations | Dept.: Mother remained unfit due to substance use, untreated domestic-violence issues, poor integration of parenting feedback | Court’s factual findings supported unfitness and lack of reasonable prospect for change; termination under §19-3-604(1)(c) affirmed |
| Whether father had a reasonable amount of time to comply with his treatment plan before termination | Father: He lacked reasonable time after amended plan was adopted shortly before termination | Dept.: Termination was under §19-3-604(1)(a) (abandonment), which does not require a treatment-plan compliance period | Held: Subsection (1)(a) does not require providing a treatment plan or a reasonable time to comply; father’s argument fails |
| Whether Dept. failed to make reasonable efforts to rehabilitate father | Father: Dept. didn’t engage him after paternity and promptly sought termination | Dept.: When termination is under §19-3-604(1)(a), reasonable-efforts finding is not required; Department may still provide services but court need not consider reasonable efforts | Held: Because termination was under (1)(a), the court was not required to assess reasonable efforts; termination affirmed |
Key Cases Cited
- People in Interest of A.M. v. T.M., 2021 CO 14 (Colo. 2021) (clarifies mixed question review for termination decisions)
- People in Interest of A.J.L., 243 P.3d 244 (Colo. App. 2010) (trial-court credibility and factual findings weigh heavily on review)
- People v. Melendez, 102 P.3d 315 (Colo. 2004) (preservation requires adequate opportunity for court to make findings)
- People v. Syrie, 101 P.3d 219 (Colo. 2004) (preservation principles)
- People in Interest of D.Y., 176 P.3d 874 (Colo. App. 2007) (parent must be afforded reasonable time to comply under §19-3-604(1)(c))
- People in Interest of R.B.S., 717 P.2d 1004 (Colo. App. 1986) (court need not grant more time after little to no plan progress)
- People in Interest of V.W., 958 P.2d 1132 (Colo. App. 1998) (increased compliance may not justify more time)
- In re Adoption of Gregory, 747 N.E.2d 120 (Mass. 2001) (ADA issues should be raised before dispositional orders/treatment plans)
- In re Terry, 610 N.W.2d 563 (Mich. Ct. App. 2000) (timeliness requirement for raising ADA accommodations)
- In re Hicks/Brown, 893 N.W.2d 637 (Mich. 2017) (obvious disabilities can put the department on notice to provide accommodations)