2017 COA 157
Colo. Ct. App.2017Background
- Child born dependent/addicted; removed to foster care after mother's ongoing substance abuse; Department filed dependency and neglect petition (Nov 2014).
- Paternal aunt sought to care for child and requested genetic testing; testing and locating father delayed placement and visits until child ~18 months old.
- Department conducted a home study of the aunt that raised concerns (aunt's marijuana use without physician certification, recent fraud conviction/probation, transportation/financial limits, children with special needs); caseworker requested an internal "administrative review."
- Department's administrative review (inviting the GAL) concluded the aunt was not a recommended placement under then-policy barring caregivers who used marijuana; GAL reported the result at a court review; mother did not object at that time.
- Department moved to terminate mother's parental rights (June 2016); court reduced aunt visitation and later denied changing placement based on the child’s primary attachment to foster parents and risk of disrupting that bond; court terminated parental rights (Nov 2016).
Issues
| Issue | Mother's Argument | Department's Argument | Held |
|---|---|---|---|
| Whether mother was denied procedural due process by being excluded from Department's administrative review | Mother: exclusion deprived her of chance to present evidence and rebut Department's adverse placement recommendation | Dept: administrative review is internal fact-finding; parents are entitled to notice/hearing only when Dept proposes a placement change to court; mother had later hearings to challenge recommendation | Court: No due process violation; mother had opportunity to be heard at motions and termination hearings and did not timely seek available reports |
| Whether mother was entitled to counsel at Department's administrative review | Mother: statutory right to counsel "at every stage" includes administrative review | Dept: "proceedings" in statute do not encompass internal administrative review; right to counsel applies to court proceedings | Court: Right to counsel did not extend to the Department's administrative review; no denial of counsel violated due process |
| Whether lack of timely home-study disclosure prejudiced mother | Mother: did not receive home study timely and could not challenge recommendation | Dept: mother knew study was complete, could have requested report or obtained court order; aunt later authorized release at motions hearing | Court: Procedures existed to obtain the report; mother failed to avail herself; no prejudice shown |
| Whether placement with aunt was a less drastic alternative to termination | Mother: aunt was willing and, with earlier engagement, could have been appropriate placement | Dept and court: child's attachment to foster parents, evaluator and therapist testimony, and stability concerns outweighed aunt placement | Court: Placement with aunt was not a viable less drastic alternative given risk of disrupting secure attachment; termination affirmed |
Key Cases Cited
- Santosky v. Kramer, 455 U.S. 745 (recognition of parental liberty interest in custody)
- Mathews v. Eldridge, 424 U.S. 319 (balancing test for required procedural protections)
- People in Interest of T.W., 642 P.2d 16 (court has exclusive jurisdiction to determine placement)
- People in Interest of D.B-J., 89 P.3d 530 (county department must evaluate reasonable number of placements)
- Dep't of Health v. Donahue, 690 P.2d 243 (agencies must follow heightened procedural standards they adopt)
- Klingsheim v. Cordell, 379 P.3d 270 (review standard for notice and procedural due process in Colorado)