     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                              March 22, 2018

                                2018COA45

No. 17CA0652, People in Interest of B.C. — Juvenile Court —
Dependency and Neglect — Criteria for Termination

     A division of the court of appeals considers whether the

district court erred by terminating parental rights without

conducting a dispositional hearing or adopting a formal treatment

plan that it found to be appropriate. The division concludes that,

pursuant to section 19-3-604(1)(c)(I), C.R.S. 2017, the district court

must find that “an appropriate treatment plan approved by the

court has not been reasonably complied with” before deciding to

terminate parental rights. Because the district court omitted the

important step of finding a treatment plan to be appropriate, it

could not terminate parental rights. Accordingly, the division

reverses the termination order and remands the case for further

proceedings.
     The special concurrence further explains how the supreme

court’s decision in People in Interest of J.W., 2017 CO 105, does not

impact the division’s opinion.
COLORADO COURT OF APPEALS                                       2018COA45


Court of Appeals No. 17CA0652
Pueblo County District Court No. 16JV42
Honorable Deborah R. Eyler, Judge


The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of B.C., a Child,

and Concerning L.T.,

Respondent-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                   Division I
                          Opinion by JUDGE RICHMAN
                             Taubman, J., concurs
                          Furman, J., specially concurs

                               Opinion Modified and
                          Petition for Rehearing DENIED

  OPINION PREVIOUSLY ANNOUNCED AS “NOT PUBLISHED PURSUANT TO
 C.A.R. 35(e)” ON December 21, 2017, IS NOW MODIFIED AND DESIGNATED
                            FOR PUBLICATION


Cynthia Mitchell, County Attorney, David A. Roth, Special Assistant County
Attorney, Pueblo, Colorado, for Petitioner-Appellee

Anna N. H. Ulrich, Guardian Ad Litem

Law Office of Roy Wallis, Roy Wallis, Mesa, Arizona, for Respondent-Appellant
¶1    L.T. (mother) appeals the judgment terminating the

 parent-child legal relationship with her child, B.C.

¶2    Mother contends that the trial court erred by not conducting a

 dispositional hearing or adopting a formal treatment plan that was

 found to be appropriate. The Pueblo County Department of Social

 Services (the Department) responds that the court substantially

 complied with the procedural requirements of sections 19-3-507

 and -508(1)(d)(II), C.R.S. 2017. The Department also argues that

 mother waived her objections by not raising them in the trial court,

 and that she was not prejudiced by any failure to hold a

 dispositional hearing. Because we agree with mother, we reverse

 the judgment and remand for further proceedings.

                             I. Background

¶3    The proceedings in this case began when the child and mother

 tested positive for methamphetamine after the child was born.

¶4    The Department filed a petition in dependency and neglect,

 alleging that there were concerns that mother had continued to use

 methamphetamine and was not bonding with the child.

¶5    After a Family Voice Conference, mother stipulated to an

 adjudication, admitting that the child’s environment was injurious


                                   1
 to his welfare. She also stipulated to a preliminary treatment plan

 that required her to (1) sign releases of information; (2) participate

 in sobriety monitoring; (3) complete substance abuse and mental

 health evaluations and follow recommended treatment; (4) attend

 parenting classes and the child’s doctor appointments; and (5)

 attend visitation.

¶6    Although no dispositional hearing was held, on February 23,

 2016, the Department filed a special report with the trial court

 containing an attached treatment plan that had the same

 requirements. The cover page indicates that the Department sent

 mother’s counsel a copy of the formal treatment plan.

¶7    By order dated February 29, 2016, based on mother’s

 stipulation, the trial court adjudicated the child dependent and

 neglected. The court also ordered the Department to “submit a

 formal treatment plan to the Court within twenty (20) days from the

 date of the family voice conference.” The order specified that “if no

 objections are made to said formal treatment plan, the formal

 treatment plan shall be adopted and made an order of the Court.”

 The order did not include a finding that the treatment plan was

 “appropriate.”


                                    2
¶8     Mother did not object to the preliminary treatment plan from

  the Family Voice Conference or the formal treatment plan.

¶9     At two subsequent hearings, the trial court entered orders that

  stated that, as relevant here, the “Treatment Plan previously

  approved by the Court shall remain in full force and effect.”

¶ 10   The Department later moved to terminate mother’s parental

  rights. Mother objected to the termination of her parental rights

  and asserted that she was in compliance with “the treatment plan.”

  She did not specify which treatment plan.

¶ 11   Approximately one year after the petition was filed, following a

  contested hearing, the trial court entered judgment terminating

  mother’s parental rights.

¶ 12   As pertinent here, the court stated that by its order of

  February 29, 2016, it had found the treatment plan dated February

  23, 2016, “to be appropriate and in the best interests of the child.”

  The court found that mother had not complied with the treatment

  plan, and the plan had not been successful. The court then entered

  judgment terminating mother’s parental rights.




                                    3
                               II. Analysis

¶ 13   Section 19-3-508(1) requires the court to “approve an

  appropriate treatment plan.” Section 19-3-604(1)(c)(I), C.R.S. 2017,

  requires a finding that “an appropriate treatment plan approved by

  the court has not been reasonably complied with” before deciding to

  terminate parental rights.

¶ 14   In this case, not only was there no dispositional hearing, but

  the trial court did not approve an “appropriate treatment plan.” In

  its termination judgment, the court stated that by orders of

  February 29, 2016, and March 30, 2016, it “found the treatment

  plans . . . to be appropriate.” However, these orders do not contain

  findings of “appropriateness.” Rather, they say the Department

  must submit a formal treatment plan, and if no objections are

  made, the plan would be adopted. These orders did not conclude

  that the plans were appropriate, nor did they set forth the criteria

  by which plans are deemed to be appropriate.

¶ 15   Two divisions of the court have held that a parent’s right to

  object to the elements of a treatment plan is waived if not raised

  before the termination hearing. See People in Interest of D.P., 160

  P.3d 351, 354 (Colo. App. 2007); People in Interest of M.S., 129 P.3d


                                    4
  1086, 1087 (Colo. App. 2005). Another division has held that

  objections to a treatment plan may be raised on appeal even if not

  objected to at the termination hearing. See People in Interest of

  S.N-V., 300 P.3d 911, 914-18 (Colo. App. 2011).

¶ 16   This difference need not be resolved here. It is correct that

  mother did not specify objections to components of the treatment

  plan. But the issues raised on appeal are that the plan was

  adopted without a dispositional hearing, and that the trial court did

  not make a finding that the plan was appropriate. Although we

  recognize that the court here may have been attempting to expedite

  this proceeding, these formal steps may not be ignored.

¶ 17   Section 19-3-507(1)(a) specifies that at a dispositional hearing

  the court shall hear evidence on “the question of the proper

  disposition best serving the interests of the child and the public.”

  Subsection (1)(b) requires a caseworker to submit details of services

  offered or provided to the family to facilitate reunification of the

  child and family. These steps are important in their own right, and

  subsection (2) adds that if based on this evidence the court has

  reason to believe a child may have an intellectual or developmental

  disability, specific referrals are required.


                                      5
¶ 18   Section 19-3-508 provides for the different dispositions that

  the court may reach, timing guidelines for the termination hearing

  depending on the disposition, and provisions for placement of the

  child.

¶ 19   An appropriate treatment plan has been defined as one that is

  “reasonably calculated to render the particular [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.

  2017.

¶ 20   Finally, section 19-3-604(1)(c) permits the court to terminate

  the parent-child relationship only if “an appropriate treatment plan

  approved by the court has not been reasonably complied with by

  the parent.” The court cannot make such a finding if it has not first

  found the treatment plan to be appropriate.

¶ 21   Because of the omission of these important steps in the

  proceedings of this case, we reverse the termination order and

  remand the case for further proceedings.

¶ 22   The week before we issued our opinion in this case, the

  supreme court issued its opinion in People in Interest of J.W., 2017

  CO 105, ¶ 32 (holding that the juvenile court’s failure to enter a


                                     6
written adjudication order confirming the children’s status before

terminating the parent-child legal relationship did not divest the

court of jurisdiction to terminate). In a petition for rehearing, the

Pueblo County Department of Social Services (Department)

contends that we should reconsider our opinion in light of the

supreme court’s J.W. decision. The Department reasons that not

holding a dispositional hearing before termination is the equivalent

of not entering a written dependency and neglect adjudication. We

requested simultaneous briefing from the parties on the

Department’s petition. Having considered the briefs, we now deny

the petition for rehearing. We conclude that the opinion in People

in Interest of J.W. does not suggest a different result in this case

because J.W. analyzed whether the court had jurisdiction to

terminate parental rights, which was not at issue in this case.

     JUDGE TAUBMAN concurs.

     JUDGE FURMAN specially concurs.




                                   7
       JUDGE FURMAN, specially concurring.

¶ 23   I write separately to address why I would not grant the

  Department’s petition for rehearing.

¶ 24   Because a termination of parental rights case involves

  constitutional and statutory requirements, I address two

  fundamental questions: (1) What is the constitutional standard of

  proof in proceedings involving termination of a parent-child

  relationship? (2) Does People in Interest of J.W., 2017 CO 105 apply

  to our opinion? I answer the first question by discussing our

  supreme court’s opinion in People in Interest of A.M.D., 648 P.2d

  625 (Colo. 1982). I then answer the second question by discussing

  the supreme court’s opinion in J.W.

                   I. Constitutional Standard of Proof

¶ 25   In A.M.D., our supreme court explained constitutional due

  process requirements for a juvenile court to terminate parental

  rights. First, the court recognized the following:

            The fundamental liberty interest of natural
            parents in the care, custody, and management
            of their child does not evaporate simply
            because they have not been model parents or
            have lost temporary custody of their child to
            the State. Even when blood relationships are
            strained, parents retain a vital interest in


                                     8
            preventing the irretrievable destruction of their
            family life. If anything, persons faced with
            forced dissolution of their parental rights have
            a more critical need for procedural protections
            than do those resisting state intervention into
            ongoing family affairs. When the State moves
            to destroy weakened familial bonds, it must
            provide the parents with fundamentally fair
            procedures.
  A.M.D., 648 P.2d at 632 (quoting Santosky v. Kramer, 455 U.S. 745,

  753-54 (1982)).

¶ 26   Second, the court determined that, “in Colorado, a dependency

  or neglect proceeding and the resulting adjudication provide the

  jurisdictional bases for State intervention to assist the parents and

  child in establishing a relationship and home environment that will

  preserve the family unit.” A.M.D., 648 P.2d at 640.

¶ 27   Third, the court determined that “clear and convincing

  evidence is the appropriate constitutional standard of proof in

  proceedings involving termination of a parent-child relationship.”

  Id. at 631. But, the court explained that only

            when conditions have so deteriorated that a
            child is abandoned . . . or a parent is deemed
            unfit when tested by demanding standards . . .
            is a parent-child relationship to be terminated.
            Termination is an unfortunate but necessary
            remedy when all reasonable means of
            establishing a satisfactory parent-child


                                    9
             relationship have been tried and found
             wanting.

  Id. at 640 (citations omitted).

¶ 28   Thus, here, before seeking to terminate parental rights, the

  Department must have intervened into the lives of mother and her

  child and used all reasonable means of establishing a satisfactory

  parent-child relationship. Using all reasonable means of

  establishing a satisfactory relationship could only have been

  accomplished by developing an appropriate treatment plan

  approved by the court at a dispositional hearing. See

  § 19-3-507(1)(a), C.R.S. 2017; see also § 19-1-103(10), C.R.S. 2017

  (defining an appropriate treatment plan as one that is “reasonably

  calculated to render the particular [parent] fit to provide adequate

  parenting to the child within a reasonable time and that relates to

  the child’s needs”). Because the court did not approve an

  appropriate treatment plan at a dispositional hearing, the

  Department did not use all reasonable means of establishing a

  satisfactory parent-child relationship. We, therefore, reversed the

  judgment terminating parental rights and remanded the case with




                                    10
  directions for the court to hold a dispositional hearing because the

  constitutional and statutory standards of proof had not been met.

                          II. Application of J.W.

¶ 29   In my opinion, J.W. does not apply to the present case because

  J.W. analyzed whether the court had jurisdiction to terminate

  parental rights, which was not at issue in this case.

¶ 30   J.W. first held that the failure of the juvenile court to reduce a

  dependency and neglect adjudication to writing did not divest the

  juvenile court of subject matter jurisdiction to later terminate

  mother’s parental rights. Id. at ¶ 4. But, no one here disputed the

  subject matter jurisdiction of the juvenile court to hold a

  termination of parental rights hearing.

¶ 31   J.W. also held that respondents in dependency and neglect

  cases may consent by their words and conduct to the personal

  jurisdiction of the juvenile court. Id. at ¶ 25. But, no one here

  disputed the personal jurisdiction of the juvenile court to supervise

  the Department’s intervention into the lives of mother and her

  children to establish a satisfactory parent-child relationship.

¶ 32   The question in this case is not whether mother consented to

  the personal jurisdiction of the juvenile court, or whether the


                                    11
  juvenile court had jurisdiction to terminate her parental rights.

  Rather, the question is whether the constitutional and statutory

  standards of proof were satisfied. J.W. does not help us answer

  that question.

¶ 33   Because the juvenile court did not approve an “appropriate

  treatment plan” at a dispositional hearing, the court lacked the

  prerequisites to find that mother was unfit. See People in Interest of

  S.N-V., 300 P.3d 911, 915 (Colo. App. 2011) (“For a parent’s

  ‘treatment plan’ to be ‘appropriate,’ it must be ‘approved by the

  court’ and be ‘reasonably calculated to render the particular

  respondent fit to provide adequate parenting to the child within a

  reasonable time and . . . relate[ ] to the child’s needs.’” (quoting

  § 19-1-103(10), C.R.S. 2011)). I, therefore, concur with the majority

  and vote to deny the petition for rehearing.




                                     12
