Opposition Brief — M. A. v. Colorado

Suprame Court, ys oe

re er ns

' BPR 16 4998

No. 97-1544 : , Sie

CLERK

In The *

Supreme Court of the United States

October Term, 1997

¢

M.A.,

Petitioner,

THE PEOPLE OF THE STATE OF COLORADO,

In the Interest of K.A., A Child,

Respondent.

+

On Petition For Writ Of Certiorari

To The Colorado Court Of Appeals

¢

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

e

Linpa K. CONNORS

Georce H. Hass

Counsel of Record

Harpen, Hass, Haac &

HALLBERG, P.C.

Ninth Floor, First Tower Building

Post Office Box 1606

Fort Collins, Colorado 80522

Telephone: (970) 498-7450

Facsimile: (970) 482-8084

Counsel for Respondent

CODCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

I. Does this Court have jurisdiction given that the issue

of compelled self-incrimination was never raised, nor

ruled on, in any state court?

II. Does C.R.S. § 19-3-207(2) statutorily eliminate the

issue of compelled self-incrimination?

il

TABLE OF CONTENTS

Page

2 &

CRESTS PR rere 665 eek sistem es ees i

PERTINENT COLORADO REVISED STATUTES .... 1

SEA Petes GOP. Pies Se og cass oe Gcicacdscnccecs 1

THIS COURT HAS NO JURISDICTION BECAUSE

PETITIONER NEVER RAISED THE FEDERAL

QUESTION IN STATE COURT AND THIS PETI-

TION SHOULD BE SUMMARILY DENIED....... 3

C.R.S. § 19-3-207(2) PROHIBITS USE IN A CRIMI-

NAL CASE OF STATEMENTS MADE TO PROFES-

SIONALS PURSUANT TO COMPLIANCE WITH

COURT TREAIMEENT ORDERS - « o.- escnccos ccc’ +

CXC ASIN bse bo asa dks e oes seen deeb eee 5

APPENDIX

Motion for Post-Trial Relief Pursuant to Rule 59 ...A-1

Onder Re: Post Trial NOMOOs. «oi. nonsccicciaees ns B-1

Opening Brief of Respondent-Appellant, M.A....... C-1

Petition: Gow TistOneGe 3. o6 5055 ck kena nen ee D-1

Petition for Writ of Costiowall .... 6c docs cv dn kivcanas E-1

ili

TABLE OF AUTHORITIES

Page

CASES

Missouri Pac. R. Co. v. Hanna, 266 U.S. 184, 45 S.Ct.

ee an et ENE oy a fess hesab ews dace viass 3

STATUTES

ee NN oS ads vcs ca eh cada ess 1

ERENT mn om

ANGER chet

PERTINENT COLORADO REVISED STATUTES

C.R.S. § 19-3-207(2):

No professional shall be examined in any crimi-

nal case without the consent of the respondent

as to statements made pursuant to compliance

with court treatment orders, including protec-

tive orders, entered under this article; except

that such privilege shall not apply to any discus-

sion of any future misconduct or of any other

past misconduct unrelated to the allegations

involved in the treatment plan. The admis-

sibility of testimony as set forth in this subsec-

tion (2) shall not be subject to the hearing and

notice provisions of subsection (1) of this sec-

tion.

STATEMENT OF THE CASE

This is a child protection case. Petitioner paid

$10,000.00 to a surrogate to bear K.A., the child which is

the subject of this action. Following a preliminary investi-

gation of sexual and physical abuse allegations, the

Respondent sought and obtained temporary custody of

K.A. who was under three years old at the time. Based

upon the Petitioner’s admission of one of the allegations,

the trial court adjudicated K.A. to be dependent and

neglected under Colorado law. The trial court adopted

the treatment plan proposed by Respondent with one

minor exception. The treatment plan required Petitioner

to submit to a sexual abuse evaluation and to follow all

treatment recommendations. Petitioner picked a therapist

he wished to use if treatment was necessary. There was

no evidence at trial that this therapist required Petitioner

to admit he was a sexual abuse perpetrator as a condition

precedent to therapy. Pursuant to the treatment plan, the

therapist would determine if sexual perpetrator therapy

was successful. Petitioner did not follow through with the

recommended sexual perpetrator treatment. He testified

that the reason he did not do treatment was because he

disagreed with the evaluator’s recommendations. Peti-

tioner never expressed concern that an admission during

treatment would trigger Colorado’s mandatory reporting

statute.

Based on Petitioner’s refusal to follow treatment rec-

ommendations, specifically his failure to obtain sexual

perpetrator treatment, which resulted in noncompliance

with the treatment plan, the Respondent asked for termi-

nation of the parent-child relationship. Following a three

day trial on January 31, 1996, the trial court terminated

the parent-child relationship, due to M.A.’s failure to

comply with sexual abuse treatment. (Petitioner’s Appen-

dix “D” at D-7 and D-8) Petitioner filed for post-trial

relief. (Appendix “A”) This was denied. (Appendix “B”)

On appeal Petitioner alleged the following errors:

i) Petitioner claimed termination was inappropriate in

light of the timing of the filing of the People’s Motion to

Terminate, ii) Petitioner claimed he was not given ade-

quate notice of what was required of him under the

treatment plan and that he did not have an adequate

opportunity to comply with the plan, and iii) Petitioner

claimed the trial court erred in its failure to make find-

ings and orders as to modifications of the treatment plan

and its failure to impose remedies short of termination.

OO

(Appendix “C”) The Colorado Court of Appeals affirmed

the trial court’s order. On August 13, 1997, M.A. filed a

Petition For Rehearing with the Colorado Court of

Appeals. (Appendix “D”) This was denied on October 2,

1997.

On October 29, 1997, M.A. filed a Petition for Writ of

Certiorari with the Colorado Supreme Court. (Appendix

“E”) This was denied on December 22, 1997. The mandate

from the Court of Appeals issued on January 5, 1998.

THIS COURT HAS NO JURISDICTION BECAUSE

PETITIONER NEVER RAISED THE FEDERAL

QUESTION IN STATE COURT AND THIS PETITION

SHOULD BE SUMMARILY DENIED.

No petition for certiorari from a state court proceed-

ing will be entertained by this Court unless the federal

question alleged to have been improperly decided by the

state court is raised in the state court. Missouri Pac. R. Co.

v. Hanna, 266 U.S. 184, 45 S.Ct. 36, 69 L.Ed 235 (1924).

A review of the motion for post-trial relief, the order

re: post trial motions, Petitioner’s brief to the Colorado

Court of Appeals, the opinion of the Colorado Court of

Appeals, the petition for rehearing before the Colorado

Court of Appeals and the petition for certiorari to the

Colorado Supreme Court shows:

1. Petitioner never raised the compelled self-

incrimination issue; and

2. No Colorado Court decided that issue.

C.R.S. § 19-3-207(2) PROHIBITS USE IN A

CRIMINAL CASE OF STATEMENTS MADE TO

PROFESSIONALS PURSUANT TO COMPLIANCE

WITH COURT TREATMENT ORDERS.

Assuming the compelled self-incrimination issue is

properly presented in this Petition, Colorado Statute

C.R.S. § 19-3-207(2) destroys Petitioner’s argument. State

law prohibits any statement made during sexual abuse

perpetrator therapy in connection with a treatment plan

from being used in any criminal case. The Colorado Leg-

islature has anticipated Petitioner’s argument about this

issue and statutorily eliminated the issue. There is no

violation of a federal right for this Court to consider in

this Petition.

er nt

CONCLUSION

Because M.A. never raised the issue of compelled

self-incrimination with any Colorado court, this Court

has no jurisdiction to review the state court order uphold-

ing the termination of M.A.’s parental rights. Further,

C.R.S. § 19-3-207(2) protects M.A. from compelled self-

incrimination. Respondent requests this Court deny the

Petition for Writ of Certiorari.

Respectfully submitted,

Linpa K. CONNORS AND

Georce H. Hass

Counsel of Record

Harpen, Hass, HAac &

HA.iBerG, P.C.

Ninth Floor, First Tower Building

Post Office Box 1606

Fort Collins, Colorado 80522

Telephone: (970) 498-7450

Counsel for Respondent

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A-1

APPENDIX “A”

DISTRICT COURT, LARIMER COUNTY, COLORADO

Case No. 94 JV 179-2

MOTION FOR POST-TRIAL RELIEF PURSUANT TO

RULE 59

THE PEOPLE OF THE STATE OF COLORADO, IN THE

INTEREST OF:

KONICA ALAN,

A Child,

AND CONCERNING

MARK ALAN and MARTHA BATES,

Respondents.

COMES NOW the Respondent, MARK ALAN, by

and through his attorneys, MOORE, SMITH & WIL-

LIAMS, P.C., and respectfully requests this Court enter an

Order for Post-Trial Relief Pursuant to Rule 59, and as

grounds therefor, states as follows:

1. This Court entered an Order on January 31, 1996,

wherein the parent-child legal relationship between the

Respondent, MARK ALAN, and the child, KONICA

ALAN, was terminated.

2. On or about February 14, 1996, this Court entered

an Order for Enlargement of Time within which to file a

Motion for Post-Trial Relief.

3. The termination of the parent-child legal relation-

ship between the Respondent, MARK ALAN, and the

A-2

child, KONICA ALAN, was improvidently granted as the

Motion to Terminate said relationship was filed before

the requirements of the Treatment Plan had been com-

pleted.

4. The Motion was filed to terminate the relation-

ship before the sexual abuse evaluation required by the

Treatment Plan had been completed. This delay was at no

fault of the Respondent, MARK ALAN.

5. The testimony at trial revealed that the sexual

abuse evaluator, Susan Hansen, did not complete the

sexual abuse evaluation until October, 1995, and the

Motion to Terminate was filed on July 26, 1995.

6. The Motion to Terminate the parent-child legal

relationship between the Respondent, MARK ALAN, and

the child, KONICA ALAN, was improvidently granted as

the element of the Treatment Plan requiring a sexual

abuse evaluation and follow-up was not completed due

to no fault of the Respondent, MARK ALAN.

7. It was revealed at trial that neither the Larimer

County Department of Social Services nor the sexual

abuse evaluator, Susan Hansen, made any recommenda-

tion to the Respondent, MARK ALAN, with regard to

treatment following the sexual abuse evaluation.

8. It is the burden of the Larimer County Depart-

ment of Social Services to be an advocate for the reuniting

of the family and take all efforts to ensure that reunifica-

tion, including the timely advisement and guidance of the

Respondent, MARK ALAN.

9. The Motion to Terminate the Parent-Child Legal

Relationship between the Respondent, MARK ALAN,

+ ARREARS TRIER Perm mm RIS =

A-3

and the child KCONICA ALAN, was improvidently

granted as it was revvealed at trial that the Treatment Plan

segted st the Court was not the real Treatment Plan

required an the Laitimer County Department of Social

Services of the RespPondent, MARK ALAN.

10. During the: trial, it was revealed that the Treat-

ment Plan of the Cor

required by the Lajtimer County Department of Social

urt was not the actual Treatment Plan

Services. There wee in effect a shadow Treatment Plan

that the Departme™* required. This Treatment Plan

required a full adr™!ssion by the Respondent, MARK

ALAN. of sex abuse& 294 follow-up treatment.

11. This shado?W [treatment Plan was never articu-

lated by the Larime™ County Department of Social Ser-

vices laine reduced| to a Court Order. Thereby, the

Respondent, MARK ALAN, was never given an honest

opportunity to comply with the required Treatment Plan

or request addition#! amendments of the real Treatment

Plan.

12. The Motion to Terminate the Parent-Child Legal

Relationship betwee" the Respondent, MARK ALAN,

and the child, KONICA ALAN, was improvidently

granted as the evider™ce of sexual abuse did not rise to the

level of “clear and COMvincing evidence.”

13. The Court disregarded, in its entirety, all evi-

dence provided by tthe Respondent, MARK ALAN, with

regard to the insufficiency of the finding that the child

had been sexually albused and that this abuse had been

perpetrated by the Respondent, MARK ALAN.

A-4

14. The Court improvidently granted the Motion to

Terminate the Parent-Child Legal Relationship between

the Respondent, MARK ALAN, and the minor child,

KONICA ALAN, as the evidence in its entirety was insuf-

ficient to support the findings made by the Court.

15. The evidence did not reach a level of “clear and

convincing” with regard to the Court’s findings and the

termination of the parent-child legal relationship.

16. The Court improvidently granted the Motion to

Terminate the Parent-Child Legal Relationship between

the Respondent, MARK ALAN, and the child, KONICA

ALAN, by failing to make sufficient findings as to possi-

ble modifications or less drastic alterations that might

have been applied in the Treatment Plan.

17. The evidence revealed that the Larimer County

Department of Social Services never made sufficient

efforts to deal with possible modifications or less drastic

alternatives with regard to the Treatment Plan. This is in

part due to the existence of a “shadow Treatment Plan”

that existed.

18. The Larimer County Department of Social Ser-

vices did not faithfully or fully discharge their duties

pursuant to statute, and the result was an improper ter-

mination of the parent-child legal relationship between

the Respondent, MARK ALAN, and the minor child,

KONICA ALAN.

WHEREFORE, Respondent, MARK ALAN, respect-

fully requests this Court grant the Respondent a new trial

on the issue of termination of parental rights or, in the

alternative, on the issues concerning modifications or less

A-5

drastic alternatives in the Treatment Plan; that the Court

amend its Judgment and deny the Motion to Terminate

the Parent-Child Legal Relationship and require continu-

ation of the Treatment Plan; that the Court enter new

Treatment Plan Orders requiring the Larimer County

Department of Social Services to comply with the statu-

tory requirements and continue the process of reunifica-

tion of the family; and for such other and further relief as

the Court deems necessary.

DATED this 27th day of February, 1996.

MOORE, SMITH & WILLIAMS, P.C.

By: Michael D. Liggett

Michael D. Liggett #8373

Attorney for Respondent Alan

425 West Mulberry, Suite 112

Fort Collins, Colorado 80521

Telephone: (970) 482-9770

Facsimile: (970) 482-0339

STATE OF COLORADO )

, 0 VERIFICATION

COUNTY OF LARIMER )

I, MARK ALAN, after being first duly sworn upon

oath state that I am the Respondent in the herein action,

that I have read the foregoing MOTION FOR POST-

TRIAL RELIEF PURSUANT TO RULE 539, and the facts

contained therein are true to the best of my information,

knowledge and belief.

/s/ Mark Alan

Mark Alan

Subscribed and sworn to before me this 27th day of

February, 1996, by Mark Alan.

Witness my hand and official seal.

My Commission expires: February 12, 1999

/s/ Mary Richling

Notary Public

Certificate of Delivery

I hereby certify that I have served a true and correct

copy of the foregoing MOTION FOR POST-TRIAL

RELIEF PURSUANT TO RULE 59, by hand delivering a

copy of the same to the following this 28th day of Febru-

ary, 1996: poe

A-7

Linda K. Dahn

Assistant County Attorney

Ninth Floor, First Tower Building

Fort Collins, CO 80521

Mark Schultheiss

Guardian ad litem

215 West Oak Street

Fort Collins, CO 80521

William Wawro

Attorney for Respondent Bates

205 South Meldrum

Fort Collins, CO 80521

/s/ Mary Richling

B-1

APPENDIX “B”

DISTRICT COURT, COUNTY OF LARIMER, STATE OF

COLORADO

CASE NUMBER 94 JV 179, Courtroom 2

ORDER RE: POST TRIAL MOTIONS

THE PEOPLE OF THE STATE OF COLORADO, IN THE

INTEREST OF:

KONICA ALAN,

Child,

AND CONCERNING:

MARK ALAN AND MARTHA BATES,

Respondents.

The Court having reviewed respondent Mark Alan’s

Motion for Post-Trial Relief pursuant to Rule 59, People’s

Objection, the Court’s Findings and the evidence pre-

sented, denies defendant’s Motion for Post-Trial Relief.

Respondent Mark Alan was aware of the requirement of

the plan to obtain appropriate sexual abuse evaluation

and counseling. The Motion for Termination of Parental

Rights was pending before this Court and respondent

had more than sufficient time to begin and either make

progress towards or complete treatment. Respondent

Mark Alan was unequivocally made aware of the require-

ment for the treatment and where treatment could be

obtained. However, the respondent Mark Alan refused to

be involved in sexual abuse treatment even after the

matter_was brought before the Court and his position

B-2

rejected. The evidence clearly and unequivocally estab-

lished that regardless of any requirement, respondent

Mark Alan was not going to participate in any treatment

regarding sexual abuse and during the trial continued his

denial even though the evidence clearly and convincingly

established the existence of sexual abuse and his being

responsible therefor.

The Findings of the Court are supported by clear and

convincing evidence and the termination of the parent-

child legal relationship was the only relief available to the

Court.

This was not a situation that respondent was mislead,

the Department of Social Services had its own agenda

other than assisting in completing an appropriate treat-

ment plan, or that there existed a so called “shadow

treatment plan” as alleged with ulterior motives on the

part of the Department of Social Services. Defendant’s

Motion for Post-Trial Relief is denied.

BY THE COURT this 11th day of March, 1996.

/s/ William F. Dressel

WILLIAM F. DRESSEL

District Court Judge

B-3

CERTIFICATE OF MAILING

This is to certify that on the 11th day of March, 1996,

a true and correct copy of the above and foregoing Order

was delivered to the attorney of record and parties

appearing pro se in the following manner:

For counsel in Fort Collins, who have agreed to such

procedure: by placing said copy in the attorney’s pick-up

box located in the Larimer County Courthouse, 200 West

Oak, Fort Collins, Colorado.

For all other counsel, or parties appearing pro se:

deposited in the United States Mail with the correct post-

age affixed thereon.

/s/ William F. Dressel

C-1

APPENDIX “C”

COURT OF APPEALS, STATE OF COLORADO

Case No. 96 CA 740

OPENING BRIEF OF RESPONDENT-APPELLANT,

M.A.

THE PEOPLE OF THE STATE OF COLORADO,

Appellee,

In the Interest of:

K.A., A Child,

And Concerning:

M.A.,

Respondent-Appellant,

and

M.B.,

Respondent-Appellant,

APPEAL FROM THE EIGHTH JUDICIAL DISTRICT

LARIMER COUNTY DISTRICT COURT

Trial Case No. 94 JV 179-2

Trial Court Judge: Honorable William F. Dressel

ATTORNEY FOR RESPONDENT-

APPELLANT, M.A.

MOORE, SMITH & WILLIAMS, P.C.

Michael D. Liggett #8373

Attorney for Respondent-

Appellant, M.A.

425 West Mulberry, Suite 112

Fort Collins, Colorado 80521

Telephone: (970) 482-9770

C-2

TABLE OF CONTENTS

Page

TABLE UP Aue eee vs 0a eae eee eres ii

I. STATEMENT OF ISSUES PRESENTED......... 1

H.. SEA eres Ge Sree Re ts eke ee Ckveces 1

A. Nature of the Case and Course of Proceed-

i ei De Pp eriea eirg ae mE yn ear irir tt ep 1

S. eaene ar Re FS ei se eck be awe 2

Ht. SUMMARY OP ARCSURIEINL & co wies ON ees. 7

LV. ‘CER AE Ree es oo eace had ho venue iveuks 8

A. THE TRIAL COURT ERRED IN TERMINAT-

ING RESONDENT-M.A.’S PARENTAL

RIGHTS WHEN THE MOTION WAS FILED

BEFORE THE REQUIREMENTS OF THE

TREATMENT PLAN WERE IDENTIFIED

BY Frees Pee ae 6k ns eR eae 8

B. THE TRIAL COURT ERRED IN TERMINAT-

ING RESONDENT-M.A.’S PARENTAL

RIGHTS WHEN HE FAILED TO COMPLY

WITH THE “REAL” TREATMENT PLAN... 11

C. THE TRIAL COURT ERRED IN ITS FAIL-

URE TO MAKE FINDINGS AND ORDERS

AS TO MODIFICATIONS OF THE TREAT-

MENT PLAN AND IMPOSE REMEDIES

PEG Pees Ge FEE PEEIINS ncn Sedan ceeakes 13

ERE EOE ts Gr a ee PO ae ea 15

Certificate OF WISINE. «0 cos ic 50scs 00 EOE ee eee 16

C-3

TABLE OF AUTHORITIES

CASES

Page

B.B. v. People, 785 P.2d 132, 136 (Colo. 1990) ...... 9, 11

In the Interest of A.G.-G., 899 P.2d 319, 322 (Colo.

TRO, REED 05 ob SA REA Sao ease peek ake baie Sect 10, 12

People in the Interest of A.E., 749 P.2d 450, 452

A MAUREEN ode hs bs a Vie dA nnind cee ek eos anens 10

People in the Interest of A.H., 736 P.2d 425, 428

RSC, WAN ENED WN 0S dP CRAS adda h Ns Slow edWee bees 14

People in the Interest of E.H., 837 P.2d 284-289

Ss WR EE Fo ecu heahaewew te cane SURE CRSS eos 12

People in the Interest of M.C.C., 641 P.2d 306, 308

ee MER EE a PO he eka kk Aan Rk eee be ge rm ke ae 9

People in the Interest of M.M., 726 P.2d 1108, 1123

PONS WOES CER Chvwe SASK eaeteN eas ie he aca bes 13

People in the Interest of N.F., 820 P.2d 1128, 1130

eA PRN COMED sk PEREENS Aha DEOL ER cE ee ecun enone 13

Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71

hese UE CEMENT yd teen Dah Oh Chee BPO REA Scape os 9

STATUTES

ne OIE AC ek Sh WES Gk Wine WS Wek kas pe nel Meas 8

Rabe te ROE COE awe sine) Recs ty Cokehb Ad Naeeeaeee be 11

Co Berghe Br CREA) Midis ci kon nsnewsdeeacdvaneen 11

No ak BE MRS 305 $C ee a's boc Po ed eld oR ee Recs 8

Ct ar ROPE MES MOD coos o's wei ce ecce as duuns ce 10, 11

CRS © 10ers 14

C-4

I. STATEMENT OF ISSUES PRESENTED FOR

REVIEW

A. Did the trial court err in granting the Motion to

Terminate the Parent-Child Legal Relationship when said

Motion was filed before the requirements of the Treat-

ment Plan had been identified by The People and before

any recommendations had been made by The People to

Respondent-M.A. concerning the element relating to sex-

ual abuse evaluation and treatment.

B. Did the trial court err in granting the Motion to

Terminate the Parent-Child Legal Relationship when it

was revealed that the Treatment Plan adopted by the

court was not the “real” Treatment Plan required by The

People.

C. Did the trial court err in its failure to make

findings and orders as to possible modifications of the

Treatment Plan or impose less drastic alternatives than

termination.

Il. STATEMENT OF THE CASE

A. Nature of the Case and Course of Proceedings

This appeal arises from a Neglected or Dependent

Child action filed by the Larimer County Attorney on

behalf of The People of the State of Colorado. The action

was filed on behalf of a Child-K.A., concerning Respon-

dents-M.A. and M.B. The Larimer County District Court,

Honorable William F. Dressel, entered Findings and

Orders on January 31, 1996. The Findings and Orders

terminated the parental rights of M.A. and M.B. The

C-5

Respondent-M.A. appeals the propriety of the order ter-

minating his parental rights to the Child-K.A.

References to the record on appeal will be by volume

(Vol.), page (p.), and line (1.). The Respondent-Appellant

will be referred to as “Respondent-M.A.”, and the People

of the State of Colorado-Appellee, will be referred to as

“The People.”

B. Statement of the Facts.

The People filed a Petition for Neglected or Depen-

dent Child on May 4, 1994. The Petition made specific

allegations in Exhibit “A” attached to the Petition. (Vol. I,

pp. 1-4).

The trial court conducted an adjudicatory hearing on

September 7, 1994. At that hearing, the Respondent-M.A.

admitted allegation “E” contained in Exhibit “A” to The

People’s Petition for Dependent or Neglected Child. That

allegation stated that the environment of the Child-K.A.

was injurious to her welfare. The trial court further

ordered that making reasonable efforts to reunify the

child and family should remain a part of the case plan.

(Vol. I, pp. 31-32).

On or about September 19, 1994, The People filed a

Proposed Treatment Plan with the trial court. (Vol. II,

People’s Ex. 2). This Proposed Treatment Plan was objec-

ted to by the Respondent-M.A. (Vol. I, pp. 33-34). A

hearing was conducted on the Proposed Treatment Plan

on February 10, 1995. The trial court, after hearing,

adopted a Treatment Plan omitting the portion of Element

C-6

Il requiring the Respondent-M.A. to undergo additional

psychological evaluation. (Vol. I, pp. 44-47).

On March 16, 1995, the Respondent-M.A. filed a

Motion to Amend Treatment Plan. In particular, the

Respondent-M.A. requested that the evaluation for sexual

abuse issues and follow-up treatment, if needed, be con-

ducted by the Center for Human Relationships. (Vol. L

pp- 48-49).

On March 27, 1995, The People filed a partial objec-

tion to Motion to Amend Treatment Plan. The People,

within this pleading, agreed that the sex abuse evaluation

be conducted by the Center for Human Relationships.

(Vol. L, p. 50).

On July 26, 1995, The People filed a Motion to Termi-

nate the Parent-Child Legal Relationship. This Motion

alleged that Respondent-M.A. had failed to comply with

the court-adopted Treatment Plan, that Respondent-M.A.

was an unfit parent unable to provide for the emotional

and physical needs of the Child-K.A., the conduct of the

Respondent-M.A. was unlikely to change within a reason-

able time, that there were no modifications to the Treat-

ment Plan available, and that there were no less drastic

alternatives available. Due to these allegations, The Peo-

ple requested that the parent-child relationship be termi-

nated between Respondent-M.A. and Child-K.A. (Vol. L

pp. 56-58).

On July 13, 1995, the trial court conducted a hearing

on a Permanency Plan. The court entered written orders

on August 4, 1995. This order required The People to

continue to make reasonable efforts to reunify the child

and her family. (Vol. L, pp. 61-63).

C-7

On August 10, 1995, the Respondent-M.A. filed a

Response to Motion to Terminate. The Respondent-M.A.

denied The People’s allegations. In pertinent part, the

Respondent-M.A. alleged that he began working on the

Treatment Plan even before adopted by the trial court and

was timely involved in evaluations and treatment as

court ordered. Further, the Respondent-M.A. requested

that the Motion to Terminate be denied; that he be

afforded sufficient ttime to complete the Plan; that the

Treatment Plan might require modification; and that the

Treatment Plan had not adequately been evaluated by

The People nor had The People communicated with the

Respondent-M.A. concerning their evaluation and his

performance under the Treatment Plan. (Vol. I, pp. 66-69).

A trial on The People’s Motion to Terminate the Parent-

Child Legal Relationship was conducted by the Honor-

able William F. Dressel from January 22 through January

24, 1996.

At trial, it was The People’s position that the basis for

the termination of the parental rights of the Respondent-

M.A. was his failure to abide by the element of the

Treatment Plan related to sexual abuse. In effect, all

remaining elements had been completed by the Respon-

dent-M.A. or were not the grounds for termination of

parental rights at trial. (Vol. IV, p. 12, Il. 5-22).

The Treatment Plan in this matter was prepared by

Nancy Roath, a caseworker for the Larimer County

Department of Social Services assigned to ongoing child

protection. She was assigned to the case involving the

Child-K.A., in July 1994. (Vol. V, p. 70, 1. 19, through Vol.

V, p- 71, l. 22). At trial, Nancy Roath testified that Respon-

dent-M.A. had fully completed all contested elements of

C-8

the Treatment Plan except the treatment following the

sexual abuse evaluation. (Vol. V, p. 77, 1. 1 through Vol. V,

o. 72; hee

At trial, The People introduced a psycho-sexual eval-

uation (Vol. II, People’s Ex. 1), prepared by Susan

Hansen. (Vol. VI, p. 9, ll. 3-6) This evaluation was dated

September 24, 1995. The text of the evaluation reveals

that Respondent-M.A. was referred to the evaluator on

April 5, 1995. (Vol. IL, People’s Ex. 1, p. 1). During direct

examination of Susan Hansen, The People elicited testi-

mony that the evaluation yielded recommendations con-

cerning treatment for Respondent-M.A. Further, these

recommendations were set forth in the report received by

the court as People’s Exhibit “1.” (Vol. VI, p. 30, ll. 10-17).

In the course of Susan Hansen’s testimony, she

acknowledged that the evaluation of Respondent-M.A.

began on April 19. (Vol. VI, p. 42, Il. 6-8), that the time for

the evaluation needed to be extended as new information

was coming from Social Services (Vol. VI, p. 42, ll. 13-25),

and that she spoke to Social Services four or five times

(Vol. VI, p. 43, ll. 1-5). The last clinical session with

Respondent-M.A. was conducted on September 20, 1995,

and the report was written on September 24, 1995 (Vol.

VI, p. 44, Il. 15-20). In describing her communications

with Social Services, Susan Hansen testified that she was

never told by caseworker Nancy Roath that it was neces-

sary for Respondent-M.A. to admit to a sexual assault on

the Child-K.A. (Vol. VI, p. 44, ll. 4-13).

During the trial, the ongoing caseworker testified

that the Motion to Terminate Parental Rights was filed in

July 1995, and at that point, the sexual abuse evaluation

C-9

had not yet been completed. She further acknowledged

that the report was not received by her until September

24, 1995, or thereafter. (Vol. V, p. 183, 1. 21 through Vol. V,

p. 184, l. 16). Nancy Roath, the ongoing caseworker, also

testified on several occasions during the trial that it was

her position that the Respondent-M.A. must admit he

sexually abused the Child-K.A. and seek therapy before

the family could be reunited. Further, this opinion had

been maintained by Nancy Roath for a year and a half,

beginning two or three months into the case as of July

1994. (Vol. V, p. 190, Il. 7-16; Vol. V, p. 191, ll. 9-15; Vol. V,

p. 192, Il. 1-4).

The ongoing caseworker additionally testified that

the Treatment Plan did not require Respondent-M.A. to

admit he committed sexual assault (Vol. V, p. 191, Il.

22-25), and that she had never proposed an amendment

or modification to the Treatment Plan. (Vol. V, p. 192, Il.

19-22). Following the receipt of the recommendations

from the sexual abuse evaluation, Nancy Roath did not

recommend a therapist to the Respondent-M.A. to aid in

compliance with the recommendations of the evaluator

(Vol. V, p. 184, 1. 11 through Vol. V, p. 185, 1. 5) which are

contained on pages 8 and 9 of the evaluation (Vol. II,

People’s Ex. 1). When asked why no recommendation

was made, Nancy Roath testified that she was told that

the evaluator did not know of any therapists that worked

with individuals in denial. (Vol. V, p. 203, ll. 21-25). This

information does not appear in any Treatment Plan or

evaluation and Ms. Roath testified she never shared this

information with the Respondent-M.A. (Vol. V, p. 104, I.

22 through Vol. V, p. 105, 1. 19).

C-10

The trial court, in its Findings and Orders of January

31, 1996, found that the Respondent-M.A. failed to com-

ply with the critical element regarding sexual abuse; that

the Respondent-M.A. was an unfit parent unlikely to

change within a reasonable time; that no modifications to

the Treatment Plan could be developed to allow Respon-

dent-M.A. to become a fit parent; that no less drastic

alternatives were available and that it was in the best

interest of the Child-K.A. that the parent-child relation-

ship with Respondent-M.A. be terminated. The trial

court’s order states these findings are supported by clear

and convincing evidence and terminates the parent-child

relationship between the Child-K.A. and the Respondent-

M.A.

Ill. SUMMARY OF ARGUMENT

A. The trial court erred in terminating Respondent-

M.A.’s parental rights when the Motion to Terminate was

filed before the requirements of the Treatment Plan had

been identified by The People. At the time of the filing of

the Motion, the sexual abuse evaluation had not been

completed. The Respondent-M.A. had timely involved

himself in the evaluation. The People in effect filed the

Motion to Terminate before Respondent-M.A. had knowl-

edge of the requirements and an opportunity to comply.

B. The trial court erred in terminating Respondent-

M.A.’s parental rights when he failed to comply with the

“real” Treatment Plan required by The People. The “real”

Treatment Plan was never approved, adopted nor ordered

by the court, nor was the “real” Treatment Plan revealed

C-11

to the Respondent-M.A. It was impossible for the Respon-

dent-M.A. to comply with a Treatment Plan that did not

conform to the requirements of C.R.S. § 19-3-508.

C. The trial court erred in its failure to make find-

ings and orders as to modifications of the Treatment Plan

and/or impose remedies short of termination. The only

contested element of the adopted Treatment Plan, at the

time of trial, was follow-up treatment to Respondent-

M.A. as recommended in the sexual abuse evaluation.

IV. LEGAL ARGUMENT

A. THE TRIAL COURT ERRED IN TERMINAT-

ING RESPONDENT-M.A’S PARENTAL

RIGHTS WHEN THE MOTION WAS FILED

BEFORE THE REQUIREMENTS OF THE

TREATMENT PLAN WERE IDENTIFIED BY

THE PEOPLE.

Colorado Revised Statute, § 19-3-602 (1) states in

pertinent part:

Termination of a parent-child relationship shall

be considered only after the filing of a written

motion alleging the factual grounds for termina-

7S eee

In the case at hand, the Motion to Terminate the

Parental Rights of Respondent-M.A. was filed on July 26,

1995, by The People. In evaluating the Motion, the Court

should be guided by the principle that a natural parent

has a fundamental liberty interest in the care, custody

and management of his child. Santosky v. Kramer, 455 U.S.

745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). To ensure this

principle is followed, the courts require The People to

C-12

accord fair procedures to a parent. B.B. v. People, 785 P.2d

132 (Colo. 1990). These fair procedures require that The

People exercise extreme caution and require strict compli-

ance with the appropriate standards for termination of

parental rights. This compliance is a strict necessity. Peo-

ple in Interest of M.C.C., 641 P.2d 306, 308 (Colo. App.

1982).

In the Motion to terminate filed herein, The People

allege that the Respondent-M.A. had failed to comply

with the court-adopted Treatment Plan; that he was unfit

and unlikely to change; that no modifications to the

Treatment Plan were possible; and that there were no less

drastic alternatives available. (Vol. I, pp. 57-58). At the

time the Motion was filed, The People had not yet devel-

oped the requirements of the Treatment Plan.

The testimony at trial revealed that the Treatment

Plan was completed following the filing by The People of

a Partial Objection to Motion to Amend Treatment Plan

on March 27, 1995. Following the filing of that pleading,

the Respondent-M.A. began a sexual abuse evaluation on

April 19, 1995. This evaluation was delayed in its comple-

tion by the acts of Larimer County Department of Social

Services. (Vol. VI, p. 42, ll. 13-25). The evaluation was

completed and a report issued by Susan Hansen on Sep-

tember 24, 1995. This report was received by The People

sometime after September 24, 1995.

Prior to the receipt of the recommendations of the

sexual abuse evaluation, the requirements of the Treat-

ment Plan were not complete. It is axiomatic that the

purpose of a Treatment Plan is to preserve the parent-

child relationship by aiding the parent in an effort to

2

C-13

remedy the problems that led to the intervention by The

People. People in Interest of A.E., 749 P.2d 450, 452 (Colo.

App. 1987), In Interest of A.G.-G. 899 P.2d 319, 322 (Colo.

App. 1995). In the instant case, The People have alleged

failure to comply with the Treatment Plan, parental unfit-

ness and no reasonable likelihood of change before

requirements of the Treatment Plan had been fully identi-

fied and shared with Respondent-M.A.

c= a EM IE

em a mala ci

C.R.S. § 19-3-604 (1) (c) provides the criteria for ter-

mination which were alleged by The People in their

Motion to Terminate in this case. The People have not

strictly followed the requirements of this statue if they

| make such allegations before the requirements of an

appropriate Treatment Plan have been identified and the

Respondent-M.A. given an adequate notice of the con-

duct he is expected to address and remedy under the

Treatment Plan.

B. THE TRIAL COURT ERRED IN TERMINAT-

ING RESPONDENT-M.A.’S PARENTAL

RIGHTS WHEN HE FAILED TO COMPLY

WITH THE “REAL” TREATMENT PLAN.

The Treatment Plan is this case was adopted by the

court following a Dispositional hearing conducted on

February 10, 1995. This Plan was slightly modified fol-

lowing the Motion to Amend filed by Respondent-M.A.

filed on March 16, 1995. However, the Plan ordered and

approved by the court was not the “real” Plan used by

The People through the actions of the Larimer County

Department of Social Services. C.R.S. § 19-3-508 (1)

requires the court to approve an appropriate treatment

nes

2 eR eee NR Ea TEN Se TERE TT

C-14

plan as part of the dispositional phase of a neglected or

dependent child action, unless the court finds that an

appropriate treatment plan cannot be devised for a par-

ticular respondent. (C.R.S. § 19-3-508 (1) (e) (I). Further,

C.R.S. § 19-3-604 (1) (c), the criteria alleged for termina-

tion in this case, required a finding “that an appropriate

treatment plan approved by the court has not been rea-

sonably complied with... ”. Implicit in these statutes is

the principle that the treatment plan must be reviewed

and ordered by the court. In order for a respondent to be

able to comply, he must have knowledge of the require-

ments of the treatment plan. The respondent's success in

complying with the treatment plan is the key to reunify-

ing the family. The respondent’s failure to comply may

cause the loss of a fundamental liberty and termination of

the parent-child relationship. B.B. v. People, 785 P.2d 132,

136 (Colo. 1990).

The purpose of a treatment plan is to aid the respon-

dent in the preservation of the parent-child relationship

by helping the respondent remedy the issues that led to

the filing of the action. People in Interest of E.H., 837 P.2d

284-289 (Colo. App. 1992). The provisions of the plan

must be designed to assist a respondent in identifying

and overcoming the problems that led to the adjudica-

tion. In Interest of A.G.-G., 899 P.2d 319, 322 (Colo. App.

1995). In the current case, the Respondent-M.A. was

never apprised of the “real” Treatment Plan that existed

as a shadow with the Larimer County Department of

Social Services. At trial, the ongoing caseworker, Nancy

Roath, revealed the “real” Treatment Plan. The “real”

Treatment Plan required the Respondent-M.A. to

acknowledge and admit that he had sexually abused the

C-15

Child-K.A. The ongoing caseworker had formed this

opinion as of July 1994. (Vol. V, p. 192, ll. 1-4). It was the

ongoing caseworker’s opinion that before the Respon-

dent-M.A. could be reunified with his child that he must

admit that he had abused his child and seek therapy.

Nancy Roath, the ongoing worker, had maintained this

position for one and one-half years before the termination

trial.

The ongoing caseworker’s requirement of Respon-

dent-M.A. was never part of a court ordered or approved

Treatment Plan. The Respondent-M.A. has been denied

the right to have an opportunity to be a part of an

appropriate court approved Treatment Plan. In effect, the

Respondent-M.A. has been found to be in noncompliance

with a Treatment Plan of which he had no knowledge.

The performance expected by the ongoing caseworker

was part of a shadow Treatment Plan. This Plan was

never reviewed by the court nor approved as part of

dispositional order. The Larimer County Department of

Social Services, through the ongoing caseworker, made it

impossible for the Respondent-M.A. to comply with the

Treatment Plan, as the “real” Treatment Plan was not

approved nor found to be appropriate by the court. In

this case, a termination of parental rights should not have

been entered when The People, through the Larimer

County Department of Social Services, made it impossible

for the Respondent-M.A. to comply with the Treatment

Plan. People in Interest of N.F. 820 P.2d 1128, 1130 (Colo.

App. 1991).

| Ee OP eee Te een CT

C-16

C. THE TRIAL COURT ERRED IN ITS FAILURE

TO MAKE FINDINGS AND ORDERS AS TO

MODIFICATIONS OF THE TREATMENT

PLAN AND IMPOSE REMEDIES SHORT OF

TERMINATION.

The trial court in this action, by way of its Findings

and Orders of January 31, 1996, stated, “There are no

modifications to the treatment plan which could be devel-

oped to enable Respondent Alan to become a fit parent

capable of caring for the physical and emotional needs of

the child within a reasonable period of time; there is no

less drastic alternative available to the Court... ”

The trial court must comply with the statutory crite-

ria for termination and consider less drastic alternatives

and modifications before entering an order terminating

parental rights. People in Interest of M.M., 726 P.2d 1108,

1123 (Colo. 1986); People in Interest of A.H., 736 P.2d 425,

428 (Colo. App. 1987). The trial court in this matter did

make a generalized finding as described above; however,

the evidence before the trial court indicated that The

People had not followed through with the recommenda-

tions of the sexual abuse evaluator (Vol. II, People’s Ex. 1,

pp. 8, 9), nor the recommendations of the child’s thera-

pist. (Vol. V, p. 61, |. 14 through p. 62, 1. 4).

Pursuant to C.R.S. § 19-3-604 (2) (n), the court is to

consider the reasonable efforts of the child-caring agen-

cies to rehabilitate the parent. In this action, the ongoing

caseworker not only maintained a shadow “real” Treat-

ment Plan, she did not make reasonable efforts under the

adopted Plan.

ee a

NN ———EE—eE—eeeeeeEeeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEyEyuyyEEEeEeEeeEeapa9>9amqyemaaEeEeEeEeEeEeEeaEEEeEe

OLOOOOEEEEEEEEEEoo OOOO EOE ee

C-17

The ongoing caseworker is the professional charged

with the supervision of the parties involved in the Treat-

ment Plan. Nancy Roath, the ongoing worker, never made

recommendations to the Respondent-M.A. once she

received the report from the sexual abuse evaluator, nor

did she make recommendations to the Respondent-M.A.

for individual therapy. Both of these steps appear to be

required under the adopted Treatment Plan before

reunification could move forward. (Vol. V, p. 205, Il. 9-19;

Vol. V, p. 186, |. 7 through p. 187, 1. 16).

The trial court in this matter apparently drew the

conclusion that there were no less drastic measures

despite the fact that the Respondent-M.A. had not been

given reasonable opportunity to comply with either the

“real” Treatment Plan nor the adopted plan. Under the

circumstances of this case, the trial court’s conclusion

should be supported by specific findings.

V. CONCLUSION

The trial court in this matter erred in terminating the

Respondent-M.A.’s parental rights. The People’s filing of

the Motion to Terminate before the Treatment Plan

requirements were identified was inappropriate. The

expectation that the Respondent-M.A. would comply

with a “real” Treatment Plan that was not court ordered

or approved is inappropriate. The failure of the trial court

to make specific findings as to modifications or less dras-

tic alternatives based on the evidence was inappropriate.

In summary, the Respondent-M.A. was not given a fair

and adequate opportunity to comply with the require-

ments of the Children’s Code. The People have failed to

C-18

be in strict compliance with the statutes concerning ter-

mination of parental rights and the trial court inap-

propriately entered an order terminating the parent-child

relationship between Respondent-M.A. and the Child-

K.A.

The Respondent-M.A. respectfully requests this

Court of Appeals reverse the decision of the trial court

and enter such orders as are appropriate herein.

Respectfully submitted this 16th day of December,

1996.

MOORE, SMITH & WILLIAMS, P.C.

By: /s/ Michael D. Liggett

Michael D. Liggett #8373

Attorney for Respondent-M.A.

425 West Mulberry, Suite 112

Fort Collins, Colorado 80521

Telephone: (970) 482-9770

Certificate of Mailing

I hereby certify that I have served a true and correct

copy of the foregoing RESPONDENT-M.A.’S OPENING

BRIEF by placing a copy of the sare in the U.S. mail,

postage prepaid and properly addressed to the following

this 16th day of December, 1996:

Linda K. Connors

Assistant County Attorney

Ninth Floor, First Tower Bldg.

P.O. Box 1606

Fort Collins, CO 80522

4

a

§

Mark Schultheiss

Guardian ad litem

215 West Oak Street, Suite 602

Fort Collins, CO 80521

R. William Wawro

Attorney for Respondent M.B.

205 South Meldrum

Fort Collins, CO 80521

jf

/s/ Mary Richling

D-1

APPENDIX “D”

COLORADO COURT OF APPEALS August 13, 1997

No. 96 CA 0740

PETITION FOR REHEARING

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of K.A., a Child,

and Concerning M.A. and M.B.,

Respondent-Appellants.

Appeal from the District Court of Larimer County

Honorable William F. Dressel, Judge

No. 94 JV 179

Division IV jUDGMENT AFFIRMED

Opinion by JUDGE JONES

Kapelke and Roy, JJ., concur a

Harden, Schmidt, Hass, Haag & Hallberg, George H.

Hass, County Attorney, Linda K. Connors, Assistant

County Attorney, Fort Collins, Colorado, for Petitioner-

Appellee

Liggett, Smith & Williams, P.C., Michael D. Liggett, Fort

Collins, Colorado, for Respondent-Appellant M.A.

R. William Wawro, Fort Collins, Colorado, for Respon-

dent-Appellant M.B.

THE APPELLANT-M.A., by and through his attorneys,

Liggett, Smith & Williams, P.C., Michael D. Liggett,

hereby requests that this Honorable Court Review the

judgment entered on July 31, 1997, affirming the decision

ee ee ON Ne

0 Ri ERASMAS, F acl Se fide info seo adel

D-2

of the Honorable William F. Dressel. The appellant-M.A.

urges the Court of Appeals to review the following argu-

ment which the appellant believes the Court may have

misapprehended or misunderstood.

A. The Court found no error in the appellant-M.A.’s

argument that the requirements of the Treatment Plan

had not been identified at the time the Motion to Termi-

nate was filed. The appellant-M.A. requests the Court to

recall that while the Treatment Plan had been ordered by

the trial court, at the time of the filing of the Motion to

Terminate, its initial phase of evaluations had not yet

been completed. In order for the Respondent-M.A. to

comply with the requirements of a Treatment Plan, the

evaluations ordered should be completed so that the

Respondent-M.A. had knowledge of all expectations of

the People for his compliance.

In addition, the Court will recall that the Treatment

Plan as adopted did not reflect the “real” Treatment Plan

required by the Department of Social Services. The testi-

mony at trial revealed that the “real” Treatment Plan

required the Respondent-M.A. to admit that he had sexu-

ally abused his daughter.

It is impossible for Respondent-M.A. to have fair

notice of the People’s expectations for compliance of a

Treatment Plan before such requirements have been for-

mally identified pursuant to the Court ordered Treatment

Plan. This failure in effect denies the Respondent-M A.

the fair procedures required for the protection of a funda-

mental liberty.

B. The Court found that the Respondent-M.A. was

not prejudiced by his failure to admit to sexually abusing

D-3

his daughter. In this situation the Respondent-M.A. urges

the Court to reconsider how this failure to admit was

integral to the expectations of the People. The testimony

at trial revealed that the Department of Social Services,

through its caseworker, expected the Respondent-M.A. to

admit that he had sexuaily abused his daughter. This

expectation was in fact part of the “real” Treatment Plan

that was the basis for the actions of the Department of

Social Services.

The Department of Social Services believed that

unless the Respondent-M.A. admitted to sexually abusing

his daughter, there could be no effective therapy or treat-

ment.

The Court further found that it was the Respondent-

M.A.’s responsibility to assure compliance and success of

the Treatment Plan. The Respondent-M.A. agrees with

this position, however, the Respondent-M.A. must have

fair knowledge of the expectations of the Department of

Social Services. It is true that the September 1995 evalua-

tion recommended ongoing treatment. It is also true that

the Department of Social Services, through its own testi-

mony, revealed that it never made a recommendation for

treatment. It appears that their failure to recommend is

based upon the fact that they did not believe there could

be treatment without an admission. It is true that the

Respondent-M.A. did not seek treatment. However, it is

required that treatment be recommended, whether the

Respondent-M.A. agreed or disagreed with the evalua-

tions and its recommendations. In order to terminate the

parent child relationship, the fair procedure requires at

least a recommendation for the treatment required by the

People.

SLBA ALES A>

D-4

C. The Court rejected the Respondent-M.A.’s con-

tention that the Department of Social Services should

have referred him to specific therapists for treatment.

The Court in its opinion points out that the record

revealed that the Department of Social Services referred

the Respondent-M.A. to a treatment facility for evalua-

tion and that the facilities were to arrange for treatment

providers. The Respondent-M.A. differs with the Court's

reading of the record and the Treatment Plan. Nowhere in

the record does testimony or evidence appear that the

facilities performing the evaluations had the obligation to

arrange for treatment providers or even make said recom-

mendations. Throughout the Respondent-M.A.’s perfor-

mance under the Treatment Plan, the Department of

Social Services consistently demanded that they be

involved in the recommendations of treatment providers.

In fact, the Respondent-M.A. had to return to Court in

order to have alternative treatment providers made part

of the Treatment Plan.

D. The Court rejected the Respondent-M.A.’s con-

tention that the trial court should have entered less dras-

tic alternatives as part of its orders. While the primary

consideration in a termination proceeding is the interest

of the child, the Court should not disregard the Respon-

dent-M.A.’s constitutionally protected right in the parent-

child relationship. In the case at hand, the Department of

Social Services believes that the only possibility of suc-

cessful treatment demanded an admission of sexual abuse

by the Respondent-M.A.

The Respondent-M.A. was placed in a situation

where he must either falsely admit the commission of

D-5

sexual assault, although no criminal proceeding was ever

filed or prosecuted, or have his parental rights termi-

nated. This is a position from which there is no rational

escape.

In order for the Court to balance the needs of the

child and the rights of the Respondent-M.A., the Court

should have required an honest Treatment Plan. This hon-

esty would have required the Respondent-M.A. to either

succeed or fail based upon the real expectations of the

parties. In the case at hand, he never had fair notice of the

actual requirements of the Treatment Plan or an oppor-

tunity to comply.

SUMMARY

Based upon the above, the appellant-M.A. respect-

fully requests and urges the Court of Appeals to reverse

the judgment entered on July 31, 1997 and enter such

orders as may be appropriate in this matter.

Dated this 13" day of August 1997.

Respectfully Submitted,

/s/ Michael D. Liggett

Michael D. Liggett — #8373

Attorney for Appellant-M.A.

425 West Mulberry, #112

Fort Collins, Colorado 80521

(970) 482-9770

wala ac

D-6

Certificate of Mailing

[ hereby certify that I have served a true and correct

copy of this PETITION FOR REHEARING by placing a

copy of the same in the U.S. mail, postage prepaid and

properly addressed to the following this 13™ day of

August 1997.

Linda K. Connors

Assistant County Attorney

Ninth Floor, First Tower Bldg.

P.O. Box 1606

Fort Collins, CO 80522

Mark Schultheiss

Guardian ad litem

215 West Oak Street, Suite 602

Fort Collins, CO 80521

R. William Wawro

Attorney for Respondent M.B.

205 South Meldrum

Fort Collins, CO 80521

/s/ Meredith Fink

E-]

APPENDIX “E”

SUPREME COURT, STATE OF COLORADO

CASE NO. 97 SC 800

PETITION FOR WRIT OF CERTIORARI

M.A.,

Petitioner,

IN THE INTEREST OF K.A., A Child,

and

THE PEOPLE OF THE STATE OF COLORADO,

Respondent

COLORADO COURT OF APPEALS Case No. 96 CA 740

DIVISION IV

Opinion by JUDGE JONES

Kapelke and Roy, JJ., concurred

Appeal from the District Court of Larimer County

Case No. 94 JV 179

The Honorable William F. Dressel

Submitted by:

LIGGETT, SMITH & WILLIAMS,

Michael D. Liggett, A.R. 8373

Amy K. Rosenberg, A.R. 26860

Attorneys for Petitioner, M.A.

425 West Mulberry Street,

Suite 112

Fort Collins, CO 80521

(970) 482-9770

DR nn PRLS eater in

PY AF Seis AOE LS

E-2

Petitioner, by and through his attorneys, Michael D.

Liggett and Amy K. Rosenberg of Liggett, Smith & Wil-

liams, pursuant to C.A.R. 49 et seq., seeks the issuance of

a Writ of Certiorari to review the judgment of the Colo-

rado Court of Appeals in Case No. 96 CA 740.

For purposes of clarity, Petitioner, called the

“Respondent-Appellant” before the Colorado Court of

Appeals, will be called “M.A.” Respondent, the People of

the State of Colorado, designated as Petitioner-Appellee

in the Court of Appeals, will be called “The People.”

I. STATEMENT OF ISSUES PRESENTED FOR REVIEW

The District Court of Larimer County, Colorado,

through the Hon. William F. Dressel, entered an order on

January 31, 1996, terminating the Parent-Child Legal

Relationship between M.A. and his child, K.A. The Colo-

rado Court of Appeals upheld the termination based on

the Trial Court’s finding of noncompliance with one ele-

ment of the court-approved treatment plan, specifically

that M.A. failed to secure treatment as a perpetrator of

sexual abuse. The Court of Appeals found that the Trial

Court’s termination was not based on an unstated

requirement that M.A. admit to having sexually abused

K.A.

The record, however, demonstrates the following: that

M.A. underwent evaluation as required by the treatment

plan; that the plan called for M.A. to undergo treatment

with an appropriate therapist, but the Larimer County

Department of Social Services did not make a referral for

such a therapist; that no referral was made because M.A.

had not admitted that he had sexually abused K.A.; and

E-3

that the stated treatment plan adopted by the Trial Court

did not require M.A. to make such an admission.

Based on the facts established in the record and the

imposition of the unstated requirement that M.A. admit

to having sexually abused his child, M.A. was denied due

process of law required by Sec. 1 of the Fourteenth

Amendment of the Constitution of the United States and

Article II, Sec. 25 of the Constitution of the State of

Colorado. Copies of the Fourteenth Amendment to the

United States Constitution and Article Il, Sec. 25 of the

Constitution of the State of Colorado are attached to this

petition as Appendix I and Appendix II, respectively.

Furthermore, imposition of the unstated requirement of

an admission is inconsistent with C.R.S. 19-3-604(1)(c),

which requires a finding of noncompliance with an

appropriate treatment plan. A copy of the statute is

attached hereto as Appendix III.

The Trial Court and the Court of Appeals must con-

sider less drastic alternatives to termination, considering

the physical, mental and emotional conditions and needs

of the child. C.R.S. Sec. 19-3-604(3). (See Appendix III.)

M.A. urges the Court to grant this Petition for Writ of

Certiorari because of the overwhelming importance of the

issues before the Court: termination of the parent-child

legal relationship and the due process required before

that termination may occur. Resolution of the issues will

be of substantial benefit to individuals whose parental

relationship is threatened and will provide guidance to

lower courts faced with conforming their orders to

requirements of controlling statutes and constitutional

provisions.

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Il. OPINION OF THE COURT OF APPEALS

This petition seeks review of the decision of Division

IV of the Colorado Court of Appeals in Case No. 94 JV

179. The opinion was written by Judge Jones with concur-

rences by Judges Kapelke and Roy. A copy of the opinion

is attached hereto as Appendix IV.

Il. JURISDICTION OF THE COLORADO SUPREME

COURT

Petitioner invokes the jurisdiction of the Colorado

Supreme Court pursuant to C.A.R. 49 et seq. The judg-

ment sought to be reviewed was entered by the Colorado

Court of Appeals on July 31, 1997. The Petition for

Rehearing was denied on October 2, 1997. A copy of the

order denying rehearing is attached as Appendix V.

IV. STATEMENT OF THE CASE

The People filed a Petition for Dependent or

Neglected Child, alleging that K.A.’s environment was

injurious to her welfare. The Larimer County Department

of Social Services was granted temporary custody of K.A.

After a hearing on a proposed treatment plan, the Trial

Court on February 10, 1995 adopted a treatment plan. On

July 26, 1995, The People filed a Motion to Terminate the

Parent-Child Legal Relationship. The People alleged that

M.A. had failed to comply with the court-adopted treat-

ment plan; that M.A. was an unfit parent; that his con-

duct was unlikely to change within a reasonable time;

that there were no modifications to the treatment plan

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available; and that there were no less drastic alternatives

available.

Following a hearing on a permanency plan, the Trial

Court on August 4, 1995, entered written orders requiring

The People to continue to make reasonable efforts to

reunify the child and her family. On August 10, 1995,

M.A. filed a Response to Motion to Terminate, denying

the People’s allegations. Following trial from January 22

to January 24, 1996, the District Court of Larimer County

on January 31, 1996 entered an order terminating M.A.’s

parental rights.

V. ARGUMENT

The issues before the Court are interrelated and clear.

Termination of the parent-child legal relationship consti-

tutes a deprivation of M.A.’s fundamental liberty interest.

Such a deprivation may occur only if The People afford

sufficient and appropriate due process to M.A. If The

People may impose requirements of a treatment plan, The

People must clearly state them so that M.A. can comply;

The People may not properly impose treatment plan

requirements that are undisclosed to M.A. The People

cannot require an individual threatened with termination

of his parental rights, or any other individual, to admit to

something he has not done.

The Trial Court adopted the Treatment Plan in ques-

tion on February 10, 1995 after a dispositional hearing.

C.R.S. Sec. 19-3-508(1) requires the Court to approve an

appropriate treatment plan as part of the dispositional

phase of a neglected or dependent child action, unless the

Court finds that an appropriate treatment plan cannot be

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devised for a particular respondent. (C.R.S. Sec.

19-3-508(1)(e)(1), attached as Appendix VI.) The purpose

of a treatment plan is to help preserve the family by

remedying issues that led to the filing of an action to

terminate the parent-child legal relationship. People in

Interest of E.H., 837 P.2d 284 (Colo. App. 1992). A treat-

ment plan’s provisions must be designed to assist in

identifying and overcoming the problems that led to the

adjudication of the child as dependent and neglected.

People in Interest of A.G.-G., 899 P.2d 319 (Colo.App.1995).

At the January 1996 trial that ended in termination of

the parent-child legal relationship, Nancy Roath, the

ongoing caseworker for Larimer County Department of

Social Services, stated that it was her position that M.A.

must admit that he had sexually abused K.A. and seek

therapy before the family could be reunited. She further

testified that she had formed this opinion in July, 1994

(before the proposed treatment plan was filed with the

Court). (Record, Vol. V, p. 190, Il. 7-16, Vol. V, p. 191, IL.

9-15; Vol. V, p. 192, Il. 1-4).

The requirement that M.A. admit he had sexually

abused his child was never made a part of the treatment

plan approved and ordered by the Court, nor was it

proposed as a portion of that plan. If it had been

included, M.A. would have had the opportunity to con-

test its inclusion.

The parent-child relationship constitutes a funda-

mental liberty interest. B.B. v. People, 785 P.2d 132 (Colo.

1990) and a parent's interest in maintaining the stability

and autonomy of the family is constitutionally protected.

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Watso v. Department of Social Services, 841 P.2d 299, 306

(Colo. 1992).

The State of Colorado may not deprive an individual

of life, liberty or property without due process of law.

U.S. Const. Amend. XIV, Sec. 1.; Colorado Constitution,

art. II, Sec. 25. Due process requirements of the Four-

teenth Amendment applying termination proceedings.

Overturf v. District Court of the 20th Judicial District, 602

P.2d 850 (Colo. 1979). The due process afforded must

adequately protect the interest at issue. People v. Kibel, 701

P.2d 37, 43 (Colo. 1985). The basic requirement of due

process is fundamental fairness. Watso, supra. at 307. The

person whose interest is being deprived should receive

notice of the government’s_action and have an oppor-

tunity to respond. (1982), the Supreme Court held that

“when the State moves to destroy weakened familial

bonds, it must provide the parents with fundamentally

fair process” and noted that a parent’s interest in the

accuracy and justice of the decision to terminate his or

her parental status is a “conmmanding” one.

Imposition of an unstated requirement is, in fact,

fundamentally unfair and affords no adequate notice

regarding the action required of M.A. to conform to the

treatment plan. The parent-child legal relationship should

not be terminated on the basis of requirements with

which M.A. cannot comply, of which he is not aware and

to which he cannot respond.

The Court of Appeals stated that its review of the

record shows that the Trial Court’s finding of noncom-

pliance was based on M.A.’s failure to secure treatment,

rather than a surreptitious requirement that he admit to

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having sexually abused the child. The evidence reflects

that M.A., did, in fact, comply with the treatment plan

when he underwent a sexual abuse evaluation. But the

evidence also shows the Larimer County Department of

Social Services made no recommendation regarding a

therapist to see M.A. because the Department did not

know of any therapists who worked with individuals in

denial. (Vol. V, p. 184, 1. 11 through Vol. V, p. 185, 1. 5; Vol.

V, p. 203, Il. 21-25.) The People, through the Department

of Social Services, then, set forth a treatment plan that

required ongoing therapy for M.A., but failed to direct

him to a therapist because the Department already had

assumed M.A. committed sexual abuse and decided that

he should admit to it.

The Court of Appeals’ finding that M.A. failed to

comply with the critical element of the treatment plan

overlooks the fact that he could not comply with it. Even

if the Department of Social Services had referred him to a

therapist, he could not admit to sexually abusing K.A. if,

in fact, he had committed no such abuse. M.A. has never

been charged with any criminal offense relating to sexual

abuse.

The Trial Court further found that the treatment plan

could not be modified and that no less drastic alterna-

tives to termination existed. However, this finding was

premature because The People did not make a referral to

M.A. for a therapist after M.A. underwent the required

sexual abuse evaluation, although the treatment plan

called for such a referral. M.A. asserts that there was no

treatment pian with which he could fully comply because

of its unstated requirement that he admit to having sexu-

ally abused his child. It is inherently unjust to hold M.A.

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responsible for complying with the terms of a treatment

plan that were, in some part, unstated, and then to base,

in any part, termination of his parental relationship on

his failure to comply with that plan.

V. CONCLUSION

The orders entered by the Trial Court and the Court

of Appeals create an unsupportable situation for M.A.

and indeed, for any person faced with termination of a

parent-child legal relationship. They support the use of

an unstated requirement as part of the treatment plan,

and fail to inform the parent of what is required of him,

despite the statute’s clear intent that a treatment plan be

specifically set forth. Further, that unstated requirement

assumes behaviors that are not proven and seeks admis-

sions regarding acts that M.A. denies and for which he

has never been charged.

WHEREFORE, M.A. respectfully requests that the

Court review the opinion of the Colorado Court of

Appeals in this case by way of granting this petition.

Dated this 29 day of October, 1997.

Respectfully submitted,

/s/ Michael D. Liggett

Michael D. Liggett — #8373

Amy K. Rosenberg — #26860

425 West Mulberry Street,

Suite 112

Fort Collins, CO 80521

(970) 482-9770

istthiatehinienenienen imine

Appendix

Appendix

tution ..

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I: 14th Amendment, U.S. Constitution ...... i

II: Article 2, Sec. 25, Colorado Consti- a

Se ee eee ET LORE EEC ll

ee See Oe. BP P-OUMCENC)............... iv

IV: Court of Appeals Opinion ............. vi

V: Denial of Petition for Rehearing ..... xiv

ee I I OPI ese ese eens XV