# Opposition Brief — M. A. v. Colorado > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2417%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1998 - **Citation:** 523 U.S. 1120 ## Text 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 i 5 ee wy, Veli sh aa ne a liom a a Ae ” aN a BA iS Mair in A Bt AIM BN LY iP ae 6 Uae htaaet — ee ert & Hb Ae at al ad a nt an 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. E-4 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 E-5 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 E-6 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. E-7 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 E-8 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. E-9 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 .. E-10 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2417%3A2. Public record. Not legal advice.