People ex rel. C.A.K. , 628 P.2d 136 ( 1980 )

SMITH, Judge.

This is an appeal by K.D.K. from a decree terminating her parental rights relative to C.A.K., her daughter. We order that decree set aside.

K.D.K. is the natural mother of C.A.K., who was born on July 2, 1971. C.A.K. was reared by her mother until the age of five years, at which time K.D.K. voluntarily placed C.A.K. with the Larimer County Department of Social Services. On February 9, 1978, the People filed a petition alleging that C.A.K. was a neglected or dependent child in that the child lacked proper parental care and that her mother had failed to provide proper medical care for the child. Five days later, on February 14, 1978, the People filed a motion to terminate parental rights, alleging that K.D.K. was unfit as a parent in that her condition of borderline mental retardation rendered her unable to afford the child reasonable care and guidance, and that all attempts at treatment of, and help for, K.D.K. had been unsuccessful.

At a hearing on November 1, 1978, the court found C.A.K. to be a dependent or neglected child as defined by § 19 — 1— 103(20), C.R.S.1973 (1978 Repl. Vol. 8). On the following day, a second hearing was held to consider whether C.A.K. should be permitted to accompany the foster family, with whom she had resided for the previous nine months, to the State of Oregon, where they were permanently locating. At the conclusion of the hearing, the court directed that the child accompany the foster family to Oregon. The natural mother, who resided in Larimer County, continued in the programs ordered by the court to improve her parenting ability.

On June 14, 1979, a hearing was held on the question of termination of the parent-child legal relationship. At the conclusion of the hearing, the court terminated the parent-child relationship between K.D.K. and C.A.K.

I.

Rights of parents in their natural children are fundamental rights protected by the United States Constitution: The United States Supreme Court in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), addressed this issue, as follows:

“The rights to conceive and raise one’s children have been deemed ‘essential.’ Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), ‘Basic Civil Rights of Man,’ Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), and ‘[r]ights far more precious ... than property rights,’ May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953). ‘It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’ Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra, the equal protection clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra, and the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).”

The Colorado appellate courts have likewise consistently considered termination of parental rights as a decision of the utmost gravity and seriousness. Overturf v. District Court, Colo., 602 P.2d 850 (1979); People in the Interest of M.B., 188 Colo. 370, 535 P.2d 192 (1975); People in the Interest of S.S.T., 38 Colo.App. 110, 553 P.2d 82 (1976); People in the Interest of K.S., 33 Colo.App. 72, 515 P.2d 130 (1973).

The public policy of Colorado directed toward preservation of the family unit is clearly expressed in the legislative declaration of purpose found in § 19-1-102(1), C.R.S.1973, (1978 Repl. Vol. 8) of the Children’s Code:

“(1) (a) To secure for each child subject to these provisions such care and guidance, preferably in his own home, as will best serve his welfare and the interests of society;

(b) To preserve and strengthen family ties whenever possible, including improvements of home environment;

(c) To remove a child from the custody of his parents only when his welfare and safety or the protection of the public would otherwise be endangered ....

(d) To secure for any child removed from the custody of his parents the necessary care, guidance, and discipline to assist him in becoming a responsible and productive member of society.”

II.

Termination of the parent-child legal relationship is governed by § 19-11-101 et seq., C.R.S.1973 (1978 Repl. Vol. 8) of the Children’s Code. Section 19-11-105, C.R.S. 1973 (1978 Repl. Vol. 8) reads in pertinent part as follows:

(1) The court may order a termination of the parent-child legal relationship upon the finding of either of the following: (a)That the child is adjudicated dependent or neglected and all of the following exist:

(1) That an appropriate treatment plan approved by the court has not been reasonably complied with by the parent or parents or has not been successful;

(II) That the parent is unfit;

(III) That the conduct or condition of the parent or parents is unlikely to change within a reasonable time.

(2) In determining unfitness, conduct, or condition, the court shall find that continuation of the legal relationship between parent and child is likely to result in grave risk of death or serious injury to the child or that the conduct or condition of the parent or parents renders the parent or parents unable or unwilling to give the child reasonable parental care. In making such determinations, the court shall consider, but not be limited to, the following:

(a) Emotional illness, mental illness, or mental deficiency of the parent of such duration or nature as to render the parent unlikely within a reasonable time to care for the ongoing physical, mental, and emotional needs of the child;

(b) Conduct toward the child of a physically or sexually abusive nature;

(c) History of violent behavior;

(d) A single incident of life-threatening or gravely disabling injury or disfigurement of the child;

(e) Excessive use of intoxicating liquors or narcotic or dangerous drugs which affect the ability to care and provide for the child;

(f) Neglect of the child;

(g) Long-term confinement of the parent;

(h) Injury or death of a sibling due to proven parental abuse or neglect;

(i) Reasonable efforts by child-caring agencies which have been unable to rehabilitate the parent or parents.

(3) In considering any of the factors in subsection (2) of this section in terminating the parent-child legal relationship, the court shall give primary consideration to the physical, mental, and emotional conditions and needs of the child .... ” (emphasis supplied)

Section 19-3-106(1), C.R.S.1973 (1978 Repl. Vol. 8), and C.R.J.P. 1 places the burden of proof upon the People to sustain their petition for termination by a preponderance of the evidence.

Appellant contends, inter alia, that the conclusions of the trial court that: (1) the treatment plan was unsuccessful, and (2) that the respondent’s mental deficiency is of such duration and nature as to render her unlikely within a reasonable time to provide reasonable care for her child, are not supported by the evidence. We agree.

A. The Treatment Plan

At the termination hearing the court determined that the third and final treatment plan “although reasonably complied with by the respondent ... has not been successful as to her ... . ” The treatment plan provided as follows:

“1. [K.D.K.] will write two letters per month to her daughter, one by the 15th of the month and the other by the 30th of the month. She will contact her caseworker upon the completion of the letter, at which time her caseworker will visit the respondent and mail the letter. In this way, the respondent will be in touch with both her daughter and Social Services on a bi-monthly basis. This is to continue for a period of five months.

2. The [respondent] will be responsible for picking up the child and returning her on time for the visits that shall be arranged through the Court in the Spring of 1979.

3. During each of [the child’s] visits home, a member of the Larimer County Mental Health Clinic will observe the interactions between [the respondent and her husband] and between [the child] and her mother, the latter for purposes of evaluating the mother/child attachment and parenting skills. This person will make appropriate recommendations as to parenting skills, and will provide a letter to the Court concerning all observations. In the event that this person determines that the respondent and her husband should participate in marital counselling and recommends same, they shall participate on a regular basis with marital coun-selling or parental skills counselling as recommended.

4. [The respondent] will take responsibility for her own health by consulting a physician afid maintaining any advised schedule of taking medication for a period of five months.

5. [The respondent] is responsible for obtaining a pediatrician for [the child] providing him with [the child’s] medical records, and for responding in an appropriate way to any medical problems which may arise when [the child] is in her care.

6. [The respondent] will maintain the personal hygiene of [the child] when she is visiting. She will bathe her daily and return her in the same condition she was in at the start of the visit.

7. [The respondent] will attend counsel-ling sessions at the Larimer County Mental Health Clinic on a bi-monthly basis. The emphasis of the therapy will be on self-sufficiency and parenting for a period of five months.

8. Due to previously suspected abuse of [the child] by her grandfather, . .. [The respondent and her husband] will not allow the grandfather to see [the child] while she is visiting with them, unless [the respondent] is present. [The grandfather] may call the caseworker and arrange a supervised visit through the Department of Social Services if he wishes to see [the child].

9. [The respondent and her husband] will show financial stability at the next Court hearing by complying with the following:

a. Each will maintain consistent adequate income.

b. [The respondent and her husband] will show to the Court proof that they can pay the basic minimal expenses of a three person family: rent, utilities, food, medical expenses, and transportation, if the latter is needed for employment.

10.The [respondent and her husband] will find and maintain adequate housing by [the child’s] March visit. “Adequate” means a bedroom for [the respondent and her husband] and one for any person who lives in the home for an appreciable length of time. The dwelling will have adequate heating and plumbing.”

This treatment plan, on its face, does not provide a standard by which success can be measured. And, the trial court did not specify in its ruling the basis for its decision that the treatment plan was unsuccessful even though each of the specific requirements had been followed by K.D.K. and her husband.

Such defect is of considerable magnitude when considered in light of the purpose of the treatment plan. This purpose is well set forth in a letter written to Judge Dres-sel by a Larimer County Department of Social Services caseworker:

“I am writing the following treatment plan and ask that you approve it for a period of six months. The respondent was married to her husband in October. The two of them have expressed an interest in having C. return to their care. Therefore, I have written the following treatment plan as a guideline in determining conditions which need to be met before we can consider the return of the child to her natural mother and stepfather.”

The clear import of this letter is that if the treatment plan requirements are fulfilled the child will be ultimately returned to its mother.

We hold that if a trial court intends the successful completion of a treatment plan as a condition for the return of a child, then the treatment plan must specify what the relevant criteria will be to determine success. Furthermore, we hold that if a trial court concludes that a treatment plan, although complied with, has been unsuccessful, it must make factual findings to support that conclusion.

Here, the trial court neither specified in imposing the treatment plan what criteria it would consider in determining if the plan had been successful nor did it set forth any factual basis for its conclusion that it had been unsuccessful. Therefore, the trial court’s conclusion that “although reasonably complied with the treatment plan was not successful” cannot become the basis of a decree terminating the parent-child relationship.

B. Mental Deficiency of K.D.K.

We next consider whether the trial court’s conclusion that K.D.K.’s mental deficiency is of such duration and nature as to render her unlikely within a reasonable time to provide reasonable care for her child.

The People rely upon an intellectual and psychological evaluation of K.D.K. prepared approximately one year prior to the termination hearing, and prior to both the request for termination and the imposition of the final treatment plan. This report showed that K.D.K. was in the low-normal to mildly retarded range of intellectual functioning. That evaluation concluded that the appellant was a “grossly immature, unresourceful adult who displays little initiative and little ability to respond and act in a mature fashion”, and who displays “extreme passivity and dependence on others.”

At the termination hearing, however, a supervisor at the Department of Mental Health, who was an expert in clinical psychology, testified that subsequent to the initial evaluation and during the time he had worked with her, K.D.K.’s I.Q. had increased. He also testified that K.D.K. had the ability to learn parenting skills and apply them. The teacher in charge of the parenting classes which K.D.K. attended testified that she showed an ability to learn and retain the parenting skills taught in the classes.

The People did not present any evidence to contradict the testimony of these witnesses. Thus, they have not sustained their burden of proof with regard to the continuing nature of appellant’s alleged mental deficiency. The evidence, therefore, does not support the trial court’s determination that K.D.K.’s mental deficiency was of such duration and nature as to render her unlikely within a reasonable time to provide reasonable care for her child. On the contrary, it shows that she is a highly motivated, although not a highly intelligent, mother, who has demonstrated her desire and ability to improve her parenting skill level.

Under the wording of the statute, in order to terminate the parent-child legal relationship of K.D.K. and C.A.K., the People had the burden of proving, inter alia, both of the following: (1) “That an appropriate treatment plan approved by the court has not been reasonably complied with by the parent or parents, or has not been successful” and (2) “that the conduct or condition of the parent or parents is unlikely to change within a reasonable time.” Section 19-11-105(1), C.R.S.1973 (1978 Repl. Vol. 8). We conclude that there was no basis for termination of the parent-child relationship under the statute. Thus, the decree of the trial court terminating the parent-child relationship between K.D.K. and C.A.K. must be and the same is hereby ordered set aside.

C. Directions on Remand

Having ordered the decree terminating the parent-child relationship set aside, we would be remiss if we did not deal with the continuing order of the trial court under which the child remains in the custody of foster parents who are no longer residents of the State of Colorado. Our decision here does not affect the prior decree of the trial court determining that C.A.K. is a “dependent and neglected” child. As long as she remains in that status the trial court has several placement options. Section 19-3-111(1), C.R.S.1973 (1978 Repl. Vol. 8). Implicit in each of these options, however, is the continuing jurisdiction of the court to supervise the custodian as well as the child. The ultimate desired end of all such placements should be the return of the child to its own home and existing parents. See § 19-1-102(1), C.R.S.1973 (1978 Repl. Vol. 8). The existing order is thus not appropriate. The cause is therefore remanded with directions that the trial court enter such orders as will: (1) Secure the immediate return of the child to Colorado, and (2) provide for placement under such terms and conditions as are designed to ultimately reunite the mother with her child.

Decree terminating parent-child relationship set aside, and cause remanded with directions.

RULAND, J., concurs. BERMAN, J., specially concurs.