in the Interest of H.T. — , 2019 COA 72 ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
May 9, 2019
2019COA72
No. 18CA1628, People in the Interest of H.T. — Juvenile Court
— Dependency and Neglect; Appeals — Final Appealable Order
During the dispositional phase of a child dependency and
neglect proceeding, a juvenile court addresses dispositional
alternatives and adopts a treatment plan in an initial dispositional
order. A division of the court of appeals considers whether such a
dispositional order is final and appealable under section 19-1-
109(2)(c), C.R.S. 2018. The division concludes that a dispositional
order, by itself, is not final and appealable.
COLORADO COURT OF APPEALS 2019COA72
Court of Appeals No. 18CA1628
Larimer County District Court No. 17JV42
Honorable Stephen J. Jouard, Judge
The People of the State of Colorado,
Petitioner-Appellant,
In the Interest of H.T., a Child,
and Concerning G.M.,
Respondent-Appellee.
APPEAL DISMISSED
Division V
Opinion by JUDGE GROVE
Terry and J. Jones, JJ., concur
Announced May 9, 2019
Jeannine S. Haag, City Attorney, Arthur J. Spicciati, Assistant City Attorney,
Fort Collins, Colorado, for Petitioner-Appellant
Josi McCauley, Guardian Ad Litem
Chelsea Carr, Office of Respondent Parents’ Counsel, Longmont, Colorado, for
Respondent-Appellee
¶1 In this dependency and neglect proceeding, the Larimer
County Department of Human Services appeals the juvenile court’s
dispositional order directing the Department to pay for father’s
offense specific treatment. Because we conclude that initial
dispositional orders, by themselves, are not final and appealable, we
dismiss the appeal.
I. Background
¶2 In February 2017, the Larimer County Department of Human
Services filed a petition in dependency or neglect after the
eight-year-old child, H.T., acted out sexually with her sister and
alleged sexual abuse by her father during a forensic interview.
¶3 On March 20, 2017, father, G.M., received a copy of the
proposed treatment plan. The plan required father to complete an
offense specific evaluation and comply with its recommendations.
Although the child had yet to be adjudicated dependent or
neglected, father submitted a “position statement” requesting the
court to order the Department to pay for the evaluation and
treatment. The Department responded that it lacked the money to
pay for the evaluation and treatment and “its policy is to not pay for
such evaluations and recommendations.”
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¶4 In July 2017, father stipulated to a deferred adjudication. The
stipulation stated that “the parties agree and consent that the
Court shall hold a hearing regarding financial responsibility for the
costs” of treatment.
¶5 A month after father stipulated to the deferred adjudication,
the Department filed what appears to be a modified treatment plan
incorporating recommendations from an offense specific evaluation.
Father again filed a motion requesting, in relevant part, that the
Department bear the costs for the recommended treatment. The
Department again responded that it was unable to pay for the
treatment “per Department policy.”
¶6 Five months later, the court heard evidence about father’s
need for offense specific treatment and inability to pay for it. After
the hearing, the Department requested an additional week “to file a
written statement regarding the County’s position on payment for
funds.” The Department then filed a statement that it did not have
funding to pay for father’s offense specific therapy, that it provided
father with rent money to offset the cost of the initial offense
specific evaluation, that it could not be reimbursed by the state for
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offense specific treatment, and that no statutory authority existed
for the court to order the Department to pay for a certain service.
¶7 The court found that father was financially unable to pay for
the treatment and ordered the Department to “either pay for the
appropriate treatment or modify or eliminate the requirements from
the treatment plan so that [father] has a reasonable opportunity to
comply with the treatment plan and progress forward.” The next
day, father agreed to the entry of a formal adjudication.
¶8 The court then entered a dispositional order that father’s
initial treatment plan dated March 20, 2017 — not the amended
treatment plan — was approved and adopted as an order of the
court. The Department acknowledged the court’s order that it pay
for treatment but maintained its objection.
¶9 The Department filed a notice of appeal of the juvenile court’s
order directing it to pay for treatment. We issued an order to show
cause why the appeal should not be dismissed for lack of a final,
appealable order, noting that it did not appear to “end[] the
particular action in which it is entered, leaving nothing further for
the court pronouncing it to do in order to completely determine the
rights of the parties involved in the proceeding.” People in Interest
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of S.M.O., 931 P.2d 572, 573 (Colo. App. 1996). In response, the
Department stated that the order was appealable and final because
it was part of the initial dispositional order and determined the
rights of the Department. Father’s response argued that the order
to pay was not a dispositional order, and, in the alternative, that
Colorado law does not permit an appeal from the dispositional order
itself. The guardian ad litem argued that the order was
interlocutory and not a final order. Based on the parties’
responses, a motions division of this court allowed the
Department’s appeal to proceed and for the issue of finality to be
considered on the merits. We now consider the Department’s
arguments and conclude that the dispositional order itself is not a
final, appealable order. Therefore, we need not address whether an
order to pay for treatment is part of a dispositional order.
¶ 10 Accordingly, we dismiss the Department’s appeal.
II. An Initial Dispositional Order, By Itself, Is Not a Final and
Appealable Order
¶ 11 The Department contends that the initial dispositional order is
final and appealable under section 19-1-109(2)(c), C.R.S. 2018. We
disagree.
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A. Standard of Review
¶ 12 When construing a statute, a court must give effect to the
intent of the General Assembly and adopt the construction that best
effectuates the purpose of the statutory scheme. People in Interest
of A.E., 994 P.2d 465, 466 (Colo. App. 1999). To determine intent, a
court should look first to the language of the statute and give words
their plain and ordinary meanings. People in Interest of G.W.R., 943
P.2d 466, 468 (Colo. App. 1997). Words or phrases should not be
added to a statute or rule, and the inclusion of certain terms in a
statute or rule implies the exclusion of others. See People in
Interest of J.J.M., 2013 COA 159, ¶ 7. In interpreting a statute, we
must also presume that the General Assembly intended a just and
reasonable result, and we must seek to avoid interpretations
leading to absurd results. People in Interest of J.L.R., 895 P.2d
1151, 1154 (Colo. App. 1995).
¶ 13 We review questions of statutory construction de novo. Smith
v. Colo. Motor Vehicle Dealer Bd., 200 P.3d 1115, 1116 (Colo. App.
2008).
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B. The Adjudication and Disposition
¶ 14 The Children’s Code provides for a bifurcated proceeding in
dependency and neglect actions. E.O. v. People in Interest of C.O.A.,
854 P.2d 797, 800 (Colo. 1993). In the first phase, after a petition
in dependency or neglect is filed, the court determines if there are
grounds to adjudicate the child dependent or neglected. If a parent
contests the allegations in the petition, then he or she can request a
bench or jury trial where the Department must prove the
allegations by a preponderance of the evidence. §§ 19-3-202, -505,
C.R.S. 2018; People in Interest of A.M.D., 648 P.2d 625, 641 (Colo.
1982). If the Department fails to carry its burden, then the juvenile
court “shall order the petition dismissed,” vacate all orders
regarding the child, and relinquish its jurisdiction. § 19-3-505(6).
But, if the Department proves the allegations by a preponderance of
the evidence, the court will sustain the petition and adjudicate the
child dependent or neglected. § 19-3-505(7).
¶ 15 If the court sustains the petition, the second phase — the
dispositional phase — addresses dispositional alternatives and
adopts a treatment plan. § 19-3-507, C.R.S. 2018; see People in
Interest of C.L.S., 934 P.2d 851, 853 (Colo. App. 1996). The goal of
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the dispositional hearing is to determine the proper dispositional
order serving the interests of the child and the public. § 19-1-
103(43), C.R.S. 2018; § 19-3-507(1)(a). Specifically, the court
determines the child’s legal custody, decides whether a treatment
plan can be devised to address the issues that led to the
Department’s involvement, and, if so, approves an appropriate
treatment plan. Before the dispositional hearing, the Department
must provide the court and the parties a statement about the
services offered to the family to prevent unnecessary out-of-home
placement and to facilitate reunification. § 19-3-507(1)(b). The
treatment plan is designed to correct the problems that led the
court to adjudicate the child dependent and neglected with the goal
of reunifying the family and discharging the government’s
intervention into the family. E.O., 854 P.2d at 799.
C. Adjudicatory Appeals
¶ 16 Colorado Appellate Rule 3.4(a), which governs appeals in
dependency and neglect cases, provides that a party may appeal
orders from dependency or neglect proceedings as permitted by
section 19-1-109. As relevant here, section 19-1-109(2)(c) provides
that “[a]n order decreeing a child to be neglected or dependent shall
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be a final and appealable order after the entry of the disposition
pursuant to section 19-3-508,” C.R.S. 2018.
¶ 17 Before the enactment of 19-1-109(2)(c), case law governed
when an adjudication was final for appeal. “The adjudication of a
child as dependent or neglected, with the dispositional hearing
continued to a future date, does not become a final judgment until
a decree of disposition is entered.” E.O., 854 P.2d at 800; see also
People in Interest of F.M., 44 Colo. App. 142, 144, 609 P.2d 1123,
1124 (1980) (“The adjudication of a child as dependent and
neglected, in the absence of some sort of dispositional order is not a
final order.”).
¶ 18 So, we ask, what constitutes a decree of disposition? In People
in Interest of B.M., 738 P.2d 45, 46 (Colo. App. 1987), a division of
this court stated that “[t]he approval of a treatment plan which
addresses the placement of a minor child following an adjudication
of dependency and neglect constitutes a disposition . . . .” Other
cases have similarly held that a “decree of disposition” is the initial
dispositional order adopting a treatment plan. E.O., 854 P.2d at
800; C.L.S., 934 P.2d at 854.
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D. C.L.S. and Section 19-1-109(2)(c)
¶ 19 What was considered appealable after an adjudication
expanded with the decision in People in Interest of C.L.S. in 1996.
There, the supreme court held that “following an adjudication of
dependency and neglect, the initial dispositional order adopting a
treatment plan constitutes a ‘decree of disposition’ and renders the
adjudication and the initial dispositional order final for purposes of
appeal.” C.L.S., 934 P.2d at 854 (emphasis added). The court
reasoned:
If we were to conclude that no appeal lies upon
the entry of the initial dispositional order, the
result would be that a child could be
adjudicated dependent and neglected, removed
from the parent, and placed outside the family
home for many months if not years with
neither the parent nor the child having a right
to appeal. No later correction of an improper
adjudication or dispositional order could undo
the harm caused by the unjust disruption of
the parent-child relationship.
Id.
¶ 20 Section 19-1-109(2) was amended shortly after the C.L.S.
decision. See Ch. 254, sec. 7, § 19-1-109(2), 1997 Colo. Sess. Laws
1433 (adding subsections (2)(b) and (2)(c) to section 19-1-109).
Prior to the amendment, section 19-1-109(2) simply stated that
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“[t]he people of the state of Colorado shall have the same right to
appeal questions of law in delinquency cases as exists in criminal
cases.” § 19-1-109(2), C.R.S. 1996. It did not address termination
judgments or adjudications.
¶ 21 The amended statute now reads:
An order decreeing a child to be neglected or
dependent shall be a final and appealable
order after the entry of the disposition
pursuant to section 19-3-508. Any appeal
shall not affect the jurisdiction of the trial
court to enter such further dispositional orders
as the court believes to be in the best interests
of the child.
§ 19-1-109(2)(c), C.R.S. 2018.
¶ 22 We construe this statute to provide that adjudicatory orders
are final and appealable but dispositional orders, by themselves, are
not. We reach this conclusion for several reasons.
¶ 23 First, the plain language of the statute establishes that only
the order “decreeing a child to be neglected or dependent” is final
and appealable. Id. As the Colorado Supreme Court recently held,
section 19-1-109(2)(c) creates a narrow exception to the general rule
of finality “by authorizing the appeal of certain orders from
dependency or neglect proceedings that would not otherwise be
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considered ‘final.’” People in Interest of R.S., 2018 CO 31, ¶ 20.
Because section 19-1-109(2)(c) does not identify treatment plan
orders or any other dispositional orders entered pursuant to section
19-3-508 as final orders for the purposes of appeal, those types of
orders are outside the scope of the statutory exception.
¶ 24 Second, unlike adjudicatory judgments, dispositional orders
placing a child outside of the home pursuant to section 19-3-508
are temporary and subject to periodic review by the juvenile court.
People in Interest of K.A., 155 P.3d 558, 561 (Colo. App. 2006);
People in Interest of C.M., 116 P.3d 1278, 1281 (Colo. App. 2005).
Likewise, treatment plans adopted at the dispositional stage are
interlocutory and can be changed after periodic review by the court
or by motion of a party.
¶ 25 Third, given the emphasis on prompt conclusions of
dependency and neglect cases, see, e.g., §§ 19-1-102(1.6), 19-1-
123, 19-3-703, C.R.S. 2018, allowing dispositional orders to be
appealable as a matter of right seems contrary to the General
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Assembly’s intent. 1 Allowing such appeals would interject lengthy
delays in the proceedings if a parent, the Department, a guardian
ad litem, or another named party disagreed with the dispositional
order. And, given the fluid nature of dependency and neglect cases,
the circumstances surrounding the order being appealed may be
drastically different — if not moot — by the time the merits of the
appeal are addressed.
¶ 26 We note that our holding is not in conflict with C.L.S. We
agree that a party has a right to appeal both the adjudicatory order
and the initial dispositional order. This is because how the merits
are reached on an adjudicatory order will also affect the merits of
the dispositional order. Our holding simply clarifies that an initial
dispositional order, by itself, is not a final, appealable order.
¶ 27 For all of these reasons, we dismiss the appeal.
III. Conclusion
¶ 28 The appeal is dismissed.
JUDGE TERRY and JUDGE J. JONES concur.
1We note that in extraordinary circumstances, a party that is
seriously aggrieved by a dispositional order may still ask the
Colorado Supreme Court to review it under C.A.R. 21.
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