| B. Criteria |
| C.R.S. § 19-3-604(1) | There
are
three termination criteria: abandonment,
parental unfitness, and failure to progress.
1. Abandonment The court may terminate the parent-child legal relationship if the parents abandon the child. The parents must have surrendered custody for at least six months. They must not have manifested a firm intent to the child, court, or caregiver to resume or obtain custody or make permanent legal arrangements for the child’s care. |
| C.R.S. § 19-3-604(1)(a)(II) | Abandonment can also be found if the parent is unknown. The identity of the parent must be unknown for at least three months. The court must also find reasonable efforts were made to locate the parent. |
| C.R.S. § 19-3-603 |
An
affidavit
must be filed at least ten days before the hearing, stating what
efforts were
made to locate the parent who is subject to the motion.
|
| C.R.S. § 19-3-604(1)(a) |
The
child
must have been found to be neglected or dependent. A dependency and neglect (D&N)
adjudication is a prerequisite for termination under both types of
abandonment.
|
| People
in the Interest of D.C.-M.S., 111 P.3d 559 ( |
A
trial court
may terminate parental rights on the basis of one or more statutory
grounds
established by clear and convincing evidence.
|
| C.R.S. § 19-3-604(1)(b) |
2.
Parental Unfitness
The court may terminate the parent-child legal relationship if the parent is unfit. The child must have been adjudicated neglected or dependent. The court must find that no treatment plan could address the parent’s unfitness. Unfitness may be based on:
|
| C.R.S. § 19-3-604(1)(b)(I) People in the Interest of N.F., 820 P.2d 1128 ( |
Mental
illness: emotional
or mental illness or
mental deficiency renders the parent unable to meet the child’s ongoing
needs
within a reasonable time. For
example, a sexually abusive father,
diagnosed with antisocial personality disorder, not amenable to
treatment, had
his rights terminated under this definition.
|
| C.R.S. § 19-3-604(1)(b)(II) and (2)(d) | Child’s injury: when the child suffered serious bodily injury or a disfiguring injury. |
| C.R.S. § 19-3-604(1)(b)(III) People in the Interest of T.T., 845 P.2d 539 ( |
Incarceration: when an incarcerated parent is ineligible for parole for at least six
years
from the date of the D&N adjudication. For a child under age six, the incarcerated parent
is ineligible for
parole for at least three years. The
court does not have to wait for the
parent’s criminal appeals to be resolved to terminate under this
definition.
|
| C.R.S. § 19-3-604(1)(b)(IV) and (2)(g) |
Sibling’s
injury: when the child’s sibling suffered serious bodily
injury or death due to
proven parental abuse or neglect.
|
| C.R.S. § 19-3-604(1)(b)(V) C.R.S. § 19-3-102(2) |
Habitual
abuse: when another child has been subjected to an
identifiable pattern of
habitual abuse. The
adjudication of
dependence or neglect was based on sexual or physical abuse, or the
parent was
convicted of that child’s death. This
definition is the same as a D&N adjudication based on “abused
child’s
sibling.”
|
| C.R.S. § 19-3-604(1)(b)(VI) |
Sexual abuse:
where the child has been subjected to an identifiable pattern of sexual
abuse.
|
| C.R.S. § 19-3-604(1)(b)(VII) |
Torture:
where either parent has tortured a child or subjected a child to
extreme
cruelty.
|
|
People
in the Interest of M.H., 683 P.2d 807 ( |
Termination
of the parent-child relationship is not designed to punish the parent,
but to
give the child an opportunity for a new permanent caregiver. As a result, some parents
will lose their
rights through no fault of their own.
The court in M.H. said it best: “This case presents yet another situation wherein a natural mother loves her child, but is unable, through no specific fault of her own, to provide the child with the necessary parental care to enable that child to thrive, grow, and reach maturity. It was to ensure these benefits for a child under these circumstances that the statute was enacted.” |
| C.R.S. § 19-3-604(1)(c) |
3.
Failure to Progress
The court may terminate if the parent fails to progress under the treatment plan. Failure to progress may be based on these four elements:
|
| C.R.S. § 19-3-604(1)(c)(I) |
The
court-ordered treatment plan has failed: Either the parent has failed to reasonably comply
with the plan, or the
plan has not been successful. It
has
failed if the parent has missed visitation without good cause. It has also failed if the
parent’s problems
have not adequately improved, including the parent’s relationship with
the
child. You must
find the plan has failed
if the parent, despite intervention and treatment, is unable or
unwilling to
provide “reasonable parental care.”
|
| C.R.S. § 19-3-604(2) |
“Reasonable
parental care” includes, at minimum, nurturing and safe parenting
sufficiently
adequate to meet the child’s physical, emotional and mental needs and
conditions.
|
| People
in the Interest of L.G., 737 P.2d 431 ( |
The
treatment
plan must be appropriate. The
appropriateness of the treatment plan is determined by the likelihood
of its
success in achieving family reunification.
|
| People
in the Interest of C.A.K., 652 P.2d 603 ( |
The plan itself does not have to contain explicit measures of success. |
| People
in the Interest of B.J.D., 626 P.2d 727 ( |
It must consider, however, the parent’s specific circumstances. |
| C.R.S. § 19-3-604(1)(c)(II) |
The
parent is
unfit: The court
must find that continuing the
parent-child relationship is likely to result in grave risk of death of
serious
injury to the child or that the parent’s conduct or condition renders
the parent
unable or unwilling to give the child reasonable parental care.
|
| C.R.S. § 19-3-604(2) |
This
care is
to include, at a minimum, nurturing and safe parenting sufficiently
adequate to
meet the child’s physical, emotional and mental health needs and
conditions. In
addition, the parent’s conduct or
condition must be unlikely to change within a reasonable time.
|
| People
in the Interest of T.S.B., 757 P.2d 1112 ( |
Reasonable
time is based on the child’s needs.
The court may determine “unfitness” based on the definitions for “parental unfitness” termination criteria, based on any one of the following:
|
| C.R.S. § 19-3-604(2)(b) C.R.S. § 19-5-105(3.1)(a)(III) |
Abusive
conduct: the
parent’s conduct toward the
child has been of a physical or sexually abusive nature.
|
| C.R.S. § 19-3-604(2)(c) C.R.S. § 19-5-105(3.1)(a)(IV) |
Violent history: the parent has a history of violent behavior, such as domestic abuse. |
| C.R.S. § 19-3-604(2)(d) |
Serious
injury to child or an incident that threatens the life of child: the injury caused serious
bodily injury or
disfigurement.
|
| C.R.S. § 19-3-604(2)(e) C.R.S. § 19-5-105(3.1)(a)(V) C.R.S. § 12-22-303(7) |
Substance
abuse: the
parent’s excessive use of
intoxicating liquors or controlled substances has affected the parent’s
ability
to care and provide for the child.
|
| C.R.S. § 19-3-604(2)(f) C.R.S. § 19-5-105(3.1)(a)(VI) C.R.S. § 19-3-102(1)(d) |
Child
neglect: the
parent has neglected the
child. Neglect is
the failure or refusal
to provide the child with proper or necessary subsistence, education,
medical
care, or any other care necessary for the child’s health, guidance or
well-being.
|
| C.R.S. § 19-3-604(2)(g) |
Sibling’s
injury or death: the
parent has
committed, aided or abetted, attempted, conspired, or solicited the
murder or
voluntary manslaughter of the child’s sibling.
|
| C.R.S. § 19-3-604(2)(j) |
Felony
assault: the
parent has committed a
felony assault that resulted in serious bodily injury to the child or
to
another child of the parent.
|
| C.R.S. § 19-3-604(2)(i) |
Prior
involvement: the
parent has had prior
involvement with
|
| C.R.S. § 19-3-604(2)(h) |
Reasonable
efforts failed: child-caring
agencies
have made reasonable efforts that have been unable to rehabilitate the
parent.
|
| C.R.S. § 19-3-604(2)(k) |
Fifteen
months in care: the
child has been in
DHS care for fifteen of the last twenty-two months unless:
|
| C.R.S. § 19-3-604(2)(l) |
Two prior
adjudications: on
at least two prior
occasions, a child in the custody of the parent has been adjudicated
dependent
or neglected.
|
| C.R.S. § 19-3-604(2)(m) |
One prior
termination: on
at least one occasion a
parent has had their parent-child legal relationship terminated.
|
| C.R.S. § 19-3-604(2) |
Other
factors: the
list above is not
exclusive. The
court may also consider
other factors that point to the parent’s unfitness.
|
| In
the Interest of M.M., ___ P.3d ___ ( |
At
the
termination hearing, evidence of polygraph examinations are
inadmissible, and a
trial court should not consider the opinions of an expert who bases an
opinion
on polygraph evidence.
|
| People
in the Interest of M.W., 796 P.2d 66 ( |
Even
parents
who comply with the treatment plan may have their parental rights
terminated if
they do not make progress. For
example,
in M.W., the mother suffered from
long-term mental illness, but had stabilized on medication, and was
able to
live and work on her own. She
also had
maintained regular contact with her daughter. Despite her commendable progress, however, she could
not meet her
daughter’s needs, and her rights were terminated.
|