Termination of the Parent-child Legal Relationship in Colorado
| Publication year | 1978 |
| Pages | 362 |
| Citation | Vol. 7 No. 3 Pg. 362 |
1978, March, Pg. 362. Termination of the Parent-Child Legal Relationship in Colorado
Termination of the parent-child legal bond affects basic human relationships, relationships which may belong within the class of fundamental interests and rights protected by the United States Constitution.(fn1) At stake for parents is the permanent loss of all interests, rights, and, yes---burdens, associated with raising a given child. At stake for the child may be life itself, freedom from conditions wholly disabling of the child's opportunity for health and happiness or, of course, permanent removal from a biological family which is, in fact, better than any alternative available to the child.(fn2) Notwithstanding the importance of this area of law, Colorado statutory guidelines before 1977 were most explicit as to the limited circumstances of abandonment. Termination in the many cases of abuse and serious neglect routinely was decided on the basis of the vague touchstone of the "best interests of the child."(fn3)
Colorado's "Parent-Child Legal Relationship Termination Act of 1977" became effective July 1, 1977,(fn4) and represents a fresh legislative attempt to deal with these important issues.
The courts may seem wary of inciting legislative intervention in many aspects of domestic relations and juvenile law. New legislation always carries the risk that the court's role will be made unnecessarily difficult rather than facilitated. The discomfort of deciding termination cases without legislative guidance, however, was expressed in the 1973 case which formed the basis of Colorado case law for terminations until July 1, 1977:
Other than directing the court to operate in the best interests of the child, the (Children's) Code establishes no standards and provides no guidance to the courts in choosing between (the) alternatives (of services in the home, brief or extended physical custody held by the state, or termination of the parent-child legal relationship).(fn5)
The importance of this area of law and the lack of legislative standards induced the Metropolitan Child Protection Council of Denver and individuals from numerous backgrounds to work together over a period of nearly a year to draft
proposed legislation.(fn6) The composition of the committee reflected a deliberate attempt to include all interests and perspectives.(fn7) The need and goal was a balanced bill, one which would protect the interests of all parties to a termination proceeding. The resources applied and the issues discussed by the committee provide a background for understanding the eventual legislation.(fn8)
From 1973 until the fall of 1976, seven termination cases were decided by higher courts in Colorado.(fn9) The seminal case of People in re K.S. and M.S.,(fn10) decided by the Colorado Court of Appeals in 1973 and later cited by the Colorado Supreme Court with approval,(fn11) created the following criteria:
These court-developed standards at least framed a more detailed structure than "the best interests of the child" for reaching a determination that the parent-child legal relationship should be severed.(T)ermination following determination of dependency neglect should result only where there is a history of severe and continuous neglect by a particular parent whose rights are sought to be terminated, a substantial probability of future deprivation, and the determination that under no reasonable circumstances can the welfare of the child be served by the continuation of the legal relationship of the child with the parent.(fn12)
Many questions were raised or left unanswered by the new criteria, however. The standard of "no reasonable circumstances," in particular, caused concern. Some social workers reported the courts had stopped granting terminations or that county attorneys had stopped bringing termination actions.(fn13) While objectively this might or might not be true, things perceived as real are real in their consequences,(fn14) and seemingly actions for terminations which should have been brought were being delayed or withheld permanently. Others were concerned that terminations were granted too easily with no concern for adequate treatment of families. Concerns over terminations made too easy or too difficult together indicated a lack of uniformity in termination decisions across the state.
A specific problem was the lack of reference to the importance of time in reaching a determination of the appropriate long-term placement for the maltreated child. For example, the question of time is not directly alluded to in the standard "that under no reasonable circumstances can the welfare of the child be served by the continuation of the parent-child legal relationship." In every instance, circumstances can be imagined wherein the welfare of the child conceivably might be served by continuation of the parent-child relationship. Carried to an absurd, but logical, conclusion, the third standard would never permit termination of the parent-child legal relationship. From the child's perspective, a very important additional question is how long he or she must wait before the court will be convinced that the child's abuse or neglect is likely to continue into the future. Passage of time is likely to reduce a child's adoptability, and the lack of permanent bonding is thought to have devastating effects on the mental and emotional development of children.(fn15)
It may well be that further development of the third test of "no reasonable circumstances" would have solved this problem. An example of the development of the third test is found in the case of People in re C.R.
(The respondent) contends the trial court failed to consider several... alternative remedies.... Each of the proposed alternatives involved placing (the respondent) and the children under professional or lay
Thus, "no reasonable alternative" was interpreted to mean no response to treatment was likely within a time reasonable to meet the children's needs.supervision while she underwent training to increase her mental capability. However, the court had before it testimony indicating that it was unlikely that any amount of training would, within a reasonable period, appreciably enhance (the respondent's) mental abilities.(fn16) (Author's emphasis.)
Aside from questions about adequate criteria, there were other important issues to be addressed in legislation. A right-to-treatment concept in termination of the parent-child relationship cases has not proceeded apace with right-to-treatment concepts in mental health(fn17) and juvenile delinquency.(fn18) Free transcripts on appeal for indigents, as important as legal counsel in a specific case, have not been as available as public concern with termination of the parents rights in a child and the constitutional implications would seem to justify. Faced with this problem, some appellate courts have responded favorably to requests for transcripts by indigent parents.(fn19) Such a response has not been guaranteed, however. The role of a guardian ad litem in the post-termination period has been unsettled or nonexistent. Discussed below is yet another innovation of independent evaluation for parents.(fn20)
Stanley v. Illinois (hereinafter, Stanley)(fn21) is probably well-known to anyone familiar with constitutional law on the family. Due process, the United States Supreme Court has ruled, includes a parental right to a hearing on the fitness of the biological parents before children are removed from parental custody. The facts of Stanley, however, are quite different from those terminations based on abuse and neglect. Illinois law, before Stanley, made children wards of the state at the death of an unmarried mother, irrespective of the children's ties to the biological father, without a hearing. In contrast, the death of the unmarried father left any children to the mother's custody, raising equal-protection issues additional to those of due process.
Two federal courts have since decided that state dependency neglect statutes unconstitutionally permitted permanent separation of the parent and child where neglect or an "environment dangerous to the child" were alleged as a basis for the state's action.(fn22) Roe v. Conn(fn23) is an outlandish case. Technically, it is not a case in which a trial court declared a termination of the parent-child legal relationship. Rather, temporary custody was given to the father. The language of the Federal District Court decision and the facts stated indicate that the District Court viewed the case as one in which the change of custody had the effect of permanent termination of the mother's rights to her child. The case must be read with caution because of the way in which "termination of the parent-child relationship on a permanent basis" and "custody by the state," however temporary, appear to be treated on the same level. Whatever the rightness of such a view, it seemingly is held by very few courts.(fn24)
The Alabama state statute defined "neglected child" as:
Any child, who, while under sixteen years of age* * * has no proper parental care or guardianship, or whose home, by reason of neglect, cruelty, or depravity, on the part of his parent or parents, guardian or other person in...
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