Chapter 16 - § 16.3 • WHEN THE CHILD PROTECTION SYSTEM IS INVOLVED WITH GRANDCHILDREN
| Jurisdiction | Colorado |
§ 16.3.1—Introduction
All Colorado families have a fundamental right to raise their children without state interference unless acts or omissions of the parents threaten the health or welfare of the child. The Colorado Children's Code, title 19 of the Colorado Revised Statutes, provides the statutory framework governing such state intervention. The specific purposes are set forth in C.R.S. § 19-1-102. Among the identified goals is the requirement to preserve and strengthen family ties whenever possible.62 To that end, the Code requires the state to make inquiry into the availability of, and permits the state to give preference to, grandparents and extended family for placement of children who must be removed from the custody of their parents when their welfare and safety might otherwise be endangered. The purpose of the Code is also to ensure long-term permanency planning for any child who has been removed from his or her own home.63 Colorado provides for the consideration of permanency through placement, custody, or adoption by grandparents or extended family. The following is a roadmap through the specific sections of the Children's Code that allow for the participation of, or provide specific rights to, grandparents and extended family.
§ 16.3.2—Preference for Grandparents or Kin When Children Are Removed from Parents' Custody
When the court determines it is necessary to remove children from the care of their parents to provide safety, the court may give preference to awarding legal custody to the child's grandparent who is "appropriate, capable, willing, and available to care for the child, if the court finds that there is no suitable natural or adoptive parent available. . . ."64 If the court awards the legal custody to an agency, such as the local county department of human services, that agency is vested with the authority to determine where and with whom the child shall live, subject to approval of the court.65 The agency vested with the legal custody may also give preference to the child's grandparent who is appropriate, capable, willing, and able to care for the child.66 Once the court awards the legal custody, it may not be removed without the custodians' consent until they are given notice and an opportunity to be heard.67
The primary goal of the Children's Code is to provide reasonable efforts to rehabilitate the family and reunify children with their parents whenever possible. Therefore, awards of legal custody pursuant to the Code, including awards of custody to grandparents, shall not be permanent but shall be for a determinate period of time68 and shall be reviewed by the court periodically.69
Pursuant to C.R.S. §§ 19-3-401(1), (1.3), and (1.5), a child may be taken into temporary custody by a law enforcement officer without order of the court if:
• The child is abandoned, lost, or seriously endangered in his or her surroundings or seriously endangers others, and immediate removal appears necessary for the child's protection or the protection of others;
• There are reasonable grounds to believe that the child has run away or escaped from the child's parents, guardian, or legal custodian;
• An arrest warrant has been issued for the child, the child's parent, or the child's guardian; or
• An emergency exists and the child is seriously in danger.
When a child is taken into temporary custody, the officer must notify the parent, guardian, or legal custodian without unnecessary delay.70 If it is necessary for the child's welfare to be placed out of the child's home, preference may be given to placing the child with the child's grandparent who is appropriate, capable, willing, and available to care for the child.71 When a child has been placed outside of the parents' home, the court must hold a temporary custody hearing within 48 hours to determine whether such temporary custody outside the home should continue (exclusive of Saturdays, Sundays, and legal holidays).72 If the department of human services is granted temporary custody, the hearing shall occur within 72 hours.73 If the child has not already been placed with a grandparent, at the temporary custody hearing the grandparent may request to be given the temporary care of the child.74
Since a temporary custody hearing happens very quickly, grandparents or other extended family may not be aware of it. The Colorado legislature recognizes that children develop attachments to care-givers and that there is risk to the emotional development and safety to children if they suffer multiple disruptions in caregivers. The Children's Code places an affirmative duty on the court to ensure that all appropriate grandparents or extended family members can be considered for placement whenever a child is placed outside the home of his or her parents. A specific form affidavit and advisement, prepared by the state court administrator, shall be available to each judicial district and given to each parent attending a temporary custody hearing.75 The form affidavit and advisement shall advise and require the parent to list the names, addresses, and telephone numbers of, and any comments concerning the appropriateness of the child's potential placement with, other relatives and kin who have a significant relationship with the child.76 The parents are required to complete the form affidavit and advisement no later than seven business days after the temporary custody hearing or prior to the next hearing on the matter, whichever comes first, and the local county department of human services is required to attempt to contact all grandparents and other adult relatives within 30 days of the removal of the child.77 Again, the statutes affirmatively provide that the court may consider and give preference to giving temporary custody to a child's relative.78
There are cases where the child may not be immediately removed from the home at the temporary custody hearing. The family and the department of human services may present the court with an appropriate safety plan that will ensure the child's safety while the case is pending. The court may make the safety plan a legal condition to releasing the child to the care of the parent, and any violation of such orders shall subject the child's parent to contempt sanctions of the court.79 The court may also condition placement with a grandparent, and the same contempt powers apply.80 In some cases, the child may later be removed from the care of his or her parents when it is determined that the reasonable efforts made to maintain the child safely in the home have failed. The court may place the child in the legal custody of a relative, including the child's grandparent, as an alternative during the disposition phase of the proceedings.81 Like the placement at the time of the temporary custody hearing, placement of the child out of the home as a dispositional alternative is temporary and subject to periodic review by the court.82 The statute does not provide for an award of permanent custody at this stage of the proceedings.83
Practice Pointer
Grandparents and kin are advised to contact the responsible county department of human services as soon as they become aware of the state's involvement with their grandchildren and express their intention. Courts recognize that children, particularly very young children, quickly develop attachments to temporary caregivers and risk lifelong damage to their emotional well-being if they become attached to one caregiver and are later removed from the caregiver's home.84 The preference for placement with a relative can be rebutted by evidence that removal from a current care provider is contrary to the child's best interests.
§ 16.3.3—Standing to Intervene in Dependency Action
Often when grandparents get involved in a dependency action, the state will seek to formally join them into the matter as a special respondent, particularly when the grandparents have been granted the physical custody of the subject children or when the state expects the grandparents to perform some service or abide by orders issued in the case. Special respondents are joined in the case for specific limited purposes, and there is a specific statutory definition.85 Being designated a special respondent does not give grandparents standing as a party to the case. If a grandparent wants to have full standing to participate as a party in the dependency action, he or she should file a request to become an intervenor, as discussed below.
Once the court has determined that the child comes within its jurisdiction as a dependent and neglected child, the state must develop a plan that includes appropriate resources and services to assist the parents in ameliorating the conditions that prompted the state intervention in the family.86 The case worker of the local department of human services must submit to the court a statement that details the services needed to facilitate the reunification of the child with the parents.87 Grandparents, relatives, and other caregivers for the child are allowed to intervene at this stage of the proceedings. This right to intervene as "interested parties" existed through case law precedent up until 1997.88 The court allowed intervention by these interested parties specifically because their relationship with or particular knowledge of the...
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