in Interest of IJO

     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
                                                              October 3, 2019

                               2019COA151

No. 19CA0244, People in Interest of IJO — Juvenile Court —
Dependency and Neglect — Termination of the Parent-Child
Legal Relationship — Criteria for Termination; Government —
Interstate Compacts and Agreements — Interstate Compact on
Placement of Children

     In this case, a division of the court of appeals concludes that a

noncustodial, out-of-state parent’s failure of a home study under

the Interstate Compact on Placement of Children does not absolve

the county Human Services Department of its obligation to exercise

reasonable efforts to rehabilitate that parent and to reunify the

family. Because it is unclear whether the juvenile court concluded

that conducting the home study was sufficient reasonable efforts,

we remand to the juvenile court to clarify its findings and

conclusions.
COLORADO COURT OF APPEALS                                    2019COA151


Court of Appeals No. 19CA0244
Adams County District Court No. 17JV408
Honorable Katherine R. Delgado, Judge


The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of I.J.O., a Child,

and Concerning M.S.O.,

Respondent-Appellant.


                          ORDER OF LIMITED REMAND

                                    Division VII
                              Opinion by JUDGE TOW
                           J. Jones and Fox, JJ., concur

                            Announced October 3, 2019


Heidi M. Miller, County Attorney, Julie Thomerson, Assistant County Attorney,
Westminster, Colorado, for Petitioner-Appellee

Niceta Bradburn, Guardian Ad Litem

James West, Office of Respondent Parents’ Counsel, Longmont, Colorado, for
Respondent-Appellant
¶1    M.S.O. (mother) appeals the juvenile court’s judgment

 terminating the parent-child legal relationship between her and

 I.J.O. (the child). Mother — who upon the commencement of and

 throughout the juvenile court proceedings was the child’s

 noncustodial natural parent and lived out of state — frames the

 issue as whether the court erred by applying the Interstate Compact

 on Placement of Children (ICPC) to the potential placement of the

 child with mother. But the substance of her argument is that the

 juvenile court erred by permitting the Adams County Human

 Services Department to absolve itself of the obligation to exercise

 reasonable efforts to rehabilitate mother and to reunify the family

 solely because mother failed the ICPC home visit.

¶2    The division, on its own motion, having considered the parties’

 briefs, remands the case to the juvenile court for the limited

 purpose of allowing the court to clarify its findings supporting

 termination of mother’s parental rights.

                           I.   Background

¶3    In December 2017, the Department filed a petition in

 dependency and neglect regarding the eight-year-old child. The



                                   1
 Department alleged that the child’s father was unstable and that he

 was planning to take the child back to Ohio to live with mother.

 The Department also alleged that “[t]his family has [an] extensive

 child welfare history in Ohio including a removal from [both mother

 and father].”

¶4    The juvenile court adjudicated the child dependent and

 neglected. The court adopted a treatment plan for mother,

 requiring that she maintain contact with the Department and

 provide necessary releases, engage in initial treatment assessment

 and planning, abide by any resulting treatment plan, submit a hair

 follicle test to determine whether she had used controlled

 substances, and cooperate with an ICPC home study. The plan also

 called for mother to have regular telephone contact with the child,

 although the juvenile court later suspended these calls because

 they were traumatic and dysregulating for the child. 1




 1 Dysregulation means “[a]bnormality or impairment in the
 regulation of a metabolic, physiological, or psychological process.”
 Lexico Dictionary, https://perma.cc/D9P4-5QLG.


                                   2
¶5    In July 2018, the Department moved to terminate mother’s

 parental rights. In January 2019, following a hearing, the juvenile

 court granted the Department’s motion, terminating mother’s

 parental rights. 2

                           II.          Standard of Review

¶6    We review de novo issues of law, including whether the

 juvenile court applied the correct legal standard. People in Interest

 of A.J.L., 

, 249 (Colo. 2010). We review the juvenile

 court’s factual findings for clear error. 

of the

 witnesses; the sufficiency, probative effect, and weight of the

 evidence; and the inferences and conclusions to be drawn from it

 are within the court’s discretion. People in Interest of C.A.K., 

, 613 (Colo. 1982). Thus, we will not disturb the court’s

 findings and conclusions if they have record support. 

Law

                      A.         The Termination Statute

¶7    The juvenile court may terminate parental rights if it finds, by

 clear and convincing evidence, that (1) the child has been


 2 The juvenile court also terminated the child’s father’s parental
 rights. That decision is not at issue in this appeal.

                                              3
 adjudicated dependent and neglected; (2) the parent has not

 complied with an appropriate, court-approved treatment plan or the

 plan has not been successful; (3) the parent is unfit; and (4) the

 parent’s conduct or condition is unlikely to change within a

 reasonable time. § 19-3-604(1)(c), C.R.S. 2019.

¶8    In determining whether a parent is unfit, the juvenile court

 must consider whether the Department made reasonable efforts to

 rehabilitate the parent. § 19-3-604(2)(h). The Department also

 must exercise reasonable efforts “to reunify the family whenever

 appropriate.” § 19-3-100.5(1), C.R.S. 2019. Reasonable efforts

 “means the exercise of diligence and care throughout the state of

 Colorado for children who are in out-of-home placement.” § 19-1-

 103(89), C.R.S. 2019. The reasonable efforts standard is deemed

 met if services are provided in accordance with section 19-3-208,

 C.R.S. 2019. § 19-1-103(89); People in Interest of J.A.S., 

, 262 (Colo. App. 2007). Efforts under section 19-3-208 include

 screening, assessments, and individual case plans for the provision

 of services; home-based family and crisis counseling; information

 and referral services to available public and private assistance



                                   4
  resources; visitation services for parents with children in out-of-

  home placement; and placement services including foster care and

  emergency shelter. § 19-3-208(2)(b); see also § 19-3-209, C.R.S.

  2019 (requiring that an individual case plan be in place for all

  abused and neglected children and their families).

                              B.   The ICPC

¶9     The ICPC is an interstate agreement in which all fifty states,

  the District of Columbia, and the U.S. Virgin Islands participate.

  Kurtis A. Kemper, Annotation, Construction and Application of

  Interstate Compact on the Placement of Children, 

,

  § 2 (2019). In Colorado, the compact is codified at sections 24-60-

  1801 to -1803, C.R.S. 2019. The purpose of the compact is to

  facilitate interstate cooperation and coordination of placement and

  provision of services to children being placed by one state’s child

  protective services agency in a home in another state. Kemper, 

, § 2.

¶ 10   The compact defines “placement” as “the arrangement for the

  care of a child in a family free or boarding home or in a child-caring

  agency or institution but does not include any institution caring for



                                     5
  the mentally ill, mentally defective or epileptic or any institution

  primarily educational in character, and any hospital or other

  medical facility.” § 24-60-1802, art. II(d), C.R.S. 2019.

  Implementing regulations provide that the ICPC procedures “shall

  be initiated for children who are considered for placement out-of-

  state for . . . [h]omes of parents . . . .” Soc. Servs. Rule 7.307.31(B),

  12 Code Colo. Regs. 2509-4.

¶ 11   Whether placement in an out-of-state, noncustodial parent’s

  home falls within the ICPC is an unresolved question in this state.

  Nationwide, courts have answered this question both ways.

  Compare Kemper, 

, § 6 (discussing cases holding

  that the ICPC applies to out-of-state placement with a natural

  parent), with 

(discussing cases holding that the ICPC does

  not apply to such placements).

¶ 12   We need not resolve that question now. Even if the ICPC

  applies to placement with a natural parent, it cannot be applied in

  such a way as to relieve the Department of its obligations to

  exercise reasonable efforts to reunify the family. And the juvenile




                                      6
  court’s findings do not make sufficiently clear whether that

  occurred in this case.

                            IV.   Application

¶ 13   Pursuant to the ICPC, the authorities in Ohio conducted a

  home study to ensure that mother’s home would be a suitable

  environment for the child. After the home study, the Ohio

  authorities reported that mother’s home was not approved for

  placement of the child. Specifically, they concluded that

            [mother] has an extensive history with [the
            Ohio child protection agency]. She has had
            children removed from her care. [Mother] and
            [mother’s cohabiting boyfriend] both tested
            positive for marijuana. They were not
            forthcoming regarding their use. They initially
            reported that they were using marijuana daily
            but haven’t used since January. Obviously,
            this is not true due to their positive drug
            screens. [Mother] was trying to avoid the
            random drug screen.

¶ 14   Based on this determination, the Colorado caseworker

  concluded that the child could not be lawfully placed with mother.

  Consequently, the caseworker did not make any drug treatment

  recommendations. Similarly, the Department did not provide

  mother with any assistance in obtaining therapy to reintegrate with



                                    7
  the child. From the Department’s reports and the caseworker’s

  testimony, the Department’s view is quite clear: if an out-of-state

  parent fails the ICPC home study, the child cannot lawfully be

  placed with the parent; thus, the inquiry of whether a parent is

  unfit — as well as any obligation on its part to provide services to

  the parent — ends.

¶ 15   This is not, and cannot be, the law. Were the Department’s

  view correct, the State could terminate a parent’s rights without

  making any reasonable efforts to reunify the family. The out-of-

  state parent would be placed on equal footing with nonparents.

  Such an outcome would violate both federal law (as acknowledged

  in section 19-3-100.5) and the parent’s constitutionally protected

  interest in his or her parental relationship with the child. See

  Santosky v. Kramer, 

, 753 (1982); People in Interest of

  A.M.D., 

, 632 (Colo. 1982).

¶ 16   Imagine if the Department’s view were applied to a parent

  within Colorado. Under this approach, the State could simply

  conclude “the parent’s home is unsafe; therefore his or her rights

  can be terminated.” This would be antithetical to the very construct



                                     8
  of the dependency and neglect procedures. These procedures

  contemplate that the child would be temporarily removed from the

  home, and the Department would make reasonable efforts to

  rehabilitate the parent, including making referrals to available

  treatment and counseling resources, providing financial assistance

  for transportation if necessary, and the like. Yet the Department

  offers no justification for why an out-of-state parent whose home is

  deemed inappropriate for placement under the ICPC is not entitled

  to the same efforts.

¶ 17   To the contrary, rather than end the inquiry, such a

  determination begins it. When an out-of-state natural parent fails

  an ICPC home study, the Department is obligated to make

  reasonable efforts to help that parent rectify the problems so that a

  home study can be passed.

¶ 18   That being said, while the Department in this case certainly

  misunderstood its obligations, it is less clear whether the juvenile

  court did. 3 Its findings reflect that it may have shared the


  3The juvenile court clearly considered compliance with the ICPC to
  be applicable to a placement in an out-of-state parent’s home.


                                     9
  Department’s incorrect view of the law. For example, the court

  considered the home study to be “the major part of a treatment

  plan,” and found that “because of all the issues identified [in the

  home study report], there were really no services that the

  [D]epartment could have provided to the mother in Ohio. She does

  not have the financial ability to participate in services here.” The

  court then concluded that the Department had made reasonable

  efforts to rehabilitate mother.

¶ 19   Further, the juvenile court made several other findings

  focusing on aspects of mother’s fitness that were related to the

  home study but arguably had significance independent of the failed

  home study. For example, the court noted mother’s positive test for

  marijuana and her lack of honesty about her substance use.

¶ 20   But the juvenile court also made findings unrelated to the

  home study, observing that the phone calls between mother and the

  child had to be suspended because the child became so emotionally

  dysregulated by the calls. The court also characterized the trauma




  Again, because we are not resolving that issue, we express no
  opinion as to the juvenile court’s interpretation.

                                    10
  this child had experienced throughout his life as “horrific.” And the

  court noted mother’s past involvement with child protection

  authorities in Ohio related to the child.

¶ 21   Importantly, the juvenile court did not address why the

  Colorado caseworker could not have offered the services

  enumerated in section 19-3-208. 4 No counseling services were

  offered to mother. Nor were any referrals made to public and

  private assistance resources. It is unclear why the Department

  made no referrals to substance abuse treatment resources in Ohio,

  and why it did not consider whether financial assistance was

  available to assist mother in travelling to Colorado to attend therapy

  with the child. The caseworker acknowledged in her testimony

  that, had mother lived in Colorado, such referrals would have been

  considered.

¶ 22   We recognize that we review a juvenile court’s finding of

  reasonable efforts for clear error. Even so, we must review de novo


  4 In its oral findings, the juvenile court did opine that it was “not
  sure the Department could have done anything, quite honestly, to
  address these issues.” However, this does not appear to be a
  finding that an appropriate treatment plan could not be devised.
  See § 19-3-604(1)(b), C.R.S. 2019.

                                    11
  whether the court applied the correct legal standard. See People in

  Interest of S.N., 

, ¶ 21 (“Whether a child is dependent

  and neglected is a mixed question of fact and law because

  resolution of this issue necessitates application of the dependency

  and neglect statute to the evidentiary facts.”). We cannot

  confidently conduct such a review at this time because it is not

  entirely clear whether the juvenile court concluded that conducting

  the home study itself was sufficient reasonable efforts.

  Consequently, we remand to the juvenile court to clarify its findings

  and conclusions. 5

                              V.   Remand

¶ 23   On remand, we direct the juvenile court to make further

  findings regarding whether the Department made reasonable efforts

  (beyond merely facilitating the ICPC home study). Similarly, if the




  5 We note that a limited remand is not, and is not intended to be,
  routine. We take this step not because the juvenile court’s factual
  findings were unclear, but because we cannot determine whether
  the juvenile court applied the correct legal standard in assessing
  what qualifies as reasonable efforts where the Department initiates
  an ICPC home study for an out-of-state natural parent.

                                    12
  juvenile court considers any other factor enumerated in section 19-

  3-604(2) to be relevant, it shall make explicit findings.

¶ 24   Within seven days of issuance of the juvenile court’s order

  clarifying and/or making further findings, mother must forward a

  copy of the juvenile court’s order to this court, and the case shall be

  recertified. Upon recertification, a supplemental record consisting

  of the juvenile court’s order, any pleadings filed on remand, and

  transcripts of any hearings held on remand shall be ordered.

¶ 25   The court further orders mother to notify this court in writing

  of the status of the court proceedings in the event that this matter

  is not concluded within twenty-eight days from the date of this

  order, and that mother must do so every twenty-eight days

  thereafter until the juvenile court issues its order on remand.

       JUDGE J. JONES and JUDGE FOX concur.




                                    13