First Regular Session Sixty-fifth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 05-0157.01 Beth Kane HOUSE BILL 05-1012 HOUSE SPONSORSHIP Stengel SENATE SPONSORSHIP Grossman House Committees Senate Committees Judiciary A BILL FOR AN ACT Concerning the authority to initiate proceedings in actions related to children. Bill Summary (Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments that may be subsequently adopted.) Specifies that a county attorney, special county attorney, or city attorney of a city and county shall have the sole authority to determine whether to initiate a petition alleging that a child is dependent or neglected, a motion for termination of a parent-child legal relationship, or a petition for review of need of placement. Repeals the authority for the court to authorize a county attorney, special county attorney, or city attorney of a city and county to file a petition alleging that a child is dependent or neglected. Makes conforming amendments. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. 19-3-206, Colorado Revised Statutes, is amended to read: 19-3-206. Representation of petitioner. In all proceedings brought under this article, the petitioner shall be represented by a county attorney, special county attorney, or city attorney of a city and county. The county attorney, special county attorney, or city attorney of a city and county shall have the sole authority to determine whether to initiate a petition alleging that a child is dependent or neglected pursuant to section 19-3-501, a motion for termination of a parent-child legal relationship pursuant to section 19-3-602, or a petition for review of need of placement pursuant to section 19-3-701. SECTION 2. 19-3-312 (1), Colorado Revised Statutes, is amended to read: 19-3-312. Court proceedings. (1) The county department or local law enforcement agency receiving a report under section 19-3-304 or 19-3-305, in addition to taking such immediate steps pursuant to sections 19-3-401 and 19-3-308 (4) as may be required to protect a child, shall inform, within seventy-two hours, the appropriate juvenile court or district court with juvenile jurisdiction that the child appears to be within the court's jurisdiction. Upon receipt of such information, the court shall require the appropriate agency to make an immediate investigation to determine whether protection of the child from further abuse is required. and, upon such determination, may authorize the filing of a petition, as provided for in section 19-3-501 (2). If appropriate pursuant to the provisions of this title, the county attorney, special county attorney, or city attorney of a city and county may file a petition requesting the court to take jurisdiction over the matter. SECTION 3. 19-3-501 (1) (b) and (2), Colorado Revised Statutes, are amended, and the said 19-3-501 is further amended BY THE ADDITION OF A NEW SUBSECTION, to read: 19-3-501. Petition initiation - preliminary investigation - informal adjustment. (1) Whenever it appears to a law enforcement officer or other person that a child is or appears to be within the court's jurisdiction, as provided in this article, the law enforcement officer or other person may refer the matter to the court, which shall have a preliminary investigation made to determine whether the interests of the child or of the community require that further action be taken, which investigation shall be made by the probation department, county department of social services, or any other agency designated by the court. On the basis of the preliminary investigation, the court may: (b) Authorize a petition to be filed Refer the matter to the county department for further action; or (2) (a) Upon receipt of a report filed by a law enforcement agency, or any other person required to report pursuant to section 19-3-304 (2), indicating that a child has suffered abuse as defined in section 19-1-103 (1) and that the best interests of the child require that he or she be protected from risk of further such abuse, the court shall then authorize and may order the filing of a petition refer the matter to the county department for further action. (b) Upon receipt of a report, as described in paragraph (a) of this subsection (2), from any person other than those specified in said paragraph (a), the court after such investigation as may be reasonable under the circumstances, may authorize and may order the filing of a petition shall refer the matter to the county department for further action. (3) The county attorney, special county attorney, or city attorney of a city and county shall have the sole authority to determine whether to file a petition with the court alleging the dependency or neglect of a child, if appropriate pursuant to the provisions of this title. SECTION 4. The introductory portion to 19-5-105 (3) and 19-5-105 (3) (b), Colorado Revised Statutes, are amended to read: 19-5-105. Proceeding to terminate parent-child legal relationship. (3) If, after the inquiry, the other birth parent is identified to the satisfaction of the court or if more than one person is identified as a possible parent, each shall be given notice of the proceeding in accordance with subsection (5) of this section, including notice of the person's right to waive his or her right to appear and contest. If any of them person waives his or her right to appear and contest or fails to appear or, if appearing, cannot personally assume legal and physical custody, taking into account the child's age, needs, and individual circumstances, such person's parent-child legal relationship with reference to the child shall be terminated. If the other birth parent or a person representing himself or herself to be the other birth parent appears and demonstrates the desire and ability to personally assume legal and physical custody of the child, taking into account the child's age, needs, and individual circumstances, the court shall proceed to determine parentage under article 4 of this title. If the court determines that the person is the other birth parent, the court shall set a hearing, as expeditiously as possible, to determine whether the interests of the child or of the community require that the other parent's rights be terminated or, if they are not terminated, to determine whether: (b) To direct that a dependency and neglect action be filed pursuant to part 5 of article 3 of this title with appropriate orders for the protection of the child during the pendency of the action refer the matter to the county department for further action. SECTION 5. 19-1-107 (2.5), Colorado Revised Statutes, is amended to read: 19-1-107. Social study and other reports. (2.5) For purposes of determining the appropriate treatment plan in connection with the disposition of a child who is under six years of age at the time a petition is filed in accordance with section 19-3-501 (2) 19-3-501 (3), the report shall include a list of services available to families that are specific to the needs of the child and the child's family and that are available in the community where the family resides. The report shall establish a priority of the services if multiple services are recommended. The services may include, but are not limited to, transportation services, visitation services, psychological counseling, drug screening and treatment programs, marriage and family counseling, parenting classes, housing and day care assistance, and homemaker services. SECTION 6. 19-1-123 (1) (a), Colorado Revised Statutes, is amended to read: 19-1-123. Expedited procedures for permanent placement - children under the age of six years - designated counties. (1) (a) The expedited procedures for the permanent placement of children under the age of six years required by article 3 of this title shall be implemented on a county-by-county basis beginning July 1, 1994. The department of human services, in consultation with the judicial department and the governing boards of each county department of social services, shall have the responsibility for establishing an implementation schedule which provides for statewide implementation of such expedited procedures by June 30, 2004. A designated county shall be required to implement the expedited procedures on and after the implementation date applicable to the county as specified in the implementation schedule for each new case filed in the county involving a child who is under six years of age at the time a petition is filed in accordance with section 19-3-501 (2) 19-3-501 (3). SECTION 7. 19-3-104, Colorado Revised Statutes, is amended to read: 19-3-104. Hearings - procedure. Except for proceedings held pursuant to section 19-3-703, any hearing conducted pursuant to this article in a county designated pursuant to section 19-1-123 regarding a child who is under six years of age at the time a petition is filed in accordance with section 19-3-501 (2) 19-3-501 (3) shall not be delayed or continued unless good cause is shown and unless the court finds that the best interests of the child will be served by granting a delay or continuance. Whenever any such delay or continuance is granted, the court shall set forth the specific reasons necessitating the delay or continuance and shall schedule the matter within thirty days after the date of granting the delay or continuance. If appropriate, in any hearing conducted pursuant to this article in a county designated pursuant to section 19-1-123 regarding a child who is under six years of age at the time a petition is filed in accordance with section 19-3-501 (2) 19-3-501 (3), the court shall include all other children residing in the same household whose placement is subject to determination pursuant to this article. SECTION 8. 19-3-201 (2), Colorado Revised Statutes, is amended to read: 19-3-201. Venue. (2) When proceedings are commenced under this article in a county other than that of the child's residence, the court in which proceedings were initiated may, on its own motion or on the motion of any interested party, transfer the case to the court in the county where the child resides if adjudication has taken place and it finds that the transfer would not be detrimental to the best interests of the child; except that, in a county designated pursuant to section 19-1-123, if the child is under six years of age at the time a petition is filed in accordance with section 19-3-501 (2) 19-3-501 (3), it shall be presumed that any transfer of proceedings without good cause shown that results in a delay in the judicial proceedings would be detrimental to the child's best interests. Such presumption may be rebutted by a preponderance of the evidence. SECTION 9. 19-3-505 (3) and (7) (b), Colorado Revised Statutes, are amended to read: 19-3-505. Adjudicatory hearing - findings - adjudication. (3) Adjudicatory hearings shall be held at the earliest possible time, but in no instance shall such hearing be held later than ninety days after service of the petition, or, in a county designated pursuant to section 19-1-123, if the child is under six years of age at the time a petition is filed in accordance with section 19-3-501 (2) 19-3-501 (3), in no instance shall such hearing be held later than sixty days after service of the petition unless the court finds that the best interests of the child will be served by granting a delay. If the court determines that a delay is necessary, it shall set forth the specific reason why such delay is necessary and shall schedule the adjudicatory hearing at the earliest possible time following the delay. (7) (b) The court shall then hold the dispositional hearing, but such hearing may be continued on the motion of any interested party or on the motion of the court. Such continuance shall not exceed thirty days unless good cause exists. In a county designated pursuant to section 19-1-123, if the child is under six years of age at the time a petition is filed in accordance with section 19-3-501 (2) 19-3-501 (3), the dispositional hearing shall be held within thirty days after the adjudicatory hearing unless good cause is shown and unless the court finds that the best interests of the child will be served by granting a delay. It is the intent of the general assembly that the dispositional hearing be held on the same day as the adjudicatory hearing, whenever possible. SECTION 10. The introductory portion to 19-3-508 (1) and 19-3-508 (1) (a) and (3) (a), Colorado Revised Statutes, are amended to read: 19-3-508. Neglected or dependent child - disposition - concurrent planning. (1) When a child has been adjudicated to be neglected or dependent, the court may enter a decree of disposition the same day, but in any event it shall do so within forty-five days unless the court finds that the best interests of the child will be served by granting a delay. In a county designated pursuant to section 19-1-123, if the child is under six years of age at the time a petition is filed in accordance with section 19-3-501 (2) 19-3-501 (3), the court shall enter a decree of disposition within thirty days after the adjudication and shall not grant a delay unless good cause is shown and unless the court finds that the best interests of the child will be served by granting the delay. It is the intent of the general assembly that the dispositional hearing be held on the same day as the adjudicatory hearing, whenever possible. If a delay is granted, the court shall set forth the reasons why a delay is necessary and the minimum amount of time needed to resolve the reasons for the delay and shall schedule the hearing at the earliest possible time following the delay. When the proposed disposition is termination of the parent-child legal relationship, the hearing on termination shall not be held on the same date as the adjudication, and the time limits set forth above for dispositional hearings shall not apply. When the proposed disposition is termination of the parent-child legal relationship, the court may continue the dispositional hearing to the earliest available date for a hearing in accordance with the provisions of paragraph (a) of subsection (3) of this section and part 6 of this article. When the decree does not terminate the parent-child legal relationship, the court shall approve an appropriate treatment plan that shall include but not be limited to one or more of the following provisions of paragraphs (a) to (d) of this subsection (1): (a) The court may place the child in the legal custody of one or both parents or the guardian, with or without protective supervision, under such conditions as the court deems necessary and appropriate. In a county designated pursuant to section 19-1-123, if the child is under six years of age at the time a petition is filed in accordance with section 19-3-501 (2) 19-3-501 (3) and is placed with a parent or guardian who is a named respondent in a petition filed pursuant to section 19-3-502, the treatment plan shall include a requirement that the family obtain services specific to the family's needs if available in the community where the family resides and based on the social study and reports provided pursuant to section 19-1-107 (2.5). (3) (a) The court may enter a decree terminating the parent-child legal relationship of one or both parents pursuant to part 6 of this article. Pursuant to section 19-3-602 (1), in a county designated pursuant to section 19-1-123, if the child is under six years of age at the time a petition is filed in accordance with section 19-3-501 (2) 19-3-501 (3), the court shall hear a motion for termination within one hundred twenty days after such motion is filed, and shall not grant a delay unless good cause is shown and unless the court finds that the best interests of the child will be served by granting a delay in accordance with the requirements of section 19-3-104. SECTION 11. 19-3-602 (1), Colorado Revised Statutes, is amended to read: 19-3-602. Motion for termination - separate hearing - right to counsel - no jury trial. (1) Termination of a parent-child legal relationship shall be considered only after the filing of a written motion alleging the factual grounds for termination, and termination of a parent-child legal relationship shall be considered at a separate hearing following an adjudication of a child as dependent or neglected. Such motion shall be filed at least thirty days before such hearing. In a county designated pursuant to section 19-1-123, if the child is under six years of age at the time a petition is filed in accordance with section 19-3-501 (2) 19-3-501 (3), the court shall hear the motion for termination within one hundred twenty days after such motion is filed, and shall not grant a delay unless good cause is shown and unless the court finds that the best interests of the child will be served by granting a delay in accordance with the requirements of section 19-3-104. SECTION 12. 19-3-604 (1) (b) (III) and the introductory portion to 19-3-604 (1) (c) (I), Colorado Revised Statutes, are amended to read: 19-3-604. Criteria for termination. (1) The court may order a termination of the parent-child legal relationship upon the finding by clear and convincing evidence of any one of the following: (b) That the child is adjudicated dependent or neglected and the court finds that no appropriate treatment plan can be devised to address the unfitness of the parent or parents. In making such a determination, the court shall find one of the following as the basis for unfitness: (III) Long-term confinement of the parent of such duration that the parent is not eligible for parole for at least six years after the date the child was adjudicated dependent or neglected or, in a county designated pursuant to section 19-1-123, if the child is under six years of age at the time a petition is filed in accordance with section 19-3-501 (2) 19-3-501 (3), the long-term confinement of the parent of such duration that the parent is not eligible for parole for at least thirty-six months after the date the child was adjudicated dependent or neglected and the court has found by clear and convincing evidence that no appropriate treatment plan can be devised to address the unfitness of the parent or parents; (c) That the child is adjudicated dependent or neglected and all of the following exist: (I) That an appropriate treatment plan approved by the court has not been reasonably complied with by the parent or parents or has not been successful or that the court has previously found, pursuant to section 19-3-508 (1) (e), that an appropriate treatment plan could not be devised. In a county designated pursuant to section 19-1-123, if a child is under six years of age at the time a petition is filed in accordance with section 19-3-501 (2) 19-3-501 (3), no parent or parents shall be found to be in reasonable compliance with or to have been successful at a court-approved treatment plan when: SECTION 13. 19-3-701 (1), Colorado Revised Statutes, is amended to read: 19-3-701. Petition for review of need for placement. (1) Whenever it appears necessary that the placement of a child out of the home will be for longer than ninety days, which placement is voluntary and not court-ordered and which placement involves the direct expenditure of funds appropriated by the Colorado general assembly to the department of human services, a petition for review of need for placement shall be filed by the county attorney, special county attorney, or city attorney of a city and county on behalf of the department or agency with which the child has been placed before the expiration of ninety days in such placement. A decree providing for voluntary placement of a child with an agency in which public moneys are expended shall be renewable in circumstances where there is documentation that the child has an emotional, physical, or intellectual disability which necessitates care and treatment of a longer duration than ninety days as provided pursuant to this subsection (1). The court shall not transfer or require relinquishment of legal custody of or otherwise terminate the parental rights with respect to a child with such an emotional, physical, or intellectual disability who was voluntarily placed out of the home for the purposes of obtaining special treatment or care solely because the parent or legal guardian is unable to provide the treatment or care. Whenever a child fifteen years of age or older is consenting to placement in a mental health facility pursuant to section 27-10-103, C.R.S., the review under section 27-10-103 (3.3), C.R.S., shall be conducted in lieu of and shall fulfill the requirements for review under this subsection (1). SECTION 14. 19-3-702 (1) and the introductory portion to 19-3-702 (2.5), Colorado Revised Statutes, are amended to read: 19-3-702. Permanency hearing - periodic reviews. (1) In order to provide stable permanent homes for children in as short a time as possible, a court on its own motion or upon motion brought by any party shall conduct a permanency hearing if a child cannot be returned home under section 19-1-115 (4) (b) for the purpose of making a determination regarding the future status of the child. Such permanency hearing shall be held as soon as possible following the dispositional hearing but shall be held no later than twelve months after the date the child is considered to have entered foster care and no later than every twelve months thereafter while the child remains in out-of-home placement, or more frequently as deemed necessary by the court. If the court finds that reasonable efforts to reunify the child and the parent are not required pursuant to section 19-1-115 (7), a permanency hearing shall be held within thirty days after the finding. If the court finds that reasonable efforts to reunify the child and the parent are not required and a motion for termination has been properly filed pursuant to section 19-3-602, the permanency hearing and the hearing on the motion for termination may be combined, and all of the court determinations required at both hearings shall be made in the combined hearing. In a county designated pursuant to section 19-1-123, if the child is under six years of age at the time a petition is filed in accordance with section 19-3-501 (2) 19-3-501 (3), such permanency hearing shall be held no later than three months after the decree of disposition of the child. A child shall be considered to have entered foster care on the date that the child is placed out of the home. If the court finds that an appropriate treatment plan cannot be devised at a dispositional hearing in accordance with section 19-3-508 (1) (e) (I), the permanency hearing shall be held no later than thirty days after such determination, unless a motion for termination of parental rights has been filed within thirty days after the court's finding. Where possible, the permanency hearing shall be combined with the six-month review as provided for in section 19-1-115 (4) (c). (2.5) At a permanency hearing held in a county designated pursuant to section 19-1-123, if the child is under six years of age at the time a petition is filed in accordance with section 19-3-501 (2) 19-3-501 (3) and has been placed out of the home for three months, the court shall review the progress of the case and the treatment plan including the provision of services. The court may order the county department of social services to show cause why it should not file a motion to terminate the parent-child legal relationship pursuant to part 6 of this article. Cause may include, but not be limited to, the following conditions: SECTION 15. 19-3-703, Colorado Revised Statutes, is amended to read: 19-3-703. Permanent home. In a county designated pursuant to section 19-1-123, if a child is under six years of age at the time a petition is filed in accordance with section 19-3-501 (2) 19-3-501 (3), the child shall be placed in a permanent home no later than twelve months after the original placement out of the home unless the court determines that a placement in a permanent home is not in the best interests of the child at that time. In determining whether such a placement delay is in the best interests of the child, the court must be shown clear and convincing evidence that reasonable efforts, as defined in section 19-1-103 (89), were made to find the child an appropriate permanent home and such a home is not currently available or that the child's mental or physical needs or conditions deem it improbable that such child would have a successful permanent placement. The caseworker and the child's guardian ad litem shall provide the court with a report specifying which services are being given the child in order to remedy the child's problems. The case shall be reviewed at least every six months until the child is permanently placed. The six-month reviews and twelve-month permanency hearings shall continue as long as the child remains in foster care. Clear and convincing standards of evidence shall be applicable at any such review. For the purposes of this section, a permanent home shall include, but not be limited to, the child's reunification with the child's parents; placement with a relative, with a potential adoptive parent, or permanent custody granted to another; or, if the child cannot be returned home, placement in the least restrictive level of care. SECTION 16. Effective date - applicability. This act shall take effect July 1, 2005, and shall apply to actions commenced on or after said date. SECTION 17. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.