A division of the Colorado Court of Appeals addressed an allocation of parental rights (“APR”) order involving a 17-year-old who wanted to continue to live with his foster family and did not want to have visits with his mother. On appeal, the mother argued that the APR should be vacated because the department failed to provide reasonable efforts when it suspended visitation early in the case and did not resume it.
In its holding, the Court of Appeals first held that the standard of review for determining whether a department made reasonable efforts to reunify a family is a mixed question of law and fact, with the factual findings reviewed for clear error and the legal conclusion based on those facts reviewed de novo. Next, the court held that the department had a statutory obligation to make reasonable efforts even though the trial court resolved this case through an APR to a non-parent rather than terminating parental rights. Finally, without specifically addressing the issue of preservation, the decision indicates that whenever a reasonable efforts argument is raised in response to TPR or APR to a non-parent, the Court of Appeals will review the evidence in the record to determine whether the department made reasonable efforts to reunify the family – even when the argument is not specifically preserved. Looking at the facts in the record of this case, the Court of Appeals held that the department made reasonable efforts to reunify the young man with his mother and therefore declined to vacate the APR order.
- When APR to a non-parent is proposed in a D&N case, the party/parties supporting the APR must now demonstrate that the department made reasonable efforts to reunify the family. Thus, GALs/CFY in support of an APR to a non-parent should ensure that such evidence is presented at the hearing, and the trial court includes a reasonable efforts finding in its order. GALs/CFY opposed to an APR to a non-parent can object based upon the argument that the department failed to make reasonable efforts to reunify the family in appropriate cases.
- In all cases in which a termination of parental rights (TPR) TPR or APR to a non-parent is appealed and a reasonable efforts argument is raised, we should expect that the Court of Appeals will review reasonable efforts with fresh eyes. As such, the party/parties supporting either of these resolutions in the trial court must be extra conscientious to ensure that the evidence in support of a reasonable efforts finding is strong and part of the record. Specifically, GALs/CFY supporting TPR or APR to a non-parent will want to ensure that the department made reasonable efforts to reunify the family and that evidence of such efforts is in the record. GALs/CFY opposing TPR or an APR to a non-parent can raise lack of reasonable efforts in trial courts. However, even if the issue is not raised in the trial court, a GAL/CFY opposed to TPR or APR to a non-parent should consider raising a reasonable efforts argument on appeal if the facts are supportive.
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