In this Rule 21 proceeding, the Colorado Supreme Court interpreted the provision of the disposition statute which provides that the court can determine that no appropriate treatment plan can be devised for a parent due to a “single incident resulting in serious bodily injury [“SBI”] or disfigurement of the child.” See C.R.S. 19-3-508(1)(e)(I), 19-3-604(1)(b).
During the dispositional hearing, the mother moved for a directed verdict after the state’s presentation of evidence, arguing that the state failed to prove by clear and convincing evidence that no appropriate treatment plan could be devised. The district court agreed with mother and granted the motion for directed verdict, finding that, while the state had demonstrated that the child suffered a SBI, the state did not prove by clear and convincing evidence that no appropriate treatment plan could be devised to address mother’s unfitness.
On a Rule 21 petition, the Colorado Supreme Court reversed the trial court, holding that the plain language of CRS 19-3-508(1)(e)(I) and CRS 19-3-604(1)(b)(II), read together, requires only that the state demonstrate that a child has suffered a single incidence resulting in SBI in order for the court to find that no appropriate treatment plan can be devised to address the parent’s unfitness. Next, the Court determined that a plain reading of the statutes did not violate the mother’s right to procedural due process. Finally, the Court addressed the proper burden of proof at a dispositional hearing where the proposed disposition is no appropriate treatment plan, holding that the proper burden at this stage of the proceeding (disposition) is preponderance of the evidence and not clear and convincing evidence (the standard applied at termination).
Practice Tip: Cases involving “no appropriate treatment plan” have potential legal landmines. Practitioners should consider reaching out to their OCR staff attorneys or a litigation support attorney if facing a contested hearing on such a case. That being said, L.S. makes clear that, for children who have suffered SBI in the care of a parent, a finding of no appropriate treatment plan is still a viable disposition.
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