On November 17, 2022, a division of the Colorado Court of Appeals addressed the mother’s challenge to a decision terminating her parental rights based upon the Americans with Disabilities Act (“ADA”), raised for the first time on appeal. In its primary holding, the division found that a parent challenging termination of parental rights cannot raise for the first time on appeal the argument that the parent has a qualifying disability under the Americans with Disabilities Act of 1990 (“ADA”) and that the department failed to make reasonable efforts / reasonable accommodations for the parent under the ADA. The opinion also held that the appellate court does not need to consider whether a parent had a reasonable time to comply with a treatment plan or whether reasonable efforts were made when termination is based on the abandonment provision at CRS 19-3-604(1)(a).
While this case confirms that, when raised for the first time on appeal, the ADA will not likely serve as a basis for overturning a termination decision, practitioners should continually assess whether a parent has a qualifying disability under the ADA, and if so, whether reasonable accommodations are being provided to the parent to assist them. This approach has practical value, providing the parent the best chance at reunification as possible, as well as legal, ensuring that the record demonstrates reasonable efforts were provided to the parent.