Opinion
Dec. 3, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 334
Faricy, Tursi, Phelps, Shepherd & Ballas, William J. Ballas, Pueblo, for child-appellee.
Albert G. Davis, Maurice G. Knaizer, Pueblo, for respondent-appellant.
STERNBERG, Judge.
An order of the district court terminated the parental rights of a mother, P. A., in her eight-year-old son, M. A. She appeals. We reverse and remand for further findings consistent with the views hereinafter set forth.
Hospital reports and social histories were used as evidence by agreement of the parties. They showed both that the mother had a history of mental and emotional disorders requiring hospitalization on several occasions, and that the child had been neglected. Based upon this evidence, a decree adjudicating M. A. to be 'dependent and neglected' was entered by the district court on June 14, 1972. M. A. was taken from his mother and placed in a foster home. P. A. began receiving treatment at the Colorado State Hospital. Thereafter, on February 21, 1973, the court severed the parental ties.
No question has been raised about, and no appeal taken from the determination adjudicating M. A. to be a dependent and neglected child as defined by 1967 Perm.Supp., C.R.S.1963, 22--1--3(19). Rather, P. A. focuses her attack on the termination proceeding and urges that it was the duty of the court to balance the rights of the parent and child, that it is the duty of the courts and the Department of Social Services to provide supportive services for the mother before terminating her rights in the child, and that the court did not have before it sufficient facts to justify termination of parental rights. The statute under which the rights were terminated, 1967 Perm.Supp., C.R.S.1963, 22--3--11(2)(a), provides that a decree terminating parental rights may be entered when the court determines it to be in the best interest and welfare of the child. Balanced against that portion of the children's code, however, is 1967 Perm.Supp., C.R.S.1963, 22--1--2, which codifies the policy of the state in reference to preservation of the family and protection of the home as follows:
'1(a) The general assembly hereby declares that the purposes of this chapter are:
(b) To secure for each child, subject to these provisions, such care and guidance, preferably in his own home, as will best serve his welfare and the interests of society;
(c) To preserve and strengthen family ties whenever possible, including improvement of the home environment;
(d) To remove a child from the custody of his parents only when his welfare and safety or protection of the public would otherwise be endangered . . ..'
P. A. argues that the facts of this case show the need for an exception to the statutory direction to consider the best interests and welfare of the child as being controlling. If a parent is mentally incompetent to care for her child, respondent would require the courts to give more weight to the parent's interest in the child than is accorded to the interests of the child itself, and, before permitting a termination of such a parent's rights, she would place the burden on the state to provide supportive services to the parent. This argument is based on the statutory language which states that the purpose of the children's code is to 'strengthen family ties whenever possible, including improvement of the home environment.' We cannot, even if we were so inclined, enunciate such an amendment to the statute.
In People in Interest of K. S. and M. S., Colo.App., 515 P.2d 130, this court set forth specific guidelines providing that parental rights should be terminated only where:
'(T)here is a history of severe and continuous neglect by the . . . parent . . . a substantial probability of future deprivation, and . . . under no reasonable circumstances can the welfare of the child be served by a continuation of the legal relationship of the child with that parent.'
These guidelines were approved by the Supreme Court in In Re People in Interest of M. M., Colo., 520 P.2d 128. In that case the court stated:
'To determine that the best interests and welfare of a dependent or neglected child would be served by a termination of parental rights, the trial court must find that the condition which resulted in the determination that the child is dependent and neglected will in all probability continue into the future. Further, the court must find that under no reasonable circumstances can the welfare of the child be served by a continuation of the parent-child relationship. This second test requires the court to explore and specifically eliminate alternative remedies.'
The only findings made by the trial court at the time of the dependency hearing, and the later termination proceeding, related to the best interest of the child. As the basis for this determination, however, the trial court must follow the guidelines and make the findings required by In Re People in Interest of M. M., Supra, and People in Interest of K. S. and M. S., Supra.
Since the court did not make the required findings, and since the trial judge is deceased, the cause is remanded for a new trial on the issue of termination of parental rights.
ENOCH and PIERCE, JJ., concur.