Opinion
No. 95CA0440
Decided December 21, 1995
Appeal from the District Court of El Paso County, Honorable D. Richard Toth, Judge, No. 90JV2038.
ORDER AFFIRMED
Margaret E. Gregory, Guardian Ad Litem.
Beth A. Whittier, El Paso County Attorney, Ann M. Rotolo, Deputy County Attorney, Colorado Springs, Colorado, for Petitioner-Appellant.
No Appearance for Interested Party-Appellee.
Petitioner, the El Paso County Department of Social Services (department), appeals from an order of the district court requiring it to pay certain foster care funds to W.M. as the maternal grandfather of three children adjudicated to be dependent and neglected. We affirm.
Based upon the abbreviated record on appeal as well as the undisputed facts contained in the briefs of the parties, it appears that the children were residing with W.M. A hearing relative to permanent custody was held on December 6, 1994. The magistrate entered a written order on January 7, 1995, awarding legal custody of the children to the department and ordering it to pay foster care funds to W.M. retroactive to the date of the hearing on December 6.
The department requested review by the district court of the order to pay foster care funds asserting that W.M. was not certified as of December 6, and that under the Colorado Department of Human Services Regulations, only certified foster care providers can be compensated. W.M. acquired the necessary certification as of January 9, 1995, and the department did not challenge the propriety of paying him for foster care after that date. The district court upheld the magistrate's order.
The department asserts that, pursuant to the rules and regulations promulgated by the state Department of Human Services, it may not be ordered to pay foster care funds to a custodian that is not certified. As a result, the department contends that, in regard to the period from December 6 to January 9, the district court violated the separation of powers doctrine by ordering the foster care payment.
Even if we assume that this issue was properly preserved for appellate review based upon this record, we conclude that the court's order should be affirmed.
In People in Interest of J.H., 770 P.2d 1355 (Colo.App. 1989), the district court ordered the department to place legal custody of a child with an adult in a private home. The court also required the department to reimburse the custodian for the costs of placement.
The department challenged this order on the basis that the department had not been awarded legal custody. The department argued that because it was not awarded custody, there was no duty or obligation to support the child.
Upon reviewing pertinent provisions of the Colorado Social Services Code as well as the Children's Code, a division of this court held that:
the General Assembly intended to vest the courts with the authority to direct the local social services department to provide child welfare services, including reimbursement for the cost of private placement, when necessary to protect the welfare of the children.
People in Interest of J.H., supra, 770 P.2d at 1357.
While the court in J.H. did not specifically address the separation of powers argument asserted here, we view the opinion as instructive in its interpretation of the statutory intent. Further, the department has not cited and we find no statutory provision which precludes the court from making its order for foster care payments retroactive to the date placement is ordered if, as here, the custodian has in fact been certified as a foster care custodial parent.
Finally, to interpret the statutory and regulatory provisions in the manner argued by the department would frustrate the fundamental public policy which is to provide for the welfare and best interests of the child. See City County of Denver v. Juvenile Court, 182 Colo. 157, 511 P.2d 898 (1973).
The order is affirmed.
CHIEF JUDGE STERNBERG concurs.
JUDGE BRIGGS dissents.