People, Int. of M. D.C. M

Full title: People of the State of Colorado, In the interest of M. D.C. M., a child…

Court: Colorado Court of Appeals. Division I

Date published: May 14, 1974

34 Colo. App. 91 (Colo. App. 1974)

522 P.2d 1234

Opinion

No. 73-313

Decided May 14, 1974.

At dispositional stage of proceedings regarding child adjudicated dependent and neglected, foster parents were permitted to intervene, and were given custody and the opportunity to adopt the child. Welfare department appealed.

Affirmed

1. INFANTS — Dispositional Hearing — Dependent and Neglected Child — Interested Parties — Custodial Experience — Entitled to Intervene. The Children's Code expressly contemplates the active participation of "interested parties" at the dispositional hearing of child who has been adjudicated dependent and neglected, and those persons having custodial experience with the child have sufficient interest, knowledge, and concern relative to the child to bring them within the classification of "interested parties," and thus they are entitled, upon application, to intervene as a matter of right in such dispositional hearing.

2. PARENT AND CHILD — Foster Parents — Entitled — Become Parties — Dispositional Hearing — Dependent and Neglected Child. Where, foster parents had custody of child from time child was removed from its natural parents until shortly before dependency and neglect adjudicatory hearing — a substantial number of months — and during that time a reciprocal relationship of love and affection had admittedly developed between the child and the foster parents, the foster parents were, upon application, entitled to become parties to dispositional hearing relative to that child.

3. ADOPTION — Trial Court — Ultimate Responsibility — Placement of Child — Welfare Department Authority — Subject to Control. The trial court is vested with the ultimate responsibility in the placement of a child for adoption, and the welfare department, in essence, acts as the agent of the court, assisting in the fulfillment of the court's responsibility; thus, the grant to the welfare department of custody and authority to place for adoption is subject to revocation, limitation, or control by the court delegating such authority.

4. District Court — Exclusive Jurisdiction — Placement — Approval, Responsibility — Welfare Department — Placement Agencies — Not — Sole Entities — Authorized to Place. Inasmuch as the legislature has granted the district court exclusive jurisdiction over adoptions, has expressly authorized placement by the court, and has given the court the final and sole responsibility of approving or disapproving adoptions, it would be totally inconsistent to conclude that the welfare department or licensed placements agencies are the sole entities authorized to place a child for adoption following termination of parental rights.

5. Welfare Department — Aid Court — Department Procedures — No Bearing — — Abuse of Discretion — Grant of Custody — Foster Parents — Opportunity to Adopt. If so requested by the district court, it is the function of the welfare department to aid the court in the court's pursuit of its obligations relative to the adoption of a child, but the adoption procedures promulgated by the welfare department have no bearing on whether district court, in adoption proceeding, abused its discretion by granting custody of child to its foster parents, and by affording them an opportunity to adopt the child.

6. Child — Placed for Adoption — Foster Parents — Circumstances — No Abuse of Discretion. Where child had been placed with foster parents by the welfare department, where, despite the department's general policy, the foster parents, had been encouraged, by welfare department representations, to believe that the child would be available for adoption by them, and where, at the dispositional hearing, the trial court found that the natural parents of the child were Mexican nationals who were illegally in the United States and who had been deported, and where it found that the child had "thrived" on the care received from the foster parents and that there had developed love and affection between the child and the foster parents, the trial court did not abuse its discretion in placing the child with the foster parents for purposes of adoption, and it properly declined to place the child with the department of welfare for adoptive placement.

Appeal from the District Court of Prowers County, Honorable Robert Sanderson, Judge.

Johnson, McLachlan, Tempel Gehlhausen, Harlan Johnson, for appellant.

Lefferdink, Legg Nieschburg, Garth L. Nieschburg, for appellees.

Opinion by JUDGE SMITH.

This action was commenced by Margaret Main, Director of the Prowers County Department of Public Welfare, alleging that M.D.C.M., a child, was dependent and neglected under 1967 Perm. Supp., C.R.S. 1963, 22-1-3(19), and seeking that disposition which would be in the best interest of the child. Mr. and Mrs. Sanchez, in whose custody the child had been placed by the welfare department, filed a petition for adoption and sought to intervene in the adjudicatory hearing as next friends of the child. The welfare department thereupon removed the child from their custody. The district court denied the request for intervention. At the conclusion of that hearing, M.D.C.M. was adjudicated dependent and neglected. That adjudication is not challenged here. Prior to the dispositional hearing, appellees again sought to intervene, which request was granted over petitioner's objection.

As a result of the dispositional hearing, the familial ties between M.D.C.M. and her natural parents were severed, and the Sanchezes were given custody of the child and were appointed as her guardians. The court also concluded that the Sanchezes should be given the opportunity to adopt the child if an investigation demonstrated their suitability as adoptive parents. The natural parents, who were represented by counsel, have not appealed from the results of the dispositional hearing.

The welfare department urges that the court erred in granting appellees' motion to intervene, and that the court lacked authority to award custody to appellees for the purpose of permitting them to seek adoption of the child. We find no error and affirm.

Intervention

With regard to the issue of intervention, appellant urges that where, as here, the Rules of Juvenile Procedure make no specific provision for intervention, the Colorado Rules of Civil Procedure, and in particular C.R.C.P. 24 apply. See C.R.J.P. 1. The sole connection that Mr. and Mrs. Sanchez had with the child, argues appellant, is their employment by welfare department as custodians of the child pending the adjudicatory and dispositional hearings, and their avowed love for the child. Welfare department concludes that these interests are insufficient, under C.R.C.P. 24, to permit the Sanchezes to intervene and appear in this case. We reject this argument.

[1] The Children's Code expressly contemplates the active participation of "interested parties" at the dispositional hearing. See 1971 Perm. Supp., C.R.S. 1963, 22-1-8(2); 1967 Perm. Supp., C.R.S. 1963, 22-1-8(3), 22-3-9(3)(a), and 22-1-11(1)(b). The Code does not, however, delineate who is entitled to participate as an interested party. The purpose of the Children's Code is to provide that disposition of a dependent and neglected child which is in the best interest of the child and of society. Certainly then, among those who can be considered interested parties under that general term are individuals who, because of their relationship with or particular knowledge concerning the child, can materially aid the court in its determination of what in fact is in the child's best interest. While the sufficiency of the relationship must, in general, be determined on a case-by-case basis, the Code, read as a whole, anticipates that those having custodial experience with the child have sufficient interest, knowledge, and concern relative to the child to bring them within the classification of "interested parties" and thus they are entitled, upon application, to intervene as a matter of right in the dispositional hearing. We have previously ruled, in a situation such as this, that relatives are entitled as a matter of right, to intervene. People in re C.P. D.P. 34 Colo. App. 54, 524 P.2d 316.

[2] In the present case, the Sanchezes had custody of the child from the time the child was removed from its natural parents until shortly before the adjudicatory hearing — a substantial number of months. During this time a reciprocal relationship of love and affection admittedly developed between the child and the Sanchezes. As the child's former custodians, the Sanchezes were, upon application, entitled to become parties to the dispositional hearing.

Adoptive Placement

The welfare department also contends that the court lacked authority to award custody and guardianship to the Sanchezes for the ultimate purpose of adoption. They argue that if the court determines that a dependent and neglected child should be placed for purposes of adoption following termination of parental rights, custody and guardianship must, under 1967 Perm. Supp., C.R.S. 1963, 22-3-11(2)(b), be given to the welfare department or a licensed child placement agency. They assert, therefore, that the trial court did not have the authority to grant custody and guardianship to the Sanchezes for that purpose. We disagree.

[3] The court is vested with the ultimate responsibility in the placement of a child for adoption, and thus, whatever authority the welfare department may have concerning custody and/or placement arises as a result of a delegation of that authority by the court. In essence, therefore, the department acts as the agent of the court, assisting in the fulfillment of the court's responsibility. Denver v. Juvenile Court, 182 Colo. 157, 511 P.2d 898; C.R.S. 1963, 119-1-13. The grant to the welfare department of custody and authority to place for adoption is thus subject to revocation, limitation, or control by the court delegating such authority.

[4] 1967 Perm. Supp., C.R.S. 1963, 22-1-4(1) expressly provides that the court has exclusive jurisdiction in matters relating to the adoption of any person. We find that no limitation on that authority arises by virtue of 1967 Perm. Supp., C.R.S. 1963, 22-3-11(2)(b), as argued by the welfare department. 1967 Perm. Supp., C.R.S. 1963, 22-4-8, expressly authorizes placement for adoption by the court. Inasmuch as the legislature has granted the court exclusive jurisdiction over adoptions, has expressly authorized adoptive placement, and has given the court the final and sole responsibility of approving or disapproving adoptions, it would be totally inconsistent to conclude that the welfare department or licensed placement agencies are the sole entities authorized to place a child for adoption following termination of parental rights. The following language, defining the relationship between the court and the welfare department in the disposition of a child in need of supervision, is applicable here:

"Given our construction of the broad powers of the juvenile court to make determinations as to the custody and care of a child under its jurisdiction, it would be inconsistent and contrary to the intent of the general assembly to also find such a power in the petitioners." Denver v. Juvenile Court, supra.

I.

The welfare department argues that, by failing to vest custody and guardianship with it for purposes of placing the child for adoption, the court abused its discretion. This argument is without merit. The welfare department contends that there is no evidence in the record to indicate that the adoption procedures followed by it are inadequate, improper or that they are not in the best interest of the child, and concludes that therefore it was error not to grant it custody and guardianship of the child for adoptive placement. Such reasoning flies in the face of the clear legislative intent expressed in the Children's Code.

[5] It is the court which has the original and exclusive jurisdiction, and the duty, to adjudicate whether a child is dependent and neglected, 1967 Perm. Supp., C.R.S. 1963, 22-3-6(6)(a), to determine whether it is in the best interest of the child to terminate the legal relationship with the child's parents, 1967 Perm. Supp., C.R.S. 1963, 22-3-11(2)(a); and to make such further disposition as deemed necessary, 1967 Perm. Supp., C.R.S. 22-3-11(2)(b). If so requested by the court, it is the function of the welfare department to aid the court in the court's pursuit of its obligations, and the adoption procedures promulgated by the welfare department have no bearing on whether the court in this case abused its discretion in granting custody of the child as it did.

II.

A brief recital of the facts in this case amply demonstrates that the court did not abuse its discretion in placing the child with the Sanchezes. The Sanchezes' relationship with the child began when M.D.C.M. was admitted to a hospital for treatment of injuries apparently caused by abusive treatment from her parents. Upon the child's release, Mrs. Sanchez, a nurse at the hospital, agreed to accept temporary custody of the child from the welfare department. From the beginning, Mrs. Sanchez expressed her hope that she and her husband might adopt the child if the rights of the child's parents were terminated. She refused to sign the foster parent agreement until the language, "We understand that a child placed in our home on a boarding basis will not be available to us for adoption," was stricken. The Sanchezes were encouraged by the welfare department's representations that despite the department's general policy prohibiting adoption by foster parents, an exception might be made in this instance. Sometime after the Sanchezes assumed custody of the child, the welfare department reversed its position and advised appellees that they would not be permitted to adopt the child in light of the department policy.

At the dispositional hearing, the welfare department urged that it would not be in the best interest of the child to permit adoption by the Sanchezes. The trial court found that the natural parents were Mexican nationals who were illegally in the United States at the commencement of this action, and that they had been deported prior to the dispositional hearing. The trial court also found that M.D.C.M. had "thrived" on the care received from the Sanchezes and there had developed love and affection between the child and the Sanchezes. On the basis of these factors, the trial court concluded that the best interest of the child would not be served by excluding the Sanchezes as prospective adoptive parents of M.D.C.M. solely on the basis of the welfare department's policies. Because placement of the child with the welfare department would, in effect, have precluded adoption by the Sanchezes, the court properly declined to place the child with the department for adoptive placement.

Judgment affirmed.

JUDGE PIERCE and JUDGE RULAND concur.