author: Judge WEBB. Judge MARQUEZ

text:
    The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of D.R.W., a Child, and Concerning J.R.J., Respondent-Appellant.
    No. 03CA0559.
    Colorado Court of Appeals, Div. I.
    March 11, 2004.
    Rehearing Denied April 8, 2004.

      Furman, Kerns, & Bauer, LLC, Steven M. Furman, Clayton B. Farrell, Fort Morgan, Colorado, for Petitioner-Appellee.
    Law Office of Douglas J. Marston, Douglas J. Marston, Fort Morgan, Colorado, for Re-spondenL-Appellant.
   Opinion by

Judge WEBB.

J.R.J. (father) appeals from a judgment terminating the parent-child relationship between him and his child, D.R.W. (child). Because the trial court terminated father’s parental rights without having conducted a dispositional hearing after the child was adjudicated dependent and neglected as to father, we reverse and remand.

The child’s guardian contacted the Washington County Department of Social Services (Department) in the fall of 2000 when she could not control the child, who was then three years old. On November 13, 2000, the Department filed a petition in dependency and neglect and began to assess the child’s particular mental health needs.

According to the petition, termination of the parent-child legal relationship was “a possible remedy.” Attached to the petition was a “NOTICE — LEGAL RIGHTS AND PRIVILEGES,” which included the statement: “If the child is adjudicated dependent or neglected, the court shall enter disposi-tional orders.... [Furthermore, the court shall order an appropriate treatment plan involving the child and each respondent ... or find that no appropriate treatment plan can be devised for a particular respondent.”

The Department prepared and filed a treatment plan on November 20, 2000. As to father, who was then incarcerated on bad check charges, the plan required only that he aid the Department in providing the child with appropriate treatment, that he provide the Department with information and documents in aid of treatment, that he sign releases for necessary information, and that he keep the Department advised of his incarceration status. The Department never proposed any changes to this treatment plan, nor did father ever request any changes.

The child was placed at a residential treatment center on March 1, 2001. As of March 14, 2001, the single permanency goal in the Department’s family services plan was permanent kinship placement. During the child’s year-long stay at the treatment center, his maternal grandmother participated in his treatment and became his primary attachment figure.

On April 4, 2001, father, who remained incarcerated, signed a stipulation to continue the adjudication, which the court accepted by a written order that approved both the treatment plan and the recommendations in the Department’s family services plan. The stipulation provided that the court would review the matter in six months and that, if father successfully complied with the conditions of the continued adjudication, which included the treatment plan, or there was no need for continued court involvement, “the matter shall be dismissed.”

On July 25, 2001, the court adopted the Department’s revised family services plan, which reflected the same primary permanency goal of guardianship or permanent custody and a new concurrent goal of permanent placement with relatives through adoption. Father took no action in response to this change in the family services plan.

On September 17, 2001, the court reviewed the matter and, after a hearing, entered an adjudication of dependency and neglect over father’s objection. The parties agreed that father had complied with the minimal conditions of the continued adjudication. Nevertheless, based on the child’s serious ongoing behavioral problems, the court entered an adjudication order because continuing court involvement was required. The court did not hold a dispositional hearing, either in connection with the adjudication hearing or at any time thereafter.

In February 2002, the child was discharged from the residential treatment center and placed with his maternal grandmother. Father then informed the Department that although he agreed with the placement and did not intend to seek custody, he was unwilling to relinquish his parental rights because he hoped to exercise visitation with the child. The Department referred father for a psychological evaluation to determine whether he could learn the needed parenting skills, in light of the child’s unusual needs. The Department told father that following the evaluation it would either work with him to devise and implement a treatment plan consistent with his continued incarceration or seek termination of his parental rights.

On April 19, 2002, after father’s evaluation identified serious psychological problems, the Department moved to terminate his parental rights under § 19-3-604(1)(b)(I), C.R.S.2003. The Department asserted that no appropriate treatment plan could be devised to address father’s unfitness in a reasonable time, based on his mental condition and in light of the ongoing physical, mental, and emotional needs of the child. The Department never asserted that father posed a threat to the child’s health or safety.

Father opposed termination, arguing that at the time he entered into the stipulation to continued adjudication in April 2001, the Department’s only permanency goal was permanent placement with relatives through guardianship or permanent custody. According to father, because he did not object to the relative placement he then had no reason to demand, and the Department never thereafter offered, a treatment plan reasonably calculated to reunite him with his child.

Father was released from DOC to a halfway house in late 2002. The Department forbade visitation. Father filed a motion for visitation, which the Department opposed. At the January 30, 2003, termination hearing, father testified that he would be released from the halfway house on March 8, 2003.

In its decree of termination, the court rejected father’s assertion that he had been misled, finding that the Department had made reasonable efforts at reunification and that “termination was at least on the table as a potential option when the permanency planning was conducted on June 25, of 2001.”

The court further found that father was a virtual stranger to the child because of his incarceration since the child’s birth; that father’s treatment plan was appropriate because he had been incarcerated until shortly before the hearing and therefore “did not have the ability to engage in any treatment or therapy”; that the child has profound needs beyond the ability of most parents; that because of father’s psychological illness, no treatment plan could be devised which would establish the necessary parenting skills within a reasonable time; and that given the child’s attachment to the maternal grandmother, his best interests required termination of father’s parental rights. The court explained that merely awarding permanent custody to the maternal grandmother, and not terminating father’s parental rights, would create future problems for both her and the child.

I.

Father challenges the termination of his parental rights on the basis that the trial court did not hold a dispositional hearing after adjudication, at which an appropriate treatment plan should have been considered and adopted, unless the court then determined that no appropriate plan could be devised. On this record, we agree that the trial court did not substantially comply with the procedural requirements of the Parent-Child Legal Relationship Termination Act of 1987, § 19-3-601, et seq., C.R.S.2003. We therefore reverse the judgment terminating father’s parental rights and remand for further proceedings.

Under the Children’s Code, § 19—1—101, et seq., C.R.S.2003, dependency and neglect proceedings are bifurcated: “In the first phase, the court determines if there are grounds to adjudicate the child dependent and neglected. If the court sustains the petition, the second, or dispositional, phase commences with the hearing and adoption of a treatment plan.” E.O. v. People in Interest of C.O.A., 854 P.2d 797, 800 (Colo.1993)(foot-note omitted). Section 19-3-507(1)(a), C.R.S. 2003, provides that “[ajfter making an order of adjudication, the court shall hear evidence on the question of the proper disposition best serving the interests of the child and the public” (emphasis added).

The Children’s Code treats the initial hearing following an adjudication of dependency and neglect as a “dispositional hearing.” People in Interest of C.L.S., 934 P.2d 851, 853-54 (Colo.App.1996)(“The statutory scheme is thus clear in treating an initial dispositional order adopting a treatment plan as a ‘decree of disposition’ ” for the purpose of finality.) The resulting “decree of disposition” may postpone a decision about termination of parental rights and instead order placement of the child. See § 19-3-508(1)(a)-(c), C.R.S.2003. However “[regardless of placement, the court ‘shall’ approve an appropriate treatment plan,” People in Interest of C.L.S., supra, 934 P.2d at 854, unless it finds that no appropriate treatment plan could be devised. Section 19-3-508(1)(e)(I), C.R.S.2003.

Section 19-3-508(1), C.R.S.2003, provides that the court may enter a decree of disposition the same day as the adjudication, but in any event the court “shall” do so within forty-five days, or thirty days in expedited circumstances, unless the court finds that the best interests of the child will be served by granting a delay. “It is the intent of the general assembly that the dispositional hearing be held on the same day as the adjudicatory hearing, whenever possible.” Section 19-3-508(1). However, these time periods are not jurisdictional. People in Interest of A.M., 786 P.2d 476 (Colo.App.1989).

The statute further provides that when the “proposed disposition” is termination of the parent-child legal relationship, the hearing on termination cannot be held on the same date as the adjudication, and “the court may continue the dispositional hearing to the earliest available date for a hearing.” Section 19-3-508(1). Thus, even if the proposed disposition is termination, the court must still conduct a dispositional hearing. The statute does not impose on any party the burden of requesting a dispositional hearing.

Moreover, “[w]hen the decree does not terminate the parent-child legal relationship, the court shall approve an appropriate treatment plan.” Section 19-3-508(1) (emphasis added); see also § 19-3-508(1)(e)(I) (“Except where the proposed disposition is termination of the parent-child legal relationship, the court shall approve an appropriate treatment plan involving the child named and each respondent named and served in the action” (emphasis added)).

Nevertheless, § 19 — 3—508(1)(e)(I) further provides that at the dispositional hearing the court may find an appropriate treatment plan cannot be devised as to a particular respondent because, as relevant here, of “the unfitness of the parents as set forth in 19 — 3— 604(1)(b),” C.R.S.2003. The cross reference to § 19-3-604(1)(b) was added in 1997. Section 19 — 3—604(1)(b), which includes among criteria for termination a finding “that no appropriate treatment plan can be devised,” permits avoiding the futility of proceeding with a treatment plan doomed to failure. People in Interest of C.S.M., 805 P.2d 1129 (Colo.App.1990).

Here, after the trial' court entered the adjudication as to father, it neither held a dispositional hearing nor reconsidered the existing treatment plan. Indeed, at no time between the adjudication and the motion to terminate under § 19 — 3—604(1)(b) was the appropriateness of father’s treatment plan presented to the trial court by the Department. The court made its only finding that an appropriate treatment plan could not be devised for father, because of his own psychological problems and the child’s particular needs, at the conclusion of the termination hearing. This finding then became the basis for terminating father’s parental rights under § 19-3-604(1)(b).

Section 19-3-604(1)(b) provides that parental rights cannot be terminated unless the child has previously been adjudicated dependent or neglected. However, this section does not excuse the requirement to hold a dispositional hearing set forth in § 19-3-508(1) before termination of parental rights may take place. The numerous statutory references to holding a dispositional hearing, receiving evidence, and either approving an appropriate treatment plan or determining that a plan cannot be devised use mandatory language. See In re P.A.L., 5 P.3d 390 (Colo.App.2000)(“shall” in a statute connotes a mandatory meaning).

Hence, we address whether, in the circumstances presented here, termination under § 19-3-604(1)(b) must have been preceded by a dispositional hearing. We conclude that the termination must be set aside because the absence of a timely dispositional hearing prejudiced father’s ability to preserve his parental rights.

We begin with recognition that an order terminating parental rights affects the fundamental liberty interest in the parent-child relationship. C.S. v. People, 83 P.3d 627 (Colo.2004). Nevertheless, the state has a compelling interest in assuring that children are provided with stable and nurturing homes. People in Interest of E.I.C., 958 P.2d 511 (Colo.App.1998). Thus, where a parent cannot be expected to provide such a home within a reasonable time, because of the parent’s own mental or emotional condition, “the state’s compelling interest in the welfare of that child justifies the termination of that parent’s rights.” People in Interest of E.I.C., supra, 958 P.2d at 513-14.

The purposes of the Children’s Code include proceeding “with all possible speed to a legal determination that will serve the best interests of the child,” while securing for the child proper care and guidance, “preferably in his own home,” and preserving and strengthening “family ties whenever possible.” Section 19—1—102(1)(a)—(c), C.R.S.2003. The legislative declaration to Part 3 of Title 19 describes “the health and safety of the child” as “the paramount concern” in making reasonable efforts to unify the family. Section 19-3-100.5, C.R.S.2003.

In following the mandate to give effect to the legislative intent, City of Colorado Springs v. Powell, 48 P.3d 561 (Colo.2002), we must seek an interpretation that achieves consistency across a comprehensive statutory scheme. United Airlines, Inc. v. Indus. Claim Appeals Office, 993 P.2d 1152 (Colo.2000). We reject policy considerations in favor of the plain language of a statute. Ackerman v. Power Equipment Co., 881 P.2d 451 (Colo.App.1994).

We avoid technical readings in recognition of the “general rule that provisions of the Children’s Code should be liberally construed.” R.M. v. Dist. Court, 191 Colo. 42, 44, 550 P.2d 346, 348 (1976). The. supreme court most recently analyzed procedures for termination of parental rights using a substantial compliance standard. C.S. v. People, supra (citing People in Interest of A.M.D., 648 P.2d 625 (Colo.1982)).

Here, when adjudicating the child as dependent and neglected as to father, the court addressed disposition by ruling that the recommendations in the family services plan were “appropriate and [are] hereby entered by the Court” and ordering continued placement of the child with the maternal grandmother. However, because father earlier had stipulated to a continued adjudication under § 19-3-505(5)(b), C.R.S.2003, the court’s approval of the treatment plan in accepting the stipulation preceded, rather than followed, entry of the adjudication order.

The trial court did not re-approve, or even hear any evidence concerning, the treatment plan in effect for father when it entered the adjudication and addressed disposition. The court did not hold a dispositional hearing. Thus, as father correctly points out, the court did not comply with the statutory requirement that a dispositional hearing occur and that at such hearing it" either ' approve an appropriate treatment plan or conclude that no appropriate treatment plan can be devised. Section 19-3-508(1), (1)(e)(I).

In response to father’s argument, the Department first asserts that a dispositional hearing occurred in connection with the stipulation to continue adjudication, because at that time the trial court adopted a treatment plan and addressed disposition of the child. We are not persuaded.

On the one hand, the statutes require that a dispositional hearing occur on or after the adjudication and, unless the disposition is termination of parental rights, that the hearing include adoption of an appropriate treatment plan. Sections 19-3-507(1)(a), 19-3-508(1), (1)(e)(I). On the other hand, the statutory procedure for continued adjudication, § 19—3—505(5)(b), does not provide for accelerating the dispositional hearing and adopting an appropriate treatment plan at the continued adjudication phase.

A dispositional hearing conducted before an adjudication could not address circumstances existing at the time of, and forming the basis for, the adjudication. Those circumstances should be the baseline for an appropriate treatment plan. See People in Interest of A.N.W., 976 P.2d 365 (Colo.App.1999)(a successful treatment plan should correct or improve the parental conduct that led to state intervention).

In People in Interest of A.K.R., 765 P.2d 1031 (Colo.App.1988), the division held that termination could be based on a treatment plan approved as a condition of continuing adjudication. However, in A.K.R., supra, unlike the circumstances here, termination was the dispositional alternative pursued from the time of continued adjudication.

We also reject the Department’s assertion that a court can proceed directly from an adjudication to termination under §§ 19-3-508(1)(e)(I) and 19 — 3—604(1)(b), on the basis that the parent is unfit and no appropriate treatment plan can be devised, without conducting an intervening dispositional hearing. Section 19-3-505, C.R.S.2003, which deals with the adjudicatory hearing, contains no discussion of immediate termination under § 19—3—604(1)(b).

Section 19-3-508, C.R.S.2003, deals with the dispositional hearing. While § 19-3-508(1)(e)(I) contemplates termination under § 19—3—604(1)(b), because an appropriate treatment plan cannot be devised, § 19—3—508(1)(e)(I) does not excuse the court from conducting a dispositional hearing.- Nor does § 19—3—604(1)(b) provide an exception to the requirement that the trial court conduct a dispositional hearing. Reading these sections in pari materia establishes only that, at the dispositional hearing, the court could find an appropriate treatment plan cannot be devised. Cf. People in Interest of A.N.W., supra (recognizing that following adjudication the trial court must hold a dispositional hearing).

Furthermore, even if the Department’s statutory interpretation were correct, here the court did not proceed directly from adjudication to termination under § 19-3-604(1)(b). To the contrary, more than a year and a half lapsed between adjudication as to father and the court’s determination at the termination hearing that no appropriate treatment plan could be devised. In our view, that passage of time, without a disposi-tional hearing being held, prejudiced father because he continued to operate under a treatment plan that addressed neither the child’s unusual needs nor his own psychological problems.

Although the Department only learned of father’s problems several months after the adjudication, the record does not show that the child’s needs increased between the adjudication and the termination hearing. The petition in dependency and neglect describes the child’s severe problems, including assault on teachers and other children, as well as self-destructive behavior. Yet the Department never attempted to develop father’s parenting skills to enable him to meet the child’s unusual needs with a revision to the initial treatment plan, which according to the trial court “only basically required [father] to remain in communication with the Department.” Cf. People in Interest of J.M., 74 P.3d 475, 477 (Colo.App.2003)(“[a]mong the efforts required of the department are an assessment of the family and the development of a case plan for provision of necessary services”).

An appropriate treatment plan is one reasonably calculated to render the parent fit to provide parenting adequate for the child’s needs within a reasonable time. Section 19-1-103(10), C.R.S.2003. Because the Department’s treatment plan imposed minimal requirements on father, it was not reasonably calculated to render him a fit parent, in light of the child’s unusual needs. Cf. People in Interest of B.J.D., 626 P.2d 727 (Colo.App.1981)(termination of parental rights could not be premised on treatment plan that was inappropriate). •

In the decree of termination, the court found the treatment plan to have been appropriate at the timé of the stipulated continued adjudication because father “was incarcerated and therefore did not have the ability to engage in any treatment or therapy.” However, treatment options were not addressed in connection with / the stipulated continued adjudication, and the court received no evidence at any time thereafter concerning treatment options available to father during his incarceration. Thus, the record provides no support for this finding. Cf. People in Interest of M.C.C., 641 P.2d 306 (Colo.App.1982)(the single circumstance of incarceration does not per se prohibit the creation and implementation of an appropriate treatment plan).

Additionally, the record does not explain why the Department, despite its awareness of the child’s needs and father’s lengthy criminal history, took no action to obtain a psychological evaluation of father from its filing of the petition in dependency and neglect in November 2000 until early 2002. Had a dispositional hearing been held at or shortly after the adjudication, the Department would necessarily have addressed an appropriate plan in terms of the child’s needs, father’s problems, and his incarceration.

We recognize that in some cases changed circumstances may render a treatment plan, previously approved at a dispositional hearing based on the criteria of § 19-1-103(10) and all relevant evidence, no longer adequate. In turn, those circumstances could support a motion to terminate under § 19-3-604(1)(b) because “no appropriate treatment plan can be devised to address the unfitness of the parent.”

However, that sequence of events did not occur here. The passage of time, without a dispositional hearing, created the risk that father could not defend against the “changed circumstances” argument because the Department did not establish a baseline for an appropriate treatment plan at a dispositional hearing, against which any change in circumstances could be measured.

In sum, for lack of a dispositional hearing at the time of adjudication, the parties did not explore, and the court was not properly informed as to, the parameters of an appropriate treatment plan. In our view, this consequence cannot be reconciled with the statutory mandate to hold a dispositional hearing at or shortly after adjudication and, except when the court then determines that a treatment plan cannot be devised, to approve an appropriate treatment'plan.

Nevertheless, the Department further asserts that the record supports the court’s findings in the decree of termination that father “has a diagnosed condition that renders him unlikely to be able to care for [the child’s] needs within a reasonable time,” and, therefore, that “no appropriate treatment plan can be devised in this case.” These circumstances are among those recognized by the supreme court as making manifest the inappropriateness of continuing the parent-child relationship. People in Interest of A.M.D., supra.

This argument is unpersuasive because it assumes that proof at a much later termination hearing of the factors permitting termination under § 19—3—604(1)(b) excuses the failure to hold a dispositional hearing and adopt an appropriate treatment plan promptly after adjudication, as required by § 19-3-508(1). We have rejected this assumption. Further examination of the proceedings before us shows why the statutory scheme envisions a dispositional, hearing promptly after adjudication to establish a treatment plan so that termination of parental rights may be avoided.

In the decree of termination, the court also found that, “at best, [father] will need one to two years of intensive therapy to get to a point where he could possibly care for [the child].” Had such therapy been included in a treatment plan adopted at or shortly after the adjudication, and had therapy been made available to father over the twenty months between the adjudication and the termination hearing, despite his incarceration; father may well have been able to at least obtain visitation with the child by the time of the termination hearing or within a reasonable time thereafter. Hence, failure to hold a disposi-tional hearing prejudiced father’s ability to preserve his parental rights.

Furthermore, the absence of a dispositional hearing prevented father from appealing at an earlier stage in the proceedings. Father could not have appealed after the adjudication of dependency and neglect, and could only have appealed after an initial dis-positional order. See People in Interest of C.L.S., supra; cf. People in Interest of J.M., supra (where dispositional order is not reduced to writing, signed, and dated, the adjudicatory order may be appealed after judgment of termination enters). Had the trial court held a dispositional hearing and concluded that a treatment plan could not be devised, father could have appealed the resulting dispositional order well before a hearing on termination of parental rights. Without having had the benefit of appellate review, when the Department moved to terminate, father’s untreated problem may well have become untreatable within a reasonable time after the date of the termination hearing.

Therefore, we conclude that the proceedings here were not conducted in substantial compliance with the statutory requirements, because lack of a dispositional hearing at the time of the adjudication, when an appropriate treatment plan should have been adopted, perpetuated an initial treatment plan that clearly was not adequate. See People in Interest of B.J.D., supra.

Finally, we recognize the child’s need for finality in these proceedings. See C.S. v. People, supra. However, father has agreed to permanent custody of the child with the maternal grandmother, where the child has been placed for almost two years. Further proceedings consistent with this opinion will not destabilize that placement.

If the trial court concludes on remand that an appropriate treatment plan must afford father a reasonable time within which to address his psychological problems, the custodial placement will continue during that time. If the court ultimately declines to terminate father’s parental rights, he could obtain visitation with the child only to the extent and under conditions approved by the court. Hence, the court could take whatever steps are necessary to protect “the health and safety of the child,” such as starting with supervised visits.

Accordingly, we conclude the trial court erred in terminating father’s parental rights without holding a dispositional hearing and considering an appropriate plan at or within 45 days after the time it adjudicated the child dependent and neglected as to father, and that the judgment terminating father’s parental rights must therefore be reversed. On remand the trial court shall conduct a dispositional hearing at which it considers whether an appropriate treatment plan can render father at least fit to enjoy visitation with the child within a reasonable time of the hearing, and if the court so concludes, it shall address the termination of father’s parental rights on that basis. Cf. People in Interest of N.F., 820 P.2d 1128 (Colo.App.1991)(noting that earlier unpublished opinion had remanded with direction that the trial court either implement the existing treatment plan or cause another appropriate treatment plan to be adopted).

II.

In light of our disposition, we need not address father’s other contentions.

The judgment terminating parental rights is reversed and the case is remanded for further proceedings consistent with this opinion.

Judge TAUBMAN concurs.

Judge MARQUEZ dissents.

Judge MARQUEZ

dissenting.

I respectfully dissent. In my view, the procedures followed in this case substantially complied with those mandated by the statutes, including § 19-3-505(7)(b), C.R.S.2003, requiring a dispositional hearing. In addition, the majority ignores the statutory requirement of § 19-3-604(3), C.R.S.2003, that in considering termination of the parent-child legal relationship, the court should give primary consideration to the physical, mental, and emotional conditions and needs of the child. See § 19-3-100.5(2), C.R.S.2003 (the health and safety of the child is the paramount concern). Therefore, I would affirm.

Father was incarcerated before the child was one year old, and at that time he had seen the child only on three or four occasions. Prior to termination, father filed a motion seeking visitation in which he indicated that on October 23, 2002 he was released to a halfway house operated by community corrections. At that time, father anticipated that he would be released on parole on March 28, 2003. The termination hearing was held in January 2003 when the child was five and one-half years old. Father then testified that he was still at the halfway house.

Father asserts four contentions on appeal: (1) the court improperly entered an adjudication as to him, (2) the court did not give him the opportunity to rehabilitate himself, (3) the court failed to consider and eliminate less drastic alternatives, and (4) termination of parental rights was pursued for inappropri'ate reasons. In determining that the judgment should be reversed, the majority focuses on its perception that the trial court failed to provide a dispositional hearing. However, I would reject each of father’s contentions.

I. Adjudication

The record does not support father’s contention regarding an improper adjudication.

Section 19-3-505, C.R.S.2003, sets forth the requirements for the adjudicatory hearing, findings, and adjudication. At the adjudicatory hearing, the court considers whether the allegations of the petition are supported by a preponderance of the evidence. Section 19 — 3—505(1), C.R.S.2003.

Here, on April 4, 2001, father signed a stipulation to continue the adjudication, which the court subsequently accepted by written order. In the stipulation, father agreed that if he had not successfully complied with the conditions, “or there is a need for continued Court involvement, the Court may enter an adjudication.” Father also admitted “that [the child] is a dependent and neglected child because he is out of control through no fault of his own as alleged in ... the [Dependency and Neglect] Petition.” The trial court ruled that the basis for the adjudication was a need for continuing court involvement in this matter that would persist for a long period.

In view of father’s stipulation, his continuous incarceration, and his lack of contact with the child, the petition was supported by the evidence. Therefore, his claim that the adjudication did not comply with the stipulation must be rejected.

II. Rehabilitation and Dispositional ; Hearing

In my view, the court also substantially complied with the statutory requirements regarding rehabilitation and dispositional hearings:

When the trial court substantially complies with the statute, there is a presumption of no prejudice to a parent in a termination hearing. C.S. v. People, 83 P.3d 627 (Colo.2004).

Section 19 — 3—505(7)(b) provides in pertinent part, “The court shall [after adjudica-' tion] hold a dispositional hearing, but such hearing may be continued on the motion of any interested party or on the motion of the court.”

Section 19-3-507(1)(a), C.R.S.2003, provides that “[ajfter making an order of adjudication, the court shall hear evidence on the question of the proper disposition best serving the interests of the child and the public.” When the proposed disposition is termination of the parent-child legal relationship, the hearing on termination cannot be held on the same date as the adjudication, and the dispo-sitional hearing can be continued to the earliest available date for a hearing. Section 19-3-608(1), C.R.S.2003. Thus, the court generally treats the initial hearing after an adjudication of dependency and neglect as a “dispositional hearing.” People in Interest of C.L.S., 934 P.2d 851, 853 (Colo.App.1996).

However, a treatment plan is not always required. “When the decree does not terminate the parent-child legal relationship, the court shall approve an appropriate treatment plan_” Section 19-3-508(1)(emphasis added). Section, 19-3-508(1)(e)(I), C.R.S.2003, states,

Except where the proposed disposition is termination of the parent-child legal relationship, the court shall approve an appropriate treatment plan.... However, the court may find that an appropriate treatment plan cannot be devised as to a particular respondent ... due to unfitness of the parents as set forth in Section 19—3— 604(1)(b) [C.R.S.2003],

(Emphasis added.) See generally People in Interest of T.W., 797 P.2d 821 (Colo.App.1990)(rejecting contention that trial court erred in refusing to adopt treatment plan).

Several dispositional alternatives are available to the court, and they include termination of the parent-child legal relationship. People in Interest of A.M.D., 648 P.2d 625 (Colo.1982)(an order adjudicating a child dependent or neglected vests the court with extensive and flexible dispositional remedies, including termination of parental rights). While the majority relies on C.L.S. to support its position on the need for a treatment plan, C.L.S. was decided in 1996, and § 19-3-508(1)(e)(I) has since been amended.

Here, the permanency goals in the family services plan were: first, permanent placement with relatives through guardianship or permanent custody and, as a concurrent goal added in June 2001, permanent placement with relatives through adoption. The court, when adjudicating the child dependent and neglected as to father, ruled that the recommendations of the family services plan were “appropriate and hereby entered by the court.” Because father stipulated to a continued adjudication, the approval of the treatment plan here, preceded, rather than followed, entry of the adjudication order, as is contemplated by the statutes. See People in Interest of A.K.R., 765 P.2d 1031 (Colo.App.1988).

Following the termination hearing, the trial court ruled that the initial treatment plan related to father’s stipulation to continue the adjudication and was “appropriate” at the time “since [father] was incarcerated and therefore did not have the ability to engage in any treatment or therapy.” It further ruled that father was unfit based on § 19-3-604(1)(b) and found that “no appropriate treatment plan can be devised in this case.”

Although father argues that there was no dispositional hearing or other treatment plan approved at the time of adjudication, § 19-3-604(1)(b) provides that parental rights may be terminated if no treatment plan can be devised to address the unfitness of the parent. The criteria for determining that no appropriate treatment plan can be devised to address unfitness include the “[ejmotional illness, mental illness, or mental deficiency of the parent of such duration or nature as to render the parent unlikely within a reasonable time to care for the ongoing physical, mental, and emotional needs and conditions of the child.” Section 19—3—604(1)(b)(I), C.R.S.2003.

Father’s psychological evaluation resulted in a diagnosis of generalized anxiety disorder and antisocial personality disorder. The Department was not aware of these results until several months after the adjudication.

The Department’s expert testified that the child needed a “nurturing, understanding, nonimpulsive nonreactive parent” who is able to “put the child’s needs ahead of his or her own” and that father could not obtain these skills within a reasonable time. According to the expert, father had “long term chronic” and “ingrained” personality disorder.

Based on the expert’s testimony and written reports, the trial court found that father “has a diagnosed emotional illness” that is “longstanding” and of “such duration or nature as to render him unlikely within a reasonable period of time to be able to” adequately parent and meet the child’s needs. The court thus concluded, with record support, that although the initial treatment plan, which required only cooperation, was suitable because of father’s continued incarceration, no appropriate treatment plan could be devised to address his unfitness. See §§ 19-1-103(10), 19—3—604(1)(b)(I), C.R.S.2003.

Although the expert expected that father would have benefited from therapy if it had been provided to him before the hearing, when asked if it would have been sufficient in a reasonable period of time to enable father to parent, the expert responded that he did not think so for this particular special-needs child.

In addition, there was ample evidence presented that the child would need advanced parenting skills. He was diagnosed with oppositional defiance disorder and reactive attachment disorder, which made him unable to build a secure attachment or trust-based relationship with his caregiver. As the majority points out, the petition in dependency and neglect described the child’s severe behavior problems, including assault on teachers and other children, as well as self-destructive behavior. The court found that at the time of placement at the treatment center the child was very aggressive, oppositional, self-abusive, and hostile. The court also found that he still has profound needs.

During the pendency of this case, and while fathér was incarcerated, the child was able to establish a primary attachment with his grandmother only after a highly structured, long-term process that included extensive therapy for the child and the grandmother. It is undisputed that the child does not have any relationship with father, who has been incarcerated most of the child’s life.

The court found that the child has not been in placement with either parent since sometime in 1999, father had seen him only on three or four occasions, all prior to commencement of this action, and father is a stranger to the child. One of the child’s therapists testified that the child’s attachment with his grandmother would be at risk if father were to have parenting time with him.

Thus, in my view, the court substantially complied with the statutory provisions, and father was accorded due process.

The state has a compelling interest in assuring that children in Colorado are neither neglected or dependent and, more affirmatively, that they are provided with a stable home atmosphere in which they may progress physically, intellectually, and emotionally. Thus, if a parent, because of a mental or emotional condition, cannot be expected to provide such a home for a child within a reasonable period, the state’s compelling interest in the welfare of that child justifies the termination of that parent’s rights, as it did here. See People in Interest of E.I.C., 958 P.2d 511 (Colo.App.1998); see also People in Interest of A.M.D., supra (due process of law is accorded in a termination proceeding when the grounds for termination under § 19-3-604 are established by clear and convincing evidence and the underlying dependency and neglect determination is established by a preponderance of the evidence); People in Interest of M.H., 855 P.2d 15 (Colo.App.1992)(parental right to due process is subject to the power of the state to act in the child’s best interest).

III. Less Drastic Alternatives

Further, before entering the order of termination, the trial court adequately considered and eliminated less drastic alternatives. See People in Interest of D.L.C., 70 P.3d 584 (Colo.App.2003).

In considering the termination of the parent-child legal relationship, the court should give primary consideration to the physical, mental and emotional conditions and needs of the child. Section 19-3-604(3); C.S. v. People, supra; People in Interest of M.B., 70 P.3d 618 (Colo.App.2003); People in Interest of D.L.C., supra. As the legislative declaration states, the health and-safety of the child is the paramount concern. Section 19-3-100.5(2).

“Thus, long-term placement or legal guardianship with a relative is not a viable less drastic alternative if the child needs a stable, permanent home that can be assured only by adoption.” People in Interest of M.B., supra, 70 P.3d at 627.

Here, the trial court specifically considered custody in the child’s grandmother without termination. The court determined, however, “that such an order would only create uncertainty and serve no purpose for [the child],” would not serve his needs or improve his behavior, and would only cause problems for his caregiver and aggravate the child’s own problems.

The record supports the court’s finding rejecting guardianship or custody as a less drastic alternative to termination, and that finding may not be disturbed on review. See People in Interest of C.A.K., 652 P.2d 603 (Colo.1982).

IV. Termination

Nor would I conclude that termination of father’s parental rights violated his fundamental liberty interest in the care, custody, and management of his child.

The interest of parents in the care, custody, and management of their children implicates a fundamental liberty interest, and termination of parental rights requires a compelling state interest. See People in Interest of E. I. C., supra. Here, the state had a sufficient compelling interest in protecting the child to justify termination of father’s parental rights. See People in Interest of E.I.C., supra.

For these reasons I would affirm.


source: Caselaw Access Project

author: Chief Judge DAVIDSON.

license: Public Domain

text:
    In re the MARRIAGE OF Salvador A. RIVERA, Appellant, and Benita R. Quintana, n/k/a Benita R. Thompson, Appellee.
    No. 03CA0235.
    Colorado Court of Appeals, Div. A.
    March 25, 2004.

      Kurtz & Peckham, Thomas R. Cincotta, Denver, Colorado, for Appellant.
    No Appearance for Appellee.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2003.

   Opinion by

Chief Judge DAVIDSON.

Salvador A. Rivera (father) appeals from the district court order adopting the order of the magistrate that Benita R. Quintana, now known as Benita R. Thompson (mother), pay child support arrearages. We affirm.

In 1996, the magistrate approved the parties’ stipulation providing for father’s primary custody of the children and mother’s parenting time and payment of child support in the amount of $617 per month. When mother’s wages were garnished in 2001, she filed a pro se motion requesting a hearing “to establish a correct and accurate time period for the child support obligation and to determine who is responsible to pay support to whom.” She alleged that adjustments were necessary because the parties reconciled and lived together for periods of time and that one child now lived with her. Father asserted that mother owed arrearages of $28,000 and $9000 in interest.

Noting that the testimony was conflicting, the magistrate found that the parties resided together with the children from December 1996 through March 1998, and therefore no child support was due from mother for this period. The magistrate found that one child lived with mother from March 1998 until January 1999, but until his emancipation in June 2001, he resided in both parties’ homes and that “it is impossible to determine when he lived with each [p]arty specifically.” A second, older child spent “significant time” with mother. The magistrate therefore concluded that because she “cannot mathematically determine the child support owed ... the sum of $10,000 is appropriate based on the equities presented.”

Father requested district court review, asserting that the sum of $10,000 was arbitrary, the findings were clearly erroneous, and the magistrate erred in failing to award interest. Noting that no transcript of the hearing was submitted, the district court “assume[d] that the factual findings made by the magistrate are supported by competent evidence.” Accordingly, the court adopted the magistrate’s order.

I.

Father contends first that the district court erred in assuming that his failure to file a transcript warranted the conclusion that the magistrate’s findings were supported by the evidence. We disagree.

Pursuant to C.R.M. 7(a)(2), a reviewing court must consider a motion for review on the basis of the motions and briefs filed, together with such review of the record as may be necessary. C.R.M. 7 does not require that a transcript be filed at all in a review proceeding, and it provides no guidance on the procedures for filing a transcript. In re Marriage of Schmidt, 42 P.3d 81 (Colo.App.2002)(district court erred in denying motion to review solely because there was no timely filing of a transcript; although statute instructs supreme court to promulgate rules of procedure to govern family law magistrates, to date the C.R.M. contain no time limits for filing transcript which would permit a determination as to timeliness); see In re Marriage of Roosa, 89 P.3d 524, 2004 WL 439522 (Colo.App. No. 02CA2533, Mar. 11, 2004)(discussing lack of guidance on procedures applicable to review of magistrate’s orders).

In the absence of such guidance on the filing of a transcript, we turn to general principles of appellate practice. In re Marriage of Schmidt, supra (transcript has not been deemed a requirement for meaningful review in other appellate contexts and, therefore, was unnecessary for district court review of magistrate’s order).

It is the obligation of the party asserting error in a judgment to present a record that discloses that error, because a judgment is presumed to be correct until the contrary affirmatively appears. Schuster v. Zwicker, 659 P.2d 687 (Colo.1983); Alessi v. Hogue, 689 P.2d 649 (Colo.App.1984). Thus, we hold that a party seeking review of a magistrate’s order shoulders the burden of providing a record justifying the rejection or modification of that order. Absent such a record, the district court may presume the regularity of the magistrate’s proceedings.

Here, the district court did . not have the transcript of the hearing before the magistrate and, therefore, correctly determined that it must assume that the magistrate’s factual findings, were supported by the evidence.

II.

Father also contends that, even if the district court could assume the magistrate’s order is supported by the evidence, the district court still erred in adopting the order. He asserts that the district court could not decrease mother’s child support obligation retroactively in determining arrearages. Again, we disagree.

At the outset, we note that even though the hearing transcript was made a part of the record on appeal to this court, we may not consider it. Because we are reviewing the district court order, our review is limited to the record considered by that court. See Bd. of Med. Exam’rs v. Duhon, 867 P.2d 20 (Colo.App.1993), aff'd, 895 P.2d 143 (Colo.1995); see also Walker v. City of Thornton, 525 P.2d 1177 (Colo.App.1974)(not published pursuant to C.A.R. 35(f)). Accordingly, we consider only father’s legal argument.

An accrued child support obligation becomes a judgment when due and not paid. See § 14-10-122(1)(c), C.R.S.2003; In re Marriage of Greenblatt, 789 P.2d 489 (Colo.App.1990). However, courts have equitable authority to set aside or reduce a support judgment in circumstances that would render its enforcement fundamentally unfair or unjust. See In re Marriage of Jacobs, 859 P.2d 914 (Colo.App.1993); In re Marriage of Dennin, 811 P.2d 449 (Colo.App.1991).

Accordingly, the district court could adopt the magistrate’s grant of equitable relief. The magistrate, citing Jacobs, properly exercised the discretion to grant such relief. And contraiy to father’s argument, there is no indication that the magistrate modified child support under § 14-10-122(5), C.R.S.2003, because the findings and pleadings indicate that the issues included whether and when the change in physical care occurred. See In re Marriage of Emerson, 77 P.3d 923 (Colo.App.2003) (discussing modification of child support when a mutually agreed change of physical care occurs).

In a related contention, father asserts that the district court erred in adopting the magistrate’s order because the magistrate improperly shifted the burden of proof to father. However, inasmuch as father’s support for this argument comes from the transcript, we cannot review this contention. See Bd. of Med. Exam’rs v. Duhon, supra.

The order is affirmed.

CRISWELL and PLANK , JJ., concur.


author: Judge NIETO.

text:
    Robert L. WENZ, Francois Matheson Holdings, Ltd., and Bishops BTC, Limited, Plaintiffs-Appellants, v. NATIONAL WESTMINSTER BANK, PLC, Defendant-Appellee.
    No. 03CA0124.
    Colorado Court of Appeals, Div. II.
    March 25, 2004.

      Welborn Sullivan Meek & Tooley, PC, William R. Rapson, Stephen A. Bain, Denver, Colorado, for Plaintiffs-Appellants.
    Holme Roberts & Owen, LLP, Martin D. Litt, Donald I.J. Kelso, Denver, Colorado, for DefendanL-Appellee.
   Opinion by

Judge NIETO.

Plaintiffs, Robert L. Wenz, Francois Matheson Holdings, Ltd., and Bishops BTC, Limited (collectively Wenz), appeal the trial court’s order denying their motion to conduct discovery on the issue of personal jurisdiction over defendant, National Westminster Bank, PLC (Natwest). We affirm.

Wenz and a business associate each owned several residential freehold estates in England. Wenz and the associate were also co-owners of property management companies that managed the residential freehold estates.

The associate came to Colorado and urged Wenz to participate in a “balance support system” operated by Natwest. Natwest is a British bank operating in the United Kingdom. According to Wenz, a “balance support system” is “a complicated accounting and financial structure involving reciprocal debits, credits, transfers and loans to and from the leasehold bank accounts designed to financially maximize interest income on each of the leasehold accounts.” The bank accounts involved in this case are located in the United Kingdom, and the business operations related to the “balance support system” and all money transfers took place in the United Kingdom.

Participation in the “balance support system” required Wenz to make a security deposit of £100,000 (British pounds) and provide a guarantee to Natwest, both of which Wenz provided. Wenz alleges, among other claims, that Natwest converted the £100,000 security deposit.

In the complaint, Wenz asserted that Nat-west regularly conducted business in Colorado and that the business associate acted as its agent in soliciting the £100,000 security deposit. Natwest disputed these claims and moved to dismiss the suit for lack of personal jurisdiction, making a factual attack. See Archangel Diamond Corp. v. Arkhangelskgeoldobycha, 94 P.3d 1208, 2004 WL 583634 (Colo.App. No. 02CA2368, March 25, 2004)(distmguishing facial and factual attacks on jurisdiction). In his response to this motion, Wenz requested limited discovery on the issue of jurisdiction prior to the court’s ruling. The court denied Wenz’s discovery request and granted the motion to dismiss.

The trial court found: “The allegations of jurisdiction in the complaint are conclusory and refuted by the affidavits submitted by defendant.... In summary, plaintiffs have presented no facts which would satisfy § 13-1-124(1)(a) [C.R.S.2003] or the minimum contacts requirements (sic) for personal jurisdiction.” Wenz does not challenge these findings on appeal, but contends only that the trial court erred in denying his request for limited discovery on the issue of personal jurisdiction before dismissing the case. Wenz argues that he had a right as a matter of law to conduct such discovery or, in the alternative, that complete denial of discovery was an abuse of discretion. We disagree.

Generally, pretrial discovery maR ters are within the trial court’s discretion. Leaffer v. Zarlengo, 44 P.3d 1072 (Colo.2002); Hayes v. Dist. Court, 854 P.2d 1240 (Colo.1993). The trial court’s discretion includes rulings limiting discovery. On review, we will not disturb a discovery ruling absent an abuse of discretion. An abuse of discretion occurs only when the trial court’s decision is manifestly arbitrary, unreasonable, or unfair. Keybank v. Mascarenas, 17 P.3d 209, 214 (Colo.App.2000).

The parties have cited no Colorado authority precisely on the issue of discovery on jurisdictional issues, and we are aware of none. However, C.R.C.P. 12(b)(2) is identical to Fed.R.Civ.P. 12(b)(2), and thus we may look to federal authorities for guidance. See Trinity Broad of Denver, Inc. v. City of Westminster, 848 P.2d 916, 924 (Colo.1993).

It is generally recognized that discovery on jurisdictional issues is within the discretion of the trial court. 2 Moore’s Federal Practice § 12.30(7) (3d ed.2003); Wright & Miller, Federal Practice and Procedure § 1067.6 (2003); see also Sizova v. Nat’l Inst. of Standards & Tech., 282 F.3d 1320 (10th Cir.2002); Chrysler Corp. v. Fedders Corp., 643 F.2d 1229 (6th Cir.1981); Arch v. Am. Tobacco Co., 984 F.Supp. 830 (E.D.Pa.1997).

These federal authorities are persuasive and consistent with Colorado law governing pretrial discovery. Therefore, we conclude that the regulation of pretrial discovery on the issue of personal jurisdiction, including the denial of discovery, is within the trial court’s discretion, and Wenz did not have a right as a matter of law to conduct discovery.

Wenz argued to the trial court that discovery in three areas might reveal information that would support the claim of personal jurisdiction: (1) that his business associate was acting as an agent for Natwest; (2) that Natwest regularly did business in Colorado because it had a correspondent banking relationship with several Colorado banks; and (3) that Natwest did business in Colorado through a subsidiary. While it is possible that such discovery would be fruitful, it also may be costly and burdensome for Natwest. See DM Research, Inc. v. Coll. of Am. Pathologists, 170 F.3d 53 (1st Cir.1999)(plaintiff must allege a- factual predicate concrete enough to warrant discovery proceedings, which may be costly and burdensome).

However, in each of these areas, Wenz’s assertions are eonclusory and unsupported by factual allegations. ' Courts are not bound to accept legal conclusions couched as factual allegations. Jazini v. Nissan Motor Co., 148 F.3d 181 (2d Cir.1998).

Where a plaintiff has failed to present facts that show how personal jurisdiction might be established if discovery were permitted, it is not an abuse of discretion to deny discovery on the issue. United States v. Swiss Am. Bank, Ltd., 274 F.3d 610 (1st Cir.2001); see also Cent. States, Southeast & Southwest Areas Pension Fund v. Reimer Express World Corp., 230 F.3d 934 (7th Cir. 2000)(not abuse of discretion to deny discovery where no colorable showing of jurisdiction); Jazini v. Nissan Motor Co., supra (where plaintiff failed to establish prima facie showing of personal jurisdiction it was not abuse of discretion to deny discovery).

Wenz’s allegation that the business associate was acting as an agent for Natwest is supported only by his statements that “[he] understood” the associate was so acting and “subsequent conversations” with Natwest. Wenz set out no factual support for his assertion of agency.

Wenz’s assertion concerning Nat-west’s correspondent banking relationships is not fleshed out with any factual statement concerning the nature of banking transactions, if any, conducted through these relationships. The existence of a correspondent banking relationship with a local bank, standing alone, is not sufficient to establish personal jurisdiction. Oriental Imps. & Exps., Inc. v. Maduro & Curiel’s Bank, 701 F.2d 889 (11th Cir.1983).

The assertion that Natwest conducted business in Colorado through a subsidiary was supported by an organizational chart showing that the subsidiary was related to Natwest through two other intervening corporations. However, there were no factual statements concerning the corporate relationships, stock ownership, board of directors composition, or management practices that would support a conclusion that Natwest was doing business through the subsidiary. Mere stock ownership or having common directors in a local corporation are not sufficient to justify exercising personal jurisdiction over an out-of-state resident. Perlman v. Great States Life Ins. Co., 164 Colo. 493, 436 P.2d 124 (1968); Sender v. Powell, 902 P.2d 947 (Colo.App.1995).

It is not manifestly arbitrary, unreasonable, or unfair, and thus not an abuse of discretion, to require a plaintiff to assert facts sufficient to satisfy the trial court that discovery might reveal evidence showing personal jurisdiction before requiring a defendant to bear the cost and burden of responding to discovery. Wenz failed to make such a factual showing. Accordingly, we conclude that the trial court did not abuse its discretion by refusing to permit Wenz to conduct discovery on the issue of personal jurisdiction.

Order affirmed.

Judge ROTHENBERG and Judge PICCONE concur.


author: Judge LOEB.

text:
    FIRST FINANCIAL INSURANCE COMPANY, Plaintiff-Appellee, v. ALBERTSON’S, INC., Defendant-Appellant.
    No. 03CA0010.
    Colorado Court of Appeals, Div. IV.
    March 25, 2004.

      Wood, Ris & Hames, P.C., William A. Rogers, III, Denver, Colorado, for Plaintiff-Ap-pellee.
    Retherford, Mullen, Johnson & Bruce, LLC, Anthony A. Johnson, Patrick R. Salt, Colorado Springs, Colorado, for Defendant-Appellant.
   Opinion by

Judge LOEB.

In this declaratory judgment action, defendant, Albertson’s, Inc., appeals the summary judgment in favor of plaintiff, First Financial Insurance Company. We affirm.

First Financial issued an insurance policy to a janitorial company, Delta Maintenance, which had a contract with Albertson’s for cleaning services. Albertson’s sought defense and indemnity from First Financial under that policy in connection with claims brought against Albertson’s by a customer for injuries sustained on its property. First Financial sought a declaratory judgment that the policy did not cover Albertson’s liability for the claimed injuries.

The parties entered into a set of stipulated facts. On cross-motions for summary judgment, the trial court held that Albertson’s was not covered under the policy because Delta had misrepresented material facts to First Financial and the policy was therefore void. The court also found that Albertson’s was not an additional insured on the policy at the time of the injury. Accordingly, the court granted First Financial’s motion for summary judgment.

We conclude that the trial court correctly found that the policy did not apply because, at the time of the customer’s injury, Albert-son’s was not an additional insured on the policy.

We review an order granting summary judgment de novo. Summary judgment is appropriate when the pleadings and supporting documents demonstrate that no genuine issue as to any material fact exists and that the moving party is entitled to judgment as a matter of law. Franklin Bank v. Bowling, 74 P.3d 308, 311 (Colo.2003).

Here, the parties stipulated to the following pertinent facts. On September 25, 1998, in consideration of an additional premium of $200, First Financial added Endorsement Number 4 to the policy listing Albertson’s as an additional insured. On October 21, 1998, First Financial added Endorsement Number 5, which expressly nullified Endorsement Number 4 retroactive to September 25, 1998, in consideration of the return of the additional premium. The claimed injury at issue occurred on October 23, 1998. Thus, at the time of the alleged injury, Albertson’s was no longer an additional insured on-the policy.

Albertson’s argues that Endorsement Number 5 did not effectively remove Albert-son’s as an additional insured, because First Financial did not mail notice of the change at least forty-five days prior to its effective date. We disagree.

In support of its. argument, Albertson’s cites a provision of the policy that provides that First Financial “may cancel this policy by mailing through first-class mail to the first Named Insured [Delta] written notice of eaneellation: ... (2) At least 45 days before the effective date of cancellation.”

We disagree with Albertson’s that this provision renders Endorsement Number 5 void, because we conclude that the removal of Albertson’s as an additional insured does not constitute a “cancellation” that requires notice under the policy.

An insurance policy is a contract that courts should interpret in line with well-settled principles of contract interpretation. Cyprus Amax Minerals Co. v. Lexington Ins. Co., 74 P.3d 294, 299 (Colo.2003). In interpreting an insurance policy, the starting point is the plain language of the contract and the intent of the parties as expressed in that language. Courts should read the provisions of the policy as a whole, rather than reading them in isolation. Cyprus Amax Minerals Co. v. Lexington Ins. Co., supra.

Any ambiguities in the contract are construed against the insurer as its drafter. State Farm Mut. Auto. Ins. Co. v. Nissen, 851 P.2d 165, 166 (Colo.1993). However, this rule of construction against the insurer cannot be applied where the language is unambiguous and there is nothing to construe. See Jorgensen v. St. Paul Fire & Marine Ins. Co., 158 Colo. 466, 470, 408 P.2d 66, 68 (1965).

A court’s interpretation of an insurance contract is a question of law, subject to de novo review. Cyprus Amax Minerals Co. v. Lexington Ins. Co., supra.

Here, by its terms, the cancellation provision only refers to cancellation of “this policy” or “the policy” and not to an endorsement change or deletion of an additional insured from the policy itself. First Financial did not cancel the policy and insurance contract with Delta. Rather, it simply changed one of the endorsements to the policy by deleting Albertson's as an additional insured.

In Colorado, the term “cancellation” in the insurance context has not been used to refer to the voiding of an endorsement, an alteration in a policy, or any change other than a complete cancellation of the entire policy. See, e.g., Jorgensen v. St. Paul Fire & Marine Ins. Co., supra (referring to “standard form” cancellation clause where policy may be cancelled by mailing notice to insured); Omni Dev. Corp. v. Atlas Assurance Co., 956 P.2d 665, 668 (Colo.App.1998) (cancellation and nonrenewal notification provision applicable to “termination of policy”).

Furthermore, at least one jurisdiction has specifically held that the term “cancellation” in an insurance policy refers to an abrogation of the entire policy or that portion of the policy that remains unperformed at the time of cancellation. See Lovy v. State Farm Ins. Co., 117 Cal.App.3d 834, 173 Cal.Rptr. 307 (1981).

In Lovy v. State Farm, the court held that a provision requiring the insurer to give notice of cancellation to the named insured did not apply to an endorsement that merely deleted an additional insured from coverage under the policy. The court in Lovy stated, “[The endorsement] was not a ‘cancellation’ of the policy within the insurance usage of the term.... [The endorsement] did not purport to abrogate the policy, but only affected a modification of the policy by deleting an additional insured.” Lovy v. State Farm, supra, 117 Cal.App.3d at 869, 173 Cal.Rptr. at 327. We find the holding in Lovy persuasive and consistent with a plain language interpretation of the provisions in the policy here.

We thus conclude, as in Lovy v. State Farm, that Endorsement Number 5 removing Albertson’s as an additional insured was not a cancellation of the policy and that, therefore, First Financial was not required to give notice of it under the cancellation provision of the policy. Therefore, Endorsement Number 5 was valid and, at the time of the alleged injury, Albertson’s was not insured under the policy.

We also reject Albertson’s argument that the Separation of Insureds provision of the policy created a separate policy covering Al-bertson’s that required cancellation and appropriate notice. That provision states:

Except with respect to the Limits of Insurance, and any rights or duties specifically assigned in this Coverage Part to the first Named Insured [Delta], this insurance applies:
a. As if each Named Insured were the only Named Insured; and
b. Separately to each insured against whom claim is made or “suit” is brought.

By its terms, this provision defeats rather than supports Albertson’s position. The provision does not allow for separation of insureds with respect to any rights specifically assigned to Delta, as the first Named Insured under the policy. The cancellation provision specifically assigns the right to notice of cancellation to the first Named Insured. Thus, the Separation of Insureds provision does not apply here.

Albertson’s reliance on Colorado Department of Regulatory Agencies Regulation No. 6-1-1, 3 Code Colo. Regs. 702-6, is also misplaced. That regulation deals with endorsements that alter coverage limits on an existing policy, a circumstance not at issue in this case.

Because we conclude that Albertson’s was not insured under the policy at the time of the alleged injuries, we need not address Albertson’s remaining contentions.

Judgment affirmed.

Judge CASEBOLT and Judge GRAHAM concur.


author: Judge PICCONE.

text:
    The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of T.A., Juvenile-Appellant.
    No. 02CA2314.
    Colorado Court of Appeals, Div. V.
    March 25, 2004.
    Ken Salazar, Attorney General, Jess A. Redman, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee.
    David S. Kaplan, Colorado State Public Defender, Beth Kelley, Deputy State Public Defender; Denver, Colorado, for Juvenile-Appellant.
   Opinion by

Judge PICCONE.

T.A., a juvenile, appeals from a judgment adjudicating him delinquent based on a finding that he committed acts that, if committed by an adult, would constitute two counts of the crime of menacing. We affirm.

At the initial detention hearing on July 25, 2002, the juvenile court found probable cause to support the charges, and concluded that the juvenile was a danger to himself and to the community. Accordingly, pursuant to § 19 — 2—508(3)(a)(IV)(D), C.R.S.2003, the court ordered that the juvenile remain in custody without bond. The People then filed a delinquency petition pursuant to § 19-2-508(3)(a)(V), C.R.S.2003.

Shortly thereafter, the juvenile court committed the juvenile to the Department of Youth Corrections (DYC) following his adjudication of delinquency in another case.

At the August 20, 2002, preliminary hearing in this case, the juvenile pleaded not guilty. Based on its determination that the sixty-day speedy trial period began to run on July 25, 2002, when the no-bond hold was issued, the court calculated that period to expire on September 23, 2002. The court then scheduled the trial to begin on September 10, 2002.

On August 30, 2002, over the juvenile’s objection, the court vacated the no-bond hold, based on its conclusion that continued detention without bond in this case jeopardized the juvenile’s progress in treatment in DYC in the other case. The court then recalculated the speedy trial period as beginning on August 20, 2002, the date the juvenile entered his not guilty plea, and expiring on October 21, 2002.

Because the juvenile was not transported to court for trial on September 10, 2002, the court rescheduled the trial to begin on October 9, 2002. On the first day of trial, the juvenile moved to dismiss the charges on the ground that the speedy trial period had expired on September 23, 2002. The court denied the motion and, at the conclusion of the proceeding, found that the juvenile had committed the acts alleged in the petition and adjudicated him a delinquent.

The juvenile’s sole contention on appeal is that the court violated his statutory and constitutional rights to a speedy trial. Specifically, the juvenile argues that, because he was subject to a no-bond hold, § 19-2-509(4)(b), C.R.S.2003, applies and that the speedy trial period began to run on July 25, 2002, when the no-bond hold was issued. We are not persuaded.

Resolution of defendant’s contention requires us to determine which of two speedy trial statutes governs the calculation of the speedy trial period applicable here—§ 19-2-508(3)(a)(TV)(D) or § 19-2-509(4)(b).

Our primary task in construing a statute is to ascertain and give effect to the intent of the General Assembly. Martin v. People, 27 P.3d 846 (Colo.2001); People in Interest of J.M.N., 39 P.3d 1261 (Colo.App.2001). In determining legislative intent, a reviewing court should look to the language of the statute, giving effect to words and phrases according to their plain and ordinary meaning. People v. Dist. Court, 713 P.2d 918, 921 (Colo.1986). When the statutory language is clear and unambiguous, it must be interpreted as written, without resort to other principles of statutory construction. People v. J.J.H. 17 P.3d 159 (Colo.2001); People v. Zapotocky, 869 P.2d 1234 (Colo.1994). If a statute potentially conflicts with another statute, a court must attempt to harmonize them to effectuate their purposes. People v. Hampton, 876 P.2d 1236, 1240 (Colo.1994).

Section 19-2-509(4)(b) provides in relevant part:

Any juvenile who is held without bail or whose bail or bail bond is revoked or increased under an order entered at any time after the initial detention hearing pursuant to subsection (3) of this section and who remains in custody or detention, must be tried on the charges on which the bail is denied or the bail or bail bond is revoked or increased within sixty days after the entry of such order or within sixty days after the juvenile's entry of a plea, whichever date is earlier....

(Emphasis added.)

Section 19-2-508(3)(a)(IV)(D) provides that when the trial court determines at the initial detention hearing that the juvenile should be detained without bail, he must be tried on the charges “within the time limit set forth in § 19-2-108,” C.R.S.2003. Section 19—2—108(2)(d), C.R.S.2003, by reference to § 19-2-708(1), C.R.S.2003, provides that, unless the juvenile requests a jury trial, the court must hold an adjudicatory trial within sixty days following the entry of a not guilty plea.

Here, the juvenile was held without bail pursuant to an order issued at the initial detention hearing. The juvenile court vacated the no-bond hold ten days after the preliminary hearing and released him on the charges in this case. We recognize that the juvenile remained in custody as a result of the sentence imposed following his delinquency adjudication in another case. However, his continued detention in DYC was not attributable to the charges pending in this case. Cf. § 18-1.3-105, C.R.S.2003 (to be entitled to presentence confinement credit, the confinement must be as a result of the offense for which the defendant is to be sentenced); People v. Hoecher, 822 P.2d 8 (Colo.1991)(to obtain presentence confinement credit, the defendant must demonstrate that there is a substantial nexus between the charge or conduct for which he or she is to be sentenced and the period of presentence confinement for which credit is sought); People v. Fitzgerald, 973 P.2d 708 (Colo.App.1998)(same).

To hold that the juvenile’s right to a speedy trial was violated here, we would have to conclude that if the juvenile court denies bail or issues a no-bond hold at any time during the proceedings, § 19—2—509(4)(b) applies, even if bail is subsequently granted or the no-bond hold is vacated and the juvenile is no longer being detained on the present charges. However, § 19-2-509(4)(b) expressly provides that it only applies to a “juvenile who remains in custody or detention” during the pendency of the proceedings.

The speedy trial period set forth in § 19-2 — 509(4)(b) applied upon issuance of the no-bond hold and the juvenile court properly recalculated the speedy trial period pursuant to § 19-2-508(3)(a)(IV)(D) when it vacated the no-bond hold. The court thus correctly concluded that the speedy trial period began to run on August 20, 2002, when the juvenile entered his not guilty plea, and expired sixty days later. Because the adjudicatory trial was held within sixty days, the court did not violate the juvenile’s statutory right to a speedy trial.

We reject the juvenile’s claim that the court vacated the no-bond hold in an effort to manipulate the speedy trial deadline. The court vacated the no-bond hold because of its concern that the juvenile’s continued detention in this case jeopardized his treatment in DYC in the other case. Had the juvenile been released home rather than remaining in custody on his adjudication in the other case, the purpose behind the expedited speedy trial statute would have been satisfied. Because evidence in the record supports the court’s determination, there is no basis for concluding that it sought to avoid the stricter speedy trial requirements of § 19-2-509(4)(b).

We decline to consider the juvenile’s claim that his constitutional right to a speedy trial was violated. The juvenile did not raise this claim in the juvenile court and did not assert any basis for concluding that his constitutional right was violated, other than the alleged statutory violation. See People v. Cass, 68 P.3d 537 (Colo.App.2002)(declining to consider alleged violation of defendant’s constitutional right to a speedy trial where he did not raise the issue at trial); People v. Scialabba, 55 P.3d 207 (Colo.App.2002)(by basing his speedy trial objections in the trial court solely on his statutory right, defendant waived his claim that his constitutional right was violated).

The judgment is affirmed.

Judge CASEBOLT and Judge ROY concur.