Colorado § 19-3-605 - Request for placement with family members.

§ 19-3-605. Request for placement with family members.

(1) Following an order of termination of the parent-child legal relationship, the court shall consider, but shall not be bound by, a request that guardianship and legal custody of the child be placed with a relative of the child. When ordering guardianship of the person and legal custody of the child, the court may give preference to a grandparent, aunt, uncle, brother, sister, half-sibling, or first cousin of the child when such relative has made a timely request therefor pursuant to the requirement of this subsection (1) and the court determines that such placement is in the best interests of the child. Such request must be submitted to the court no later than twenty days after the motion for termination is filed pursuant to section 19-3-602. Nothing in this section shall be construed to require the child placement agency with physical custody of the child to notify said relatives described in this section of the pending termination of parental rights.

(2) Notwithstanding the provisions of subsection (1) of this section to the contrary, when the child is part of a sibling group and the sibling group is being placed out of the home, if the county department locates an appropriate, capable, willing, and available joint placement for all of the children in the sibling group, the court shall presume that placement of the entire sibling group in the joint placement is in the best interests of the children. Such presumption may be rebutted by a preponderance of the evidence that placement of the entire sibling group in the joint placement is not in the best interests of a child or of the children.

(3) In making placement determinations concerning a child or youth following the order of termination of the parent-child legal relationship pursuant to the provisions of this section, the court shall consider all pertinent information related to modifying the placement of the child or youth prior to removing the child or youth from the child's or youth's placement, including:

(a) An individualized assessment of the child's needs created pursuant to Title IV-E of the federal "Social Security Act", as amended, and regulations promulgated thereunder, as amended;

(b) Whether the child's or youth's placement at the time of the hearing is a safe and potentially permanent placement for the child or youth, including documentation that a county department or a licensed child placement agency has adequately screened the family member who is seeking to care for the child or youth and any adult residing in the home and that all of the criminal history record checks and other background checks have been completed as required pursuant to section 26-6-910 or 19-3-406;

(c) The child's actual age and developmental stage and, in consideration of this information, the child's attachment needs;

(d) Whether the child has significant psychological ties to a person who could provide a permanent placement for the child, including a relative, and, if so, whether this person maintained contact with the child during the child's placement out of the home;

(e) Whether a person who could provide a permanent placement for the child is willing to maintain appropriate contact after an adoption of the child with the child's relatives, particularly sibling relatives, when such contact is safe, reasonable, and appropriate;

(f) Whether a person who could provide a permanent placement for the child is aware of the child's culture and willing to provide the child with positive ties to his or her culture;

(g) The child's medical, physical, emotional, or other specific needs, and whether a person who could provide a permanent placement for the child is able to meet the child's needs; and

(h) The child's attachment to the child's caregiver at the time of the hearing and the possible effects on the child's emotional well-being if the child is removed from the caregiver's home.

Source: L. 87: Entire title R&RE, p. 789, § 1, effective October 1. L. 2003: Entire section amended, p. 2626, § 7, effective June 5. L. 2005: (1) amended, p. 93, § 1, effective March 31; entire section amended, p. 678, § 3, effective July 1. L. 2015: (3)(b) amended, (SB 15-087), ch. 263, p. 1019, § 12, effective June 2; (3) amended, (HB 15-1337), ch. 328, p. 1342, § 2, effective June 5. L. 2022: (3)(b) amended, (HB 22-1295), ch. 123, p. 836, § 41, effective July 1. L. 2023: IP(3) and (3)(b) amended, (HB 23-1043), ch. 20, p. 79, § 4, effective August 7.

Editor's note: (1) This section was contained in a title that was repealed and reenacted in 1987. Provisions of this section, as it existed in 1987, are similar to those contained in 19-11-105.5 as said section existed in 1986, the year prior to the repeal and reenactment of this title.

(2) Amendments to this section by House Bill 05-1174 and House Bill 05-1173 were harmonized.

(3) Amendments to subsection (3)(b) by HB 15-1337 and SB 15-087 were harmonized.

Cross references: (1) For the legislative declaration contained in the 2005 act amending this section, see section 1 of chapter 194, Session Laws of Colorado 2005.

(2) For Title IV-E of the federal "Social Security Act", see 42 U.S.C. § 670 et seq.

ANNOTATION

Law reviews. For article, "Review of New Legislation Relating to Criminal Law", see 11 Colo. Law. 2148 (1982). For article, "Interested Parties in Juvenile Dependency and Neglect Cases", see 33 Colo. Law. 109 (Aug. 2004).

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

Jurisdiction of court to determine placement. It is within the exclusive jurisdiction of the court to determine the placement of a child adjudicated neglected, dependent, or delinquent. State Dept. of Soc. Servs. v. Arapahoe County Dept. of Soc. Servs., 642 P.2d 16 (Colo. App. 1981).

The provisions of this section are distinct from the proceedings for voluntary relinquishment under § 19-5-104. Under this section, a grandparent is an interested party. Under § 19-5-104, if the birth parents state that the grandparent should not have custody and the grandparent has never had physical or legal custody of the child, the grandparent does not have standing in the relinquishment proceedings. Petition of B.D.G., 881 P.2d 375 (Colo. App. 1993).

Aunt did not have constitutionally protected interest and failure to notify her of termination proceedings did not violate substantive or procedural due process. People in Interest of C.E., 923 P.2d 383 (Colo. App. 1996).

Grandmother did not have constitutionally protected interest where she (1) enjoyed limited visitation rights derived from statute; and (2) had a biological but no existing custodial relationship with the child. People in Interest of C.N., 2018 COA 165, 431 P.3d 1219.

While department and trial court must consider remedies less drastic than termination, this means that the department must evaluate a reasonable number of persons suggested to it as possible placements by the family and other interested persons, but nothing requires the department to make special inquiry and independently identify and evaluate other possible placements within or outside the family. Father's testimony at termination hearing that other relatives might be interested in caring for the child, with no indication that father identified any of these relatives to the department or the court, was insufficient to require the department to explore these family members as options. People ex rel. D.B-J., 89 P.3d 530 (Colo. App. 2004).

Placing child in foster care rather than with grandparents out of state is permissible when purpose of the placement is to strengthen family ties and secure potential relative placement within the state. People ex rel. E.C., 47 P.3d 707 (Colo. App. 2002).

While placement with a grandparent who is available and appropriate is given statutory preference if such placement is in the child's best interests, placement with a grandparent is not a viable alternative to termination if the grandparent lacks appreciation of the parent's problems or of the child's needs. People ex rel. D.B-J., 89 P.3d 530 (Colo. App. 2004).

Trial court did not err in rejecting placement with the paternal grandmother as a less drastic alternative to termination when findings indicate that grandmother did not interact well with the child; that the child had an ambivalent attachment to the grandmother; that the grandmother was not interested in participating in treatment to address her relationship with the child; and that the grandmother was unlikely to comply with no contact orders. People ex rel. D.B-J., 89 P.3d 530 (Colo. App. 2004).

The policies underlying both the expedited procedures and sibling group preference do not permit the application of the shorter incarceration period so as to terminate parental rights concerning an older child whose parent is subject to the longer incarceration period. The termination of parental rights concerning the older child must still be subject to the longer allowable incarceration period. People ex rel. T.M., 240 P.3d 542 (Colo. App. 2010).

An order denying a relative's request for guardianship and custody of a child is not final and appealable because it does not resolve all issues before the court and end the dependency and neglect proceeding. People in Interest of E.B., 2022 COA 120, 523 P.3d 988.