Court of Appeals No.  15CA1217Phillips County District Court No. 13JV7 Honorable Charles M.  Hobbs, Judge

The People of the State of Colorado, 

Petitioner-Appellee,

In the Interest of Z.P.S., N.S., and M.J.S., Children, and  Concerning A.M.H.,

Respondent-Appellant.

JUDGMENT AFFIRMEDDivision VOpinion by JUDGE  FURMAN Hawthorne and Richman, JJ., concurAnnounced February 11,  2016

Bauer & Furman, P.C., Steven M. Furman,  Fort Morgan, Colorado, for Petitioner-AppelleeLori J. Hulbert, Guardian Ad LitemBrian D. Thomas, Sterling, Colorado, for Respondent-Appellant

¶1      In this dependency and neglect proceeding, A.M.H. (mother) appeals from the judgment terminating the parent-child legal  relationship between her and her children, Z.P.S., N.S., and M.J.S. (children).  The court found that no appropriate treatment plan could be devised for her.

 ¶2      Many parents involved in a dependency and  neglect casereceive a treatment plan that provides the parent with an opportunity to  rehabilitate and reunite with his or her children. Even so, in limited  circumstances, the Children’s Code authorizes the termination of a parent’s  rights based on a finding that no appropriate treatment plan can be devised to  address the parent’s unfitness. See §  19-3-604(1)(b), C.R.S. 2015. Although this case presents at least two of these  circumstances — one child’s death caused by parental neglect and a second’s  child’s serious bodily injury caused by malnutrition — the trial court  initially approved a treatment plan for mother. But, at a later dispositional  hearing, the court found that no appropriate treatment plan could be devised to  address mother’s unfitness. The court ultimately terminated mother’s parental  rights. 

¶3      The  central issue on appeal is mother’s challenge to the trialcourt’s “no appropriate treatment plan can be devised” finding,  both at the dispositional hearing and at the termination of parental rights  hearing. Mother also contends this finding denied her due process because it  precluded her from offering evidence at the termination hearing that she had  successfully complied with the treatment plan. Because we disagree with both of  her contentions, we affirm the judgment terminating mother’s parental rights.

 I.  The Dependency and Neglect Proceeding

 ¶4      In  November 2013, one-month-old O.S. was flown toChildren’s Hospital in Aurora after she was found unresponsive in  her mother’s home and had to be resuscitated at a local hospital. O.S.’s  condition was attributed to failure to thrive. At the same time, O.S.’s twin  brother, M.J.S., was admitted to the intensive care unit because he also had  signs of failure to thrive. As a result, the Phillips County Department of  Social Services (Department) filed a dependency and neglect petition and  assumed temporary custody of the twins and their siblings, three-year-old  Z.P.S. and one-year-old N.S.

 ¶5      Shortly  thereafter, O.S., who had suffered severe brain damage, died after she was removed from life support.

 ¶6      Mother and the children’s father filed  written stipulations thatthe children lacked proper parental care through their actions or omissions. See § 19-3-102(1)(b), C.R.S. 2015  (providing that a child is neglected or dependent if the “child lacks proper  parental care through the actions or omissions of the parent”). Based on the  stipulation, the court entered an order adjudicating the children dependent and  neglected. 

 ¶7       Within  one week of the adjudicatory order, the court held a dispositional hearing and approved a treatment plan for mother, requiring her  to (1) take accountability for what happened to the twins and for not  adequately feeding them; and (2) participate in various evaluations — a  psychological evaluation, a parent-child interactional assessment, a substance  abuse assessment, and a hair follicle drug test — and complete any recommended  treatment. 

 ¶8      The treatment plan was later amended,  requiring mother to understand her role in contributing to O.S.’s and M.J.S.’s conditions rather than take accountability for their conditions. 

 ¶9      But, at a later permanency planning  hearing the Departmentasked the court to change the disposition to termination based on a finding that no appropriate treatment plan could be devised.

 ¶10      The court then held a  contested dispositional hearing where it found by a preponderance of the  evidence that no appropriate treatment plan could be devised for mother. See People in Interest of L.B., 254 P.3d  1203, 1208 (Colo. App. 2011) (recognizing that “the preponderance of the  evidence standard applies to both the adjudicatory and dispositional stages of  a dependency and neglect proceeding”). Because the court permitted the  children’s father to relinquish his parental rights to the children at the same  hearing, it entered the order only as to mother. The Department then sought to  terminate the parent-child legal relationship between mother and the children. 

 ¶11      After a termination hearing, the trial  court found by clear and convincing evidence that “no appropriate treatment  plan can be devised to address the unfitness of . . . mother” because (1) she  had “an emotional illness of such duration or nature as to render her unlikely  to care” for the children’s needs within a reasonable time; (2) M.J.S. had  suffered a single incident of serious bodily injury; and (3) the children’s  sibling, O.S., had died due to “proven parental abuse and neglect.” The court  also found by clear and convincing evidence that (1) mother’s treatment plan was unsuccessful; (2)    mother was unfit; and (3) mother’s condition  was unlikely to change in a reasonable time. Based on these findings, it  entered judgment terminating her parental rights under section 19-3-604(1)(b)  and (c).

 II.  Dispositional Hearings

 ¶12      Mother challenges the trial court’s “no  appropriate treatment plan can be devised” finding on two grounds. She first  contends that it was error for the trial court to hold a dispositional hearing  and find that no appropriate treatment plan can be devised for a parent after  it has already approved a treatment plan for the parent. She also contends that  the trial court erred when it modified the dispositional order by relying on  evidence that had already been considered by the court, or could have been presented  to the court, at the earlier dispositional hearings. We are not persuaded. 

 A.  The Statutory Framework

 ¶13       Dependency and neglect proceedings are brought under article  three of the Children’s Code to, among other things, protect achild’s welfare and safety. § 19-3-100.5,  C.R.S. 2015; A.M.  v. A.C., 2013 CO 16, ¶10. And, if a child is  adjudicated dependent and neglected, the state gains authority to intervene into the  familial relationship. People in Interest  of S.N. v. S.N., 2014 CO 64, ¶10; People  in Interest of S.N., 2014 COA 116, ¶12.

 ¶14       Accordingly,  following the adjudication, the court must conduct a hearing and hear evidence  to determine the proper disposition that will serve the best interests of the  child and the public. §§ 19-3-507(1)(a), 19-3-508(1), C.R.S. 2015; People in Interest of C.L.S., 934 P.2d  851, 855 (Colo. App. 1996). When, as here, the expedited permanency planning  (EPP) provisions apply, the court must hold the dispositional hearing  contemporaneously with the adjudication or within thirty days after the  adjudication, unless the disposition is termination of parental rights. § 19-3­508(1), C.R.S. 2015. 

 ¶15       When the proposed disposition is not  termination of parental rights, the court must approve an appropriate treatment  plan for the parent. § 19-3-508(1)(e)(I). An “appropriate treatment plan” is  one that is “reasonably calculated to render the particular [parent] fit to  provide adequate parenting to the child within a reasonable time and that  relates to the child’s needs.” § 19-1-103(10), C.R.S. 2015; See People in the Interest of K.B., 2016  COA 21, ¶13. (discussing what constitutes an “appropriate treatment plan”).

 ¶16       Although treatment  plans serve an important role in attempting to preserve the parent-child legal  relationship, the court may, under limited circumstances at the dispositional  hearing, find that an appropriate treatment plan cannot be devised for a particular  parent. § 19-3-508(1)(e)(I); K.D. v. People, 139 P.3d 695, 700  (Colo. 2006). These circumstances occur when: 

- the child has been abandoned based on section 19-3-604(1)(a), and  the parents cannot be located;         
- the child has been adjudicated dependent and  neglected based         
- on habitual abuse  under section 19-3-102(2), C.R.S. 2015; or the parent is unfit for one of the  reasons listed in section 19-3-604(1)(b).

¶17       Bases for unfitness under section 19-3-604(1)(b) — the statute  governing termination of parental rights — include: 

- the parent’s emotional  illness, mental illness, or mental deficiency of such duration or nature as to  render the parent unlikely to be able to care for the child’s ongoing physical,  mental, and emotional needs and conditions within a reasonable time;         
- a single incident  resulting in serious bodily injury or disfigurement of the child;        
- the parent’s long-term  confinement of such duration that the parent is not eligible for parole for at  least six years after the date the child was adjudicated dependent and  neglected or, in cases subject to the EPP provisions, the long-term confinement  of the parent is of such duration that the parent is not eligible for parole  for at least thirty-six months after the date the child was adjudicated  dependent and neglected;        
- serious bodily injury  or death of a sibling due to proven parental abuse or neglect;        
- an identifiable  pattern of habitual abuse to which the child or another child has been  subjected and, as a result of which, a court has adjudicated another child as  neglected or dependent based upon allegations of sexual or physical abuse, or a  court of competent jurisdiction has determined that such abuse has caused the  death of another child;        
- an identifiable  pattern of sexual abuse of the child; or        
- the torture of or  extreme cruelty to the child, a sibling of the child, or another child of  either parent.

¶18       Generally, when the  proposed disposition is termination of the parent-child legal relationship, the  termination hearing serves as the dispositional hearing. § 19-3-508(1), (3); People in Interest of M.S., 2012 COA  211, ¶3. But, when the court finds at a dispositional hearing that an  appropriate treatment plan cannot be devised for a parent, it must hold a  permanency hearing unless a termination motion has been filed within thirty  days after the finding. § 19-3-508(1)(e)(I). And, in EPP cases the court shall  hear a motion for termination within 120 days after the termination motion has  been filed. § 19-3-508(3)(a). 

 B.  Authority to Enter New Dispositional Orders

 ¶19       We first consider  whether a trial court may hold a dispositional hearing and find that no  appropriate treatment plan can be devised for a parent after it has already  approved a treatment plan for the parent. We conclude it may. 

 ¶20       The statutes  governing dispositional hearings, sections 19-3­507 and 19-3-508, do not  specifically address whether the court, having already approved a dispositional  order, may hold a subsequent hearing to modify the previously ordered  disposition. But, divisions of this court have repeatedly recognized that the initial treatment plan adopted by the court as  an order at the dispositional hearing may change at the termination hearing to  a determination that no appropriate treatment plan can be devised for the parent. See People in Interest of C.Z., 2015  COA 87, ¶48; People in Interest of A.G.,  264 P.3d 615, 622 (Colo. App. 2010), rev’d  in part and vacated in part on other grounds, 262 P.3d 646 (Colo. 2011); People in Interest of T.L.B., 148 P.3d  450, 455 (Colo. App. 2006).

 ¶21      In A.G.,  the division concluded that even if the mother hadpreviously received a treatment plan following the dispositional hearing, the  social services department could still seek to terminate her parental rights on  the ground that no treatment plan can be devised for her. 264 P.3d at 622.  Similarly, in C.Z., ¶48, the  division concluded that the court could find (at the termination hearing) that  no appropriate treatment plan can be devised to address a father’s unfitness  when it had previously approved a treatment plan for him. 

 ¶22      It  necessarily follows, then, that the trial court may determineat a subsequent dispositional hearing that an appropriate treatment plan cannot  be devised for the parent even though it had previously approved such a plan for the parent.

 ¶23      Allowing the trial  court to modify or enter a new dispositional order comports with the purposes  of the Children’s Code. The Children’s Code is expressly designed to “preserve  and strengthen family ties whenever possible.” § 19-1-102(1)(b), C.R.S. 2015; People in Interest of B.C., 122 P.3d  1067, 1070 (Colo. App. 2005). But, the Children’s Code is also designed to  protect children’s welfare and safety by providing procedures to serve their  best interests. L.G. v. People, 890  P.2d 647, 654 (Colo. 1995). 

 ¶24      Vesting a trial court  with flexibility to modify an existing dispositional order or to adopt a new  dispositional order furthers these statutory purposes. For example, as part of  the dispositional order, the court must determine whether a child should be placed  with one or both parents, in a relative’s custody, or in a foster home or other  child care facility. § 19-3-508(1)(a)–(c). And, it may become necessary to change a child’s placement during the pendency  of a dependency and neglect proceeding. See  People in Interest of A.C., 304 P.3d 589, 594 (Colo. App. 2011), aff’d sub nom. M.S. v. People, 2013 CO  35.

 ¶25      This  flexibility is expressed in section 19-1-109, C.R.S. 2015, which governs appeals in dependency and neglect proceedings.  Section 19-1-109(2)(c) states that an order decreeing a child dependent and  neglected is final and appealable after the entry of the disposition under  section 19-3-508. But, it also provides that the appeal does not affect the  trial court’s jurisdiction to enter further dispositional orders that the trial  court believes to be in the child’s best interests. § 19-1-109(2)(c).

 ¶26      A trial court may  also need to modify a treatment plan’s requirements to facilitate the  reunification of a parent and his or her child. Indeed, changed circumstances  may render a treatment plan, previously approved at a dispositional hearing, no  longer appropriate. People in Interest of  D.R.W., 91 P.3d 453, 459 (Colo. App. 2004). 

 ¶27       Thus, once a child is adjudicated dependent  and neglected, the trial court is vested with flexible dispositional remedies. See People in Interest of A.M.D., 648  P.2d 625, 639 (Colo. 1982). Such flexibility necessarily requires allowing the  court to modify an existing dispositional order or to adopt any other order  that it could have initially entered. See  In re Austin W., 823 N.E.2d 572, 581 (Ill. 2005) (recognizing that “once a  child has been made a ward of the court and a dispositional order has been entered, the court may,  at any time, vacate the original dispositional order and enter any other  dispositional order that it could have initially entered”).

 ¶28       We thus conclude that  a trial court may hold a dispositional hearing and find that no appropriate  treatment plan can be devised for a parent after it has already approved a  treatment plan for the parent. § 19-3-508(1)(e)(I). 

 ¶29       In reaching this  conclusion, we do not suggest that once a court has approved a treatment plan  as part of the dispositional order, it must modify that order before it may  terminate the parent’s rights under the no appropriate treatment plan  provisions of section 19-3-604(1)(b). To the contrary, as previously discussed,  the court may proceed to terminate a parent’s rights based on no appropriate  treatment plan even when the existing dispositional order includes the  provision of a treatment plan for the parent. See C.Z., ¶48. 

 C.  Basis for New Dispositional Order

 ¶30      We next consider  whether the trial court erred when it modified the dispositional order by  relying on evidence that had already been considered by the court, or could  have been presented to the court, at the earlier dispositional hearings. We  conclude it did not.

 ¶31      It may well be that a shift from a  disposition of reunificationbased on a parent successfully completing a treatment plan to a proposed  disposition of termination of parental rights because no appropriate treatment  plan can be devised for a parent will often be driven by changed circumstances.  For example, the division in A.G. observed that the  social services department could seek termination of parental rights on the  ground that no appropriate treatment plan can be devised to render a parent  fit, even though the parent had previously received a treatment plan, if a later  psychological evaluation determined that the parent had a mental or emotional  illness or deficiency that precluded the provision of a successful plan. 264  P.3d at 622. 

 ¶32      And, the court’s  authority to modify the dispositional order is not limited to those situations  in which circumstances have changed. Rather, the court may modify a disposition  of reunification to a proposed disposition of termination if the court later finds  that an appropriate treatment plan cannot be devised based on the criteria  identified in section 19-3-508(1)(e)(I). As noted, these criteria include the  criteria for parental unfitness under section 19-3-604(1)(b).

 ¶33      The record supports  mother’s claim that many of the exhibits admitted into evidence at the third  dispositional hearing — M.J.S.’s discharge summary, O.S.’s autopsy report,  mother’s psychological evaluation, and mother’s parent-child interactional  assessment — had been available to the parties and the court at the first and  second dispositional hearings when the court approved the initial and amended  treatment plans for her. 

 ¶34      Before the first  dispositional hearing, the Department provided the trial court with M.J.S.’s discharge  summary from Children’s Hospital. The summary indicated that M.J.S. had been  admitted with significant failure to thrive that was related to severe  malnutrition. It also noted that M.J.S. had demonstrated appropriate weight  gain during his hospital stay. The next month, the Department filed the autopsy  report for O.S., which showed that she had died as a result of malnutrition. 

 ¶35      And, shortly before  the second dispositional hearing, the Department tendered mother’s  psychological evaluation and parent-child interactional assessment. The  psychological evaluation showed that (1) mother had signs of multiple mental  health diagnoses and was disconnected from her needs and feelings; (2)  mother lacked an understanding of why the twins failed to thrive; and (3)  mother’s failure to identify the twin’s failure to thrive reflected significant  psychopathy. Ultimately, the evaluator concluded that given the severity and  chronicity of mother’s problems, her prognosis for significant levels of  improvement — within a developmentally meaningful time frame for the children —  was extremely guarded.

 ¶36      Although it may be  that the parties were waiting for additional information, the record does not  show why the Department proposed, and the guardian ad litem agreed to, the  initial and amended treatment plans for mother. 

 ¶37      Nonetheless, the  record from the first dispositional hearing reveals that the court approved the  initial treatment plan based on the parties’ agreement. And, mother did not  provide a transcript from the second dispositional hearing when the trial court  adopted the amended treatment plan. Thus, we are unable to review the trial  court’s basis for approving the amended plan for mother. 

 ¶38      Even so, as noted, at  the third dispositional hearing, which was contested, the court changed the  disposition based on, among other things, medical evidence about M.J.S. and O.S. We conclude  the trial court did not err when it modified the dispositional order by relying  on this evidence, despite the fact that it had already been considered by the  court, or could have been presented to the court, at the earlier dispositional  hearings. We reach this conclusion because at a dispositional hearing, the  court must hear evidence on the “question of the proper disposition best  serving the interests of the child.” § 19-3-507(1). According to section  19-1-107(2), C.R.S. 2015, this may include “written reports and other material  relating to the child’s mental, physical, and social history . . . along with  other evidence.”

  III.  Termination of Parental Rights Hearing

 ¶39      We next consider  whether the trial court denied mother due process because the “no appropriate  treatment plan can be devised” finding precluded her from offering evidence at  the termination hearing that she had successfully complied with the treatment  plan. We conclude the procedures used by the trial court afforded mother due  process. 

 ¶40      The State must  provide a parent with fundamentally fair procedures when termination of  parental rights is sought. A.M., ¶28. These procedures include a parent receiving notice of the  hearing, advice of counsel, and a meaningful opportunity to be heard and  defend. People in Interest of M.B.,  70 P.3d 618, 622 (Colo. App. 2003). But, due process is flexible and calls for  such procedural protections as the situation demands. A.M., ¶28. Substantial compliance with the dependency and neglect  statutes creates a presumption of no prejudice to a parent in a termination  hearing. C.S. v. People, 83 P.3d 627,  631 (Colo. 2004).

 ¶41      Section 19-3-604(1) sets forth different bases  under which thecourt may terminate parental rights following a child’s adjudication as  dependent and neglected. K.D., 139  P.3d at 700. As noted, the court may terminate parental rights under section  19-3-604(1)(b) if it finds that no appropriate treatment plan can be devised to  address a parent’s unfitness. As pertinent here, grounds for unfitness under  the statute include: 

- the parent’s emotional illness, mental  illness, or mental deficiency of such duration or nature as to render the  parent unlikely to be able to care for the child’s ongoing needs and conditions  within a reasonable time, § 19-3-604(1)(b)(I);         
- a single incident resulting in serious bodily  injury to the child, 

§ 19-3-604(1)(b)(II); and

- death of a sibling due to proven parental abuse or neglect, §  19-3-604(1)(b)(IV). 

¶42      Alternately, the court may terminate a  parent’s rights under section 19-3-604(1)(c) if it finds that (1) the parent  has not complied with an appropriate, court-approved treatment plan or the plan  has not been successful; (2) the parent is unfit; and (3) the parent’s conduct  or condition is unlikely to change in a reasonable time. People in Interest of C.H., 166 P.3d 288, 289 (Colo. App. 2007). 

 ¶43      We conclude that  mother had notice that the Department sought to terminate her parental rights  under section 19-3­604(1)(b) and under section 19-3-604(1)(c). Thus, she was  aware that the Department was seeking to terminate her parental rights because  no appropriate treatment plan could be devised to address her unfitness. 

 ¶44      Mother, with the  assistance of counsel, had two opportunities — the December 2014 dispositional  hearing and the termination hearing — to be heard and defend against the  Department’s position that no appropriate treatment plan could be devised for  her. Indeed, much of the same evidence that the Department presented at the termination hearing had been presented at the  December 2014 dispositional hearing. For example, evidence presented at both  hearings showed:

- A neonatal physician determined that the underlying cause of  O.S.’s death was cardiac arrest as a result of severe malnutrition.        
- M.J.S. had also suffered from severe malnutrition and had to be  admitted to the neonatal intensive care unit to manage his condition.        
- The physician was unable to identify an organic or genetic cause  for O.S.’s and M.J.S.’s malnutrition.        
- The forensic pathologist who completed O.S.’s autopsy concluded  that O.S.’s cause of death was malnutrition.        
- The psychologist who evaluated mother diagnosed her with chronic  depression; post-traumatic stress disorder; obsessive compulsive disorder;  cannabis use and probable dependence on it; and a personality disorder with  borderline, dependent, avoidant, and antisocial personality traits.        
- The psychologist believed that mother’s mental health concerns  were so significant and longstanding that they rendered her unlikely to be able to care for the children’s needs  within a reasonable time.

 ¶45       The trial court allowed mother to present  evidence at the termination hearing regarding her amenability to treatment.  Mother testified that she had participated in individual therapy in addition to  completing dialectical behavior therapy. She testified that therapy had helped  her recognize her responsibility for O.S.’s death and M.J.S.’s “depleted  condition,” and it had changed her ability to perceive the problems that  initiated the proceeding. She also testified that she had stopped using  cannabis, and she acknowledged that it had significantly impacted her ability  to care for the children. Mother also called her own expert witness, a  psychologist, who opined that mother could reunify with the children while  complying with mental health treatment.

 ¶46       Mother does not  contest the adequacy of the trial court’s findings terminating her parental  rights under section 19-3­604(1)(b) and (c). Nor does she contend that the  court’s findings lacked record support.

 ¶47       Under these  circumstances, the procedures used by the trial court afforded mother due  process.

IV. Conclusion

 ¶48 The judgment is  affirmed. 

 JUDGE HAWTHORNE and  JUDGE RICHMAN concur.