CO Code § 19-3-702 (2021)
2021 Colorado Code|Title 19 - Children's Code|Article 3 - Dependency and Neglect|Part 7 - Review of Placement|§ 19-3-702. Permanency Hearing

     In order to provide stable, permanent homes for every child or youth placed out of the home, in as short a time as possible, a court shall conduct a permanency planning hearing. The court shall hold the permanency planning hearing as soon as possible following the initial hearing held pursuant to a proceeding pursuant to part 3 of article 7 of this title 19 or the initial dispositional hearing pursuant to this article 3; except that the permanency planning hearing must be held no later than ninety-one days after the initial decree of disposition. After the initial permanency planning hearing, the court shall hold additional hearings at least every six months while the case remains open or more often in the discretion of the court, or upon the motion of any party. When possible, the permanency planning hearing must be combined with the in-person six-month review as provided for in section 19-1-115 (4)(c), subsection (6)(a) of this section, or section 19-7-312. The court shall hold all permanency planning hearings in person, provide proper notice to all parties, and provide all parties the opportunity to be heard. The court shall consult with the child or youth in a developmentally appropriate manner regarding the child's or youth's permanency goal.    If the court finds that reasonable efforts to reunify the child or youth and the parent are not required pursuant to section 19-1-115 (7) or if there is a finding that no appropriate treatment plan can be devised pursuant to section 19-3-508 (1)(d)(I), the court shall hold a permanency planning hearing within thirty days after the finding. If the court finds that reasonable efforts to reunify the child or youth and the parent are not required and a motion for termination has been filed pursuant to section 19-3-602, the permanency planning hearing and the hearing on the motion for termination may be combined, and the court shall make all determinations required at both hearings in the combined hearing.         When the court schedules a permanency planning hearing pursuant to this section, the court or designee of the court shall promptly issue a notice stating the purpose of the hearing. The notice must set forth the constitutional and statutory rights of the child's or youth's parents or guardian and the statutory rights of the child or youth. The notice of the hearing must comply with the requirements stated in section 19-3-502 (7) and must be sent to parents or guardians, placement providers, and named children or youth.    The county department of human or social services shall propose a permanency plan for each child or youth, which plan must be completed and submitted to the court in the family services plan no later than five days in advance of the permanency planning hearing.       At any permanency planning hearing, the court shall first determine if the child or youth should be returned to the child's or youth's parent, named guardian, or legal custodian and, if applicable, the date on which the child or youth must be returned. If the child or youth cannot be returned home, the court shall also determine whether reasonable efforts have been made to find a safe and stable permanent home for the child or youth. The court shall not delay permanency planning by considering the placement of children or youth together as a sibling group. At any permanency planning hearing, the court shall make the following determinations, when applicable:   Whether procedural safeguards to preserve parental rights have been applied in connection with any change in the child's or youth's placement or any determination affecting parental visitation of the child or youth;    Whether reasonable efforts have been made to finalize the permanency goal;    Whether ongoing efforts have been made to identify kin and relatives that are available to be a permanent placement for the child or youth;    When the child or youth resides in a placement out of state, whether the out-of-state placement continues to be appropriate and in the best interests of the child or youth;    Whether a child or youth who is fourteen years of age or older is receiving transition services to successful adulthood, regardless of his or her permanency goal; and    Whether the current placement of the child or youth could be a permanent placement, if necessary.         If the child or youth cannot be returned to the physical custody of the child's or youth's parent or legal guardian on the date of the hearing, the court shall enter one or more of the following permanency goals, of which subsections (4)(a)(I) to (4)(a)(V) of this section may be adopted as concurrent goals pursuant to section 19-3-508 (7):   Return home;    Adoption with a relative;    Permanent placement with a relative through legal guardianship or allocation of parental responsibilities;    Adoption with a nonrelative;    Permanent placement with a nonrelative through legal guardianship or allocation of parental responsibilities;    (A) Other planned permanent living arrangements either through emancipation or long-term foster care.         The department shall document in the family services plan the compelling reasons why it is not in the best interest of the child or youth to return home, be placed for adoption, be placed with a legal guardian, or be placed with a fit and willing relative. In addition, the department shall document intensive, ongoing, and unsuccessful efforts made to return the child or youth home or to a secure placement with a fit and willing relative, including adult siblings; a legal guardian; or an adoptive parent, including efforts that utilize search technology that includes social media to find biological family members for the children or youth. (b) (I) The department shall document in the family services plan the compelling reasons why it is not in the best interest of the child or youth to return home, be placed for adoption, be placed with a legal guardian, or be placed with a fit and willing relative. In addition, the department shall document intensive, ongoing, and unsuccessful efforts made to return the child or youth home or to a secure placement with a fit and willing relative, including adult siblings; a legal guardian; or an adoptive parent, including efforts that utilize search technology that includes social media to find biological family members for the children or youth.    The department shall document in the family services plan and the court shall review whether the child's or youth's placement is following the reasonable and prudent parent standard and whether the child or youth has regular, ongoing opportunities to engage in age-appropriate activities.       Prior to closing a case before a youth's eighteenth birthday, the court or the youth's guardian ad litem shall notify the youth that the youth will lose the right to receive medicaid until the maximum age provided by federal law if the case is closed prior to the youth's eighteenth birthday. Prior to closing a case after a youth's sixteenth birthday, the court shall advise the youth of the youth's eligibility for the foster youth in transition program, created in section 19-7-303, should the youth later determine he or she needs child welfare assistance from a county department.    Every child who is eighteen years of age or older who is leaving foster or kinship care must be provided with his or her birth certificate, social security card, health insurance information, medical records, either a driver's license or state-issued identification card, and proof of foster care.    If the court finds that there is not a substantial probability that the child or youth will be returned to a parent or legal guardian within six months and the child or youth appears to be adoptable and meets the criteria for adoption in section 19-5-203, the court may order the county department of human or social services to show cause why it should not file a motion to terminate the parent-child legal relationship pursuant to part 6 of this article 3. Cause may include, but is not limited to, any of the following conditions:   The parent or legal guardian has maintained regular parenting time and contact with the child or youth, and the child or youth would benefit from continuing this relationship;    A child who is twelve years of age or older objects to termination of the parent-child legal relationship;    The child's foster parents are unable to adopt the child because of exceptional circumstances that do not include an unwillingness to accept legal responsibility for the child. The foster parents must be willing and capable of providing the child with a stable and permanent environment, and it must be shown that removal of the child from the physical custody of his or her foster parents would be seriously detrimental to the emotional well-being of the child; or    The criteria for termination in section 19-3-604 have not yet been met.          For a child or youth in a case designated pursuant to section 19-1-123 only:   A permanent home is the place in which the child or youth may reside if the child or youth is unable to return home to a parent or legal guardian. If the court determines by a preponderance of the evidence that a permanent home is not currently available or that the child's or youth's current needs or situation prohibit placement, the court must be shown and the court must find that reasonable efforts, as defined in section 19-1-103, were made to find the child or youth an appropriate permanent home and such a home is not currently available or that a child's or youth's needs or situation prohibit the child or youth from a successful placement in a permanent home.    Regardless of any permanent home findings made pursuant to this section, reasonable efforts shall continue to be made to return the child or youth home unless the court has previously found or finds that reunification is not an option pursuant to section 19-1-115 (7). Any findings by the court regarding a permanent home shall not delay or interfere with reunification of a child or youth with a parent or legal guardian.    At a permanency planning hearing that occurs immediately prior to twelve months after the original placement of the child or youth out of the home, the court shall make a finding identifying whether the child or youth is in a placement that can provide legal permanency. The court must make this finding to ensure that a child or youth who has been removed from his or her home is placed in a permanent home as expeditiously as possible.    The court shall review the case at a permanency planning hearing at least every six months until the court finds that the child or youth is in a permanent home. The permanency planning hearings must continue as long as the court is unable to find that the child or youth is in a permanent home. At each hearing, the court must be provided evidence that a child or youth is in a permanent home or that reasonable efforts, as defined in section 19-1-103, continue to be made to find the child or youth an appropriate permanent home and such a home is not currently available or that a child's or youth's needs or situation prohibit the child or youth from successful placement in a permanent home.    At each permanency planning hearing, the caseworker and the child's or youth's guardian ad litem shall provide the court with a written or verbal report specifying what efforts have been made to identify a permanent home for the child or youth and what services have been provided to the child or youth to facilitate identification of a permanent home.    In determining whether a child or youth is in a permanent home, the court shall consider placement of the children or youth together as a sibling group pursuant to section 19-3-213.       If a placement change is contested by a named party or child or youth and the child or youth is not reunifying with a parent or legal guardian, the court shall consider all pertinent information, including the child's or youth's wishes, related to modifying the placement of the child or youth prior to removing the child or youth from his or her placement, and including the following:   An individualized assessment of the child's or youth's needs created pursuant to Title IV-E of the federal “Social Security Act”, as amended, and regulations promulgated thereunder, as amended;    Whether the child's or youth's placement at the time of the hearing is a safe and potentially permanent home for the child or youth;    The child's or youth's actual age and developmental stage and, in consideration of this information, the child's or youth's attachment needs;    Whether the child or youth has significant psychological ties to a person who could provide a permanent home for the child or youth, including a relative, and, if so, whether this person maintained contact with the child or youth during the child's or youth's placement out of the home;    Whether a person who could provide a permanent home for the child or youth is willing to maintain appropriate contact after an adoption of the child or youth with the child's or youth's relatives, particularly sibling relatives, when such contact is safe, reasonable, and appropriate;    Whether a person who could provide a permanent home for the child or youth is aware of the child's or youth's culture and is willing to provide the child or youth with positive ties to his or her culture;    The child's or youth's medical, physical, emotional, or other specific needs, and whether a person who could provide a permanent placement for the child or youth is able to meet the child's or youth's needs; and    The child's or youth's attachment to the child's or youth's caregiver at the time of the hearing and the possible effects on the child's or youth's emotional well-being if the child or youth is removed from the caregiver's home.        History. Source: L. 89: Entire section added, p. 930, § 2, effective April 23. L. 92: (1), (2), (4), (6), and (8) amended, p. 225, § 13, effective July 1. L. 93: (1), (2), (4), (6), and (7) amended, p. 390, § 4, effective April 19; (5)(a)(I) amended, p. 582, § 20, effective July 1. L. 94: (1) and (3) amended and (2.5) added, p. 2057, § 9, effective July 1; (6) and (8) amended, p. 2687, § 207, effective July 1. L. 98: (1), (3), (4), and (6) amended, p. 1421, § 9, effective July 1. L. 99: (1), (2), (2.5), (3), (6), and (8) amended, p. 913, § 9, effective July 1. L. 2000: (2.7) added, p. 476, § 5, effective July 1. L. 2001: Entire section amended, p. 847, § 11, effective June 1. L. 2003: (1), (6)(a), (6)(b), and (8)(b) amended and (6.5) added, p. 2487, § 2, effective July 1. L. 2005: (9) added, p. 679, § 4, effective July 1. L. 2007: (1) and (1.5) amended and (3.7) added, p. 1018, § 9, effective May 22. L. 2008: (10) added, p. 1533, § 2, effective July 1. L. 2015: (9) amended,(HB 15-1337), ch. 328, p. 1342, § 3, effective June 5. L. 2018: (2), IP(2.5), and IP(5)(a) amended,(SB 18-092), ch. 38, p. 423, § 63, effective August 8. L. 2019: Entire section R&RE,(HB 19-1219), ch. 237, p. 2349, § 1, effective August 2. L. 2021: (1)(a) and (4)(c) amended,(HB 21-1094), ch. 340, p. 2217, § 6, effective June 25; (5)(a) and (5)(d) amended,(SB 21-059), ch. 136, p. 733, § 81, effective October 1.    Cross references:    For the legislative declaration contained in the 1993 act amending subsection (5)(a)(I), see section 1 of chapter 165, Session Laws of Colorado 1993. For the legislative declaration contained in the 1999 act amending subsections (1), (2), (2.5), (3), (6), and (8), see section 1 of chapter 233, Session Laws of Colorado 1999. For the legislative declaration contained in the 2001 act amending this section, see section 1 of chapter 241, Session Laws of Colorado 2001. For the legislative declaration contained in the 2005 act enacting subsection (9), see section 1 of chapter 194, Session Laws of Colorado 2005. For the legislative declaration in SB 18-092, see section 1 of chapter 38, Session Laws of Colorado 2018.    For part E of Title IV of the federal “Social Security Act”, see 42 U.S.C. sec. 670 et seq.     ANNOTATION   Law reviews. For article, “Review of New Legislation Relating to Criminal Law”, see 11 Colo. Law. 2148 (1982). For article, “House Bill 1268 -- In the Best Interests of the Child”, see 18 Colo. Law. 1703 (1989). For article, “Permanency Planning in Dependency Cases”, see 20 Colo. Law. 717 (1991).   Annotator's note. The following annotations include cases decided under former provisions similar to this section.   The general assembly intended that this section apply to all children placed out of the home, not only to those placed into foster care. People ex rel. C.M., 116 P.3d 1278 (Colo. App. 2005).   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).   Section 19-1-109 (2)(c) is not meant to delay permanent placement decisions while appeals of dependency and neglect orders are litigated. Section 19-1-109 (2)(c) provides the trial court with continuing jurisdiction to enter further permanent custody orders under this section if it furthers the child's best interests, even if those orders are entered after the order adjudicating the child dependent or neglected is appealed. People ex rel. K.A., 155 P.3d 558 (Colo. App. 2006).   Once a petition for custody under § 14-10-123 is certified to be determined in a hearing under this section, dissolution-of-marriage statutes cease to apply. Instead, provisions of the Colorado Children's Code govern, in view of the differing policies behind the respective statutes. People in Interest of D.C., 851 P.2d 291 (Colo. App. 1993).   Permanency order under this section held not final and appealable. People in Interest of H.R., 883 P.2d 619 (Colo. App. 1994).   Failure to hold permanency planning hearing within 18 months after out-of-home placement is not jurisdictional. People in Interest of R.W. and T.W., 989 P.2d 240 (Colo. App. 1999), aff'd sub nom. L.L. v. People, 10 P.3d 1271 (Colo. 2000).   In determining whether to return the child to the home, the court must consider whether the parent can provide reasonable parental care. Reasonable parental care means, at a minimum, providing nurturing and protection adequate to meet the child's physical, emotional, and mental health needs. People ex rel. A.W.R., 17 P.3d 192 (Colo. App. 2000).   A finding of unfitness not required in order to decline to award a parent permanent legal custody. Under this section, an award of permanent custody to a nonparent may be made even if a parent is not found to be unfit. People ex rel. C.M., 116 P.3d 1278 (Colo. App. 2005).   A finding that a parent is unfit is not required to award permanent custody to a nonparent to avoid violating a parent's due process rights, though subsection (4) requires the department to establish a compelling reason why it is not in a child's best interests to return home, and unfitness could be a compelling reason. People in Interest of M.D., 2014 COA 121 , 338 P.3d 1120.   Mother's due process rights were not violated when the court changed the permanency plan and transferred the case to the district court for a termination hearing without first conducting a permanency hearing, but the mother was given a full and fair opportunity to address any issues regarding the change in the permanency plan at the termination hearing. People ex rel. M.B., 70 P.3d 618 (Colo. App. 2003).   Failure of a court to make express determinations as required by subsections (3.5)(a) and (3.5)(b) alone does not establish a failure by the court to observe procedural safeguards to protect a parent's rights or to ensure that reasonable efforts were undertaken to finalize a permanency plan. People in Interest of M.D., 2014 COA 121 , 338 P.3d 1120.   Because subsection (5) uses the permissive “may”, a court is not required to make findings about the impact of removing a child from a foster home. People in Interest of M.D., 2014 COA 121 , 338 P.3d 1120.   Court not required to make a finding under subsection (5)(b) that a child's removal from a foster home would be seriously detrimental to the child's emotional well-being after a court finds there are compelling reasons that it would not be in a child's best interests to return to a parent's home. People in Interest of M.D., 2014 COA 121 , 338 P.3d 1120.