2016 Colorado Revised Statutes
Title 19 - Children's Code
Article 1 - General Provisions
Part 1 - General Provisions
§ 19-1-115. Legal custody - guardianship - placement out of the home - petition for review for need of placement

(1) (a) Except as otherwise provided by law, in awarding legal custody of a child pursuant to the provisions of this title, the court may, if in the best interests of the child, give preference to the child's grandparent who is appropriate, capable, willing, and available to care for the child, if the court finds that there is no suitable natural or adoptive parent available, with due diligence having been exercised in attempting to locate any such natural or adoptive parent. Any individual, agency, or institution vested by the court with legal custody of a child shall have the rights and duties defined in section 19-1-103 (73).

(b) Any individual, agency, or institution vested by the court with the guardianship of the person of a child shall have the rights and duties defined in section 19-1-103 (60); except that no guardian of the person may consent to the adoption of a child unless that authority is expressly given by the court.

(2) (a) If legal custody or guardianship of the person is vested in an agency or institution, the court shall transmit, with the court order, copies of the social study, any clinical reports, and other information concerning the care and treatment of the child.

(b) An individual, agency, or institution vested by the court with legal custody or guardianship of the person of a child shall give the court any information concerning the child which the court at any time may require.

(3) (a) Any agency vested by the court with legal custody of a child shall have the right, subject to the approval of the court, to determine where and with whom the child shall live, but this paragraph (a) shall not apply to placement of children committed to the department of human services. In determining where and with whom a child shall live, if in the best interests of the child, preference may be given to the child's grandparent who is appropriate, capable, willing, and available to care for the child.

(b) No individual or agency vested by the court with legal custody of a child or with which a child is placed pursuant to subsection (8) of this section shall remove the child from the state for more than thirty days without court approval. When granting such approval, if appropriate, the court shall enter an order that the individual or agency comply with the requirements of the "Interstate Compact on Placement of Children" set forth in part 18 of article 60 of title 24, C.R.S.

(4) (a) A decree vesting legal custody of a child in an individual, institution, or agency or providing for placement of a child pursuant to section 19-2-906 or 19-3-403 or subsection (8) of this section shall be for a determinate period. Such decree shall be reviewed by the court no later than three months after it is entered, except a decree vesting legal custody of a child with the department of human services.

(b) The individual, institution, or agency vested with the legal custody of a child may petition the court for renewal of the decree. The court, after notice and hearing, may renew the decree for such additional determinate period as the court may determine if it finds such renewal to be in the best interests of the child and of the community. The findings of the court and the reasons therefor shall be entered with the order renewing or denying renewal of the decree.

(c) The court shall review any decree or, if there is no objection by any party to the action, the court may, in its discretion, require an administrative review by the state department of human services of any decree entered in accordance with this subsection (4) each six months after the initial review provided in paragraph (a) of this subsection (4). In the event that an administrative review is ordered, all counsel of record shall be notified and may appear at said review. Periodic reviews shall include the determinations and projections required in section 19-3-702 (6).

(d) (I) A decree vesting legal custody of a child or providing for placement of a child with an agency in which public moneys are expended shall be accompanied by an order of the court that obligates the parent of the child to pay a fee, based on the parent's ability to pay, to cover the costs of the guardian ad litem and of providing for residential care of the child. When custody of the child is given to the county department of social services, such fee for residential care shall be in accordance with the fee requirements as provided by rule of the department of human services, and such fee shall apply, to the extent unpaid, to the entire period of placement. When a child is committed to the department of human services, such fee for care and treatment shall be in accordance with the fee requirements as provided by rule of the department of human services, and such fee shall apply, to the extent unpaid, to the entire period of placement.

(II) For an adoptive family who receives an approved Title IV-E adoption assistance subsidy pursuant to the federal "Social Security Act", 42 U.S.C. sec. 673 et seq., or an approved payment in subsidization of adoption pursuant to section 26-7-103, C.R.S., the cost of care, as defined in section 19-1-103 (30), shall not exceed the amount of the adoption assistance payment.

(5) No legal custodian or guardian of the person may be removed without his consent until given notice and an opportunity to be heard by the court if he so requests.

(6) Any time the court enters an order awarding legal custody of a child to the department of human services or to a county department pursuant to the provisions of this title, even temporarily, said order shall contain specific findings, if warranted by the evidence, as follows:

(a) That continuation of the child in the home would be contrary to the child's best interests;

(b) That there has been compliance with reasonable efforts requirements regarding removal of the child from the home, as follows:

(I) That reasonable efforts have been made to prevent or eliminate the need for removal of the child from the home; or

(II) That an emergency situation exists which requires the immediate temporary removal of the child from the home and it is reasonable that preventive efforts not be made due to the emergency situation; or

(III) That reasonable efforts to prevent the child's removal from the home are not required because of the existence of a circumstance described in subsection (7) of this section;

(c) That reasonable efforts have been made or will be made to reunite the child and the family or that efforts to reunite the child and the family have failed or that reasonable efforts to reunite the child and the family are not required pursuant to subsection (7) of this section; and

(d) That procedural safeguards with respect to parental rights have been applied in connection with the removal of the child from the home, a change in the child's placement out of the home, and any determination affecting parental visitation.

(6.5) Any time the court enters an order continuing a child in a placement out of the home pursuant to this title, said order shall contain specific findings, if warranted by the evidence, as follows:

(a) The continuation of the child in out-of-home placement is in the best interests of the child;

(b) That reasonable efforts have been made to reunite the child and the family or that reasonable efforts to reunite the child and the family are not required pursuant to subsection (7) of this section; and

(c) That procedural safeguards with respect to parental rights have been applied in connection with the continuation of the child in out-of-home placement, a change in the child's placement out of the home, and any determination affecting parental visitation.

(6.7) Any time the court enters an order related to out-of-home placement pursuant to paragraphs (a), (b), and (c) of subsection (6) or paragraph (b) of subsection (6.5) of this section; paragraph (f) of subsection (8) of this section; section 19-2-508 (3) (a) (VII) (A) and (3) (a) (VII) (B); section 19-2-906.5 (1) (a), (1) (b), and (3) (a) (III); or section 19-3-702 (3.5) (b) and (6) (a) (II), the order shall be effective as of the date the findings were made by the court, notwithstanding the date that a written order may be signed by the court. Written orders entered pursuant to paragraphs (a), (b), and (c) of subsection (6) or paragraph (b) of subsection (6.5) of this section; paragraph (f) of subsection (8) of this section; section 19-2-508 (3) (a) (VII) (A) and (3) (a) (VII) (B); section 19-2-906.5 (1) (a), (1) (b), and (3) (a) (III); or section 19-3-702 (3.5) (b) and (6) (a) (II) shall state "the effective date of this order is" and shall not use the words "nunc pro tunc".

(7) Reasonable efforts are not required to prevent the child's removal from the home or to reunify the child and the family in the following circumstances:

(a) When the court finds that the parent has subjected the child to aggravated circumstances as described in sections 19-3-604 (1) and (2); or

(b) When the parental rights of the parent with respect to a sibling of the child have been involuntarily terminated; unless the prior sibling termination resulted from a parent delivering a child to a firefighter or a hospital staff member pursuant to the provisions of section 19-3-304.5; or

(c) When the court finds that the parent has been convicted of any of the following crimes:

(I) Murder of another child of the parent;

(II) Voluntary manslaughter of another child of the parent;

(III) Aiding, abetting, or attempting the commission of or conspiring or soliciting to commit the crimes in subparagraphs (I) and (II) of this paragraph (c); or

(IV) A felony assault that resulted in serious bodily injury to the child or to another child of the parent.

(8) (a) Whenever it appears necessary that the placement of a child out of the home will be for longer than ninety days, the placement is voluntary and not court-ordered, and the placement involves the direct expenditure of funds appropriated by the general assembly to the department of human services, a petition for review of need for placement shall be filed by the department or agency with which the child has been placed before the expiration of ninety days in the placement. A decree providing for voluntary placement of a child with an agency in which public moneys are expended shall be renewable in circumstances where there is documentation that the child has an emotional, a physical, or an intellectual disability that necessitates care and treatment for a longer duration than ninety days as provided pursuant to this paragraph (a). The court shall not transfer or require relinquishment of legal custody of, or otherwise terminate the parental rights with respect to, a child who has an emotional, a physical, or an intellectual disability and who was voluntarily placed out of the home for the purposes of obtaining special treatment or care solely because the parent or legal guardian is unable to provide the treatment or care. Whenever a child fifteen years of age or older consents to placement in a mental health facility pursuant to section 27-65-103, C.R.S., the review under section 27-65-103 (5), C.R.S., shall be conducted in lieu of and shall fulfill the requirements for review under this paragraph (a).

(b) (I) The petition and all subsequent court documents in any proceedings brought under paragraph (a) of this subsection (8) shall be titled "The People of the State of Colorado, in the Interest of , a child (or children) and Concerning, Respondent." The petition shall be verified, and the statements in the petition may be made upon information and belief.

(II) The petition shall set forth plainly the facts that bring the child within the court's jurisdiction, specifying that the child is subject to immediate placement out of the home or has been in voluntary placement out of the home and it appears that continuation of the placement is necessary for a time exceeding ninety days and continuation of the placement is necessary and is in the best interest of the child, the family, and the community. The petition shall also state the name, age, and residence of the child and the names and residences of his or her parents, guardian, or other legal custodian or of his or her nearest known relative if no parent, guardian, or other legal custodian is known.

(III) All petitions filed pursuant to this subsection (8) shall include the following statement: "If the child is placed out of the home for a period of twelve months or longer, the court shall hold a permanency hearing within said twelve months to determine the future status of the child. The review of any decree of placement of a child subsequent to the three-month review required by section 19-1-115 (4) (a), Colorado Revised Statutes, may be conducted as an administrative review by the department of human services. If you are a party to the action, you have a right to object to an administrative review, and, if you object, the review shall be conducted by the court."

(c) After a petition has been filed, the court shall promptly issue a summons reciting briefly the substance of the petition. The summons shall be substantially in the form specified in section 19-3-502 and be dealt with in the manner provided in section 19-3-503 and shall set forth the constitutional and legal rights of the child, his or her parents or guardian, and any other respondent, including the right to have an attorney present at the hearing on the petition. The petitioner shall send the summons to the child and his or her parents, guardian, or legal custodian by certified mail. Notice of the hearing shall be given by the court to the director of the facility or agency in which the child is placed and any person who has physical custody of the child and any attorney or guardian ad litem of record. Nothing in this subsection (8) shall require the presence of any person before the court unless the court so directs.

(d) The court shall appoint a guardian ad litem to protect the interest of the child for any child who is the subject of a petition for review of placement, unless the court makes specific findings that no useful purpose would be served by such appointment.

(e) For purposes of determining proper placement of the child, the petition for review of placement or social study shall be accompanied by an evaluation for placement prepared by the department or agency that recommends placement or with which the child has been placed. The evaluation for placement shall include an assessment of the child's physical and mental health, developmental status, family and social history, and educational status. The petition shall also be accompanied by recommended placements for the child and the monthly cost of each and a treatment plan that contains, at a minimum, the goals to be achieved by the placement; the services to be provided; the intensity, duration, and provider of the services; identification of the services that can be provided only in a residential setting; and the recommended duration of the placement. The petition or social study shall also be accompanied by the required fee to be charged to the parents pursuant to paragraph (d) of subsection (4) of this section. In addition, if a change in legal custody is recommended, the evaluation for placement shall include other alternatives that have been explored and the reason for their rejection, and the evaluation for placement shall contain an explanation of any particular placements that were considered and rejected and the reason for their rejection.

(f) The petition for review of need for placement shall request the court to determine, by a preponderance of the evidence, whether placement or continued placement is necessary and in the best interest of the child, the family, and the community and whether reasonable efforts have been made to return the child to a safe home or whether the child should be permanently removed from his or her home. If the court makes such findings, it shall enter a decree ordering the child's placement out of the home in the facility or setting that most appropriately meets the needs of the child, the family, and the community. In making its decision as to proper placement, the court shall utilize the evaluation for placement prepared pursuant to section 19-1-107 or the evaluation for placement required by paragraph (e) of this subsection (8) that shall state the cost of recommended placement. If the evaluation for placement recommends placement in a facility located in Colorado that can provide appropriate treatment and that will accept the child, then the court shall not place the child in a facility outside this state. If the court deviates from the recommendations of the evaluation for placement in a manner that results in a difference in the cost of the disposition ordered by the court and the cost of the disposition recommended in the evaluation, the court shall make specific findings of fact relating to its decision, including the monthly cost of the placement, if ordered. A copy of such findings shall be sent to the chief justice of the Colorado supreme court, who shall report annually to the joint budget committee and the health and human services committees of the house of representatives and senate of the general assembly, or any successor committees, on such orders. If the court commits the child to the department of human services, it shall not make a specific placement, nor shall the provisions of this paragraph (f) relating to specific findings of fact be applicable. If the court makes a finding that continued placement is not necessary and is not in the best interest of the child, the family, and the community, the court shall dismiss the petition for review of need for placement and shall order that the child be returned home. The court may require a continued hearing of the petition for review of need for placement for a period not to exceed fourteen days if it finds that the materials submitted are insufficient to make a finding as provided in this paragraph (f).

(g) A petition for review of need for placement shall not be handled as an informal adjustment in accordance with the provisions of section 19-3-501 (2).