In a case involving domestic violence, homelessness and a special-needs child, Colorado’s second-highest court determined a Denver judge wrongly terminated a cognitively-impaired woman’s parental rights based on inaccurate findings about her disability.

By 2-1, a three-judge panel for the Court of Appeals concluded the facts did not support Juvenile Court Judge Laurie A. Clark’s determination that Denver had accommodated the mother’s disability during the welfare proceedings. Although Clark believed the Denver Human Services department’s interactions with the mother were “designed to meet” her needs, the appellate panel’s majority did not see evidence of that.

“For example, despite mother’s verbal comprehension limitations, there is nothing in the record to suggest that the caseworker provided mother with any information in writing, gave mother any additional time to process information, or made any efforts to ensure that mother understood instruction,” wrote Judge Dennis A. Graham in the Oct. 20 opinion.

The mother, identified as S.M.P., appealed Clark’s decision terminating the legal relationship between her and her son, M.A.P. The case dates to March 2017, when El Paso County accused S.M.P. of failing to provide for her son’s medical and educational needs and alleged the family had a history of domestic violence and homelessness. A judge agreed M.A.P. was neglected and adopted a treatment plan for S.M.P. that required her to provide a safe, stable environment for her son.

Two years later, the case transferred to Denver. Denver Human Services moved to terminate S.M.P.’s parental rights, after which she underwent a psychological evaluation. The evaluator described S.M.P. as within the “borderline range of intellectual functioning,” with limitations on her ability to learn and comprehend information.

S.M.P. asserted that she had a disability, and Denver did not dispute that on appeal. Her disability implicated S.M.P.’s rights under the Americans with Disabilities Act and its precursor, the Rehabilitation Act, which exist to combat discrimination on the basis of disability.

Clark ultimately found Denver Human Services and S.M.P.’s service providers had accommodated the cognitive disability, and she terminated S.M.P.’s parental rights. S.M.P. appealed, contesting Clark’s findings of accommodation.

The Court of Appeals panel explained that to comply with federal law, local departments of human services need to make reasonable accommodations for parents’ disabilities when crafting treatment plans and providing rehabilitative services. The majority concluded Denver had not done so.

Although S.M.P.’s psychological evaluator recommended information be provided to S.M.P. in a variety of ways, after which she would verbally recite what she had learned, neither S.M.P.’s caseworker, her visitation supervisor nor her life skills worker appeared to follow that approach with S.M.P.

“Ultimately, while the record shows that the life skills worker may have recognized mother’s strengths and weaknesses, she did not testify that she implemented any of the recommended techniques while working with mother,” wrote Graham, a retired judge sitting on the panel at the chief justice’s assignment, for himself and Chief Judge Gilbert M. Román.

The majority recognized S.M.P. had reacted negatively to attending counseling for domestic violence. However, even though domestic violence was a major problem for the family, Graham found no indication S.M.P.’s treatment provider had experience working with people who, like S.M.P., were cognitively impaired.

Therefore, Graham continued, it was unclear whether S.M.P.’s nonparticipation was fully attributable to her, or whether the treatment failed to accommodate her specific disability.

The panel reversed Clark’s termination decision and ordered a treatment plan for S.M.P. that is calibrated to her cognitive disability, with corresponding services to follow.

Judge Steve Bernard dissented, writing that M.A.P., who himself suffers from psychological and physical conditions, would likely never receive the proper care from his mother, even with additional help from the human services department.

“I take no joy in this prediction, but, based on the record, I think it is reasonably probable that all that reversing the court’s judgment and remanding this case to the court to craft a new treatment plan will do is to delay permanency for the child for a much longer time,” wrote Bernard, also a retired judge.

He explained the two significant issues identified in the juvenile court were the family’s domestic violence and M.A.P.’s own special needs. Clark had found S.M.P. could not adequately care for her son and that additional time would not likely have an effect. Bernard felt he could not second-guess that conclusion.

“In this case, the court had an opportunity to observe all the witnesses during the hearing, including mother; I did not,” he added.

The case is People in the Interest of M.A.P.