Case Law Development: Court May Consider Even Brief Periods of Incarceration in TPR Actions

The Colorado Supreme Court has held that a trial court did not improperly consider the effect of a parent's criminal conviction and resulting incarceration in a termination of parental rights case.

Colorado law provides that parental incarceration alone, is insufficient for termination of parental rights.  However, the Colorado code requires a trial court to consider parental incarceration under two circumstances: "(1) if the parent is confined and not eligible for parole for at least six years after the date was adjudicated dependent or neglected; and (2) if the parent is confined and not eligible for parole for at least thirty-six months after the date a child, who is under the age of six when the petition is filed, is adjudicated dependent or neglected."

The question in this case was whether a court may consider periods of incarceration of less than thirty-six months. The Colorado Supreme Court concluded that "Because the primary and controlling issue in termination proceedings is the determination of what will best serve the interests and welfare of the child, a trial court may consider even a relatively short period of parental incarceration as a factor affecting parental fitness and the needs of a child who has been adjudicated dependent or neglected."

Part of the court's rationale for termination of father's rights in this case was that, while eligible, he had been denied parole because the parole board found him a danger to society.  Thus father could not comply with the treatment plan, which was premised on his parole.  The case provides an interesting comparison with the recent Wisconsin court case (see July 28th Family Law Prof post) addressing a similar issue.

In the interests of K.D., 2006 Colo. LEXIS 622 (July 31, 2006)
Opinion on the web (last visited August 1, 2006 bgf)