The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY November 5, 2020
2020COA154
No. 19CA0328, People in Interest of A.A. — Juvenile Court — Dependency and Neglect — Termination of the Parent-Child Legal Relationship
A division of the court of appeals holds that where the juvenile
court completely cuts off visitation between the parents and the
children, without any showing that entirely prohibiting such
visitation is necessary to protect the children, there have not been
reasonable efforts to reunify the family. The division further notes a
potential conflict in the standard of review language found in two
supreme court cases — Interest of S.N. v. S.N., 2014 CO 64, and
People in Interest of C.A.K., 652 P.2d 603 (Colo. 1982) — and urges
the supreme court to clarify the standard to be applied in reviewing
termination of parental rights cases. COLORADO COURT OF APPEALS 2020COA154
Court of Appeals No. 19CA0328 Adams County District Court No. 17JV209 Honorable Priscilla J. Loew, Judge
The People of the State of Colorado,
Appellee,
In the Interest of A.A. and E.A., Children,
and Concerning M.A. and J.A.,
Appellants.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division VII Opinion by JUDGE TOW Navarro and Lipinsky, JJ., concur
Announced November 5, 2020
Heidi M. Miller, County Attorney, Deborah Kreshner, Assistant County Attorney, Westminster, Colorado, for Appellee
Barry Meinster, Guardian Ad Litem
Antony Noble, Office of Respondent Parents’ Counsel, Lakewood, Colorado, for Appellant M.A.
The Saroyan Law Firm, L.L.C., Zaven T. Saroyan, Colorado Springs, Colorado, for Appellant J.A. ¶1 Mother, J.A., and father, M.A., appeal the juvenile court’s
judgment terminating their parent-child legal relationships with
A.A. and E.A. We conclude that the Adams County Human Services
Department (Department) did not exercise reasonable efforts to
reunify the family. In particular, we agree with both parents that
the court completely cut off visitation, at the Department’s
recommendation, without a sufficient showing that a complete
denial of visitation was appropriate under the circumstances. In
addition, we conclude that the Department did not exercise
reasonable efforts to rehabilitate father. We therefore reverse the
judgment and remand the case for further proceedings.
I. Background
¶2 In June 2017, the Department filed a petition in dependency
or neglect because of concerns that mother and father were using
methamphetamine, engaging in domestic violence, and neglecting
the children’s basic and special educational needs. At the time the
petition was filed, one of the children was five years old and the
other was seven years old.
¶3 A juvenile court magistrate adjudicated the children
dependent or neglected and approved treatment plans for the
1 parents. Eighteen months later, the juvenile court terminated both
parents’ parental rights.
II. Reasonable Efforts
¶4 Mother and father raise a number of challenges regarding the
services that the Department provided to their family. The juvenile
court made no explicit findings regarding whether the Department
made reasonable efforts to rehabilitate the parents and reunite the
family. Regardless, as discussed below, our review of the record
reveals that the evidence was insufficient to support such a
determination. Therefore, we agree with mother and father that the
judgment must be reversed.
A. Standard of Review and Legal Principles
¶5 One of the goals of the Children’s Code is to preserve the
parent-child relationship whenever possible. § 19-1-102(1)(b),
C.R.S. 2019; see also People in Interest of C.A.K., 652 P.2d 603, 610
(Colo. 1982). To that end, when the state has instituted
dependency or neglect proceedings, it must make reasonable efforts
to rehabilitate parents and reunite families following the
out-of-home placement of abused or neglected children.
§§ 19-1-103(89), 19-3-100.5, 19-3-604(2)(h), C.R.S. 2019.
2 “Reasonable efforts” means the exercise of diligence and care to
reunify a parent with his or her children. § 19-1-103(89). The
reasonable efforts standard requires each county to provide services
to children who are in out-of-home placement and to their families
in accordance with section 19-3-208, C.R.S. 2019. §§ 19-1-103(89),
19-3-100.5(5).
¶6 After adjudicating a child dependent or neglected, a juvenile
court may terminate parental rights under section 19-3-604(1)(c)
only if clear and convincing evidence establishes that (1) the parent
has not complied with an appropriate, court-approved treatment
plan or the plan was unsuccessful; (2) the parent is unfit; and (3)
the parent’s conduct or condition is unlikely to change within a
reasonable time. In determining unfitness, the juvenile court must
consider whether reasonable efforts by child-caring agencies have
been unable to rehabilitate the parents. § 19-3-604(2)(h).
¶7 When reviewing a juvenile court’s decision to terminate
parental rights, appellate courts have long applied a very deferential
standard, setting aside a termination only when the juvenile court’s
findings are “so clearly erroneous as to find no support in the
record.” C.A.K., 652 P.2d at 613. “The credibility of the witnesses
3 and the sufficiency, probative value, and weight of the evidence, as
well as the inferences and conclusions to be drawn from it, are
within the discretion of the trial court.” K.D. v. People, 139 P.3d
695, 702 (Colo. 2006) (citing C.A.K., 652 P.2d at 612).
¶8 However, our supreme court has also suggested that a
different standard may be applicable. People in Interest of S.N. v.
S.N., 2014 CO 64 (S.N. II). In S.N. II, the juvenile court had entered
summary judgment adjudicating the child dependent or neglected,
concluding that there was no disputed issue of fact that the
parents’ care of the child presented a risk of prospective harm. Id.
at ¶ 2; see also People in Interest of S.N., 2013 COA 157, ¶ 5 (S.N. I),
rev’d, 2014 CO 64. A division of the court of appeals reversed,
holding that the issue of prospective harm involved disputed facts.
S.N. II, ¶ 26.
¶9 The supreme court reversed the division. In doing so, it held
that prospective harm is not “purely a factual question.” Id. at
¶ 21. Instead, the court stated that “[w]hether a child is dependent
and neglected is a mixed question of fact and law because
resolution of this issue necessitates application of the dependency
and neglect statute to the evidentiary facts.” Id. The court then
4 reiterated the distinction between evidentiary facts — i.e., “the raw,
historical data underlying the controversy” — and the ultimate fact,
which “involves a conclusion of law or at least a determination of a
mixed question of law and fact [that] settles the rights and liabilities
of the parties.” Id. (quoting Blaine v. Moffat Cty. Sch. Dist. Re No. 1,
748 P.2d 1280, 1287 (Colo. 1988)).
¶ 10 We acknowledge that the S.N. case involved a different stage of
a child protection proceeding — an adjudication — than the stage in
this case — a termination. But there is no logical reason why the
supreme court’s dichotomy would not apply equally at the
termination stage. Cf. In Interest of Baby A, 2015 CO 72, ¶ 16
(reviewing as a mixed question of fact and law the juvenile court’s
decision to terminate a biological father’s parental rights in an
adoption proceeding under section 19-5-105, C.R.S. 2019). The
analytical underpinnings of S.N. II would apply with equal force to
the distinction between “evidentiary facts” and the “ultimate facts”
warranting a juvenile court’s decision to terminate parental rights.
Indeed, at least three divisions of this court appear to have applied
S.N. II to the termination stage in a dependency or neglect case.
See People in Interest of S.R.N.J-S., 2020 COA 12, ¶ 10; People in
5 Interest of S.K., 2019 COA 36, ¶ 41; People in Interest of L.M., 2018
COA 57M, ¶ 17.
¶ 11 This change, if indeed it is a change, significantly alters this
court’s role in reviewing cases involving termination of parental
rights. For example, if a trial court’s findings and conclusions
regarding a parent’s fitness are reviewed as purely factual findings,
they will “not be disturbed on review unless so clearly erroneous as
to find no support in the record.” C.A.K., 652 P.2d at 613. This is
an extremely deferential standard.1 But if the fitness determination
is, as the supreme court suggested in S.N., a mixed question of fact
and law, the resolution of the ultimate question — whether
sufficient grounds for termination have been shown — is reviewed
——————————————————————— 1 Indeed, it is difficult to reconcile this standard of review with the standard of proof to be applied by the juvenile court — clear and convincing evidence. Under this standard, we cannot disturb a juvenile court’s conclusion that there was clear and convincing evidence that a parent was unfit so long as the record contains any evidence that the parent was unfit. Contra McCoy v. People, 2019 CO 44, ¶ 63 (In criminal cases, appellate courts review the record de novo to determine “whether the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt.” (quoting Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010))).
6 de novo. See S.K., ¶ 41. In other words, though we would defer to
the juvenile court’s findings of historical fact, we would no longer be
required to deferentially review the juvenile court’s legal conclusion
of unfitness.
¶ 12 And many of the findings and conclusions that go into a
juvenile court’s ultimate determination whether to terminate
parental rights arguably fall in the “mixed question” bucket, in that
they involve the “application of the dependency and neglect statute
to the evidentiary facts.” S.N. II, ¶ 21. For example, the
determination of whether a parent is unfit requires the application
of legal standards set forth in section 19-3-604. See S.R.N.J-S.,
¶ 11. Similarly, as relevant here, a juvenile court’s conclusion that
the government exercised reasonable efforts requires application of
section 19-3-208 to the historical facts as found by the juvenile
court. See § 19-1-103(89) (deeming the services enumerated in
section 19-3-208 to meet the reasonable efforts standard); cf. People
in Interest of I.J.O., 2019 COA 151, ¶ 22 (“We recognize that we
review a juvenile court’s finding of reasonable efforts for clear error.
Even so, we must review de novo whether the court applied the
correct legal standard.” (citing S.N. II, ¶ 21)).
7 ¶ 13 In short, in the wake of the supreme court’s decision in S.N. II,
it is unclear whether we are to review the juvenile court’s
determination of reasonable efforts (implicit in this case) de novo or
for clear error. However, we conclude that we need not resolve this
question because the juvenile court’s decision here was erroneous
under either standard.2
B. Visitation
¶ 14 Mother contends that the juvenile court violated her
constitutional right to due process and her statutory right to
visitation services when it denied her those services for reasons
unrelated to the children’s health, safety, or well-being. Similarly,
father asserts that the juvenile court erred by delegating decisions
regarding visitation to the Department and guardian ad litem (GAL),
with the result that he had extremely limited visitation with the
——————————————————————— 2 That being said, these decisions involve critical, and often conflicting, interests: children’s right to have their physical, mental, and emotional conditions and needs met, see § 19-3-604(3), C.R.S. 2019, and parents’ fundamental liberty interest in the care, custody, and management of their children, see Santosky v. Kramer, 455 U.S. 745, 753 (1982). Uncertainty regarding our role in reviewing juvenile court orders in these all-too-frequent cases potentially delays much needed permanency. We respectfully urge the supreme court to provide clarity.
8 children. The substance of both parents’ arguments is that (1) they
did not receive statutorily mandated visitation services and (2) the
juvenile court consequently erred when it found that the
Department made reasonable efforts to rehabilitate them and
reunify the family.
¶ 15 Father also contends that the Department did not make
reasonable efforts to “rehabilitate” the children by providing the
services they needed to prepare for a successful reunification,
including visitation with each other and with father. In other
words, he asserts that the Department did not make reasonable
efforts to reunify the family. See § 19-3-100.5 (the state must make
reasonable efforts to reunify families); § 19-3-208(1), (2)(a)(IV) (the
state shall provide services to children who are in out-of-home
placement to facilitate reunification of parents and children).
¶ 16 We agree that the juvenile court reversibly erred when it
(1) conditioned visitation services for mother and the children on
mother’s sobriety without a proper statutory basis and (2) found
that the parents were unfit despite the Department’s failure to meet
9 the reasonable efforts standard by providing adequate visitation
services for the family.3
¶ 17 Visitation services for parents and children in out-of-home
placement must be provided in accordance with individual case
plans. § 19-3-208(2)(b)(IV). The child’s health and safety are the
paramount concerns in determining whether services, including
visitation, are necessary and appropriate. People in Interest of D.G.,
140 P.3d 299, 302 (Colo. App. 2006). Visitation services shall be
designed to promote the health, safety, and well-being of the
children; facilitate the speedy reunification of parents and children;
and promote the best interests of the child. § 19-3-208(2)(a).
1. Mother’s Visitation
¶ 18 On June 22, 2017, the Department removed the children from
the parents’ home pursuant to an emergency order and placed them
with a paternal great-aunt and great-uncle. At the shelter hearing
five days later, the magistrate ordered the Department to provide
——————————————————————— 3 Because we agree with mother’s statutory argument, we need not reach her due process claim. See, e.g., BS & C Enters., LLC v. Barnett, 186 P.3d 128, 133 (Colo. App. 2008) (noting that the principle of judicial restraint counsels against unnecessarily deciding constitutional issues (citing Developmental Pathways v. Ritter, 178 P.3d 524, 535 (Colo. 2008))).
10 the family visitation at least twice per week. The Department was
to supervise mother’s visits, while the placement providers would
supervise father’s visits. The magistrate also ordered the GAL to
schedule regular telephone calls for the family. The caseworker’s
report noted that mother was appropriately attached to the
children, who described her as “the best mom.”
¶ 19 On July 5, 2017, mother completed a mental health
evaluation, in which she reported symptoms of depression and
anxiety. She said the children were her reason to live and that she
wanted to be a good mother.
¶ 20 On July 18, 2017, A.A. entered residential treatment after the
great-aunt and great-uncle were unable to manage his behavior.
¶ 21 On July 21, 2017, the magistrate held a shelter hearing to
address A.A.’s placement. The parents reported that they had been
allowed only one telephone call with the children in the past month.
Mother expressed frustration at being denied contact with A.A.
while he was struggling because, in her experience, she could have
a settling effect on A.A. and could help him get his behavior under
control.
11 ¶ 22 On July 26, 2017, mother reported that she was struggling
emotionally because she had never been away from her children
before. She requested a set schedule for telephone calls, which the
court ordered. The Department reported that staff at the residential
treatment facility were frequently placing A.A. in physical holds to
manage his behavior. There is no evidence that the Department
had provided any in-person visitation for the family since the
children’s removal.
¶ 23 On August 15, 2017, A.A. was moved to a second residential
treatment facility.
¶ 24 On September 26, 2017, a different magistrate held a
permanency planning hearing. The caseworker reported that
mother had been uncooperative and defiant and both parents
continued to use methamphetamine. As a result, the Department
asked the magistrate to suspend mother’s visitation until she could
demonstrate two weeks of monitored sobriety. The GAL agreed with
the request on the grounds that the parents’ relationship with each
other was toxic, as evidenced by emails between the parents, and
their relationship created a terrible environment for the children.
But he did not explain how the parents’ relationship with one
12 another affected the children, given that the children were placed
out of the home and, as a result, there was no evidence that they
were witnessing the parents’ conflict.
¶ 25 The magistrate suspended visitation until each parent could
demonstrate two weeks of sobriety through urinalysis testing. The
magistrate reasoned there was no point in allowing visitation until
the parents were sober because, until then, visitation would be
more harmful to the children than helpful.
¶ 26 But the magistrate did not explain how he came to this
conclusion. There was no evidence that either parent had attended
a visit while intoxicated or that either parent had missed or
disrupted a visit due to intoxication. Indeed, there was no evidence
that either parent was allowed any in-person visits with the
children.
¶ 27 Further, there was no evidence that a more moderate
approach, such as sobriety testing immediately before visits, would
not have sufficiently addressed any concerns about the parents’
conduct during visitation without depriving the family of this
fundamental service. Thus, it is unclear how the magistrate’s
visitation order was designed to promote the health, safety, and
13 well-being of the children; facilitate the speedy reunification of the
family; or promote the best interests of the children. See
§ 19-3-208(2)(a).
¶ 28 At a review hearing in February 2018, mother’s counsel asked
the second magistrate to consider therapeutic visitation and offered
to have mother complete an assessment, if necessary, to determine
the appropriate level of supervision or intervention. But after
mother spoke out of turn, the magistrate denied the request,
stating, “[T]here is the example of why she has no contact with the
children. She can’t deal with it.” The magistrate did not explain,
and we are unable to glean from the record, how mother’s conduct
in court related to her ability to have appropriate therapeutic
visitation sessions with the children or how the continued denial of
visitation services for mother and the children served the statutory
goals of section 19-3-208(2)(a).
¶ 29 Given this record, we conclude that the magistrate erred when
he suspended the parents’ visitation entirely pending two weeks of
demonstrated sobriety.
¶ 30 Further, the magistrate and the juvenile court did not ensure
that the family was provided adequate visitation services. Because
14 mother never established two consecutive weeks of clean urinalysis
tests, the Department never offered visitation services for her and
the children. As a result, mother and the children were totally
deprived of the visitation services required by section 19-3-208(2)(h)
without any showing that such total deprivation was necessary to
protect the children. Thus, we further conclude that the juvenile
court erred when it terminated mother’s parental rights because the
record does not support a determination that the Department made
reasonable efforts to reunite mother with the children.
2. Father’s Visitation with E.A.
¶ 31 Father met the sobriety requirement and resumed monitored
visitation with the children. At a review hearing in November 2017,
the caseworker reported that father was appropriate in visits with
both children.
¶ 32 But at the termination hearing, the caseworker testified that
father’s visits with E.A. had been suspended again in January
2018. She said the Department had stopped offering visitation
because E.A. perceived that father did not understand him, was
disrespectful of E.A., and did not fit in with E.A.’s need to organize
and control his environment.
15 ¶ 33 Although the case continued for another year, father and E.A.
had no more visits. The second magistrate, and later the juvenile
court, periodically reviewed the case and approved the
Department’s repeated recommendations to deny visitation because
the visit in January had gone poorly. In particular, the GAL
explained that E.A. was upset because father had been “loud and
boisterous” and had thrown E.A.’s Legos. The caseworker reported
that father had been “disrespectful toward [the] Legos.” Eventually,
the GAL and the Department began to report that E.A. no longer
wanted contact with his parents.
¶ 34 But there is no evidence in the record that the Department
made any referrals for therapy or therapeutic visitation for father
and E.A. to preserve and strengthen their family ties. See
§ 19-1-102(1)(b). And although the Department indicated in
February 2018 that it planned to establish professionally
supervised visitation at the Department’s facilities, it failed to do so,
without explanation. Instead, the record establishes that, when
visitation under the supervision of E.A.’s kinship placement
provider became problematic, the Department withdrew all
visitation services for father and E.A. It is unclear why the
16 Department took this drastic step without making any effort to help
father and E.A. repair their relationship or to determine whether
any other level of visitation services would meet E.A.’s needs, such
as professionally supervised or monitored visitation.
¶ 35 Therefore, we conclude that the record does not establish that
the Department provided adequate visitation services for father and
E.A. as required by section 19-3-604(2)(h). As a result, we further
conclude that the record does not support a determination that the
Department made reasonable efforts to reunite father and E.A.
Thus, the juvenile court erred when it terminated father’s
parent-child legal relationship with E.A.
3. Father’s Visitation with A.A.
¶ 36 Father contends that the juvenile court improperly delegated
visitation decisions to the Department, the GAL, and A.A.’s
therapists. As a result, father asserts, he had only one visit with
A.A. in the six months before the termination hearing concluded.
¶ 37 We decline to address this contention because, as discussed
below, we reverse the judgment terminating father’s parent-child
legal relationship with A.A. on other grounds.
17 4. Visitation Between the Children
¶ 38 Father contends that the Department did not provide adequate
visitation for the children with each other and that, as a result, they
were not accustomed to each other enough to live together with
father.
¶ 39 We agree that the Children’s Code recognizes the importance
of sibling relationships and requires the Department to promote
frequent contact between siblings in foster care in accordance with
the children’s best interests. § 19-7-204, C.R.S. 2019.
Nonetheless, we decline to review this contention because it did not
form a basis for the court’s termination decision.
C. Substance Use Treatment Services for Father
¶ 40 Father contends that the juvenile court erred when it
terminated his parental rights because the Department did not
make reasonable efforts to rehabilitate him. We agree.
¶ 41 The Department moved to terminate parental rights on June
1, 2018. Father entered an inpatient substance use treatment
program three days later and successfully complied with the
program for over four months.
18 ¶ 42 At the termination hearing, father testified that the inpatient
program was designed to take two years, including eighteen months
in the residential facility and six months in a halfway house. But in
September 2018, he said, the caseworker and the GAL told him that
they planned to move forward with the termination motion because
the children should not have to wait two years for him to finish the
program. Father testified that he then decided to move to a sober
living facility so he could be available to parent the children. He
said that he had already completed over 400 hours of therapy,
including dialectical behavioral therapy, cognitive behavioral
therapy, anger management, and reality therapy, and he felt
confident that he could maintain sobriety in a less restrictive
environment.
¶ 43 The Department and the GAL argued that father’s early
departure from the inpatient program demonstrated his inability to
address his substance use. But father’s counsel asserted that
father faced an impossible choice: stay in the inpatient treatment
program and be deemed unfit because he was not available to care
for the children or leave the program and be deemed unfit because
he had not completed the program.
19 ¶ 44 We recognize that the juvenile court discredited father’s
testimony that he left the two-year program early to try to preserve
his parental rights. Regardless, the record does not support a
finding that the Department made reasonable efforts to rehabilitate
father in light of the Department’s decision not to offer him any
other substance abuse treatment.
¶ 45 Father and the caseworker both testified at the termination
hearing that the Department did not provide referrals or funding for
father’s substance abuse treatment services. Instead, father was
left to locate and pay for these services on his own. It appears that
the caseworker had decided that the only way father could comply
with his treatment plan (which required that he receive substance
abuse treatment) was to complete the two-year inpatient program.
But it is unclear why nothing less than a two-year inpatient
program would suffice to address father’s substance use.
¶ 46 The caseworker testified at the termination hearing that she
had spoken with father’s therapist at the sober living facility in
mid-October 2018 and was told that the facility staff was working to
match the services father had received in the inpatient program.
The caseworker said she did not speak with anyone at the sober
20 living facility again. Nevertheless, the Department objected that the
sober living facility only provided substance abuse support and did
not provide adequate substance abuse treatment. Yet the
Department did not offer any referrals for programs that it
considered adequate to comply with father’s treatment plan.
Instead, the caseworker testified at the termination hearing that she
was unaware of any substance abuse treatment father had
arranged or paid for on his own. (We note that the undisputed
evidence shows that father had been sober for four months when he
moved to the sober living facility and remained sober when the
termination hearing ended three months later.)
¶ 47 Under these circumstances, we conclude that the record does
not support a determination that the Department made reasonable
efforts to rehabilitate father. On this independent basis, the
juvenile court erred when it terminated father’s parent-child legal
relationships with both children.
D. Mental Health Services for A.A.
¶ 48 Father contends that the juvenile court erred when it
terminated his parent-child legal relationship with A.A. because the
Department did not meet its obligation to make reasonable efforts
21 to reunify the family by providing necessary mental health services
for A.A. We need not resolve this contention in light of our reversal
on other grounds. However, because the issue of A.A.’s treatment
will certainly arise on remand, we address the issues raised.
1. A.A.’s Placement History
¶ 49 A.A. and E.A. were removed from their parents’ home on
June 22, 2017, and placed with the great-aunt and great-uncle.
¶ 50 In July 2018, then-seven-year-old A.A. was placed in a
residential treatment facility because the great-aunt and
great-uncle were unable to manage his aggressive and violent
behavior. The Department reported that staff at the residential
treatment facility frequently placed A.A. in physical management
holds to control his behavior.
¶ 51 In August 2018, A.A. moved to a second residential treatment
facility, where he lived in a highly structured therapeutic
environment for nearly nine months.
¶ 52 In February 2019, A.A.’s Court Appointed Special Advocate
(CASA) reported that the treatment facility staff believed A.A. was
ready to transition to the community, although the next move
22 would be extremely difficult. The GAL asked the court to authorize
step-down placement for A.A., including continuing day treatment.
¶ 53 At a shelter hearing on May 3, 2018, the second magistrate
placed A.A. with a paternal aunt and uncle. Father also resided in
the home and had worked with A.A.’s treatment team to prepare for
the transition so he could care for A.A. under the supervision of the
aunt and uncle. But, contrary to the recommendations of A.A.’s
treatment providers, the GAL, and the CASA, the Department
reported that it had not arranged to provide continuing day
treatment for A.A. because the public school district had not agreed
to pay for it. The GAL reported that A.A. was not ready for the
public school system.
¶ 54 The caseworker testified at the termination hearing that father
argued with the aunt and uncle over father’s use of alcohol two
days after A.A. was placed in the home. She said the aunt and
uncle asked father to leave, and he moved out two weeks later. (As
discussed above, father entered the inpatient treatment program
about two weeks after leaving the paternal aunt’s home.)
¶ 55 The caseworker testified that, on May 25, 2018, the aunt took
A.A. to a hospital emergency department and reported that he was
23 exhibiting suicidal behavior and had been violent toward her son.
Over the next eleven weeks, A.A. changed placements six times,
moving in and out of three different residential treatment facilities
and emergency mental health hospitalizations at two different
hospitals. The caseworker testified that, at the time of the
termination hearing, A.A. was living at a residential treatment
facility and was subject to physical management holds up to three
times per day, four days per week, usually because he “was
assaultive” to staff or other children.
2. A.A.’s Treatment Needs
¶ 56 A.A.’s individual therapist from the residential treatment
facility gave the following testimony at the termination hearing
regarding A.A.’s treatment needs for a successful transition to the
aunt and uncle’s home:
A.A. had been diagnosed with post-traumatic stress
disorder and attention deficit hyperactivity disorder.
A.A. needed a lot of support to transition successfully to a
home environment because he had spent so much time in
the highly structured environment of the residential
24 A.A.’s treatment team had recommended that A.A. begin
day treatment at the residential treatment facility
immediately as he transitioned to a family setting.
The day treatment program would provide stability, a
structured educational program, and therapeutic services.
If day treatment was not available, A.A. would need
individual and family therapeutic support.
Father and A.A. had begun family therapy at the residential
treatment facility as part of the transition plan. A.A.’s
treatment team wanted this therapy to continue while A.A.
adjusted to the home environment.
A.A. did not begin day treatment because neither the school
district nor the Department agreed to pay for it.
The Department did not set up any other therapeutic
services for A.A. before removing him from the residential
¶ 57 The caseworker gave the following testimony to explain why
the Department had not provided these services:
The school district in Denver, where the residential
treatment facility was located, denied funding for A.A.’s day
25 treatment because A.A. would not be a Denver resident
once he was placed with the aunt and uncle in Douglas
County.
The Department did not provide day treatment because the
Denver school district did not agree to pay for it.
Instead, the Department provided Key Essential Elements of
Permanency services in the home to provide support and
parenting skills for the placement providers, daily for the
first week and then three times per week.
The Department scheduled a meeting with A.A.’s new school
in Douglas County to update his individualized education
plan (IEP). The IEP then in effect identified only A.A.’s
speech and language deficit and did not acknowledge his
significant mental health and behavioral needs.
The Department planned to ask the Douglas County school
district to pay for day treatment at the IEP meeting.
A.A. was hospitalized after three weeks and did not return
to the paternal aunt’s home, so the IEP meeting never took
place.
26 ¶ 58 Thus, the record establishes that the Department did not
provide any of the therapeutic services that A.A.’s treatment
providers said were necessary to ensure a successful transition to
family life after nine months of residential care.
¶ 59 A.A. was undoubtedly affected by father’s relapse and eviction
from the aunt and uncle’s home. But even without that disruption,
A.A. was subjected to a slew of simultaneous transitions:
he moved from the highly structured environment of a
residential treatment facility, where he had lived for nine
months, to a family setting;
he lost contact with his mental health treatment providers
and was not offered any other treatment;
he was enrolled in a new school two weeks before the end of
the school year; and
all of his daily routines changed.
¶ 60 These events would have taxed any child. In the absence of
adequate support, the disruptions’ deleterious effect on a child with
significant mental health diagnoses was not only predictable but
predicted by the GAL, the CASA, and A.A.’s treatment providers at
the residential treatment facility.
27 ¶ 61 We recognize that section 19-3-208(2)(d)(IV) limits the
Department’s responsibility to provide mental health services based
on the state’s capacity to obtain funding. But the Department does
not argue on appeal that it was not required to provide these
necessary services, and there is no evidence in the record that the
Department was unable to secure funding.
¶ 62 On remand, the juvenile court must consider whether the
Department’s approach to addressing A.A.’s mental health needs is
sufficient to meet the requirement that the Department exercise
reasonable efforts to reunify the family. Further, to the extent the
Department asserts lack of funding for the services A.A. requires,
the juvenile court must base any decision regarding such funding
on evidence specifically related to the Department’s efforts, if any, to
secure funding for the needed services.
III. Remaining Issues
¶ 63 Both parents contend that termination of their parental rights
was manifestly unjust to A.A. because he remained in residential
care with no prospect of adoption. Father also contends that (1) the
Department did not make reasonable efforts to rehabilitate him
because it did not provide domestic violence treatment as required
28 by his treatment plan; (2) the juvenile court erred when it found
that he could not become fit within a reasonable time despite
several months of demonstrated sobriety after he found treatment
on his own; and (3) his trial counsel rendered ineffective assistance.
¶ 64 Because we reverse the termination judgment on other
grounds, we need not address these contentions.
IV. Conclusion
¶ 65 The judgment is reversed and the case is remanded to the
juvenile court. On remand, before the court may again consider
termination of the parents’ parental rights, it shall review whether
the existing treatment plans are appropriate or modify them as
necessary and, consistent with this opinion, conduct further
proceedings as the court deems warranted. See People in Interest of
N.F., 820 P.2d 1128, 1130 (Colo. App. 1991).
¶ 66 In implementing the existing treatment plans or adopting new
plans, the juvenile court shall determine whether and under what
conditions the Department must provide mother and father with
visitation and therapeutic services as reasonable efforts under
section 19-3-208. The juvenile court must make this determination
based on the children’s health and safety. See D.G., 140 P.3d at
29 302. We express no opinion concerning the ultimate outcome that
the juvenile court may reach on remand.
JUDGE NAVARRO and JUDGE LIPINSKY concur.