in Interest of S.K

2019 COA 36, 440 P.3d 1240

• Court: Colorado Court of Appeals
• Decided: March 7, 2019
• Docket: 18CA0118, People
• Status: Published

Opinion

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 March 7, 2019

2019COA36

No. 18CA0118, People in Interest of S.K. — Juvenile Court — Dependency and Neglect — Termination of the Parent-Child Legal Relationship — Criteria for Termination; Health and Welfare — Disability — Americans with Disabilities Act — Reasonable Accommodations

A division of the court of appeals considers how the

requirements to make reasonable accommodations found in the

Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213

(2018), and section 504 of the Rehabilitation Act of 1973, 29 U.S.C.

§ 794 (2018), relate to termination of parental rights based on a

disabled parent’s lack of success with a treatment plan, unfitness,

and unlikelihood of change. The division concludes that a juvenile

court must consider reasonable accommodations in deciding

whether such a parent’s treatment plan was appropriate and

whether reasonable efforts were made to rehabilitate the parent. COLORADO COURT OF APPEALS 2019COA36

Court of Appeals No. 18CA0118 Gunnison County District Court No. 16JV8 Honorable J. Steven Patrick, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of S.K., a Child,

and Concerning C.K. and S.R.,

Respondents-Appellants.

JUDGMENT AFFIRMED

Division III Opinion by JUDGE WEBB Román and Freyre, JJ., concur

Announced March 7, 2019

David Baumgarten, County Attorney, Gunnison, Colorado, for Petitioner- Appellee

Robert G. Tweedell, Guardian Ad Litem

Susan C. Baker, Office of Respondent Parents’ Counsel, El Prado, New Mexico; James Plumhoff, Guardian Ad Litem, for Respondent-Appellant C.K.

Pamela K. Streng, Office of Respondent Parents’ Counsel, Georgetown, Colorado; Barbara Remmenga, Guardian Ad Litem, for Respondent-Appellant S.R. ¶1 In this dependency and neglect proceeding, S.R. (mother) and

C.K. (father) appeal the juvenile court judgment terminating their

parent-child legal relationships with S.K. (the child). To resolve the

parents’ arguments on appeal, we must consider the requirements

of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.

§§ 12101-12213 (2018), and section 504 of the Rehabilitation Act of

1973, 29 U.S.C. § 794 (2018). The ADA, and in limited

circumstances, section 504 require public entities to make

reasonable accommodations for qualified individuals with

disabilities.

¶2 A division of this court has considered this requirement of the

ADA in the context of termination because an appropriate treatment

plan could not be devised to address the parent’s mental

impairment. See People in Interest of C.Z., 2015 COA 87, ¶ 1. But

this case presents a different question under the ADA, which has

not yet been addressed in Colorado — How does the requirement to

make reasonable accommodations relate to termination based on a

disabled parent’s lack of success with a treatment plan, unfitness,

and unlikelihood of change? We conclude that a juvenile court

must consider reasonable accommodations in deciding whether

1 such a parent’s treatment plan was appropriate and whether

reasonable efforts were made to rehabilitate the parent.

¶3 Ultimately, we hold that the juvenile court properly considered

reasonable accommodations for the parents’ disabilities as part of

its conclusions that the parents’ treatment plans were appropriate

and the Gunnison County Department of Health and Human

Services (Department) had made reasonable efforts to rehabilitate

them. These conclusions are supported by the record. We also

reject the parents’ remaining arguments regarding parental fitness,

likelihood of change, and a less drastic alternative to termination.

Therefore, we affirm the termination judgment.

I. The Dependency and Neglect Case

¶4 In June 2016, the Department began receiving reports that the

child, then less than three months old, was not gaining weight and

the parents were not feeding her often enough. Later that month,

the child was admitted to a local hospital for failure to thrive. The

next day, the child was transferred to Children’s Hospital because

she had lost more weight even while being fed every two hours by

hospital staff.

2 ¶5 The medical team at Children’s Hospital believed that the

child’s failure to thrive was a combination of organic and inorganic

reasons. During the child’s stay, the medical team observed that

the parents

• continued to feed the child only two to three times a day;

• did not spend the night with the child;

• missed the child’s occupational therapy appointment;

• placed unsafe items in the child’s crib; and

• seemed to have difficulty retaining information regarding the

child’s care.

Based on these concerns, the Department initiated a dependency

and neglect case and took custody of the child.

¶6 The parents both stipulated that the child was dependent and

neglected because she was without proper care through no fault of

their own. In August 2016, the juvenile court adopted treatment

plans that required each parent to (1) consistently attend visits with

the child; (2) meet with an in-home parenting support provider and

learn skills to safely care for the child; (3) sign releases of

information; (4) meet the child’s needs and provide her with an

appropriate living environment; and (5) complete recommended

3 assessments, including neuropsychological and capacity to parent

evaluations, to determine appropriate services.

¶7 The parents completed the capacity to parent and

neuropsychological evaluations in the fall of 2016. An

administrative review division, an outside entity that reviewed the

Department’s work, advised the caseworker to rewrite the treatment

plans to include recommendations from the evaluations.

¶8 In late May 2017, the Department moved to amend the

treatment plans to include more specific language regarding the

plans’ requirements. The proposed amendments included

requirements for the parents to continue working with a parenting

coach; comply with recommendations from the capacity to parent

evaluator, including mental health treatment; and follow the

recommendations of the neuropsychological evaluator, including

therapy and inpatient substance abuse treatment for father and

dialectical behavior therapy for mother. The Department also asked

the court to appoint a guardian ad litem (GAL) for mother and

father based on their mental illnesses or developmental disabilities.

¶9 A few weeks later, the juvenile court appointed a GAL for each

parent and held an evidentiary hearing on the Department’s

4 proposal to amend the treatment plans. At the hearing, the parents

argued that they were not opposed to having more specifics in the

treatment plans, but that because the deadline to have permanency

for the child was close and the Department had indicated it would

be pursuing termination shortly, it was too late to amend the plans.

¶ 10 The child’s GAL also took the position that if the court was

going to adopt the amended treatment plans, it would need to

extend the permanency deadline. The Department responded that

if amending the plans would require an extension of the

permanency deadline, it would withdraw the request. In the end,

the juvenile court denied the Department’s motion to amend the

treatment plans and continued the existing plans in place.

¶ 11 The next month, the Department moved to terminate the legal

relationships between the child and the parents. Before the start of

the termination hearing, mother and father filed a joint motion

asking the court to find that the Department had not made

reasonable efforts to reunify them with the child, dismiss the

termination motion, and amend the treatment plans to provide

reasonable accommodations under the ADA. After a four-day

5 hearing, the court rejected the parents’ arguments, and in January

2018, terminated their parental rights.

II. Termination of Parental Rights and the ADA

¶ 12 Mother and father challenge the appropriateness of their

treatment plans, the efforts that the Department made to reunify

them with the child, and the extent of reasonable accommodations

required under the ADA. Mother contends the juvenile court erred

in concluding that her treatment plan was appropriate and the

Department had made reasonable efforts to rehabilitate her in light

of the ADA and section 504 of the Rehabilitation Act. Father

contends the juvenile court erred in granting termination because

the Department failed to make reasonable efforts to provide him

with an appropriate treatment plan and reasonable

accommodations under the ADA in creating and implementing his

treatment plan. We reject these contentions.

A. Termination Criteria

¶ 13 As pertinent here, the juvenile court may terminate parental

rights if it finds, by clear and convincing evidence, that (1) the child

was adjudicated dependent and neglected; (2) the parent has not

complied with an appropriate, court-approved treatment plan or the

6 plan has not been successful; (3) the parent is unfit; and (4) the

parent’s conduct or condition is unlikely to change in a reasonable

time. § 19-3-604(1)(c), C.R.S. 2018; People in Interest of C.H., 166

P.3d 288, 289 (Colo. App. 2007).

¶ 14 The purpose of a treatment plan is to preserve the parent-child

legal relationship by assisting the parent in overcoming the

problems that required intervention into the family. People in

Interest of K.B., 2016 COA 21, ¶ 11. Thus, an appropriate

treatment plan is one that is approved by the court and is

reasonably calculated to render the parent fit to provide adequate

parenting to the child within a reasonable time and that relates to

the child’s needs. § 19-1-103(10), C.R.S. 2018; People in Interest of

M.M., 726 P.2d 1108, 1123 (Colo. 1986).

¶ 15 In determining parental unfitness and the likelihood that a

parent’s conduct or condition will change, the court must consider

whether reasonable efforts have been unable to rehabilitate the

parent. § 19-3-604(2)(h); People in Interest of S.N-V., 300 P.3d 911,

915 (Colo. App. 2011). “Reasonable efforts” means the “exercise of

diligence and care” for a child who is in out-of-home placement.

§ 19-1-103(89).

7 ¶ 16 The reasonable efforts standard is satisfied when services are

provided in accordance with section 19-3-208, C.R.S. 2018.

§ 19-1-103(89). Among other things, the Department must offer

screening, assessments, and individual case plans; information and

referrals to available public and private assistance resources; and

visitation services. § 19-3-208(2)(b)(I), (III)-(IV). If funding is

available, it must also provide mental health and substance abuse

treatment services. § 19-3-208(2)(d)(IV)-(V).

B. The ADA and Section 504

¶ 17 Title II of the ADA, 42 U.S.C. §§ 12131-12134 (2018), prohibits

a public entity from discriminating against a qualified individual

with disabilities in the provision or operation of public services,

programs, or activities. Tennessee v. Lane, 541 U.S. 509, 517

(2004). Section 504 of the Rehabilitation Act applies the same

requirement to entities that receive federal financial assistance.1

See In re H.C., 187 A.3d 1254, 1265 (D.C. 2018). It provides that a

qualified person with a disability shall not, “solely by reason of her

or his disability, be excluded from the participation in, be denied

1Although the juvenile court did not make a finding that the Department was a recipient, it has not argued otherwise on appeal.

8 the benefits of, or be subjected to discrimination under any

program or activity receiving Federal financial assistance.” 29

U.S.C. § 794(a).

¶ 18 The ADA was enacted not only to remedy discrimination in the

form of intentional exclusion, but also to mandate reasonable

modifications to existing policies and to otherwise reasonably

accommodate individuals with disabilities. 42 U.S.C. § 12101(a)(5)

(2018); C.Z., ¶ 12. Consequently, it imposes an affirmative duty on

a public entity to make reasonable accommodations for qualified

individuals with disabilities. 28 C.F.R. § 35.130(b)(7) (2018); C.Z.,

¶ 12.

C. Qualified Individual

¶ 19 Under the ADA, a qualified individual with a disability is an

individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.

42 U.S.C. § 12131(2) (2018).

9 ¶ 20 A disability includes a mental impairment that substantially

limits one or more major life activities of the individual. 42 U.S.C.

§ 12102(1)(A) (2018). A mental impairment, in turn, includes any

mental or psychological disorder such as “intellectual disability,

organic brain syndrome, emotional or mental illness, and a specific

learning disability.” 28 C.F.R. § 35.108(b)(1)(ii) (2018).

¶ 21 Whether a parent is a qualified individual with a disability

under the ADA requires a case-by-case determination. 2 See Colo.

State Bd. of Dental Exam’rs v. Major, 996 P.2d 246, 249 (Colo. App.

1999). While the Department must provide appropriate screening

and assessments of a parent, the parent is responsible for

disclosing to the Department and the juvenile court information

regarding his or her mental impairment or other disability. And the

parent should also identify any modifications that he or she believes

are necessary to accommodate the disability.

¶ 22 The Department can accommodate, and the juvenile court can

address, only disabilities that are known to them. See In re

Hicks/Brown, 893 N.W.2d 637, 640 (Mich. 2017). In other words,

2 If disability status is disputed, the juvenile court should make a finding.

10 before a public entity can be required under the ADA to provide

reasonable accommodations, the entity must know that the

individual is disabled, either because that disability is obvious or

more likely because that individual, or someone else, has informed

the entity of the disability. Id. (citing Robertson v. Las Animas Cty.

Sheriff’s Dep’t, 500 F.3d 1185, 1196 (10th Cir. 2007)).

¶ 23 In this case, as the juvenile court recognized in its termination

order, and the Department did not dispute, each parent has serious

intellectual or developmental disabilities. Mother’s

neuropsychological evaluation showed that she had a low average

intelligence quotient (IQ) and a neurodevelopmental or

neurocognitive disorder characterized by difficulties with complex

attention and language. She also had an unspecified personality

disorder with borderline traits. The neuropsychological evaluator

diagnosed father with borderline intellectual functioning based on

his IQ and possible symptoms of a premorbid anxiety disorder.

¶ 24 The juvenile court concluded that the parents’ low IQs and

developmental disabilities severely limited their ability to provide

appropriate care for the child. And it had previously appointed a

GAL for mother and father based on each parent’s mental illness or

11 developmental disability. Under these circumstances, the parents’

mental impairments were disabilities under the ADA. See C.Z., ¶ 14

(concluding that borderline intellectual functioning and mental

illness diagnoses that impeded the parents’ ability to parent the

child were disabilities under the ADA).

D. ADA’s Application to Treatment Plans and Reasonable Efforts

¶ 25 As past divisions of this court have recognized, the ADA does

not restrict a juvenile court’s authority to terminate parental rights

when the parent, even after reasonable accommodation of a

disability, is unable to meet his or her child’s needs. Id. at ¶ 17;

see also People in Interest of T.B., 12 P.3d 1221, 1223 (Colo. App.

2000). But, while Title II of the ADA is not a defense to termination

of parental rights, it applies to the provision of assessments,

treatment, and other services that the Department makes available

to parents through a dependency and neglect proceeding before

termination. C.Z., ¶¶ 19, 22.

¶ 26 Courts in other jurisdictions have also determined that the

requirement to make reasonable accommodations for a parent’s

disability affects the scope of rehabilitative services offered to the

parent.

12 ¶ 27 For example, the Alaska Supreme Court has recognized that

family reunification services should be provided in a manner that

takes a parent’s disability into account. Lucy J. v. State, Dep’t of

Health & Soc. Servs., 244 P.3d 1099, 1115 (Alaska 2010). And it

concluded that reunification services are contemplated within Title

II of the ADA. Id. at 1116. Thus, it reasoned, whether reunification

services reasonably accommodated a parent’s disability is included

in the question whether reasonable efforts were made to reunite the

family. Id.

¶ 28 Similarly, the Massachusetts Supreme Judicial Court

determined that the ADA requires a department to accommodate

the parent’s special needs in providing services before a termination

proceeding. In re Adoption of Gregory, 747 N.E.2d 120, 125-26

(Mass. 2001). And the Michigan Court of Appeals held that

reunification services must comply with the ADA. In re Terry, 610

N.W.2d 563, 570 (Mich. Ct. App. 2000).

¶ 29 The District of Columbia Court of Appeals also expressed its

agreement with the numerous other courts that have held or

assumed that the ADA’s requirement for public agencies to make

reasonable accommodations applies to reunification services

13 provided by states to parents whose children have been removed in

neglect proceedings. H.C., 187 A.3d at 1265. It explained that the

requirement of reasonable accommodations was entirely consistent

with, and perhaps subsumed within, an agency’s general statutory

obligation to expend reasonable efforts to make reunification

possible. Id.

¶ 30 The United States Departments of Health and Human Services

and Justice have also provided guidance on this subject. See U.S.

Dep’t of Health & Human Servs. & U.S. Dep’t of Justice, Protecting

the Rights of Parents and Prospective Parents with Disabilities:

Technical Assistance for State and Local Child Welfare Agencies and

Courts under Title II of the Americans with Disabilities Act and

Section 504 of the Rehabilitation Act (Aug. 2015),

https://perma.cc/AHU2-P29Y (Technical Assistance Document).

They explain that individuals with disabilities must be provided

opportunities to benefit from or participate in child welfare

programs, services, and activities that are equal to those extended

to individuals without disabilities. Id. And, to achieve that goal,

agencies must make reasonable changes in their practices and

services to accommodate the individual needs of a disabled parent.

14 Id. The requirement to make reasonable accommodations extends

to programs and activities of private and nonprofit agencies that

provide services to children and families on behalf of a child welfare

agency. Id. 3

¶ 31 Consistent with these federal guidelines, section

19-3-100.5(5), C.R.S. 2018, provides, in turn, that reasonable

efforts are satisfied when a Department offers services in

accordance with section 19-3-208 and “when full consideration has

been given to the provisions of section 24-34-805(2).” And section

19-3-208(2)(g) requires that services provided under that section

comply with the ADA and its implementing regulations.

¶ 32 Finally, section 19-3-507(1)(c), C.R.S. 2018, which governs

dispositional hearings, provides that

[i]f one or both of the parents have a disability, reasonable accommodations and modifications, as set forth in the federal

3 In April 2018 — about three months after the court issued the termination judgment in this case — the General Assembly enacted legislation concerning family preservation safeguards for parents with disabilities. The legislation created section 24-34-805, C.R.S. 2018. See Ch. 164, sec. 1, § 24-34-805, 2018 Colo. Sess. Laws 1131. Section 24-34-805(2)(a)(III) states that a parent’s disability alone must not serve as a basis for denial or restriction of parenting time or parental responsibilities in a dependency and neglect proceeding except when it impacts the child’s health or welfare.

15 “Americans with Disabilities Act of 1990”, 42 U.S.C. sec. 12101 et seq., and its related amendments and implementing regulations, are necessary to ensure the treatment plan components are accessible. If applicable, any identified accommodations and modifications must be listed in the report prepared for the dispositional hearing.

¶ 33 In sum, absent reasonable modifications to the treatment plan

and rehabilitative services offered to a disabled parent, a

department has failed to perform its duty under the ADA to

reasonably accommodate a disability and, in turn, its obligation to

make reasonable efforts to rehabilitate the parent. See

Hicks/Brown, 893 N.W.2d at 640. And because of this failure, an

unmodified plan or rehabilitative service does not satisfy the criteria

for terminating parental rights under section 19-3-604(1)(c). See

S.N-V., 300 P.3d at 915; see also People in Interest of D.G., 140 P.3d

299, 304 (Colo. App. 2006) (concluding that the juvenile court erred

in finding that the Department had provided appropriate

rehabilitative services to a parent and, thus, in terminating parental

rights).

¶ 34 For these reasons, when a parent involved in a dependency

and neglect proceeding has a disability under the ADA, the

16 Department and the juvenile court must account for and, if

possible, make reasonable accommodations for the parent’s

disability when devising a treatment plan and providing

rehabilitative services to the parent. And in deciding whether to

terminate parental rights under section 19-3-604(1)(c), a juvenile

court should consider whether reasonable accommodations were

made for the parent’s disability in determining whether the parent’s

treatment plan was appropriate and reasonable efforts were made

to rehabilitate the parent.

¶ 35 What constitutes a reasonable accommodation will be based

on an individual assessment. C.Z., ¶ 25. 4 For example, the

Technical Assistance Document explains that many parents, with

or without disabilities, may require training to develop appropriate

parenting skills. When, as here, a parent has a cognitive or other

mental disability and needs help acquiring parenting skills, child

welfare agencies may need to provide “enhanced or supplemental

training, to increase frequency of training opportunities, or to

provide such training in familiar environments conducive to

4 The juvenile court should also make a finding whether reasonable accommodation has occurred.

17 learning” and “incorporate the use of visual modeling or other

individualized techniques to ensure equal opportunity to participate

in and benefit from the training.” Technical Assistance Document

10, 15. Technical Assistance Document 5; see also H.C., 187 A.3d

at 1266.

¶ 36 Even so, in considering whether reasonable accommodations

can be made for a parent’s disability, the juvenile court’s

paramount concern must remain the child’s health and safety.

C.Z., ¶ 32. In other words, the ADA does not protect a parent who,

even by virtue of his or her disability, poses a safety risk to others.

Id. Nor does the requirement to make reasonable accommodations

lower the standards for parents with disabilities. Technical

Assistance Document 5.

¶ 37 Of course, the juvenile court’s assessment of what constitutes

a reasonable accommodation must take into account the child’s

best interests and need for permanency. See State in Interest of

K.C., 362 P.3d 1248, 1253 (Utah 2015). For example, the

requirement to make reasonable accommodations under the ADA

does not force the court indefinitely to extend the time that a parent

is given to participate in rehabilitative services. Id. (recognizing that

18 the ADA does not afford a parent the right to extend a reunification

plan indefinitely).

¶ 38 As well, the duty to make reasonable accommodations does

not require a public entity to make modifications that would

fundamentally alter the nature of its services, programs, or

activities. C.Z., ¶ 25; see also 28 C.F.R. § 35.130(b)(7). Rather, the

ADA requires only accommodations that are reasonable. K.C., 362

P.3d at 1253; see also Pruett v. Arizona, 606 F. Supp. 2d 1065,

1079 (D. Ariz. 2009). A modification is reasonable if it is used

ordinarily or in the run of cases and will not cause undue hardship.

See Nat’l Fed’n of the Blind v. Lamone, 813 F.3d 494, 507 (4th Cir.

2016). Thus, for example, an accommodation may not be

reasonable if it would require a prohibitive cost or extraordinary

effort on the part of the public entity. Id.

¶ 39 In the end, what constitutes a reasonable accommodation will

vary from case to case based on the child’s health and safety needs,

the nature of the parent’s disability, and the available resources.

¶ 40 Having reached this conclusion, we must next determine

whether the juvenile court properly determined that the Department

19 had made reasonable accommodations for mother’s and father’s

E. Standard of Review and Application

¶ 41 Whether a juvenile court properly terminated parental rights

presents a mixed question of fact and law because it involves

application of the termination statute to evidentiary facts. People in

Interest of L.M., 2018 COA 57M, ¶ 17 (citing People in Interest of S.N.

v. S.N., 2014 CO 64, ¶ 21). The credibility of the witnesses; the

sufficiency, probative value, and weight of the evidence; and the

inferences and conclusions to be drawn from these evidentiary facts

are within the juvenile court’s discretion. People in Interest of

A.J.L., 243 P.3d 244, 250 (Colo. 2010). Hence, we will not set aside

a juvenile court’s factual findings when they have support in the

record. Id. at 249-50. However, when deciding mixed questions of

fact and law, we review the legal conclusions de novo. L.M., ¶ 17.

1. The Juvenile Court’s Conclusions

¶ 42 The juvenile court considered the many services offered to the

parents and concluded that the Department had provided services,

including parenting instruction, that reasonably accommodated the

parents’ limitations. It also determined that the parents’ treatment

20 plans were appropriate and that the Department had made

reasonable efforts to rehabilitate the parents.

2. The Parents’ Treatment Plans

¶ 43 Mother first argues that the juvenile court erred in finding that

her plan was appropriate because it did not include a requirement

that she attend training to learn how to meet the child’s heightened

medical needs. The record shows that the child had heightened

needs. In the beginning of the case, the child was diagnosed with a

variety of medical conditions, including failure to thrive as an

infant, severe protein calorie malnutrition, gastroesophageal reflux,

umbilical granuloma (a lesion), anisocoria, tongue tie (which could

make feeding and weight gain difficult), passive smoke exposure,

and a high-risk social situation.

¶ 44 Although the child’s conditions had improved, her pediatrician

continued to characterize her as a medically complicated child. He

explained that the child had multiple medical conditions, including

abnormal eye movement (nystagmus), a developmental delay, delay

in growth, and the possibility of a serious metabolic disorder.

¶ 45 While mother’s treatment plan did not specifically require her

to attend medical training for the child, it did include a provision

21 that required her to be able to safely care for the child by working

with an in-home parenting support provider. This provision

effectively required mother to participate in a service that would

prepare her to care for the child’s needs.

¶ 46 Next, mother argues that her treatment plan was

inappropriate because it did not require her to engage in couples

counseling with father. Mother correctly notes that several

witnesses identified concerns about bickering between the parents

during visits. Both the court-appointed special advocate (CASA)

assigned to the case and a separate CASA who intermittently

supervised visits described such behavior. The child’s occupational

therapist likewise reported that the parents bantered, which she

characterized as more explosive than arguing, during her sessions.

¶ 47 True, the parents’ expert recommended that they participate in

individual and couples therapy geared for adults with learning and

mental health needs. However, this recommendation came about

as a result of mother’s evaluation that was conducted the same

month of the termination hearing.

¶ 48 In contrast, the professionals who evaluated the parents

earlier in the case believed that mother should engage in

22 therapeutic services. And the record does not show that they or the

other treatment professionals working with the parents

recommended couples counseling. As a result, mother’s argument

that the treatment plan was inappropriate because it did not

include a requirement that she engage in couples counseling with

father falls short. See People in Interest of A.E., 749 P.2d 450, 452

(Colo. App. 1987) (recognizing that the appropriateness of a

treatment plan’s requirements must be assessed in light of the

realities extant at the time of its adoption).

¶ 49 Finally, mother asserts that the treatment plan was

inappropriate because it did not include accommodations for her

intellectual disability and was not amended to include

individualized treatment after the Department learned of her

diagnoses from the neuropsychological evaluator. However,

because mother fails to identify what accommodations or

individualized treatment should have been incorporated into the

plan, we are unable to consider this assertion.

¶ 50 Father asserts that his treatment plan was inappropriate

because it did not account for his disabilities. But, like mother in

her final assertion, he does not identify what additional components

23 or accommodations should have been included in the plan. As a

result, we are also unable to consider father’s argument.

¶ 51 For these reasons, we discern no error in the juvenile court’s

determination that the parents’ treatment plans were appropriate.

3. Reasonable Efforts and the Provision of Rehabilitative Services

¶ 52 We first address mother’s and father’s assertion that the

Department did not make efforts to implement the

recommendations contained in their capacity to parent and

neuropsychological evaluations. Then we conclude that the record

does not support this assertion.

¶ 53 The therapist who completed the capacity to parent evaluation

recommended that mother and father engage in therapeutic

services to treat their mental health issues. Specifically, she

believed that mother needed to address her childhood experiences

and depression, disordered personality, relationship issues, and

poor social skills. The therapist believed that father’s therapy

should focus on his childhood experiences, feelings of emotional

distress, symptoms of anxiety, and sleep disturbances, as well as

other feelings regarding losing control and feeling misunderstood.

The psychologist who completed the neuropsychological evaluations

24 believed that mother would benefit from dialectical behavior therapy

to treat her personality disorder because it would fit within the

limits of her neurocognitive deficits.

¶ 54 The record shows that both parents received mental health

services. Mother completed a mental health assessment and began

seeing a therapist sometime in 2016. The caseworker also tried to

coordinate dialectical behavior therapy for mother after receiving

the neuropsychological evaluation. However, mother missed the

first module that was necessary to start treatment and was unable

to participate in the program. Father participated in individual

therapy during the case.

¶ 55 In addition to therapeutic services, the psychologist opined

that mother’s deficits in complex attention and language warranted

accommodations. He recommended that her neurocognitive

disorder be accommodated by giving her additional time to complete

tasks, making sure that she was able to explain a concept in her

own words, communicating with her in a written format, and giving

repeated instructions.

¶ 56 Many of these accommodations were made during the

parenting instruction and coaching provided to the parents. For

25 example, the child’s occupational therapist began working with the

parents in May 2017 — first for one hour each week and then two

hours each week. During each session, the occupational therapist

tried to mimic a home environment and worked on skills such as

feeding; play that incorporated motor, perceptual, and cognition

skills for the child; and a pre-nap routine. The occupational

therapist explained that she assessed whether skills or information

needed to be repeated for the parents.

¶ 57 The occupational therapist also tried different methods for

helping the parents learn developmental skills for the child,

including giving them a “help chart” that broke down each month of

a child’s development; modeling the task that she wanted them to

do or the behavior (such as cruising) that she wanted to see from

the child; and giving direct feedback when the parents got

something right.

¶ 58 Besides working with the child’s occupational therapist, the

parents also received between two to four hours of parent coaching

each week beginning in March 2017. The parenting coach

explained that she tried different styles of teaching, including

offering instructions or recommendations as well as role modeling

26 how to handle the situation. She would also give the parents

handouts with information they could take home, read, and return

with a sheet that they had filled out based on the information that

they read.

¶ 59 Additionally, the CASA assigned to the case testified that while

she was not allowed to coach the parents during visits, she would

ask follow-up questions to see if they understood the information

that was given to them during visits with the child.

¶ 60 The psychologist explained that father, who had an extensive

drug history which included daily methamphetamine use for six to

seven years, was taking a large dose of prescribed Xanax and had

possibly migrated from one substance to another. Thus, he

recommended that father participate in an inpatient substance

abuse program. The psychologist also recommended that father

receive coordination of care between his mental health therapist, a

psychiatrist who was prescribing the Xanax, and his primary care

physician.

¶ 61 Father resisted these recommendations. The caseworker

testified that father refused her efforts to coordinate care between

his mental health provider, his psychiatrist, and his primary care

27 physician. And he would not agree to participate in inpatient

treatment. The caseworker further explained that the Center for

Mental Health controlled the Department’s funding for inpatient

treatment and would not provide it unless one of their treatment

providers supported the recommendation. Father’s psychiatrist was

one of the center’s treatment providers and did not support the

recommendation.

¶ 62 The parents’ arguments that the Department offered limited

and delayed visitation services and parenting education fare no

better. True, the parents were only able to start parenting classes

offered through CASA in the month before the termination hearing.

Still, supervised visitation services and, later, hands-on parenting

instruction were offered throughout the case.

¶ 63 Visitation services began at the Department in July 2016.

During these initial visits, the caseworker provided direction —

verbal instructions as well as demonstrations — when the parents

appeared to have a deficit in their understanding of the child’s

needs. In early September 2016, visits moved to a CASA office; the

next month, visits moved to a different CASA office that was closer

to the child’s placement. The CASA who supervised visits from

28 October 2016 through February 2017 and then again in July 2017

testified that she provided feedback to the parents during visits.

She also knew that the parents had been given a schedule of the

child’s routine.

¶ 64 The Department initially arranged for the parents to have a

one-hour visit twice each week, but later increased the schedule to

two four-hour visits each week. The caseworker also arranged for

the parents to be present for a surgical procedure for the child that

involved a muscle biopsy, EEG, and MRI. Because the procedure

occurred in Denver, she gave the parents money for gas and food,

rented the parents a hotel room, and supervised them while they

spent time with the child both pre- and post-operation.

¶ 65 Recall, the parents received several hours of parent coaching

and occupational therapy sessions with the child each week. True,

parent coaching was implemented about seven months after the

court adopted the treatment plan and the occupational therapy

sessions began two months later. Still, the parents had seven and

five months, respectively, to engage in these weekly services before

the termination hearing.

29 ¶ 66 The record also does not support the parents’ assertions that

the professionals providing parenting education were unqualified to

coach disabled parents and gave them conflicting information. The

child’s occupational therapist had experience working with

individuals with disabilities — she had done volunteer work with

the Board for Developmental Disabilities, worked at a school for

children with disabilities, and had previously worked with other

parents who had developmental disabilities to teach them the skills

for managing their child’s care.

¶ 67 Although the occupational therapist had not reviewed the

parents’ evaluations, the caseworker did tell her about some of the

evaluators’ recommendations. Additionally, the occupational

therapist explained that it became apparent to her that modeling

behaviors and calling out interaction styles to the parents, as well

as giving more education about the child’s developmental level,

would be helpful. She did both.

¶ 68 The parenting coach conceded that this was the first time she

had worked with parents who had intellectual deficits or delays.

However, the caseworker asked the parenting coach to make

30 accommodations for the parents such as demonstrating how to

properly feed the child. And the parenting coach did so.

¶ 69 The caseworker agreed that the occupational therapist and the

parenting coach had different approaches to working with the

parents. She noted that the occupational therapist used hands-on

demonstration, while the parenting coach would step back, observe,

and then integrate instruction and demonstration. And, as the

juvenile court recognized, these providers may have given mixed

messages about whether to use a bottle or sippy cup with the child.

Yet, as the court concluded, the record does not show that these

providers otherwise gave conflicting instructions to the parents.

¶ 70 Mother further argues that the Department did not make

reasonable accommodations because it only sought to amend the

treatment plan and implement the recommendations from her

neuropsychological evaluation after it had decided to pursue

termination. The caseworker admitted that she had discussed an

adoptive home for the child in November 2016. She also

acknowledged that the Department had decided to pursue

termination of parental rights as early as January 2017. However,

the caseworker clarified that the Department did not file for

31 termination for another six months because she found the

parenting coach and wanted her opinion. And as the juvenile court

concluded, the record did not suggest that the Department had

withdrawn services or reduced visits based on its earlier

consideration of termination.

¶ 71 Finally, we note that father asserts that the Department failed

to provide him with adequate assessments, treatment, and other

relevant services to enable him to meet the child’s basic needs. Yet,

he does not explain why the assessments that the Department

provided — the capacity to parent and neuropsychological

evaluations — were insufficient or identify other assessments that

were needed. And apart from his arguments that have already been

addressed, he does not identify other treatment or services that

would have accommodated his disability and enabled him to parent

the child.

¶ 72 For these reasons, the juvenile court properly concluded that

the Department made reasonable efforts to rehabilitate the parents

and provided services that reasonably accommodated the parents’

disabilities. Thus, we will not disturb its conclusion on appeal.

32 III. Parental Fitness and Likelihood of Change

¶ 73 Mother contends the juvenile court erred in finding that she

was an unfit parent and her conduct or condition was unlikely to

change in a reasonable time. The record shows otherwise.

¶ 74 An unfit parent is one whose conduct or condition renders him

or her unable or unwilling to give a child reasonable parental care.

People in Interest of D.P., 160 P.3d 351, 353 (Colo. App. 2007).

Reasonable parental care requires, at a minimum, that the parent

provide nurturing and safe parenting sufficiently adequate to meet

the child’s physical, emotional, and mental health needs. People in

Interest of A.J., 143 P.3d 1143, 1152 (Colo. App. 2006).

¶ 75 In determining whether a parent can become fit within a

reasonable time, the court may consider whether the parent made

any changes during the dependency and neglect proceeding, the

parent’s social history, and the chronic or long-term nature of the

parent’s conduct or condition. D.P., 160 P.3d at 353. A reasonable

time is not indefinite and must be determined by considering the

child’s conditions and needs. A.J., 143 P.3d at 1152.

¶ 76 As mother points out, the occupational therapist agreed that

mother had shown improvements in some of the daily routines with

33 the child. The parents’ expert witness also observed that mother

showed significant changes between her evaluation by another

expert a year earlier and the expert’s parent-child interactional

evaluation in October 2017.

¶ 77 Despite this progress, the parents’ expert did not believe that

the child could safely be reunited with the parents. The caseworker

also agreed that mother had tried during the case, but still believed

that mother had not been able to develop a parenting relationship

with the child and continued to struggle with empathy for others.

Both the caseworker and the CASA who supervised visits described

mother treating the child like she was a doll. The caseworker

elaborated that while mother loved the child, she was unable to

keep her safe, nourish her, and provide her with appropriate

stimulation.

¶ 78 Similarly, the parenting coach opined that mother could not

safely parent the child. She expressed concern that mother would

not be able to keep up with the child’s growth and development

because it would take too long for mother to learn information and

consistently implement it and, by that time, the child’s needs would

change.

34 ¶ 79 During the pendency of the case, mother received a deferred

criminal sentence for child abuse involving bodily injury to another

child. Father had also told the parents’ expert that he had

concerns about the child returning to his home because mother

could be short-tempered and impatient. The psychologist who

evaluated mother expounded that the traits of mother’s borderline

personality disorder included a tendency to impulsively get very

angry and to have unstable and intense interpersonal relationships.

¶ 80 Mother asserts that the record shows that she could become a

fit parent in a reasonable time with coaching geared towards

individuals with disabilities. The parents’ expert believed that the

parents could be successfully reunited with the child if they

received additional services. However, the expert estimated that the

treatment would take a minimum of six additional months.

¶ 81 In contrast, the caseworker opined that the child needed a

permanent home. Because the child was under the age of six when

the petition was filed, the expedited permanency planning

provisions applied and required that she be placed in a permanent

home within twelve months of her initial out-of-home placement.

§§ 19-1-102(1.6), 19-1-123, 19-3-703, C.R.S. 2018; People in

35 Interest of M.T., 121 P.3d 309, 313 (Colo. App. 2005). And the

psychologist who evaluated mother opined that mother’s personality

disorder was a longstanding pattern of personality characteristics

and dysfunction that were unlikely to change over time.

¶ 82 Given this record, we discern no error in the juvenile court’s

conclusions that mother was an unfit parent and her conduct or

condition was unlikely to change in a reasonable time.

IV. Less Drastic Alternative to Termination

¶ 83 Finally, father contends placing the child with the paternal

grandmother was a viable less drastic alternative to termination.

Again, the record does not support him.

¶ 84 When considering termination under section 19-3-604(1)(c),

the court must also consider and eliminate less drastic alternatives

to termination. M.M., 726 P.2d at 1122. This determination is

implicit in, and thus intertwined with, the statutory criteria for

termination. Id. at 1122-23. As a result, the determination is

influenced by the parent’s fitness to meet his or her child’s needs.

People in Interest of A.R., 2012 COA 195M, ¶ 38.

¶ 85 But the juvenile court must give primary consideration to the

child’s physical, mental, and emotional conditions and needs when

36 considering less drastic alternatives to termination. § 19-3-604(3);

D.P., 160 P.3d at 356. Thus, placement with a grandparent is not a

viable alternative to termination if the grandparent lacks

appreciation of the parent’s problems or of the child’s conditions or

needs. People in Interest of D.B-J., 89 P.3d 530, 531 (Colo. App.

2004).

¶ 86 The record shows that an out-of-state home study of the

paternal grandmother resulted in her being denied for placement of

the child. The grandmother had a medical condition that would not

allow her to care for the child without assistance and she wanted

either father or both of the parents to help her care for the child.

However, father was unable to adequately feed the child,

understand her cues, or attend to her needs. And, as previously

discussed, mother was also unable to meet the child’s needs.

¶ 87 For these reasons, the record supports the juvenile court’s

determination that there was no less drastic alternative to

termination and we will not disturb it on appeal.

V. Conclusion

¶ 88 The judgment is affirmed.

JUDGE ROMÁN and JUDGE FREYRE concur.