Peo in Int of AF

Opinion

23CA1954 Peo in Interest of AF 08-01-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1954

Weld County District Court No. 21JV703

Honorable W. Troy Hause, Judge

The People of the State of Colorado,

Appellee,

In the Interest of A.F., a Child,

and Concerning C.T. and A.F.,

Appellants.

JUDGMENT AFFIRMED

Division IV

Opinion by JUDGE JOHNSON

Navarro and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 1, 2024

Bruce T. Barker, County Attorney, David S. Anderson, Assistant County

Attorney, Greeley, Colorado, for Appellee

Debra W. Dodd, Guardian Ad Litem

Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant C.T.

Patrick R. Henson, Office of Respondent Parents’ Counsel, Justin Twardowski,

Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant A.F.

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¶ 1 A.F. (mother) and C.T. (father) appeal the juvenile court’s

judgment terminating their parent-child legal relationships with

A.F. (the child). We affirm.

I. Background

¶ 2 In July 2021, mother moved to Tennessee to live with family.

Mother left the then-three-month-old child with father. Father

admitted he could not take care of the child and placed her with an

acquaintance who lived in Windsor, Colorado. The acquaintance

reported that when she picked up the child from father, the child

was dirty and had rashes on her body due to improper care by the

parents. The Larimer County Department of Human Services began

working with the family in August 2021.

¶ 3 Although Larimer County was initially involved with the

family, the Weld County Department of Human Services (the

Department) later assumed jurisdiction based on the parents’

address. In October 2021, the Department filed a petition in

dependency or neglect regarding the child. The Department entered

a deferred adjudication as to both parents.

¶ 4 The court approved the Department’s treatment plans for

mother and father. In June 2022, the court placed the child with

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the maternal great-grandparents in Tennessee, where she lived for

the remainder of the case.

¶ 5 In February 2023, the Department revoked the deferred

adjudication as to both parents, adjudicated the child dependent or

neglected, and re-adopted the previously approved treatment plans.

In May 2023, the Department moved to terminate the parents’

parental rights. Around that same time, father filed an objection

arguing that the Department had failed to make reasonable efforts

to reunify him with the child and provide him with services

following his October 2022 incarceration. After a multi-day

hearing, the juvenile court denied father’s reasonable efforts

challenge and granted the Department’s termination motion as to

both parents.

¶ 6 On appeal, mother contends that she was not given a

reasonable amount of time to prove parental fitness and that, if

provided additional time, she could have fully complied with her

treatment plan. Father reasserts his contention that the

Department did not provide reasonable efforts to rehabilitate him

and reunite the family. Father also asserts a claim of ineffective

assistance of counsel because his trial counsel did not timely object

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to the Department’s lack of reasonable efforts. And both parents

contend that the juvenile court failed to consider less drastic

alternatives to termination.

II. Standard of Review

¶ 7 Whether the juvenile court properly granted a motion to

terminate parental rights presents a mixed question of fact and law

because the termination statute must be applied to the evidentiary

facts. People in Interest of A.M. v. T.M., 2021 CO 14, ¶ 15. The

credibility of witnesses and the sufficiency, probative value, and

weight of the evidence, as well as the inferences and conclusions to

be drawn from the evidence, are within the juvenile court’s

discretion. Id. We will set aside the juvenile court’s factual findings

only if they are clearly erroneous because they lack record support.

People in Interest of S.R.N.J-S., 2020 COA 12, ¶ 10. We review the

court’s legal conclusions de novo. See id.

¶ 8 A juvenile court may terminate a parent’s rights if it finds, by

clear and convincing evidence, that (1) the child has been

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

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

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

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parent’s conduct or condition is unlikely to change within a

reasonable time. § 19-3-604(1)(c), C.R.S. 2023; People in Interest of

C.H., 166 P.3d 288, 289 (Colo. App. 2007).

III. Mother’s Contention

¶ 9 Mother contends that the juvenile court did not give her a

reasonable amount of time to comply with her treatment plan. We

disagree.

A. Standard of Review and Applicable Law

¶ 10 An unfit parent is one whose conduct or condition renders the

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

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

minimum, reasonable parental care requires that a parent provide

nurturing and protection adequate to meet the child’s physical,

emotional, and mental health needs. S.R.N.J-S., ¶ 9.

¶ 11 Before a court can terminate the parent-child relationship,

there must be clear and convincing evidence that the parent cannot

become fit within a reasonable period of time. § 19-3-604(1)(c)(III).

¶ 12 A reasonable period of time is not an indefinite period of time

but must be considered based on the physical, mental, and

emotional conditions and needs of the child. People in Interest of

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A.J., 143 P.3d 1143, 1152 (Colo. App. 2006). When determining

whether a parent may become fit within a reasonable period of time,

the “court may consider whether any change has occurred during

the pendency of the dependency and neglect proceeding, the

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

parent’s conduct or condition.” People in Interest of D.L.C., 70 P.3d

584, 588-89 (Colo. App. 2003).

¶ 13 If a parent has made little to no progress on a treatment plan,

the court need not give the parent additional time to comply. See

People in Interest of R.B.S., 717 P.2d 1004, 1006 (Colo. App. 1986).

When, as here, a child is under six years old, the court must

consider the expedited permanency planning (EPP) provisions,

which require that the child be placed in a permanent home as

expeditiously as possible. §§ 19-1-102(1.6), 19-1-123, 19-3-

702(5)(c), C.R.S. 2023.

B. Analysis

¶ 14 The parties dispute whether mother preserved this argument.

Even assuming this issue is preserved, we discern no error.

¶ 15 Mother’s treatment plan had six objectives that required her to

(1) cooperate with the Department; (2) address any substance abuse

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issues; (3) learn additional parenting skills regarding appropriate

structure, supervision, care, and discipline; (4) address mental

health issues of depression and anxiety; (5) demonstrate a suitable

and stable living situation; and (6) demonstrate the ability to

provide for the child financially. She contends that she was

partially compliant with four of the six objectives and that, if

provided additional time, she would remedy her noncompliance.

Specifically, she identifies her “positive trajectory” due to three

months of clean urinalysis tests, her relocation to Tennessee to be

near the child, her compliance with one round of mental health

evaluations, and her new job and housing. And she argues that

more time would allow her to resolve “the issues that led to the

opening of this case.”

¶ 16 The court found that mother failed to “engage in any

significant way throughout this case”; she had, “in all essence,

abandoned the child”; and she failed to visit the child without good

cause. The court also found that mother had not demonstrated she

was a fit parent and that she could not become one within a

reasonable time that would be “meaningful to the child given her

age.”

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¶ 17 The record supports the juvenile court’s findings. Mother had

already been provided with an additional year to comply with her

treatment plan, so we reject her argument that she was not

provided sufficient time to comply. A.J., 143 P.3d at 1152 (periods

as short as five to nine months have been held to be sufficient time

to comply with a treatment plan).

¶ 18 While in Colorado, mother only attended about half of her

scheduled visits with the child, and she missed the final visit before

the child was placed in Tennessee. Mother moved to Tennessee,

asserting that she wanted to be closer to the child; however, she

relocated to Knoxville, four hours away from the child. On two

occasions, mother declined bus tickets provided by the Department

to visit the child. Mother also declined housing and transportation

assistance from her family to be closer to the child, including an

initial offer by the maternal great-grandparents to allow mother to

live in their home with the child, which was considered by the

Department as an option until mother chose to remain in Knoxville.

¶ 19 The caseworker testified that, more than a year after moving to

Tennessee, mother’s contact with the Department was sporadic and

inconsistent, and that by summer 2022, mother “largely ignored”

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the caseworker’s attempts to reach her. Mother participated

initially in a mental health and substance abuse evaluation, but

when updated evaluations were needed, mother refused to

participate.

¶ 20 The caseworker provided mother with information about a

parenting class and offered mother assistance to sign up, but

mother did not pursue the course. And mother only had three in-

person, fully supervised visits, and three to four video visits with

the child. Mother had not seen the child for nearly a year before

the termination hearing. The caseworker testified that mother had

essentially abandoned the child, could not demonstrate stable

housing because mother was “jumping around a lot,” and had never

demonstrated the ability to meet the child’s physical, mental, or

developmental needs.

¶ 21 Based on this record, we discern no basis to disturb the

juvenile court’s findings or its conclusion that mother could not

become fit within a reasonable period of time.

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IV. Father’s Contentions

A. Reasonable Efforts

¶ 22 Father contends that the Department failed to make

reasonable efforts to rehabilitate him and reunify him with the

child. We disagree.

1. Standard of Review and Applicable Law

¶ 23 Whether a department satisfied its obligation to make

reasonable efforts is a mixed question of fact and law. People in

Interest of A.S.L., 2022 COA 146, ¶ 8. We review the court’s factual

findings for clear error, but we review de novo its legal

determination based on those findings. Id.

¶ 24 Before a court may terminate parental rights, the department

must make reasonable efforts to rehabilitate parents and reunite

families. § 19-3-604(2)(h). Reasonable efforts mean the “exercise of

diligence and care” for a child in out-of-home placement. § 19-1-

103(114), C.R.S. 2023. A department satisfies the reasonable

efforts standard if services are provided to a parent in accordance

with section 19-3-208, C.R.S. 2023. § 19-1-103(114).

¶ 25 Among the services that may be provided are screenings,

assessments, and individual case plans for the provision of services;

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home-based family and crisis counseling; information and referral

services to available public and private assistance resources;

visitation services; and placement services including foster care and

emergency shelter. § 19-3-208(2)(b).

¶ 26 The juvenile court should consider whether the provided

services were appropriate to support the parent’s treatment plan.

People in Interest of S.N-V., 300 P.3d 911, 915 (Colo. App. 2011).

But the parent is ultimately responsible for using those services to

obtain the assistance needed to comply with the treatment plan.

People in Interest of J.C.R., 259 P.3d 1279, 1285 (Colo. App. 2011).

And the court may consider a parent’s unwillingness to participate

in treatment when determining whether a department made

reasonable efforts. See People in Interest of A.V., 2012 COA 210,

¶ 12.

2. The Department Made Reasonable Efforts

¶ 27 The juvenile court found that the Department made

reasonable efforts to provide father with the services identified in

his treatment plan, but father failed to engage in family visitation,

mental health and substance abuse treatment, housing services,

and parenting classes. Father contends that the Department did

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not make reasonable efforts to (1) assist him to overcome his

transportation barriers; (2) provide services to improve his

communication skills; and (3) arrange family visitation once he was

incarcerated. We address each contention in turn.

¶ 28 First, father contends that the Department failed to provide

him transportation assistance because it knew that the parents did

not initially have a car and, even when they obtained a car, family

time was in locations far away, and the Department did not offer

rideshare services. But the record supports the Department’s

reasonable efforts to address this issue.

¶ 29 To assist with the lack of transportation, the caseworker

testified that “if [the parents] had asked for a [family] visit . . . , [she]

would’ve accommodated” by taking the child to them. The parents

obtained a car in January 2022, eliminating the issue of

transportation; however, father continued to miss nearly half of his

scheduled visits with the child. Transportation for in-person visits

became unnecessary when the child was out of state. Father

requested gift cards from the Department for Uber following a car

accident in July 2022, but he was told that this was not a service

provided by the Department. And at that point, father did not

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require transportation assistance because he was no longer doing

urinalyses and his parenting classes were online and integrated

throughout virtual visitations.

¶ 30 Second, father contends that the Department failed to address

issues with his communication, such as renewing individual

therapy or neurofeedback. Father, however, did not bring this issue

to the attention of the court or a caseworker. See D.P., 160 P.3d at

355 (holding that the parent must bring any perceived deficiency in

the department’s efforts to rehabilitate and reunite the family to the

trial court’s attention). Father completed an initial mental health

evaluation that did not recommend any further treatment. And

after father exhibited “poor and explosive behavior” in front of the

child, the Department requested a second mental health evaluation,

but father refused to participate.

¶ 31 Third, father contends that the Department failed to provide

adequate visitation services with the child once the child was placed

with her maternal great-grandparents in Tennessee and father was

incarcerated. He points to the Department’s failure to set up video

calls with the child in Tennessee and its lack of assistance to

reduce barriers for visitation, such as having to use the jail’s

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Securus system requiring third-party supervision of video visits.

We conclude the record supports the Department’s reasonable

efforts.

¶ 32 True, father was limited in his ability to obtain services

required by his treatment plan due to his incarceration. But the

court found that even prior to incarceration, father’s family visits

were not regular and consistent, he failed to visit without good

cause, and, ultimately, the treatment plan objectives were

unsuccessful.

¶ 33 After the child was placed in Tennessee, there was a “standing

invitation” for both parents to visit with the child through phone or

video. The great-grandmother asserted that father did not take

advantage of these opportunities for visitation: “He hasn’t been

here. He hasn’t seen her.”

¶ 34 The caseworker and court acknowledged that there was a

delay in beginning visitation after father was incarcerated due to

difficulty establishing a visitation supervisor. Initially, the great-

grandparents did not want to supervise the visits given past difficult

interactions between them and father. In the meantime, the

caseworker tried to find visitation workers both in Tennessee and

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Colorado; however, she was unsuccessful because visitation

workers in Tennessee were unable to contract with the Department,

and it was against jail policy to allow a visitation worker to sit with

father in the jail during video calls. Because of these challenges,

the caseworker worked with father to discuss appropriate

interactions during family visitation, and the great-grandparents

eventually agreed to supervise the visits. Visits were further

delayed because the jail required the great-grandparents to submit

to background checks for clearance. Additionally, father had been

subject to disciplinary action while in jail, and several appointments

were canceled either by the jail or because of father’s failure to

attend.

¶ 35 Notwithstanding these delays, the record shows that the

Department provided father with visitation services throughout this

case, including during his incarceration and when the child was

placed in Tennessee. The record supports that the delays beginning

family visitation were attributed to external issues outside of the

Department’s control. And the caseworker met with father

monthly, providing updates and pictures of the child, and worked

diligently to set up visitation despite the challenges described

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above. The court found the caseworker’s testimony more credible

than father’s on this point, and it concluded that the Department

was acting in the child’s best interest and that there were

unforeseen challenges that the Department remedied as quickly as

possible. We see nothing in the record to suggest that the

Department unduly delayed visitation or failed to provide services

given the challenges faced with father’s incarceration.

B. Ineffective Assistance of Counsel

¶ 36 Father also asserts that his counsel was ineffective for failing

to make a timely objection to the Department’s lack of due diligence

in providing services and visitation following his incarceration. We

disagree.

1. Standard of Review and Applicable Law

¶ 37 Divisions of this court have recognized that a parent’s

statutory right to counsel includes the right to effective assistance

of counsel. See People in Interest of A.R., 2018 COA 177, ¶ 37, aff’d

on other grounds sub nom. A.R. v. D.R., 2020 CO 10; People in

Interest of S.L., 2017 COA 160, ¶ 58; C.H., 166 P.3d at 290.

¶ 38 In evaluating a claim of ineffective assistance of counsel in a

dependency and neglect proceeding, we employ the same test that

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we would when evaluating an ineffective assistance of counsel claim

in a criminal case. See A.R. v. D.R., 2020 CO 10, ¶¶ 48, 60. Under

this test, the parent must establish that (1) counsel’s performance

was outside the wide range of professionally competent assistance;

and (2) the parent was prejudiced by counsel’s deficient

performance — that is, a reasonable probability exists that but for

counsel’s unprofessional errors, the outcome of the proceeding

would have been different. Id. at ¶ 60. “If the parent fails to

establish either prong of this test, the claim fails.” People in Interest

of C.B., 2019 COA 168, ¶ 26.

¶ 39 When evaluating counsel’s performance, we must “indulge a

strong presumption that counsel’s actions might be considered

sound trial strategy.” People in Interest of S.B., 2020 COA 5, ¶ 25,

overruled on other grounds by People in Interest of E.A.M. v. D.R.M.,

2022 CO 42.

¶ 40 If the parent’s allegations lack sufficient specificity, we may

summarily deny the ineffective assistance claim. See C.H., 166

P.3d at 291. In other words, a remand for an evidentiary hearing is

only required if the parent’s allegations are sufficiently specific and

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compelling to constitute a prima facie showing of ineffective

assistance of counsel. Id.

2. No Prima Facie Showing

¶ 41 During closing argument at the termination hearing, the

juvenile court asked father’s counsel why a motion asserting a lack

of reasonable efforts was not filed earlier in the case. Counsel

responded that he had discussed with father whether to do so and

father “struggled” with whether to “mak[e] that point” due to his

feeling that “anytime he would complain, he would end up in a

more precarious position than before.” After other discussions,

father and counsel agreed that it was better to just “deal with it at

the termination.”

¶ 42 Father does not dispute counsel’s representations or otherwise

detail why this tactic, made after consultation with father,

constituted deficient performance. Therefore, we conclude that

father has not raised sufficiently specific or compelling allegations

to constitute a prima facie showing of ineffective assistance of

counsel.

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V. Less Drastic Alternatives

¶ 43 Both parents assert that the juvenile court erred by rejecting

less drastic alternatives to termination. We disagree.

A. Standard of Review and Applicable Law

¶ 44 We review a juvenile court’s less drastic alternative findings for

clear error. See A.M., ¶¶ 15, 44.

¶ 45 Before terminating parental rights under section 19-3-

604(1)(c), the juvenile court must also consider and eliminate less

drastic alternatives. People in Interest of M.M., 726 P.2d 1108, 1122

(Colo. 1986). But that determination is not a separate criterion and

is instead “implicit in, and thus intertwined with, the statutory

criteria for termination.” People in Interest of L.M., 2018 COA 57M,

¶ 24. In considering less drastic alternatives, a court must give

primary consideration to the child’s physical, mental, and emotional

conditions and needs. § 19-3-604(3).

¶ 46 For a less drastic alternative to be viable, it must do more than

just “adequate[ly]” meet a child’s needs; rather, it must be in the

child’s best interests. A.M., ¶ 27. Therefore, if the juvenile court

considers less drastic alternatives but still finds that termination is

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in the child’s best interests, it must reject the less drastic

alternatives and order termination. Id. at ¶ 32.

¶ 47 The juvenile court’s determinations regarding permanent

placement and whether termination is in the child’s best interests

are factual findings entitled to deference, unless they are

unsupported by the record. Id. at ¶ 48; see also People in Interest of

B.H., 2021 CO 39, ¶ 80.

B. Analysis

¶ 48 At the time of the termination hearing, the child was two and a

half years old and had spent most of her life placed outside of the

parents’ care. The court considered whether there was a less

drastic alternative to termination in the form of an allocation of

parental responsibilities (APR) to the great-grandparents, but it

found that such an arrangement was not in the child’s best

interest. The court noted the great-grandparents’ desire to adopt

the child versus acting as custodial caretakers. The court was also

mindful that the matter had already been open for two years despite

it being an EPP case. The court found that an ongoing relationship

with the parents would not be beneficial to the child, see People in

Interest of J.L.M., 143 P.3d 1125, 1127 (Colo. App. 2006), and that

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the child needed the type of permanency that only an adoption

provided her. People in Interest of T.E.M., 124 P.3d 905, 910 (Colo.

App. 2005).

¶ 49 Mother contends that permitting additional time for

rehabilitation would be a less drastic alternative. As we discussed

above, despite extra time, mother failed to comply with her

treatment plan. The court considered the importance of stability

and permanency, noting that mother’s inconsistency in the young

child’s life may cause bonding impediments between the child and

her permanent caretaker.

¶ 50 Father contends that an “appropriately crafted APR order,”

including “stringent requirements” for his parenting time, would be

in the child’s best interests and constitutes a less drastic

alternative. Father also asserts that the Department failed to

provide evidence that retaining his parental rights was against the

best interest of the child or would harm the child in any way.

¶ 51 The court, however, found that, even if the great-grandparents

were open to an APR, it was not in the best interest of the child.

And the great-grandparents did not want to share custody with the

parents, regardless of the restrictions the court might impose as

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part of an APR. The court noted that barriers of incarceration

further challenged father’s ability to develop a healthy, safe bond

with the child. Considering that father failed to establish a healthy

and secure bond with the child before incarceration, that he did not

have regular and consistent contact with the child, and that he

exhibited the same problems addressed in his treatment plan

without “adequate improvement,” the court found that adoption was

the only proper recourse to address the child’s best interest.

¶ 52 Under these circumstances, we will not disturb the juvenile

court’s termination judgment.

VI. Conclusion

¶ 53 The judgment is affirmed.

JUDGE NAVARRO and JUDGE PAWAR concur.