Peo in Interest of AA

Opinion

23CA1523 Peo in Interest of AA 07-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1523

Weld County District Court No. 17JV682

Honorable W. Troy Hause, Judge

The People of the State of Colorado,

Appellee,

In the Interest of An.A. and Ar.A., Childs-Appellants,

and Concerning R.C.,

Appellee.

JUDGMENT AFFIRMED

Division III

Opinion by JUDGE MOULTRIE

Yun and Davidson*, JJ., concur

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

Announced July 3, 2024

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

Attorney, Greeley, Colorado, for Appellee The People of the State of Colorado

Debra W. Dodd, Guardian Ad Litem

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

Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellee R.C.

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2023.

1

¶ 1 An.A. and Ar.A. (the children), through their guardian ad litem

(GAL), appeal the juvenile court’s judgment denying the motion to

terminate their parent-child legal relationship with R.C. (mother).

We affirm.

I. Background

¶ 2 In October 2017, a petition in dependency or neglect was filed

due to concerns about sexual abuse to then-three-year-old Ar.A. by

an older sibling, sexualized behaviors between the siblings residing

in the home, possible sexual abuse to the children by father, and

mother’s substance use. Ar.A. and then-four-year-old An.A. were

removed from the home and placed into foster care. Mother has

resided out of state in Wisconsin throughout these proceedings.

The children were adjudicated dependent or neglected in November

2017, and the court adopted treatment plans for both parents in

December 2017. Father passed away in June 2019.

¶ 3 As relevant here, mother’s treatment plan required her to

• reestablish a parenting relationship with the children,

including by maintaining contact with the children and

2

participating in any Interstate Compact on the Placement

of Children (ICPC)

1

requests;

• maintain sobriety and participate in any recommended

substance abuse treatment; and

• participate in a psychological evaluation and follow any

recommended treatment.

¶ 4 The court later amended mother’s treatment plan to require

her to complete a parenting assessment specific to the risk of

sexual offending and follow any resulting recommendations.

¶ 5 Alleging that mother had not reasonably complied with her

treatment plan and that the plan had not been successful, and

noting that the children had been in foster care “most of their lives,”

the children’s GAL moved to terminate mother’s parental rights.

¶ 6 The juvenile court held a contested hearing over five days in

March 2023. The central issues were mother’s treatment plan

compliance and whether mother’s home in Wisconsin could be

1

The Interstate Compact on the Placement of Children facilitates

interstate “coordination of placement and provision of services to

children being placed by one state’s child protective services agency

in a home in another state.” People in Interest of I.J.O., 2019 COA

151, ¶ 9.

3

approved for placement. An ICPC home study of mother’s home

was pending at the time of the termination hearing. After the close

of evidence, but before the juvenile court had ruled on the motion to

terminate, the Weld County Department of Human Services (the

Department) asked to reopen the evidence because it had received

the results of the ICPC home study. Over the GAL’s objection, the

juvenile court reopened the evidence and allowed the parties to

present additional evidence over two days. The juvenile court

ultimately denied the GAL’s motion to terminate mother’s parental

rights.

¶ 7 In its ruling, the juvenile court found that the GAL had clearly

established that the court could find mother unfit based on the

length of time the children had been in foster care,

2

but it

determined this was due in large part to mother residing out of

state and the barriers to the Department’s efforts to implement

treatment services for mother. The court found that the GAL had

2

Unless the juvenile court determines certain exceptions not

relevant here apply, the juvenile court “shall consider . . . [t]hat [a]

child has been in foster care under the responsibility of the county

department for fifteen of the most recent twenty-two months” in

determining whether a parent is unfit. § 19-3-604(2)(k), C.R.S.

2023.

4

failed to establish by clear and convincing evidence (1) any other

basis for mother’s unfitness; (2) that mother hadn’t reasonably

complied with her treatment plan; (3) that her conduct or condition

was unlikely to change within a reasonable time; or (4) that mother

was unable or unwilling to provide the children with reasonable

care to meet their needs.

¶ 8 In reaching these findings, the district court recognized the

concerns leading to the filing of the petition, the children’s complex

needs, and their need for permanency given the length of time the

case had been open. Nonetheless, the court found that mother had

substantially complied with her treatment plan; that she had

“visited regularly by phone, video conferencing, or in person”; and

that although the treatment issues had not “totally resolved,” her

relationship with the children had improved and it was not in the

children’s best interest to sever that relationship.

¶ 9 On appeal, the GAL argues the juvenile court reversibly erred

by concluding that mother substantially complied with her

treatment plan and that she could become fit within a reasonable

period of time. The GAL also asserts the Department and the

juvenile court “jointly violated the children’s right to due process”

5

by failing to comply with expedited permanency procedures, and

that the juvenile court’s failure to order an evaluation of the

children’s needs and conditions prior to issuing its final order

violated their due process rights.

II. Applicable Law

¶ 10 The purpose of dependency or neglect proceedings is to

preserve the family and protect children. L.L. v. People in Interest of

R.W., 10 P.3d 1271, 1277 (Colo. 2000). Where, as here, children

are under six years old when a petition is filed, section

19-1-102(1.6), C.R.S. 2023, provides that expedited placement

procedures apply because “children undergo a critical bonding and

attachment process prior to the time they reach six years of age.”

Thus, for young children removed from their parents’ custody,

courts should proceed with “all possible speed” to achieve legal

determinations that serve the children’s best interests.

§ 19-1-102(1)(c).

¶ 11 The juvenile court may terminate parental rights if it finds, by

clear and convincing evidence, that (1) the children have been

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 within a

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

E.S., 2021 COA 79, ¶ 10. It is the parent’s responsibility to comply

with a treatment plan. People in Interest of S.M.A.M.A., 172 P.3d

958, 962 (Colo. App. 2007). A treatment plan is successful if “it

corrects or improves the original conduct or condition which led to

intervention by the state.” People in Interest of S.R.N.J-S., 2020

COA 12, ¶ 39 (quoting People in Interest of C.L.I., 710 P.2d 1183,

1185 (Colo. App. 1985)).

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

parent unable to give the child reasonable parental care.

§ 19-3-604(2). The determination of parental fitness is intertwined

with a determination of the child’s best interests. S.R.N.J-S., ¶ 59.

But a parent cannot be deemed unfit merely to improve the child’s

condition. Id. (citing People in interest of E.A., 638 P.2d 278, 285

(Colo. 1981)).

¶ 13 Whether a juvenile court properly terminated parental rights

presents a mixed question of fact and law because it involves

applying the termination statute to evidentiary facts. People in

7

Interest of A.M. v. T.M., 2021 CO 14, ¶ 15. As the trier of fact, it is

within the juvenile court’s discretion to determine the credibility of

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

evidence; and the inferences to be drawn from the evidence. See id.

We review the juvenile court’s findings of evidentiary fact for clear

error and accept them if they have record support, but we review de

novo the juvenile court’s legal conclusions based on those facts.

S.R.N.J-S., ¶ 10.

III. Discussion

A. Treatment Plan Compliance

¶ 14 The GAL contends that the juvenile court erroneously

determined that mother substantially complied with her treatment

plan. We disagree.

¶ 15 During the termination hearing, the court heard testimony

from numerous witnesses and received multiple exhibits. The GAL

asserts that the evidence didn’t support the juvenile court’s finding

that mother had substantially complied with her treatment plan

because

• mother hadn’t sufficiently demonstrated ongoing sobriety or

successful completion of substance abuse treatment;

8

• she hadn’t complied with all treatments recommended by a

psychological evaluation or adequately internalized the

therapeutic interventions she had participated in; and

• there were several ICPC home studies of mother’s home in

Wisconsin that were denied and expert testimony suggested

that there were concerns about the risk of harm to the

children if they were reunified with mother.

¶ 16 The juvenile court found with record support that mother’s

out-of-state residence presented a barrier to her ability to engage in

treatment. With respect to substance use, a caseworker

supervisor — who the parties stipulated was an expert in child

protection casework — testified about the Department’s attempts to

identify an agency in Wisconsin that could provide random

monitored urinalysis testing for mother, but noted numerous

procedural complications and barriers such as the testing center’s

distance from mother’s home. Despite this, the court received

evidence that mother completed several evaluations that diagnosed

her as having a substance use disorder in sustained remission and

she had been participating in ongoing substance use monitoring

through a therapy provider.

9

¶ 17 And the caseworker supervisor testified that mother had

completed “upwards of [fifty] UAs total that have been negative” over

the life of the case, which the caseworker supervisor opined was

likely inconsistent with someone experiencing an ongoing “addictive

issue.” Similarly, Dr. Sarah Lukens, an expert in psychology called

by the GAL, testified that “the longer somebody is able to maintain

sobriety — the more evidence there is that they may be able to

continue to maintain sobriety.”

¶ 18 The following evidence also supports that mother substantially

complied with the therapeutic assessment and intervention portion

of her treatment plan:

• she completed a parental risk assessment that “showed

no elevations” in testing related to dysfunctional sexual

behaviors;

• she actively engaged in her individualized healthy sexual

boundaries curriculum, understood the need for it, and

demonstrated an ability to identify potential scenarios

that might present a risk of sexual abuse to the children;

10

• she successfully completed therapeutic parenting

coaching and demonstrated her ability to apply the skills

she learned in family time with the children;

• she completed a parenting assessment that

recommended her family time with the children be

monitored rather than supervised due to observed

improvements in her interactions with the children;

• she engaged in ongoing individual therapy to address her

trauma history, manage her anxiety and depression,

develop trauma-informed parenting skills, and develop

and utilize healthy coping skills; and

• she successfully engaged in family therapy with the

children.

¶ 19 Additionally, as discussed below, mother completed numerous

ICPC home studies — seven total — supporting the court’s finding

that she substantially complied with this portion of her treatment

plan.

¶ 20 It was up to the juvenile court, as the trier of fact, to weigh the

evidence — including any conflicting evidence — and assess witness

credibility. See People in Interest of A.J.L., 243 P.3d 244, 249-50

11

(Colo. 2010). Where, as here, the juvenile court’s factual findings

are supported by competent evidence in the record, we will not

disturb them. Id. at 256 (a reviewing court cannot substitute its

opinion for the juvenile court’s when conflicting evidence exists).

B. Determination of Fitness

¶ 21 The GAL next asserts

3

that the juvenile court erroneously

concluded that mother’s unfitness wasn’t established by clear and

convincing evidence. Again, we disagree.

¶ 22 In support of this contention, the GAL contends that the

numerous ICPC home studies that were denied demonstrated

mother’s ongoing and pervasive inability to provide the children

with reasonable parental care. But those home studies identified

concerns — such as mother’s history of substance use and the

3

We reject the GAL’s assertion that the juvenile court’s written

finding of unfitness controls over the detailed verbal findings it

made at the end of the termination hearing. The written order

references the court’s verbal findings, even if it doesn’t explicitly

incorporate them. See People in Interest of S.R.N.J-S., 2020 COA 12

¶ 17 (considering the juvenile court’s verbal termination hearing

findings where the written order incorporated them by reference).

And to the extent there is a “conflict,” the GAL, as the party directed

to submit the proposed written order, injected that error and cannot

now profit from it. People in Interest of M.H-K., 2018 COA 178,

¶ 19.

12

children’s sexualized behaviors — that were already being

addressed as part of mother’s court-approved treatment plan. And

the record reflects that, consistent with its obligation to provide

reasonable efforts, the Department made extensive efforts to

address the reasons the home studies were denied through the

provision of services to mother in Wisconsin and in Colorado, when

she traveled here to see the children. See People in Interest of I.J.O.,

2019 COA 151, ¶ 17 (noting the department’s obligation to make

reasonable effort to help a parent rectify concerns identified in a

home study). The court also noted that the ongoing reassessment

of mother’s home through the ICPC process was necessary because

the children had specialized needs that would likely require ongoing

supportive services if the court didn’t terminate mother’s parental

rights and authorized the children to transition to her care in

Wisconsin in the future.

¶ 23 Thus, the court considered the reasons the home studies had

been denied, the services provided by the Department to rectify the

concerns, and the circumstances that ultimately led to mother’s

home being approved following the initial portion of the termination

hearing. The court found with record support that the concerns

13

referenced in the home studies could be mitigated and concluded

the GAL had not proved by clear and convincing evidence that

mother’s conduct made her unwilling or unable to give the children

reasonable parental care minimally adequate to meet their needs.

¶ 24 Because the court concluded that the GAL hadn’t proved

mother’s unfitness after weighing the conflicting but competent

evidence, we won’t disturb that conclusion.

C. Fitness Within a Reasonable Time

¶ 25 The GAL also contends that the juvenile court erred by finding

that mother was likely to become a fit parent within a reasonable

time. We disagree.

¶ 26 It’s undeniable that this case has been open for a significant

time. However, the children’s need for permanency alone is

insufficient to terminate mother’s parental rights. See S.R.N.J-S.,

¶ 58. In determining whether a parent’s conduct or condition is

likely to change within a reasonable time, the court may consider

whether any change has occurred during the pendency of the

proceeding. People in Interest of A.J., 143 P.3d 1143, 1152 (Colo.

App. 2006). A “reasonable time” is relative and determined by the

children’s physical, mental, and emotional conditions and needs.

14

See § 19-3-604(1)(c)(III); K.D. v. People, 139 P.3d 695, 700 (Colo.

2006).

¶ 27 As already noted, the court explicitly considered the treatment

progress mother made over the life of the case. Additionally, the

court considered evidence that mother and the children enjoyed a

positive relationship, which had improved over time.

¶ 28 The court again highlighted the barriers mother’s out-of-state

residence presented to identifying treatment services, but it noted

that with an approved ICPC home study, mother could potentially

begin additional family therapy services in Wisconsin within six

months.

¶ 29 Again, it was up to the juvenile court to assess any conflicting

evidence. Given mother’s therapeutic progress, her relationship

with the children, and an approved home study that would allow

the court to consider and plan for potentially transitioning the

children to mother’s care, we find no error in the court’s conclusion

that the sole conduct or condition that supported a finding that

mother was unfit — the fact that she resided out of state — could

be rectified within a reasonable time from the children’s point of

15

view. Because there is evidence in the record supporting the

juvenile court’s finding, we won’t disturb its legal conclusion.

D. Due Process

¶ 30 The GAL argues that the Department violated the children’s

due process

4

rights by failing to secure permanency for them in a

timely manner. We decline to address this issue because it has not

been properly preserved.

¶ 31 While divisions of this court are divided on taking up

unpreserved constitutional arguments in dependency and neglect

cases, see People in Interest of M.B., 2020 COA 13, ¶ 34, the general

rule in civil cases is that parties may not raise for the first time on

appeal “[a]rguments never presented to, considered by, or ruled

upon by a [district] court,” Colo. Div. of Ins. v. Statewide Bonding,

Inc., 2022 COA 67, ¶ 73. And while talismanic language isn’t

required to preserve an issue, a party must have presented the

“sum and substance” of the argument to the district court.

4

The GAL states this argument is a “substantive” due process issue

but cites Mathews v. Eldridge, 424 U.S. 319 (1976), which provides

the test for analyzing procedural due process claims.

16

Madalena v. Zurich Am. Ins. Co., 2023 COA 32, ¶ 50 (citation

omitted).

¶ 32 The sum and substance of the GAL’s argument on appeal —

that the juvenile court and the Department denied the children

procedural due process and violated their “fundamental liberty

interest in being placed in a permanent, secure, stable and loving

environment” by failing to secure permanency for them in a timely

manner — wasn’t presented to the juvenile court. The GAL’s

general references to the expedited placement guidelines and the

length of time the case had been open were insufficient to place the

juvenile court on notice that a constitutional procedural due

process claim was being asserted on the children’s behalf. See

Fisher v. State Farm Mut. Auto. Ins. Co., 2015 COA 57, ¶ 44 (holding

that where the argument raised in the trial court did not raise a

constitutional issue, it was insufficient to preserve a constitutional

claim for appeal).

¶ 33 The GAL argues that even if we determine this issue hasn’t

been preserved, we should consider it to “avert unequivocal and

manifest injustice.” But the juvenile court conducted a thorough

hearing on the GAL’s motion. See In re J.D.K., 37 P.3d 541, 543

17

(Colo. App. 2001) (procedural due process for a termination hearing

requires notice and an opportunity to be heard). Thus, the GAL has

not demonstrated that a miscarriage of justice occurred. See In re

E.R.S., 2019 COA 40, ¶ 41 (holding no manifest injustice occurred

where the party was entitled to and received fundamentally fair

procedures); see also M.B., ¶ 26 (rejecting assertion of due process

violation based on delayed paternity hearing despite statutory

mandate that paternity determinations be expeditiously resolved).

¶ 34 We also decline to address the GAL’s unpreserved argument

that the juvenile court violated the children’s due process rights by

not ordering an evaluation, under section 19-3-604(3), to assess the

children’s relationship with mother because the GAL doesn’t

identify where in the record the necessity of such an evaluation was

presented to the juvenile court. O’Quinn v. Baca, 250 P.3d 629,

631 (Colo. App. 2010) (noting appellant is obligated to identify

where issues have been preserved in the record).

IV. Disposition

¶ 35 The judgment is affirmed.

JUDGE YUN and JUDGE DAVIDSON concur.