24CA0639 Peo in Interest of AAQ 11-27-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0639 Jefferson County District Court No. 22JV30212 Honorable Ann Gail Meinster, Judge
The People of the State of Colorado,
Appellee,
In the Interest of A.A.Q., L.L.Q., L.J.Q., and J.T.Q., Jr., Children,
and Concerning C.L.P. and J.T.Q.,
Appellants.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE GROVE Freyre and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 27, 2024
Kimberly S. Sorrells, County Attorney, Claire M. Czajkowski, Assistant County Attorney, Golden, Colorado, for Appellee
Josi McCauley, Guardian Ad Litem for A.A.Q., L.L.Q., and L.J.Q.
Josi McCauley, Counsel for Youth, Superior, Colorado, for J.T.Q., Jr.
Padilla Law, P.C., Beth Padilla, Durango, Colorado, for Appellant C.L.P.
The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for Appellant J.T.Q. ¶1 In this dependency and neglect proceeding, C.L.P. (mother)
and J.T.Q. (father) appeal the juvenile court’s judgment terminating
their parent-child legal relationships with A.A.Q., J.T.Q. Jr., L.L.Q.,
and L.J.Q. (the children). We affirm in part and reverse in part, and
we remand the case for further proceedings consistent with this
opinion.
I. Background
¶2 In September 2022, the Jefferson County Division of Children,
Youth, and Families (Department) received a report that the
children were not being brought to school on a regular basis. The
Department later received additional reports concerning mother’s
alleged substance abuse and father’s incarceration. Based upon
the concerns, the Department filed a petition in dependency and
neglect.
¶3 In the meantime, the children were removed and placed with
paternal aunt where they remained for the entirety of the case.
¶4 The parents admitted the allegations in the petition and the
juvenile court adjudicated the children dependent and neglected.
The court then adopted treatment plans for the parents.
1 ¶5 Later, the Department filed a motion to terminate parental
rights. After an evidentiary hearing, the court granted the motion.
II. Termination Criteria and Standard of Review
¶6 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 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. 2024.
¶7 Whether a juvenile court properly terminated parental rights
presents a mixed question of fact and law because it involves the
application of the termination statute to evidentiary facts. People in
Interest of A.M. v. T.M., 2021 CO 14, ¶ 15. A determination of the
proper legal standard to be applied in a case and the application of
that standard to the particular facts of the case are questions of law
that we review de novo. M.A.W. v. People in Interest of A.L.W., 2020
CO 11, ¶ 31.
¶8 However, we will not disturb the court’s factual findings and
conclusions when they are supported by the record. Id. at ¶ 32; see
2 also A.M., ¶ 15. The credibility of the witnesses as well as the
sufficiency, probative value, and weight of the evidence, and the
inferences and conclusions to be drawn from it are within the
court’s discretion. A.M., ¶ 15.
III. Father’s Arguments
¶9 Father asserts the juvenile court erred when it found he had
been provided an appropriate treatment plan. We agree.
A. Relevant Law
¶ 10 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 L.M., 2018 COA 57M, ¶ 25. Therefore, an appropriate
treatment plan is one that is approved by the court, relates to the
child’s needs based on a risk assessment, and provides treatment
objectives that are reasonably calculated to render the parent fit to
provide adequate parenting to the child within a reasonable time.
§ 19-1-103(12), C.R.S. 2024; People in Interest of K.B., 2016 COA
21, ¶ 13.
¶ 11 We measure the appropriateness of a treatment plan by its
likelihood of success in reuniting the family, which we assess in
3 light of the facts existing at the time the juvenile court approved the
plan. People in Interest of B.C., 122 P.3d 1067, 1071 (Colo. App.
2005). The fact that a treatment plan is ultimately unsuccessful,
however, does not mean that it was inappropriate when approved.
People in Interest of M.M., 726 P.2d 1108, 1121 (Colo. 1986).
¶ 12 A parent’s incarceration at the time of the adoption or
amendment of a treatment plan does not necessarily make it
impossible to devise an appropriate treatment plan, but it makes it
more difficult to craft “a meaningful and workable [treatment] plan.”
People in Interest of M.C.C., 641 P.2d 306, 309 (Colo. App. 1982).
When devising an appropriate plan in this context, the court should
consider “the age of the child, the length of the parent’s
incarceration, the nature of the parent’s criminal conduct, and all
the circumstances of the prior parent-child relationship.” Id.
¶ 13 The parent is responsible for securing compliance with and the
success of a treatment plan. People in Interest of J.M.B., 60 P.3d
790, 792 (Colo. App. 2002).
B. Additional Background
¶ 14 Father was incarcerated throughout the entire case. Because
of this, the Department developed a treatment plan that had two
4 goals. The first goal required the children to be cared for by safe
and substance-free adults who could meet their needs. To meet
that goal, the plan required father to, among other things, abstain
from using illicit substances, complete a substance use evaluation
and follow the recommendations, and submit to random urinalysis
(UA) tests. The second goal required that the children be cared for
by caregivers who could “meet their individual needs for safety,
well-being, and permanency.” That required father to maintain
contact with the caseworker, ensure that the children’s medical and
developmental needs were met, participate in family time, attend a
parenting class, and maintain employment.
¶ 15 At the dispositional hearing, the juvenile court recognized
father was incarcerated and that, as a result, he would be unable to
satisfy certain provisions of his treatment plan. The court stated,
however, that “[t]hat will not be held against [him],” and “[t]hose
elements that are impossible for him to comply with while he is in
custody are to be held in abeyance until he is released.” The court
never clarified which provisions would be held in abeyance. The
court then adopted the treatment plan; its provisions were never
amended.
5 ¶ 16 Despite the court’s acknowledgment of the obstacles caused
by father’s incarceration, no provisions of the treatment plan were
held in abeyance at any point in the case. The Department’s court
reports routinely indicated father was failing to engage in substance
abuse treatment or consistently attend family time, both of which
were provisions that were impossible, or at least difficult at times,
for father to comply with while incarcerated.
¶ 17 At the termination hearing, the juvenile court found the
treatment plan was “reasonable and appropriate, [and] capable of
success,” but that father had not reasonably complied with it. In
doing so, the court also found that father had, “to the best of his
ability,” done “what he could. He took advantage of what [services]
there [were].” Notably, as part of its findings regarding father’s
unfitness, the court considered father’s untreated substance use
concerns, domestic violence concerns, outstanding warrants, and
criminal history.
C. Analysis
¶ 18 We conclude the juvenile court erred. Father’s treatment plan
was implemented by the court in an inappropriate manner because,
when the court failed to hold provisions of his treatment plan in
6 abeyance as expressly agreed, his noncompliance was essentially
assured. See People in Interest of B.J.D., 626 P.2d 727 (Colo. App.
1981) (holding that the trial court erred in ruling the treatment plan
was appropriate when the treatment plan failed to take into
consideration mother’s pregnancy, lack of transportation, and lack
of income). The court failed to clarify which parts of father’s
treatment plan would be held in abeyance given father’s
incarceration, and later used against father his noncompliance with
aspects of his treatment plan that were impossible to comply with
while incarcerated. Given this, the likelihood of successful
completion with his treatment plan was made virtually impossible.
See B.C., 122 P.3d at 1071.
¶ 19 The record reveals, and the Department and guardian ad litem
concede, that father engaged in the treatment plan to the best of his
ability. Father reported taking the classes available to him while
incarcerated and had completed several classes during the case.
He reported that he inquired with the facility as to the availability of
substance abuse treatment but was unable to take the class
because there was a waiting period. Further, he was unable to
7 complete UAs while in the facility. The caseworker acknowledged
he was complying with the services available to him.
¶ 20 In support of father’s goal to regularly participate in family
time, the court eventually ordered the Department to set up visits
for father while he was incarcerated. Unknown to the court and the
professionals at that time, a criminal protection order prevented
father from contacting the children. That protection order was
modified to allow contact in November 2023. Following the
modification, it appears the Department placed most of the
responsibility on father and paternal relatives to set up, pay for,
and coordinate family time. While the Department did not
supervise or regularly inquire as to how family time went, paternal
relatives reported the children enjoyed being able to speak to father.
The caseworker testified father spoke to the children approximately
weekly; however, lockdowns at the facility occasionally prevented
contact.
¶ 21 Regarding concerns about domestic violence, outstanding
warrants, and criminal history, there were no provisions in the
treatment plan that required father to address these issues. While
father’s criminal history was related to domestic violence charges,
8 domestic violence treatment was not a component of his treatment
plan nor did the Department offer domestic violence services. The
record is also devoid of any mention of any outstanding warrants
related to father.
¶ 22 Given this record and under these circumstances, it appears it
was impossible for father to participate in substance use evaluation
and treatment, UAs, and consistent family time while he was
incarcerated. In other words, unless these components of the
treatment plan were held in abeyance, father’s noncompliance was
essentially assured. Moreover, father could not have failed to
comply with his treatment plan by not engaging in a service that
was not ordered nor by having outstanding warrants when the
record reveals he had none.
¶ 23 Accordingly, the judgment terminating the parent-child
relationship as to father is reversed, and the case is remanded for
further proceedings consistent with this opinion.1
1 Because we are reversing the termination judgment as to father,
we need not address his other contentions.
9 IV. Mother’s Arguments
A. Reasonable Efforts
¶ 24 Mother asserts that the juvenile court erred by finding the
Department made reasonable efforts to rehabilitate her and reunite
her with the children. We discern no basis for reversal.
B. Preservation
¶ 25 The Department argues that mother failed to preserve her
argument about reasonable efforts because she did not raise it
before the termination hearing. We need not decide if mother
needed to raise a reasonable efforts argument before the
termination hearing because, regardless of preservation, the
outcome is the same. See L & R Expl. Venture v. Grynberg, 271 P.3d
530, 536 (Colo. App. 2011) (declining to resolve an issue where the
outcome would not change); People in Interest of R.R., 607 P.2d
1013, 1015 n.2 (Colo. 1979). Compare People in Interest of S.N-V.,
300 P.3d 911, 916 (Colo. App. 2011) (parties don’t need to raise
reasonable efforts argument before a termination hearing), with
People in Interest of D.P., 160 P.3d 351, 355-56 (Colo. App. 2007)
(reasonable efforts argument is waived if not raised before the
termination hearing).
10 C. Relevant Law
¶ 26 A department of human services must make reasonable efforts
to rehabilitate parents and reunite families before a court may
terminate parental rights pursuant to section 19-3-604(1)(c). See
§§ 19-3-100.5(1), 19-3-604(2)(h), C.R.S. 2024. Reasonable efforts
means the “exercise of diligence and care” for children who are in
out-of-home placement. § 19-1-103(114). Services provided in
accordance with section 19-3-208, C.R.S. 2024, satisfy the
reasonable efforts standard. § 19-1-103(114).
¶ 27 Among those services required under section 19-3-208 are
screening, assessments, and individual case plans for the provision
of services; home-based family and crisis counseling; information
and referral services to available public and private assistance
resources; family time services; and placement services. § 19-3-
208(2)(b).
¶ 28 In deciding whether a department has satisfied its reasonable
efforts obligation, the juvenile court should consider whether the
provided services were appropriate to support the parent’s
treatment plan. S.N-V., 300 P.3d at 915. The parent is ultimately
responsible for using those services to obtain the assistance needed
11 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.
¶ 29 Whether a department of human services 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 review de novo its legal
determination based on those findings as to whether the
department satisfied its reasonable efforts obligation. Id.
D. Analysis
¶ 30 Mother asserts the Department did not engage in reasonable
efforts to reunify her and the children because it failed to (1)
investigate mother’s relatives as a potential placement; (2) provide
her with adequate parenting time; and (3) provide her with domestic
violence treatment.
¶ 31 We address each argument in turn.
12 1. Relatives as Placement
¶ 32 Mother argues the juvenile court erred by finding the
Department made reasonable efforts because it “did not evaluate
any relatives as placement.”
¶ 33 Contrarily, the record shows maternal aunt was investigated
for placement when raised as an option by mother, but the
Department had concerns about moving the children from the
bonded kinship home they had lived in for most of the case.
¶ 34 When the case opened, the children had already been living
with paternal aunt for about one month. Paternal aunt testified she
had also cared for the children on and off throughout their lives
when mother was unavailable, so the children were familiar with
her. The children reportedly wanted to remain in the home with
paternal aunt. And while mother identified maternal relatives early
on as supports, throughout most of the case the record indicates
she believed paternal aunt was the best placement option for the
children.
¶ 35 Mother did request that placement with maternal relatives be
investigated nearly a year after the case began. In support of this,
13 the caseworker testified she completed a background and
fingerprint check and spoke to maternal aunt.
¶ 36 However, the caseworker testified she would not have
supported moving the children to another placement that late in the
case, as she believed it would be detrimental to them. The children
were doing well in the home, paternal aunt was caring for their
needs, and they were making progress catching up developmentally
and in school. And while the children had sustained injuries while
in paternal aunt’s care, the Department was aware of the injuries
and the caseworker testified she had spoken to paternal aunt and
the children about them and had no safety concerns.
¶ 37 The caseworker additionally testified she encouraged maternal
relatives to participate in family time even when mother failed to
appear for visits and encouraged a relationship between the
children and maternal relatives. Notably, maternal relatives never
filed to request placement.
¶ 38 We conclude there is record support for the court’s findings.
14 2. Parenting Time
¶ 39 Mother argues the Department failed in its duty to provide
reasonable efforts because there was a delay in getting family time
started and because paternal aunt canceled visits.
¶ 40 While the record shows there were difficulties scheduling the
first visit and paternal aunt did have cancellations, the record also
shows that most of the missed family time stemmed from mother’s
failure or refusal to communicate with professionals or attend
family time.
¶ 41 As mother correctly points out, there was an almost three-
month delay between the case opening and the beginning of family
time visits. Some of the missed family time visits were due to the
weather or cancellations by paternal aunt. However, the initial
delay was also attributable to mother’s failure to communicate with
the caseworker, her need to run errands, and mother’s illnesses.
¶ 42 True, six to seven family time visits were canceled by paternal
aunt due to her own illnesses, the children’s illnesses, or
scheduling conflicts. However, mother additionally cancelled or
failed to appear for seven family time visits. Mother refused to move
family time to the community, which resulted in the closing of one
15 family time referral. At one point, she also demanded a new
caseworker and refused to engage or communicate with the current
caseworker until her next court date, which resulted in some
missed family time. At another point, she demanded new legal
counsel and reported she would not participate in family time until
she received new representation, which resulted in a family time
referral closure for lack of engagement. And at times throughout
the case, mother was unreachable or delayed responding, which
prevented family time from occurring or resuming for periods of up
to six months.
¶ 43 The juvenile court found it was mother who prevented much of
the family time from occurring. The record supports the court’s
conclusion that it was mother’s unwillingness to participate, rather
than the Department’s efforts, that prevented her from engaging in
family time. A.V., ¶ 12.
3. Domestic Violence Treatment
¶ 44 Lastly, mother argues the Department failed in its duty to
provide reasonable efforts because it did not include domestic
violence services in her treatment plan. We conclude this error was
harmless.
16 ¶ 45 The juvenile court found that mother was unfit, that she had
not reasonably complied with her treatment plan, and that the
concerns that had opened the case remained unaddressed at the
time of termination. Notably, the court found mother did not
comply with her treatment plan due to ongoing domestic violence
concerns. However, domestic violence treatment was never a
component of mother’s treatment plan and domestic violence
services were never offered to her.
¶ 46 While it was error for the juvenile court to fault mother for her
failure to engage in domestic violence services, we are not
persuaded that this would have made a difference in the outcome of
the case, considering mother’s noncompliance with the other
aspects of her treatment plan. See C.A.R. 35(c) (noting that an
“appellate court may disregard any error or defect not affecting the
substantial rights of the parties”); see also People in Interest of E.S.,
2021 COA 79, ¶ 27 (noting that a lack of reasonable efforts in one
area may be harmless “in light of [the parent’s] noncompliance with
other parts of [their] treatment plan”). In addition to the above
findings, the court also found mother had failed to engage in
17 substance abuse treatment, had outstanding warrants, and was
responsible for the lack of family time.
¶ 47 The record supports the court’s additional findings. Though
mother was not referred to domestic violence services, she was
referred to dialectical behavioral therapy — a therapy that
addresses trauma —- following her intake with a therapeutic
provider early in the case, but she failed to participate or further
engage in the service.
¶ 48 Mother also failed to engage in any substance abuse treatment
or take routine UAs, which her treatment plan required. The
caseworker testified mother only completed five UAs, four of which
were positive for opiates. While mother completed an intake
assessment for substance abuse treatment, the caseworker testified
she failed to follow through or engage further.
¶ 49 Testimony further revealed mother had two open warrants at
the time of the termination hearing, her communication with the
caseworker was often sporadic, and she had never confirmed stable
housing or employment with the Department, all of which were tied
to her treatment plan components.
18 V. Less Drastic Alternatives
¶ 50 Mother asserts the court erred by finding there were no less
drastic alternatives to termination. We disagree.
¶ 51 The juvenile court must consider and eliminate less drastic
alternatives before terminating parental rights. M.M., 726 P.2d at
1122-23. When making this determination, the court must give
primary consideration to the child’s physical, mental, and emotional
conditions and needs. See § 19-3-604(3); K.B., ¶ 35.
¶ 52 In deciding whether long-term or permanent placement with a
relative or other person is a viable less drastic alternative to
termination, the court may consider various factors including
whether a permanent placement prefers adoption rather than an
allocation of parental responsibilities (APR). People in Interest of
Z.M., 2020 COA 3M, ¶ 31.
¶ 53 For a less drastic alternative to be viable, it must do more than
“adequately” meet a child’s needs. A.M., ¶ 27. Rather, the
proposed alternative must be the “best” option for the child. Id.
Therefore, if the court considers a less drastic alternative but finds
that termination is in the child’s best interests, it must reject the
19 proposed alternative and order termination. Id. at ¶ 32. Permanent
placement is not a viable less drastic alternative if the child needs a
stable, permanent home that can only be assured by adoption. S.N-
V., 300 P.3d at 920.
¶ 54 When the juvenile court considers a less drastic alternative
and still determines that the termination of parental rights is in the
child’s best interests, we are bound to affirm that decision if the
court’s findings are supported by the record. People in Interest of
B.H., 2021 CO 39, ¶ 80.
B. Discussion
¶ 55 Mother asserts the juvenile court erred when it determined
there were no less drastic alternatives to termination because the
court failed to consider maternal aunt as a less drastic alternative.
¶ 56 The court found there were no less drastic alternatives to
termination and termination was in the children’s best interests.
¶ 57 The record indicates, as described above, that maternal aunt
was investigated as a placement, but the children were ultimately
not moved to her home due to concerns about how removing them
from a bonded and familiar home would affect their well-being.
20 ¶ 58 Additionally, the caseworker and paternal aunt testified that
paternal aunt preferred adoption over an APR. The caseworker
further testified she believed termination was in the children’s best
interests, and that the children would have stability, structure, and
permanency with their paternal aunt.
¶ 59 Further, the juvenile court found that an APR would not be
appropriate and that the children needed the permanency of an
adoptive home. Because there is record support for the court’s
findings, we must affirm. Id. at ¶ 80.
VI. Disposition
¶ 60 The judgment is affirmed in part and reversed in part, and the
case is remanded for further proceedings consistent with this
JUDGE FREYRE and JUDGE LUM concur.