Peo in Interest of AD

• Court: Colorado Court of Appeals
• Decided: April 3, 2025
• Docket: 24CA1968
• Status: Unpublished

Opinion

24CA1968 Peo in Interest of AD 04-03-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1968 Mesa County District Court No. 23JV76 Honorable Jeremy Chaffin, Judge

The People of the State of Colorado,

Appellee,

In the Interest of A.D., E.D., T.D., and S.D., Children,

and Concerning K.D.,

Appellant.

JUDGMENT AFFIRMED

Division I Opinion by JUDGE YUN J. Jones and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 3, 2025

Todd M. Starr, County Attorney, Brad Junge, Assistant County Attorney, Grand Junction, Colorado, for Appellee

Josie L. Burt, Guardian Ad Litem

Beth Padilla, Office of Respondent Parents’ Counsel, Durango, Colorado, for Appellant ¶1 K.D. (mother) appeals the judgment terminating her

parent-child legal relationships with A.D., E.D., T.D., and S.D. (the

children). We affirm.

I. Background

¶2 In 2021, mother traveled to Florida with her younger children,

T.D. and S.D., while the older children, A.D. and E.D., remained in

Colorado with paternal grandmother. Shortly after their arrival, a

department in Florida received a report that mother had overdosed

in a hotel bathroom while the younger children were in an adjacent

bedroom. The Florida department filed a petition in dependency, a

Florida court adjudicated the younger children dependent, and the

court adopted a treatment plan for mother.

¶3 In 2022, the Florida court allowed the parents to move back to

Colorado with the children and reside with paternal grandmother

and the other two children. However, in February 2023, mother

had to leave paternal grandmother’s home because she tested

positive for substances. Then, in July 2023, the Mesa County

Department of Human Services (Department) received a report that

police had discovered drugs in mother’s home while the older

children were visiting her there. The Department also had

1 information that police had arrested the children’s father following a

domestic violence incident with mother. Based on this information,

the Department filed a petition in dependency or neglect as to the

older children.

¶4 The juvenile court adjudicated the older children dependent or

neglected and adopted a treatment plan for mother that required

her to (1) attend family time; (2) address her mental health and

substance abuse issues; (3) participate in family therapy; (4) engage

in a domestic violence evaluation and treatment; (5) maintain stable

housing and employment; and (6) cooperate with the Department

and the professionals. Around the same time, the Florida court

transferred the case involving the younger children to Colorado, and

the juvenile court amended mother’s treatment plan in the Florida

case to match the one adopted in the older children’s case.

¶5 In April 2024, the Department moved to terminate mother’s

parental rights. Soon thereafter, the juvenile court consolidated the

two cases and set the matter for a single termination hearing. After

considering the evidence presented at the hearing, the court

granted the Department’s motion and terminated the parent-child

legal relationships between mother and the children.

2 II. Discussion

¶6 Mother asserts that the juvenile court erred by (1) finding that

she could not become fit in a reasonable time and (2) declining to

increase her family time. We disagree.

A. Termination Criteria and Standard of Review

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

clear and convincing evidence, that (1) the child was adjudicated

dependent or 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.

¶8 Whether the juvenile court properly terminated parental rights

is a mixed question of fact and law. People in Interest of A.M. v.

T.M., 2021 CO 14, ¶ 15; see also People in Interest of E.D., 2025

COA 11, ¶ 13 (applying the same standard of review to whether a

department made reasonable efforts to provide a parent with family

time). We review the court’s factual findings for clear error, but we

review de novo its legal conclusions based on those facts. People in

Interest of S.R.N.J-S., 2020 COA 12, ¶ 10.

3 B. Fitness Within a Reasonable Time

¶9 Mother asserts that the juvenile court should have given her

more time to become fit because she partially complied with her

treatment plan. We discern no error.

¶ 10 A parent’s noncompliance with a treatment plan generally

“demonstrates a lack of commitment to meeting the child’s needs”

and may “be considered in determining unfitness.” People in

Interest of D.P., 181 P.3d 403, 408 (Colo. App. 2008). Although

absolute compliance with a treatment plan is not required, even

substantial compliance might not be sufficient to correct or improve

the parent’s conduct or condition or to render the parent fit. People

in Interest of T.E.M., 124 P.3d 905, 909 (Colo. App. 2005).

¶ 11 When deciding whether a parent can become fit within a

reasonable time, the juvenile court may consider whether any

change has occurred during the 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). Where a parent has made little to no progress on a

treatment plan, the court need not give the parent additional time

4 to comply. See People in Interest of R.B.S., 717 P.2d 1004, 1006

(Colo. App. 1986).

¶ 12 The determination of a reasonable period is fact-specific and

varies from case to case. People in Interest of D.Y., 176 P.3d 874,

876 (Colo. App. 2007); see also People in Interest of S.Z.S., 2022

COA 133, ¶ 24. However, a reasonable time is not an indefinite

time, and it must be determined by considering the child’s physical,

mental, and emotional conditions and needs. S.Z.S., ¶ 24. As in

this case, when a child is under six years old, the juvenile court

must also consider the expedited permanency planning provisions,

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

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

19-3-702(5)(c), C.R.S. 2024.

¶ 13 The juvenile court concluded that mother had not

substantially complied with her treatment plan, she was unfit, and

her conduct or condition was unlikely to change within a

reasonable time. Specifically, the court found that mother had not

made any effort to comply with her treatment plan until the “last

minute” and those efforts were simply “too little, too late.” It also

5 determined that mother could not become fit within a reasonable

time because “a reasonable time ha[d] already passed.”

¶ 14 The record supports the juvenile court’s findings. Four

caseworkers testified during the termination hearing, and each said

that mother had made little to no progress on her treatment plan.

For example,

• the first caseworker testified that, although mother did

some drug screens during the Florida case, she refused

to engage in substance abuse treatment during that time;

• the second caseworker said that mother denied

substance use and refused to engage in treatment;

• the third caseworker reported that the Department made

referrals for different evaluations, but mother did not

complete any of them; and

• the fourth caseworker stated that mother finally

completed a mental health and substance abuse

evaluation in May 2024, but she had not followed any of

the recommendations.

¶ 15 Based on mother’s lack of progress during the case, along with

her demonstrated inability to put the children’s best interests above

6 her own, the caseworkers opined that mother was unlikely to

become fit within a reasonable time. Specifically, the third

caseworker testified that mother had not taken any accountability

for her actions, acknowledged how her actions impacted the

children, or demonstrated any behavioral changes during the case

that would indicate that she could become fit within a reasonable

time. Likewise, the fourth caseworker pointed to mother’s lack of

accountability and behavioral changes in her assessment that

mother was unlikely to change in a reasonable time. This

caseworker also noted that, when considering the Florida case,

mother had well over two years to become fit, but she continued to

exhibit the same problems that necessitated government

intervention.

¶ 16 Nevertheless, mother maintains that the juvenile court erred

because the evidence shows that she had started engaging in

treatment at an inpatient facility. But the record indicates that

mother entered inpatient treatment less than a month before the

termination hearing. And the court considered this evidence but

determined that it was insufficient to overcome her demonstrated

lack of compliance during most of the case. See People in Interest of

7 V.W., 958 P.2d 1132, 1134-35 (Colo. App. 1998) (even “increased

compliance” over the course of a case may not justify additional

time). Consequently, accepting mother’s argument would require

us to reweigh the evidence and substitute our judgment for that of

the juvenile court, which we cannot do. See S.Z.S., ¶ 29. Rather,

because the record supports the court’s finding that mother was

unlikely to become fit within a reasonable time, we reject her

contention.

C. Family Time

¶ 17 Mother contends that the juvenile court erred by delegating

decisions about family time to the parties and that, as a result, it

improperly declined to increase her visits. We disagree.

¶ 18 At a temporary custody hearing in the older children’s case, a

magistrate “authorize[d] up to two supervised parenting time visits

per week to last up to one hour.” However, the magistrate’s written

order said that mother “shall have supervised parenting time . . . for

two sessions per week, and a minimum of one hour per visit.” The

written order also allowed for an “increase in time” if agreed upon

by the parties.

8 ¶ 19 At a hearing a few months later, mother asked a different

magistrate to “add another day of visitation.” After hearing

argument, the magistrate determined that adding an additional visit

was not in the children’s best interests and therefore it would not

“intervene with parenting time that’s been set up now.” The

magistrate then said that the Department and guardian ad litem

(GAL) could “increase time without [the court] intervening.” The

unsigned minute order from the hearing stated that the magistrate

“does not intervene in parenting time and leaves it up to the parties

to discuss.”

¶ 20 Less than two weeks later, the magistrate adopted treatment

plans in both cases that included a family time provision but did

not indicate the number of visits, so we will assume that the

previous family time schedule in the older children’s case applied in

both cases. At subsequent review hearings, mother indicated that

she was only getting one visit per week, and her counsel said that

“we need to really work on getting some more visits.”

¶ 21 To begin, the Department and GAL contend that we should

dismiss this portion of mother’s appeal for lack of a final,

appealable order. See People in Interest of M.W., 140 P.3d 231, 233

9 (Colo. App. 2006) (“[T]emporary custody orders are not subject to

appeal . . . .”). But a parent may contest issues around family time

that form a basis for the juvenile court’s termination decision via an

appeal of a termination judgment, even if a magistrate entered some

of the specific orders throughout the case. See, e.g., People in

Interest of A.A., 2020 COA 154, ¶¶ 18-39. And mother’s notice of

appeal indicates that she is appealing the termination judgment,

not the temporary orders entered by the magistrate. Because

mother appeals the termination judgment and that judgment is

final for purposes of appeal under section 19-1-109(2)(b), C.R.S.

2024, we reject the Department’s and GAL’s request for dismissal.

¶ 22 The Department and GAL also assert that we should dismiss

this portion of the appeal because mother failed to request juvenile

court review of the magistrate’s family time orders under section

19-1-108(5.5), C.R.S. 2024. See People in Interest of K.L-P.,

148 P.3d 402, 403 (Colo. App. 2006) (a party must petition the

juvenile court for review of a magistrate’s order before filing an

appeal). We disagree because we have already concluded that

mother is appealing the termination judgment, not the magistrate’s

orders, and a juvenile court judge, not a magistrate, entered the

10 termination judgment. Therefore, mother did not need to request

review of the magistrate’s order before appealing.

¶ 23 Mother asserts that the juvenile court delegated family time

decisions by declining to increase her parenting time. See People in

Interest of B.C., 122 P.3d 1067, 1070-71 (Colo. App. 2005) (The

court must “make decisions regarding visitation, and it may not

delegate this function to third parties.”). Specifically, mother

maintains that the magistrate delegated family time decisions

because she declared in a minute order that she would “not get

involved in parenting time disputes.” We are not persuaded.

¶ 24 As noted, the magistrate specifically found that an additional

visit was not in the children’s best interests and, for that reason,

she declined to “intervene with parenting time that’s been set up

now.” See A.A., ¶ 17 (family time services should be designed to

“promote the best interests of the child”). Nevertheless, the

magistrate pointed out that the parties did not need further court

order to increase visits. Notably, section 19-3-217(2), C.R.S. 2024,

of the Colorado Children’s Code permits a court to “grant[]

discretionary authority to the department and [GAL] to increase

opportunities for additional parent-child contacts . . . without

11 further court order.” In other words, the Children’s Code permits a

court to delegate to the parties decisions about increasing parenting

time. Thus, we reject mother’s assertion.

¶ 25 The present case is unlike People in Interest of D.G., 140 P.3d

299, 304 (Colo. App. 2006), in which a division of this court

concluded that the juvenile court erred when it “improperly

delegated” visitation decisions to the caseworker and other

professionals by approving a treatment plan that allowed them to

decide when the parent could have face-to-face visitation with her

children. Said another way, the court delegated to the caseworker

and the professionals the decision whether the parent would ever

get visits. In contrast, in the present case, the court did not

“delegate decisions to restrict family time,” E.D., ¶ 14, which is

impermissible; instead, it allowed the parties to agree on increases

in family time, which is allowed, see § 19-3-217(2).

¶ 26 Mother also contends that the magistrate’s initial family time

order provided for two visits per week, not “up to” two visits a week,

and the Department only provided one visit during a portion of the

case. We acknowledge that there is a discrepancy between the oral

ruling and the written order. When there is a difference between

12 the oral ruling and written order, the written order generally

controls over the oral ruling. See S.R.N.J-S., ¶ 16.

¶ 27 But even if we conclude that the juvenile court ordered two

visits per week rather than “up to” two visits per week, we discern

no reversible error because mother has not developed any argument

to explain why we should reverse the termination judgment. See

People in Interest of D.B-J., 89 P.3d 530, 531 (Colo. App. 2004). For

example, nowhere in mother’s brief does she assert that the

Department failed to make reasonable efforts because it only

provided one visit rather than two. See § 19-3-208(2)(b)(IV), C.R.S.

2024 (requiring a department to provide family time services to a

parent). And mother has not directed us to any competent evidence

establishing that the Department only provided one visit per week.

See Robertson v. People, 2017 COA 143M, ¶ 43 (noting that

statements made by counsel are not evidence). Rather, two

caseworkers said that mother had two visits per week, and paternal

grandmother reported that mother recently had three visits

scheduled per week.

¶ 28 Finally, even assuming, without deciding, that the Department

improperly withheld one visit per week for a few months, we still

13 discern no reversible error. The record indicates that, despite

mother’s informal request for additional visits, she did not regularly

attend her already scheduled visits. Notwithstanding mother’s

inconsistencies, the Department tried to accommodate her by

offering additional opportunities to have contact with her children

at their soccer games, but she never attended a game because there

was an active warrant for her arrest. Mother does not take issue

with any of the other services provided by the Department, and the

record clearly shows that she did not substantially comply with any

of the other components of her treatment plan. Thus, we conclude

that any putative error related to the Department withholding a few

visits early in the case was harmless. See People in Interest of

My.K.M. v. V.K.L., 2022 CO 35, ¶ 35 (A department’s “efforts must

be measured holistically rather than in isolation with respect to

specific treatment plan objectives.”); C.A.R. 35(c) (“The appellate

court may disregard any error or defect not affecting the substantial

rights of the parties.”).

III. Disposition

¶ 29 The judgment is affirmed.

JUDGE J. JONES and JUDGE BROWN concur.