Peo in Interest of APC

Opinion

23CA2236 Peo in Interest of APC 09-12-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2236

City and County of Denver Juvenile Court No. 22JV30516

Honorable Laurie A. Clark, Judge

The People of the State of Colorado,

Appellee,

In the Interest of A.P.C., Jr., A.A-H., and C.C., Children,

and Concerning A.P.C. and J.R.A-H.,

Appellants.

JUDGMENT AFFIRMED

Division V

Opinion by JUDGE GRAHAM*

Brown and Richman*, JJ., concur

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

Announced September 12, 2024

Kerry Tipper, City Attorney, Amy J. Packer, Assistant City Attorney, Tierney A.

Shea, Assistant City Attorney, Denver, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem

Padilla Law, P.C., Beth Padilla, Durango, Colorado, for Appellant A.P.C.

Patrick R. Henson, Office of Respondent Parents’ Counsel, Denver, Colorado,

for Appellant J.R.A-H.

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

VI, § 5(3), and § 24-51-1105, C.R.S. 2024.

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¶ 1 J.R.A.H. (mother) and A.P.C. (father) appeal the judgment

terminating their parent-child legal relationships with A.P.C., Jr.,

A.A-H., and C.C. (the children). We affirm.

I. Background

¶ 2 In July 2022, the Denver Department of Human Services filed

a petition in dependency and neglect after the children tested

positive for illegal substances. In the petition, the Department also

alleged that the children were dependent and neglected based on

physical abuse, homelessness, and the parents’ criminal activity.

The Department assumed temporary legal custody of the children

and placed them in foster care. After the parents admitted to the

allegations, the juvenile court adjudicated the children dependent

and neglected and adopted treatment plans for the parents.

¶ 3 In June 2023, the Department moved to terminate the

parents’ parental rights. The juvenile court held an evidentiary

hearing over two days in September and November 2023. After

hearing the evidence, the court terminated the parent-child legal

relationships between the parents and their children.

2

II. Reasonable Efforts

¶ 4 The parents first assert that the juvenile court erred by finding

that the Department had made reasonable efforts to rehabilitate

them and reunify them with the children. We disagree.

A. Applicable Law and Standard of Review

¶ 5 Before a juvenile court may terminate parental rights under

section 19-3-604(1)(c), C.R.S. 2024, the county department of

human services must make reasonable efforts to rehabilitate

parents and reunite families. §§ 19-3-100.5(1), 19-1-103(114),

19-3-208, 19-3-604(2)(h), C.R.S. 2024. Reasonable efforts means

the “exercise of diligence and care” to reunify parents with their

children. § 19-1-103(114).

¶ 6 Services provided in accordance with section 19-3-208 satisfy

the reasonable efforts standard. § 19-1-103(114). Among the

services required under section 19-3-208 are screenings,

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; and placement services. § 19-3-208(2)(b). Other services,

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including mental health and drug treatment, must also be provided

if the county has sufficient funding. § 19-3-208(2)(d).

¶ 7 The juvenile court should consider whether the services

provided were appropriate to support the parent’s treatment plan,

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

“considering the totality of the circumstances and accounting for all

services and resources provided to a parent to ensure the

completion of the entire treatment plan,” People in Interest of

My.K.M. v. V.K.L., 2022 CO 35, ¶ 33. The parent is ultimately

responsible for using the services to comply with the 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 in determining whether the department made reasonable

efforts, see People in Interest of A.V., 2012 COA 210, ¶ 12.

¶ 8 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

juvenile court’s factual findings for clear error but review de novo its

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legal determination, based on those findings, as to whether the

department satisfied its reasonable efforts obligation. Id.

B. Analysis

¶ 9 The parents’ treatment plans required them to (1) address

their mental health issues; (2) demonstrate that they could provide

the children with a substance-free environment; (3) participate in

family time with the children; (4) provide the children with a safe

and stable environment; and (5) abstain from further criminal

activity and comply with any open criminal cases.

¶ 10 At the termination hearing, the juvenile court found that the

parents had not complied with their treatment plans, despite

reasonable efforts by the Department. Specifically, the court found

that the parents’ participation in the case was “very limited,” and it

noted that they had not even begun to participate in mental health

or substance abuse services. The court also found that the

Department had attempted to engage the parents by making efforts

to “track them down, identify barriers that could be overcome, [and]

modify expectations for engagement to encourage engagement.”

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Ultimately, the court concluded that the Department’s effort had

been “unsuccessful through no fault of the Department.”

¶ 11 The record supports the juvenile court’s findings. For

example, the record shows that the Department referred the

parents for mental health evaluations (as well as a cognitive

evaluation for mother), but they never completed the evaluations.

The Department also referred both parents for a substance abuse

evaluation, but father did not complete his evaluation, and

although mother completed hers, she never participated in any

sobriety monitoring or treatment. Finally, the record shows that

the Department provided the parents with multiple opportunities to

participate in family time with the children, including referrals to

four different providers, but the parents did not consistently visit

the children.

¶ 12 In sum, the record shows that the Department provided the

parents with the necessary resources to engage with their treatment

plans, but they did not take advantage of those resources. See A.V.,

¶ 12; J.C.R., 259 P.3d at 1285. Nevertheless, the parents assert, for

the reasons described below, that the juvenile court erred when it

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found that the Department had made reasonable efforts. We

address and reject each of their contentions.

1. Mother

¶ 13 Mother asserts that the Department failed to make reasonable

efforts to identify and address her cognitive disability. Specifically,

she maintains that the Department knew or should have known

about her disability early in the case but failed to do anything to

assess it or accommodate her. We disagree.

¶ 14 To begin, the Department and guardian ad litem argue that

mother did not properly preserve this issue for appeal. We agree

that mother never asserted that the Americans with Disabilities Act

of 1990 (ADA) applied in this case. However, she contended in her

closing argument at the termination hearing that the Department

had failed to “provide accommodations for [mother’s] disabilities

such as time management and organization skills.” At least one

division of this court has concluded that a parent can preserve an

ADA issue by raising it for the first time in closing argument at the

termination hearing. See People in Interest of C.Z., 2015 COA 87,

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¶ 9. We therefore conclude that mother sufficiently implicated the

issue to allow our review of the merits of her claim.

¶ 15 The ADA does not provide a defense to the termination of

parental rights. People in Interest of T.B., 12 P.3d 1221, 1223 (Colo.

App. 2000). Nonetheless, a county department of human services

has an affirmative duty under the ADA to make reasonable

accommodations for a parent with a qualifying disability when

providing rehabilitative services. People in Interest of S.K., 2019

COA 36, ¶¶ 25, 34. Therefore, when determining if the department

made reasonable efforts in a dependency and neglect case, the

juvenile court must consider whether the department made

reasonable accommodations for the parent’s disability. Id. at ¶ 34;

see also § 19-3-208(2)(g) (requiring that rehabilitative services meet

the ADA’s provisions).

¶ 16 However, the Department can accommodate only disabilities

that are known to it. S.K., ¶ 22. “In other words, 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

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because that individual, or someone else, has informed the entity of

the disability.” Id.; see also People in Interest of S.Z.S., 2022 COA

133, ¶ 19 (rejecting the parent’s assertion that she was entitled to

reasonable accommodations because her disability should have

been “obvious” to the department).

¶ 17 In this case, mother never directly told the Department or the

juvenile court that she had a disability. But, at an April 2023

hearing, the juvenile court questioned whether the Department was

offering the appropriate “level of services” because mother might

have a “learning disorder.” See 42 U.S.C. § 12102(1)(A) (a disability

includes a mental impairment); 28 C.F.R. § 35.108(b)(1)(ii) (2023)

(mental impairment includes a “specific learning disability”). In

response, the county attorney noted that it did not have any

“documentation or proof” of a “learning disability.” Indeed, mother’s

own counsel stated that she “did not have enough [information] to

be able to allow [her] to file any type of notice or motion for ADA

accommodations.” The court did not order the Department to

investigate whether mother had a disability, but the caseworker

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nonetheless immediately submitted a referral for a cognitive

evaluation.

¶ 18 On appeal, mother suggests that the Department improperly

delayed investigating her disability because it must have

“suspected” that she had a disability well before the April 2023

hearing. Yet, mother points to nothing in the record to suggest that

the Department knew that she had a learning disability, except

information showing that she was often late and had trouble

engaging in the case. Without more, we are not convinced that this

information put the Department on notice that mother had a

disability, especially considering that her own attorney told the

court that she was not convinced that mother had a disability. We

therefore conclude that the Department made reasonable efforts to

investigate whether mother had a disability when it referred her for

a cognitive evaluation as soon as it became aware of the issue.

¶ 19 But mother never completed the cognitive evaluation, and

therefore, the issue of whether she had an ADA-cognizable disability

was never resolved. See S.Z.S., ¶ 21 (noting that whether a parent

is a qualified individual with a disability under the ADA requires a

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fact-specific determination that, if disputed, the court should

resolve). Consequently, we are not convinced that, in the absence

of any evidence that mother had a disability, the Department was

required to provide reasonable accommodations for her.

¶ 20 In any event, mother concedes that the Department attempted

to accommodate her by repeating information, following up in

writing, and directing her to phone applications to assist her with

timeliness. See S.K., ¶ 55 (noting that an accommodation for a

“neurocognitive disorder” might include “communicating with [the

parent] in a written format” and “giving repeated instructions”).

And although mother asserts that these accommodations were

ultimately unsuccessful, she never asked for any specific

accommodations during the case and does not explain on appeal

what accommodations she needed for her purported disability. See

id. at ¶¶ 49-50 (rejecting parents’ arguments that their treatment

plans failed to include necessary accommodations because they did

not identify what accommodations should have been included in

the plans).

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¶ 21 We therefore discern no error in the juvenile court’s finding

that the Department made reasonable efforts with respect to

mother.

2. Father

¶ 22 Father asserts that the Department failed to make reasonable

efforts because it did not provide him with (1) housing resources or

(2) adequate mental health and substance abuse services. For the

following reasons, we disagree.

¶ 23 First, father asserts that the caseworker did not assist him

with obtaining an apartment or provide him with a life skills worker

to assist him in doing so. Section 19-3-208 of the Colorado

Children’s Code does not describe any specific requirement for the

Department to provide financial assistance to a parent for the

purpose of securing housing. And father’s treatment plan did not

include a provision for life skills services. Therefore, because the

record shows that the caseworker provided father with a list of

housing resources and directed him to the county’s housing office,

the Department satisfied its obligation under section 19-3-

208(2)(b)(III) to provide “[i]nformation and referral services to

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available public and private assistance resources.” See People in

Interest of A.R., 2012 COA 195M, ¶ 28 (noting that, as compared to

the active efforts standard, a department may be able to satisfy the

reasonable efforts standard by passively “requiring a parent to . . .

acquire new housing”).

¶ 24 Nevertheless, father asserts that section 19-3-208(2)(d)(VIII),

which directs the Department to provide “[f]inancial services” to a

parent “in order to prevent placement,” required the Department to

give him financial assistance for housing. We are not convinced

because section 19-3-208(2)(d)(VIII) only applies when the provision

of “[f]inancial services” would “prevent placement.” Nothing in the

record suggests that the children would have remained with father

if only the Department had provided him financial assistance for

housing. In other words, the children were placed out of the home

for numerous reasons, including substance abuse and physical

abuse, which would not have been ameliorated had father obtained

housing. In short, even if section 19-3-208(2)(d)(VIII) requires a

department to provide financial assistance for housing, we disagree

with father that it does in this case.

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¶ 25 Second, father asserts that the Department failed to make

reasonable efforts because it did not provide him with mental health

and substance abuse services while he was in jail. As father notes,

the caseworker admitted that she did not know whether father

could access any services in the jail and did not investigate whether

any services were available to him. Nonetheless, the caseworker

reached out to the mental health and substance abuse evaluator “to

get him into the jail to complete” the evaluations and the evaluator

told the caseworker that “he was going to schedule to go into the jail

to complete it.” However, the record shows that the evaluator never

made it into the jail to complete the evaluation because father had

already been released. Indeed, although the record is not entirely

clear, it appears that father was incarcerated for two relatively short

stints of about a month each near the end of the case. Considering

the totality of these circumstances, we cannot say that the

Department failed to make reasonable efforts. See My.K.M., ¶ 33.

¶ 26 Finally, we are not convinced that the Department failed to

make reasonable efforts because it did not refer father to inpatient

treatment. There is no doubt that father asked the Department to

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provide him with this service. But the caseworker explained that

the Department had a “policy” that requires a parent to complete an

evaluation “in order for the Department to pay for inpatient”

treatment. Nevertheless, father asserts that the Department could

have referred him to inpatient treatment, even without the

evaluation, if Medicaid would pay for the treatment. However, the

record does not show that father qualified for Medicaid, and we are

therefore not convinced that father would have been eligible for an

inpatient program without the Department’s assistance.

III. Less Drastic Alternatives

¶ 27 We also reject father’s contention that the juvenile court erred

by finding that there was no less drastic alternative to termination.

A. Applicable Law and Standard of Review

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

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

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

1122-23 (Colo. 1986). 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); People

in Interest of Z.P., 167 P.3d 211, 214 (Colo. App. 2007). Long-term

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placement may not be a viable alternative to termination if the child

needs a stable, permanent home that can be assured only by

adoption. Z.P., 167 P.3d at 214.

¶ 29 To aid the court in determining whether there is a less drastic

alternative to termination, the department must evaluate a

reasonable number of persons the parent identifies as placement

options. People in Interest of D.B-J., 89 P.3d 530, 532 (Colo. App.

2004). But the department is not obligated to “independently

identify and evaluate other possible placement alternatives.” Z.P.,

167 P.3d at 215.

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

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

option for the child. A.M., ¶ 27. Therefore, if the court considers a

less drastic alternative but finds instead that termination is in the

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

order termination. Id. at ¶ 32. And under those circumstances, we

must affirm the court’s decision if its findings are supported by the

record. People in Interest of B.H., 2021 CO 39, ¶ 80.

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B. Analysis

¶ 31 The juvenile court determined that there was no less drastic

alternative to termination and “all known possible alternatives ha[d]

been adequately explored.” As relevant here, the court found that

paternal grandmother was “not an appropriate placement” and

therefore “not a less drastic alternative to termination.” The court

also found that the Department had made sufficient efforts to

“identify relatives and kin.” But the court noted the Department

was not required to “beg relatives and kin to engage in an

exploration as to whether they would qualify as a placement.”

Ultimately, the court determined that termination and adoption

were in the children’s best interests and that they needed the

permanency that only adoption could provide them.

¶ 32 First, the record supports the juvenile court’s finding that

paternal grandmother was not an appropriate placement option.

See People in Interest of T.E.M., 124 P.3d 905, 910 (Colo. App. 2005)

(noting that a court may reject a less drastic alternative because the

proposed placement option cannot provide appropriate care). The

caseworker testified that paternal grandmother’s background check

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“was coded as inconclusive” because she had “previous

involvement” with the Department for physical abuse of a child and

substance abuse. The caseworker also said that the Department

ran a background check on paternal grandmother’s roommate and

the “roommate was coded as disqualified due to criminal and child

welfare background.” Several months later, the caseworker

reinvestigated paternal grandmother and learned that she was

moving into a new residence with a significant other. However,

paternal grandmother did not return the caseworker’s phone calls,

and the caseworker did not get information to run a background

check on the significant other.

¶ 33 In sum, the record shows that (1) paternal grandmother was

initially disqualified as a placement because of her roommate and

(2) did not cooperate with the Department’s follow-up investigation.

Therefore, the record supports the juvenile court’s finding that

paternal grandmother was not an appropriate placement option and

permanent placement with her was not a less drastic alternative to

termination.

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¶ 34 Nonetheless, father maintains that the Department failed to

adequately investigate paternal grandmother for two reasons. First,

he asserts that the Department improperly declined to do a home

study during the first investigation. But the caseworker explained

that she did not submit a home study because paternal

grandmother’s “roommate was disqualified” by the background

check. In other words, the home study would have been futile

because the Department could not place the child in a home with

the roommate. Second, father argues that the Department

unnecessarily delayed reinvestigating paternal grandmother for

about two months after the juvenile court ordered the Department

to investigate her. We disagree because there is nothing in the

record to suggest that the short delay resulted in any error. Rather,

the record shows that the caseworker attempted to contact paternal

grandmother multiple times before the conclusion of the

termination hearing, but paternal grandmother did not return her

calls.

¶ 35 Next, father asserts that the Department did not make

adequate efforts to contact the individuals named in his relative

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affidavit. Here, father submitted a relative affidavit listing fourteen

relatives and friends as possible placement options. However,

father did not include complete information for these individuals.

For example, he listed only the first names of some folks and

provided only a Facebook account to reach them. The caseworker

reported that she had to create a Facebook account to contact some

of the people listed, but she otherwise called the individuals for

which she had phone numbers.

¶ 36 The record shows the caseworker attempted to contact each of

the individuals that father had listed in the fall of 2022, but, for the

most part, they did not respond, or the caseworker did not have the

correct contact information. Then, at a review hearing in January

2023, father’s counsel recognized the caseworker’s attempts to

contact the individuals named by father and said that she would

work with father to contact the people who had not responded.

Father agreed that he would “be more able to get ahold of them.”

Nothing in the record indicates that father ever provided any

additional information about these individuals listed or that any of

20

them ever reached out to the Department after the January 2023

hearing.

¶ 37 Father now asserts that the Department failed to make

adequate efforts because the caseworker only attempted to contact

these individuals a single time. Father relies on the Department’s

regulation that defines “family search” as “the diligent and timely

good faith effort to locate and contact . . . other adult relatives.”

Dep’t of Human Servs. Reg. 7.000.2, 12 Code Colo. Regs. 2509-1.

But this regulation only requires that the Department attempt to

locate and contact relatives. And the record shows that the

Department conducted diligent searches for relatives and attempted

to contact them. Father does not direct us to anything in the

regulation that would require the Department to attempt to make

follow-up contacts with individuals who do not respond to the

Department for it to satisfy the regulation.

¶ 38 In any event, we are not guided by the Department’s

regulation. Rather, for purposes of a less drastic alternative

consideration, the Department only has a duty to evaluate a

reasonable number of persons the parent identifies as placement

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options. See D.B-J., 89 P.3d at 532. The record indicates that the

Department attempted to investigate the individuals listed on

father’s affidavit. See B.H., ¶ 82 (concluding that the department

adequately investigated relatives for purposes of less drastic

alternatives where the caseworker said that she “thought” that she

sent “family finding letters” even though “she didn’t have a record of

it”). Therefore, we agree with the juvenile court’s assessment that

the Department did enough to investigate these individuals and

that it was not required to track down every single person on

father’s relative affidavit, especially once father indicated that he

would try to contact them and let the Department know if any of

them would be interested in being a placement.

¶ 39 Finally, even assuming that one of the relatives was an

appropriate placement option, we discern no error because the

record indicates that a less drastic alternative was not in the

children’s best interests as they needed permanency that could only

be achieved through adoption. See Z.P., 167 P.3d at 214. In other

words, the juvenile court determined, with record support, that

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regardless of potential placement options, there was no less drastic

alternative to termination.

IV. Disposition

¶ 40 The judgment is affirmed.

JUDGE BROWN and JUDGE RICHMAN concur.