Peo in Interest of APE

• Court: Colorado Court of Appeals
• Decided: January 2, 2025
• Docket: 24CA1055
• Status: Unpublished

Opinion

24CA1055 Peo in Interest of APE 01-02-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1055 El Paso County District Court No. 22JV30082 Honorable Robyn Chittum, Judge

The People of the State of Colorado,

Petitioner,

In the Interest of A.P.E., a Child,

and Concerning G.E.,

Appellant.

JUDGMENT AFFIRMED

Division A Opinion by JUDGE RICHMAN* Román, C.J., and Bernard*, J., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 2, 2025

Debra W. Dodd, Guardian Ad Litem

Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 In this dependency and neglect proceeding, G.E. (mother)

appeals the juvenile court’s judgment terminating her parent-child

legal relationship with A.P.E. (the child). We affirm.

I. Background

¶2 In April 2022, the El Paso County Department of Human

Services (Department) filed a petition in dependency and neglect

after the child tested positive for controlled substances at birth and

mother admitted to illicit substance use during her pregnancy.

Additional concerns arose when, shortly after giving birth, mother

was incarcerated.

¶3 Mother admitted the allegations in the petition, and the

juvenile court adopted a treatment plan. Mother’s treatment plan

required, among other things, that she engage in mental health and

substance abuse evaluations and treatment and participate in

family time with the child.

¶4 Mother remained incarcerated for approximately eleven

months before being released. She was out of custody for

approximately seven months before again being incarcerated. She

remained in custody throughout the remainder of the proceedings.

1 ¶5 In February 2024, the Department filed a motion to terminate

parental rights alleging that she had not complied with her

treatment plan and that it was unsuccessful. After a two-day

evidentiary hearing, the juvenile court, in April 2024, granted the

motion.

A. Statutory Criteria and Standard of Review

¶6 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

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

reasonable time. § 19-3-604(1)(c), C.R.S. 2024; People in Interest of

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

¶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

2 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

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.

II. Reasonable Efforts

¶9 Mother argues the Department failed to provide services to her

while she was incarcerated and, therefore, the juvenile court erred

when it found the Department provided reasonable efforts. We

disagree.

A. Relevant Law

¶ 10 Before a juvenile court may find a parent unfit, the court must

consider whether the county department of human services made

reasonable efforts to rehabilitate parents and reunite families.

§§ 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).

3 ¶ 11 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 provisions of

services; home-based family and crisis counseling; information and

referral services to available public and private assistance

resources; and family time and placement services.

§ 19-3-208(2)(b). If funding is available, a department must also

provide substance abuse treatment services. § 19-3-208(2)(d)(V).

¶ 12 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

4 treatment in determining whether the department made reasonable

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

¶ 13 Whether a department of human services satisfied its

obligation to provide 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 and review de

novo its legal determination, based on those findings, as to whether

the department satisfied its reasonable efforts obligation. Id.

B. Analysis

¶ 14 The juvenile court found that the Department made

reasonable efforts to try and engage mother in her treatment plan,

but that those “reasonable efforts were tempered by [mother’s]

ability to engage, her willingness to engage.” The court further

found that the Department set up family time while mother was in

and out of custody; provided referrals for life skills, mental health,

and substance abuse; and investigated ways mother could get

evaluations and treatment while in custody. The record supports

the court’s findings.

¶ 15 During mother’s first period of incarceration, the Department

provided referrals for mental health and substance abuse

5 evaluations. Those evaluations were scheduled but later canceled

by the Department of Corrections (DOC) facility where she was

housed. Nonetheless, the caseworker continued to investigate ways

to get those evaluations completed while mother was in custody.

¶ 16 The Department also repeatedly and immediately worked to

set up family time visits at each DOC facility mother was

transferred to. At times, there were delays and limits on the

availability of family time, but those were attributable to the DOC.

In fact, mother’s counsel reported that the caseworker had “moved

mountains” to make sure family time could start. When mother

was incarcerated for a second period before the termination

hearings, the caseworker again set up family time with the facility.

¶ 17 Notably, mother does not assert that the Department failed to

provide reasonable efforts while she was out of custody. And

despite mother being out of custody for several months during the

case, mother failed to engage in any mental health evaluations and

urinalysis (UA) testing. While she did complete a substance abuse

evaluation, she failed to engage in any treatment. She participated

in only half of her in-person family time visits. When she did

6 participate, there were concerns about mother’s lack of engagement

with the child and her mental state during the visits.

¶ 18 In sum, we reject mother’s assertion because the record

indicates that the Department attempted to provide mother with

services throughout the case and that any lack of services was

attributable to either mother’s or the DOC’s non-cooperation. See

A.V., ¶ 12. Under these circumstances, we cannot say the

Department failed to make reasonable efforts to provide mother

with services. See My.K.M., ¶ 33.

III. Fit in a Reasonable Time

¶ 19 Mother contends the juvenile court erred when it found she

could not become a fit parent within a reasonable time because, in

her view, she was to be released from custody soon after the

termination hearing and could have addressed the other

requirements of her treatment plan upon release.

¶ 20 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

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

emotional, and mental health needs. People in Interest of S.R.N.J-S.,

2020 COA 12, ¶ 9.

¶ 21 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).

¶ 22 A reasonable period of time is not an indefinite time but must

be considered based on the physical, mental, and emotional

conditions and needs of the child. People in Interest of A.J., 143

P.3d 1143, 1152 (Colo. App. 2006). When determining whether a

parent may become fit within a reasonable 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).

¶ 23 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

8 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. 2024.

¶ 24 The juvenile court found that mother had a reasonable period

of time to comply with her treatment plan but did not, that she

continued to be unfit, and that the child could not wait any longer

for mother to become fit. The court further found that giving

mother additional time would be unreasonable and was not an

option in this case. Last, the court found mother had not

addressed her mental health or substance abuse concerns and had

never been in a position to care for the child’s needs. The record

supports the court’s findings.

¶ 25 Mother’s arguments rely largely on her assertion that she was

not provided reasonable efforts while incarcerated, which we have

addressed and rejected above.

¶ 26 However, mother also argues that she was scheduled to enter

inpatient treatment upon her release from custody, which would

allegedly happen a month after the termination hearing. She

9 further contends that, with inpatient treatment, she could have

completed her treatment plan if provided reasonable additional time

upon her release. She asserts that her willingness to engage in her

treatment plan is evidenced by her completion of a parenting class,

a budgeting class, a substance use evaluation, and her

participation in virtual family time.

¶ 27 The record shows that mother was given additional time to

engage in her treatment plan but did not. The guardian ad litem

filed a motion to terminate parental rights eleven months before the

Department did and before mother was initially released from

custody. The caseworker testified that the professionals involved in

the case decided to allow mother time to get out of custody and

engage with her treatment plan before moving forward with

termination.

¶ 28 Despite this, as discussed above, mother failed to engage in a

mental health evaluation or treatment, UA testing, and substance

abuse treatment. She also had new criminal charges, no stable

housing, and failed to significantly engage with her life skills

worker, all of which conflicted with her treatment plan.

10 ¶ 29 By her own admission, mother would have needed at least

another six months to engage in her treatment plan even once

released from custody. She testified at termination that she was

slated to enter inpatient treatment upon her release from custody.

However, she admitted that her inpatient treatment would take at

least an additional six months to complete, and the child would not

be allowed to reside with her during treatment. At the time of the

termination hearing, the case had already been open for two years.

See A.J., 143 P.3d at 1143 (periods as short as five to nine months

have been held to be sufficient to comply with a treatment plan).

¶ 30 It was also unclear if mother would realistically be released

from custody shortly after the termination hearing. Though it

appears that one set of criminal charges may have soon resolved,

she was also incarcerated for a parole hold and the status of the

parole hold was unclear.

¶ 31 Based on this record, we conclude that the juvenile court did

not err when it found that mother’s conduct or condition was

unlikely to improve in a reasonable time.

IV. Disposition

¶ 32 The judgment is affirmed.

11 CHIEF JUDGE ROMÁN and JUDGE BERNARD concur.