Peo in Interest of AQO

• Court: Colorado Court of Appeals
• Decided: January 23, 2025
• Docket: 24CA0858
• Status: Unpublished

Opinion

24CA0858 Peo in Interest of AQO 01-23-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0858 Boulder County District Court No. 22JV30115 Honorable Dea M. Lindsey, Judge

The People of the State of Colorado,

Appellee,

In the Interest of A.Q.O., a Child,

and Concerning D.Q.,

Appellant

and

S.O.,

Appellee.

JUDGMENT AFFIRMED

Division I Opinion by JUDGE BROWN J. Jones and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 23, 2025

Ben Pearlman, County Attorney, Cheryl Koh-Sicotte, Assistant County Attorney, Boulder County, Colorado, for Appellee The People of the State of Colorado

Alison A. Bettenberg, Guardian Ad Litem

Patrick R. Henson, Office of Respondent Parents’ Counsel, Justin Twardowski, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellee S.O. ¶1 D.Q. (mother) appeals the judgment allocating parental

responsibilities for A.Q.O. (the child) to S.O. (father). We affirm.

I. Background

¶2 The Boulder County Department of Housing and Human

Services (Department) filed a petition in dependency and neglect

alleging concerns about mother’s mental health, potential

substance abuse, and physical abuse. At the time of the petition,

father was incarcerated. The juvenile court adjudicated the child

dependent and neglected and adopted treatment plans for the

parents.

¶3 The child was initially placed into foster care. After father had

been released from custody and successfully completed his

treatment plan, the child was returned to his care. Father later

moved for an allocation of parental responsibilities (APR).

¶4 Following an evidentiary hearing, the juvenile court allocated

father sole decision-making responsibility for and primary

residential custody of the child. The court allocated mother

therapeutically supervised parenting time. The court ordered

mother to actively participate and engage in mental health therapy

and substance abuse treatment “until successfully discharged” by

1 her providers. The court also ordered that “when mother is ready”

to move from therapeutically supervised parenting time, she may

petition the court to modify the APR. The court certified the APR

order into a domestic relations case and closed the dependency and

neglect case.

II. Mother’s Argument

¶5 Mother contends that the juvenile court abused its discretion

by failing to enter a detailed “step-up” plan to expand her parenting

time. We disagree.

A. Applicable Law

¶6 When allocating parental responsibilities in a dependency and

neglect proceeding, the juvenile court must consider the purposes

of the Children’s Code articulated in section 19-1-102, C.R.S. 2024.

People in Interest of C.M., 116 P.3d 1278, 1281 (Colo. App. 2005).

Ultimately, the court must allocate parental responsibilities in

accordance with a child’s best interests. L.A.G. v. People in Interest

of A.A.G., 912 P.2d 1385, 1391 (Colo. 1996).

¶7 An APR is within the juvenile court’s discretion, and we will

not disturb its determination if competent evidence supports it. See

People in Interest of A.M.K., 68 P.3d 563, 565 (Colo. App. 2003). A

2 court abuses its discretion when its ruling is “manifestly arbitrary,

unreasonable, or unfair, or when it misapplies the law.” People in

Interest of M.H-K., 2018 COA 178, ¶ 60.

¶8 The credibility of the witnesses and the sufficiency, probative

effect, and weight of the evidence, as well as the inferences and

conclusions to be drawn therefrom, are matters within the juvenile

court’s discretion. People in Interest of A.M. v. T.M., 2021 CO 14,

¶ 15; see also In re Parental Responsibilities Concerning B.R.D.,

2012 COA 63, ¶ 15 (when there is record support for the court’s

findings, its resolution of conflicting evidence is binding on review).

B. Analysis

¶9 As an initial matter, we note that mother did not preserve this

contention for appellate review. See People in Interest of M.B., 2020

COA 13, ¶ 14 (“[L]ike other civil actions, dependency and neglect

proceedings are subject to the limitation that except where

jurisdiction is implicated, generally appellate courts review only

issues presented to and ruled on by the lower court.”). Mother

concedes that she did not preserve this issue but asks us to review

her claim to avoid a miscarriage of justice.

3 ¶ 10 In limited circumstances, an appellate court may exercise its

discretion to address an unpreserved issue on appeal. See People in

Interest of A.E., 914 P.2d 534, 539 (Colo. App. 1996). Divisions of

this court have recognized a narrow “miscarriage of justice”

exception to review some unpreserved claims of error in a

dependency and neglect proceeding. See M.B., ¶ 21 (“[G]iven the

constitutional nature of parental rights, we will recognize a

miscarriage of justice exception for review of unpreserved errors.”).

However, unlike the judgment on appeal in M.B., the APR order

here did not terminate mother’s parental rights. And mother does

not persuasively explain why this case constitutes the rare situation

where addressing an unpreserved claim is necessary to prevent a

miscarriage of justice. See id. at ¶¶ 19-21.

¶ 11 Even if mother had preserved this contention, however, we

conclude that the juvenile court did not err by declining to enter a

detailed step-up parenting plan and instead allowing mother to

petition the domestic relations court to increase her parenting time

whenever she “is ready.” To be sure, the court considered a

proposed step-up parenting plan that contained concrete

milestones mother had to reach before she could petition to expand

4 her parenting time. But given mother’s historical difficulty

complying with her treatment plan, the court rejected the proposed

step-up plan. The court did not “feel comfortable” ordering the

step-up plan because the terms were “highly burdensome if not

impossible for [mother] to complete.” The record supports the

court’s findings.

¶ 12 The caseworker had concerns about entering a step-up

parenting plan that set a concrete number of days for mother to

engage in mental health treatment or maintain sobriety. Because

mother had not engaged in mental health treatment or substance

use treatment throughout the case, the caseworker believed that

the number of days required would depend on mother’s “dedication

and engagement and active participation” in treatment and that any

recommendations should come from a mental health therapist. The

caseworker also believed it would be difficult for mother to fully

understand what would be required by the proposed step-up plan

and that it would be easier for mother to simply return to court

when she was ready to change supervision levels. The court found

the caseworker’s testimony credible. A.M., ¶ 15.

5 ¶ 13 Because the court determined that a detailed step-up plan

would present too many obstacles for mother to achieve increased

parenting time, we cannot say it abused its discretion by declining

to impose the more onerous proposed conditions. On the contrary,

we view the court’s order as giving mother a more liberal

opportunity to move the domestic relations court to increase her

parenting time than if it had ordered the proposed step-up plan.

¶ 14 We also reject mother’s contention that the APR order was too

vague because it did not put mother on notice of what she needed

to accomplish to expand her parenting time. Any motion to modify

the allocation of parenting time would be governed by the standards

set forth in sections 14-10-124 and 14-10-129, C.R.S. 2024.

Mother cites no authority, and we are not aware of any, that

requires the court to articulate a more specific standard by which

mother’s request for increased parenting time would be judged.

¶ 15 In the end, we see no reason to disturb the APR order.

III. Disposition

¶ 16 The judgment is affirmed.

JUDGE J. JONES and JUDGE YUN concur.