Peo in Interest of AR

Opinion

24CA0918 Peo in Interest of LR 12-12-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0918 Mesa County District Court No. 21JV247 Honorable Jeremy Chaffin, Judge

The People of the State of Colorado,

Appellee,

In the Interest of L.R., a Child,

and Concerning B.R.,

Appellant.

JUDMENT AFFIRMED

Division V Opinion by JUDGE GROVE Freyre and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 12, 2024

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

Jenna Mazzucca, Guardian Ad Litem

Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant ¶1 In this dependency and neglect proceeding, B.R. (mother)

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

legal relationship with L.R. (the child). We affirm.

I. Background

¶2 The Mesa County Department of Human Services filed a

petition in dependency and neglect regarding the then nine-month-

old child and several of her half-siblings. The petition alleged that

mother had longstanding substance abuse and mental health

problems that culminated in a domestic violence incident involving

one of the children’s fathers and his parents. The Department

initially placed the child with a family friend, J.H., but moved her to

a foster home after she sustained unexplained injuries to her

forehead and chin.

¶3 The juvenile court accepted mother’s admission to the petition,

adjudicated the child dependent and neglected, and adopted a

treatment plan requiring that she, among other things, (1) complete

mental health and substance use evaluations and engage in

recommended treatment; (2) attend a domestic violence assessment

and follow all reasonable recommendations of the provider; (3)

complete a capacity to parent evaluation; (4) engage in life skills services; and (5) consistently attend family time. About six months

after the Department filed the petition, mother was arrested for her

involvement in a burglary resulting in a homicide and was

incarcerated throughout the remainder of the proceeding. Mother

pleaded guilty and was sentenced to six years in Community

Corrections with a ten year suspended sentence to the Department

of Corrections.

¶4 The Department moved to terminate mother’s parent-child

legal relationship with the child. After a hearing, the juvenile court

granted the motion and terminated mother’s parental rights.

¶5 Mother appeals, contending that the juvenile court erred by

finding that the Department made reasonable efforts to rehabilitate

her and reunify the family because it did not consistently provide

family time while mother was incarcerated. She also asserts that

the court erred when it found she was unlikely to become fit within

a reasonable time and there was no less drastic alternative to

termination.

II. Statutory Criteria

¶6 A juvenile court may terminate parental rights if it finds, by

clear and convincing evidence, that (1) the child has been adjudicated dependent or neglected; (2) the parent did not comply

with or was not successfully rehabilitated by an appropriate, court-

approved treatment plan; (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 E.S., 2021 COA

79, ¶ 10.

III. Reasonable Efforts

A. Applicable Law and Standard of Review

¶7 The Department must make reasonable efforts to rehabilitate a

parent and reunify the family whenever appropriate. § 19-3-

100.5(1), C.R.S. 2024; see § 19-3-604(2)(h). The reasonable efforts

standard is satisfied if services are provided in accordance with

section 19-3-208, C.R.S. 2024, which includes conducting family

assessments, developing a treatment plan, and providing

information and referrals for public and private assistance. §§ 19-

1-103(114), 19-3-208(2)(b), C.R.S. 2024; People in Interest of C.T.S.,

140 P.3d 332, 335 (Colo. App. 2006).

¶8 Under section 19-3-208(2)(b), family time for parents with

children in out-of-home placements must be provided as

determined necessary and appropriate by a case assessment and the individual treatment plan. When determining whether family

time is necessary and appropriate, the health and safety of the child

are the paramount concerns. §§ 19-1-103(114), 19-3-100.5(2).

Questions about the child’s health and safety, like those concerning

a child’s best interests, are matters entrusted to the sound

discretion of the juvenile court. People in Interest of K.B., 2016 COA

21, ¶ 43.

¶9 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

determinations. Id.

B. Analysis

¶ 10 The juvenile court determined that the Department made

reasonable efforts. The court found that the Department offered

everything it could, including family time, and mother participated,

but despite those efforts had no meaningful relationship with the

child. The record supports the court’s findings.

¶ 11 The caseworker testified that the Mesa County Detention

Facility, where mother was incarcerated for the majority of the case, provided a limited number of family time opportunities, but that

mother was able to have video visits. The caseworker and the

child’s placement provider testified that mother had family time via

video once a week from the jail for about twenty-five minutes.

¶ 12 The caseworker testified that after mother was sentenced to

Community Corrections, the caseworker did not know where she

was housed for about a six-week period. The caseworker worked to

restart visits once mother began serving her Community

Corrections sentence and the caseworker had located her.

However, the caseworker needed a new authorization form to begin

family time. She mailed the form to mother’s Community

Corrections caseworker, but it never reached mother, so the

caseworker brought it to an in-person visit she supervised just days

before the termination hearing.

¶ 13 Mother asserts that the Department did not investigate

whether she could have phone calls or in-person family time with

her child while she was incarcerated. But nothing in the record

indicates that mother asked for phone calls or in-person family

time. Nor does mother argue that such visits would have been in

the child’s best interests. The caseworker testified that telephone visits for a child L.R.’s age would have been very difficult and

explained that even video visits were a challenge. And the

caseworker testified that in-person visits are not usually

recommended for young children because it can be very confusing

and because they do not understand the rules or expectations of

being in a jail.

¶ 14 In sum, the record supports that, although sometimes

sporadic, the Department made reasonable efforts to ensure that

mother had family time with the child. Nothing in the record

suggests that the Department unduly delayed visitation or failed to

provide family time given the challenges it faced because of

mother’s incarceration.

IV. Additional Time

¶ 15 An unfit parent is one whose conduct or condition renders

them “unable or unwilling to give the child reasonable parental care

to include, at a minimum, nurturing and safe parenting sufficiently

adequate to meet the child’s physical, emotional, and mental health

needs and conditions.” § 19-3-604(2). When determining whether

a parent’s conduct or condition is likely to change within a reasonable time, “the 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 S.Z.S., 2022 COA 133, ¶ 24.

¶ 16 What constitutes a reasonable time is fact specific and must

be determined by considering the physical, mental, and emotional

conditions and needs of each particular child. Id. at ¶ 25. A

“reasonable time” is not an indefinite time. Id. And even when a

parent has made recent progress on a treatment plan, the court is

not required to give the parent additional time to comply. See id. at

¶¶ 24-25. When, as here, a child is under six years old at the time

the petition is filed, the action is subject to the expedited

permanency planning (EPP) provisions, and the court must consider

the child’s need to be placed in a permanent home as expeditiously

as possible. §§ 19-1-102(1.6), 19-1-123, C.R.S. 2024.

¶ 17 Whether a juvenile court properly terminated parental rights

presents a mixed question of law and fact because it involves

application of the termination statute to evidentiary facts. People in

Interest of A.M. v. T.M., 2021 CO 14, ¶ 15. “We review the juvenile

court’s findings of evidentiary fact — the raw, historical data underlying the controversy — for clear error and accept them if they

have record support.” People in Interest of S.R.N.J-S., 2020 COA 12,

¶ 10. We review de novo the juvenile court’s legal conclusions. See

id.; A.S.L., ¶ 8.

¶ 18 It is for the juvenile court, as the trier of fact, to determine the

sufficiency, probative effect, and weight of the evidence and to

assess witness credibility. People in Interest of A.J.L., 243 P.3d 244,

249-50 (Colo. 2010).

¶ 19 The juvenile court found that mother would not become fit to

parent the child in a reasonable time. It noted mother’s timeline —

where she estimated she would be on non-residential status

through Community Corrections and thus able to have the child

live with her in a matter of months. But it did not find this timeline

realistic and noted that no evidence suggested she would be able to

maintain sobriety or her mental health outside of a custodial

setting. The court reiterated that the proceeding was subject to the

EPP provisions and that given the child’s young age, a reasonable

time for mother to become fit had likely already passed. The record

supports the court’s findings. ¶ 20 Mother and the caseworker testified that at the time of the

hearing she was in residential status through Community

Corrections and had to complete four phases before becoming

eligible for non-residential status. During the residential phases of

Community Corrections, mother was not able to have her children

live with her. After mother moved to non-residential status, she

would first have to secure housing and she did not know the

process for receiving permission to have any children live with her.

Mother testified that she had no leads on housing and had not

submitted any applications.

¶ 21 The caseworker expressed concern about mother having the

child with her once she progressed to non-residential status

because if she did not comply with all of her conditions, she could

be immediately regressed to custodial status, leaving the child

without a parent. Moreover, the caseworker testified that mother

had not completed a parenting class or domestic violence treatment,

which she would need to do before the child could live with her.

And, according to the caseworker, although mother had taken some

classes related to substance use and other topics while

incarcerated, they were generic and not the case specific treatment needed to reunify with the child. Moreover, by the time of the

termination hearing, the child was three years old and had spent

more than two years of her life in foster care.

¶ 22 Based on this record, and considering the expedited provisions

applicable to this case, the juvenile court did not err when it found

mother was unlikely to become fit in a reasonable time.

V. Less Drastic Alternatives

¶ 23 Implicit in the statutory criteria for termination is the

requirement that the juvenile court consider and eliminate less

drastic alternatives. People in Interest of M.M., 726 P.2d 1108, 1122

(Colo. 1986). When considering less drastic alternatives to

termination, the court must give primary consideration to the

child’s physical, mental, emotional conditions and needs. § 19-3-

604(3); People in Interest of D.P., 160 P.3d 351, 356 (Colo. App.

2007). A juvenile court may consider and weigh various factors

when determining the viability of a less drastic alternative,

including whether an ongoing relationship with a parent would be

beneficial or detrimental to the child, People in Interest of A.R., 2012

COA 195M, ¶ 38, and whether permanent placement with a relative or other person provides adequate permanency and stability for the

child, People in Interest of T.E.M., 124 P.3d 905, 910-11 (Colo. App.

2005).

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

“adequately” meet a child’s needs; rather, the less drastic

alternative 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 interest, it must reject

the less drastic alternative and order termination. Id. at ¶ 32.

¶ 25 When the juvenile court considers the availability of a less

drastic alternative and still determines that termination of a

parent’s rights would be in the child’s best interests, we are bound

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

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

¶ 26 Mother asserts that the juvenile court erred when it found no

available less drastic alternative because it could have ordered an

allocation of parental responsibilities (APR) with the child’s foster

family or with J.H. We are not persuaded. ¶ 27 The juvenile court found that no less drastic alternative was

available. It found that a guardianship or an APR with the foster

parents was not appropriate and that the child must be in a

permanent home as expeditiously as possible based on the EPP

provisions. It further found that the child’s permanency could only

be secured by adoption.

¶ 28 Mother argues that the court erred because no one discussed

an APR with foster parents, and they had “no idea” what an APR

would look like. We agree that the child’s foster parents testified

that the Department had not discussed an APR with respect to this

child. Even so, any lack of discussion with the Department does

not establish that the foster parents were an available less drastic

alternative. The foster mother testified that she believed the child

needed to be adopted and that an APR would be problematic

because mother could later move to modify the arrangement and

that would not provide permanency for the child. She also noted

that such a future change would be confusing because the child did

not recognize mother as her parent. Additionally, the caseworker,

who testified as an expert in child protection and child welfare,

testified that an APR would not be appropriate for the child given her young age, that she had spent most of her life with foster

parents, and because she did not have a relationship with mother.

¶ 29 Mother also argues that the court could have ordered an APR

or guardianship with J.H. But the record does not support this

assertion.

¶ 30 The caseworker testified that the child had been removed from

J.H.’s home after she sustained unexplained bruising to her head

and chin. The caseworker testified that she suggested that J.H.

work with the Department to address safety concerns, but J.H. did

not engage with the Department and the safety concerns were “very

much still in play” at the time of the termination hearing.

Moreover, at the time of the termination hearing, J.H. had nine

children in her home, far over the limit the Department allows when

placing a child.

¶ 31 The juvenile court credited this evidence and found that J.H.

“although perhaps well meaning, does not provide . . . a suitable

home” for the child. It is not within the province of this court to

reweigh this evidence on appeal. A.J.L., 243 P.3d at 256 (court of

appeals may not substitute its opinion for that of the fact finder

regarding credibility of witnesses, and the weight, sufficiency, and probative value of the evidence). And because the record supports

the juvenile court’s findings, we are bound to affirm its

determination that there was no less drastic alternative to

termination. B.H., ¶ 80.

VI. Disposition

¶ 32 We affirm the judgment.

JUDGE FREYRE and JUDGE LUM concur.