24CA1964 Peo in Interest of AR 04-24-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1964 Pueblo County District Court No. 23JV30349 Honorable William D. Alexander, Judge
The People of the State of Colorado,
Petitioner,
In the Interest of A.R., a Child,
and Concerning C.G.,
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 24, 2025
Cynthia Mitchell, County Attorney, David A. Roth, Special Assistant County Attorney, Pueblo, Colorado, for Petitioner
Jenna L. Mazzucca, Guardian Ad Litem
Patrick R. Henson, Office of Respondent Parents’ Counsel, Justin Twardowski, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant ¶1 C.G. (mother) appeals the judgment terminating her
parent-child legal relationship with A.R. (the child). Her sole
argument is that the juvenile court deprived her of “fundamentally
fair procedures” by ordering that all urinalysis testing (UA) occur at
one specific facility and by repeatedly ordering same-day UAs
despite her difficulties providing them as ordered. We reject
mother’s contention because she (1) did not preserve this issue for
appeal and (2) is not entitled to relief under the miscarriage of
justice exception to the preservation rule. We therefore affirm the
judgment.
I. Background
¶2 The Pueblo County Department of Human Services filed a
petition in dependency or neglect because the then-newborn child
tested positive for methamphetamine and fentanyl. Mother
admitted the allegations in the petition, and the juvenile court
adjudicated the child dependent and neglected and adopted a
treatment plan.
¶3 The treatment plan required mother to, among other things,
(1) submit three UAs per month; and (2) engage in treatment at
Crossroads or an alternative treatment facility. The treatment plan
1 did not specify where mother was to take UAs, but the court later
stated, “I really need the UAs done at Intervention.”
¶4 Four months after adjudication, the Department moved to
terminate mother’s parental rights. Two months later, the juvenile
court held a two-day termination hearing. At the end of each day,
after hearing testimony that mother had not submitted any UAs
during the pendency of the case, the court ordered mother to
submit to same-day UAs. Additionally, at the end of the second
day, the court also ordered hair follicle testing and held the
proceeding in abeyance to await the results.
¶5 The court then terminated mother’s parental rights to the
child. This decision was based, in part, on a hair follicle test that
showed that mother was “using a variety of controlled substances.”
The court also found that the treatment plan required mother to
complete UAs but that “mother didn’t do any of them.” The court
concluded that there were “compliance issues throughout this case”
and that mother did not do “anything that was required.”
II. Preservation
¶6 In dependency and neglect proceedings, appellate courts will
not consider issues that were not preserved in the juvenile court.
2 See People in Interest of M.B., 2020 COA 13, ¶ 14. To preserve an
issue for appeal, a party must present the court with “adequate
opportunity to make findings of fact and conclusions of law on [the]
issue.” Forgette v. People, 2023 CO 4, ¶ 21 (quoting People v.
Melendez, 102 P.3d 315, 322 (Colo. 2004)).
¶7 Mother concedes that her argument on appeal — that the
juvenile court deprived her of “fundamentally fair procedures” by
ordering the same-day UAs taken at one specific facility — is not
preserved. However, she urges us to apply the miscarriage of
justice exception to preservation.
III. Miscarriage of Justice Exception
¶8 In limited circumstances, an appellate court may exercise its
discretion to address an unpreserved issue on appeal to avoid a
miscarriage of justice. People in Interest of A.E., 914 P.2d 534, 539
(Colo. App. 1996); see also M.B., ¶ 21 (“[G]iven the constitutional
nature of parental rights, we will recognize a miscarriage of justice
exception for review of unpreserved errors.”). The miscarriage of
justice exception has a high bar and a narrow scope, applying only
to limited situations in which an error by the juvenile court, not
otherwise properly preserved for appeal, results in a grossly unfair
3 outcome for the parent. M.B., ¶¶ 23-24; A.E., 914 P.2d at 539. But
see People in Interest of S.Z.S., 2022 COA 133, ¶ 21 n.1 (declining to
apply miscarriage of justice exception where issue was “inherently
fact-dependent,” and mother failed to develop the requisite record).
¶9 Mother has not demonstrated that the juvenile court’s
termination judgment resulted in a grossly unfair outcome. She
argues that “[b]y the court repeatedly disregarding known issues
[with UAs], [she] was subjected to an unfair and unreasonable
process that infringed on the basic fairness of the termination
proceedings guaranteed to her by the Fifth Amendment.”
Specifically, she contends that “the trial court heavily based its
termination order on the parents’ compliance with urinalysis
testing.” But the challenged UAs had no apparent impact on the
court’s termination judgment. See People in Interest of E.B., 2022
CO 55, ¶ 17 (a parent cannot prevail on a due process claim absent
a showing of harm or prejudice); People in Interest of J.A.S.,
160 P.3d 257, 262 (Colo. App. 2007) (“A parent may not obtain
relief on a due process claim absent a showing of harm or
prejudice.”).
4 ¶ 10 In its written order, the court explained that “[t]ermination of
parental rights was held in abeyance, pending the results of hair
follicle testing,” not pending the results of the challenged UAs.
(Emphasis added.) Mother submitted to hair follicle testing and
tested positive for amphetamine, methamphetamine, fentanyl, and
methadone. The juvenile court based its oral ruling, in part, on this
positive test. While it is true that the court also found that mother
did not take any UAs, this referred to UAs required by the treatment
plan, not the UAs separately ordered at the termination hearing
which mother now challenges. And her claim that “[h]ad she been
subjected to a fair process this entire case may have unfolded
differently” is speculative. See DiCocco v. Nat’l Gen. Ins. Co.,
140 P.3d 314, 316 (Colo. App. 2006) (appellate court do not address
“uncertain or contingent future matters”).
¶ 11 Even if we accept mother’s argument that she experienced
difficulties in submitting UAs as ordered, she fails to explain how
the UA orders deprived her of due process. Due process entitles
parents to “fundamentally fair procedures” before their parental
rights are terminated. E.B., ¶ 16 (citation omitted). This principle
requires that a parent be provided with “notice of the allegations in
5 the termination motion, the opportunity to be heard, the
Free access — add to your briefcase to read the full text and ask questions with AI
24CA1964 Peo in Interest of AR 04-24-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1964 Pueblo County District Court No. 23JV30349 Honorable William D. Alexander, Judge
The People of the State of Colorado,
Petitioner,
In the Interest of A.R., a Child,
and Concerning C.G.,
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 24, 2025
Cynthia Mitchell, County Attorney, David A. Roth, Special Assistant County Attorney, Pueblo, Colorado, for Petitioner
Jenna L. Mazzucca, Guardian Ad Litem
Patrick R. Henson, Office of Respondent Parents’ Counsel, Justin Twardowski, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant ¶1 C.G. (mother) appeals the judgment terminating her
parent-child legal relationship with A.R. (the child). Her sole
argument is that the juvenile court deprived her of “fundamentally
fair procedures” by ordering that all urinalysis testing (UA) occur at
one specific facility and by repeatedly ordering same-day UAs
despite her difficulties providing them as ordered. We reject
mother’s contention because she (1) did not preserve this issue for
appeal and (2) is not entitled to relief under the miscarriage of
justice exception to the preservation rule. We therefore affirm the
judgment.
I. Background
¶2 The Pueblo County Department of Human Services filed a
petition in dependency or neglect because the then-newborn child
tested positive for methamphetamine and fentanyl. Mother
admitted the allegations in the petition, and the juvenile court
adjudicated the child dependent and neglected and adopted a
treatment plan.
¶3 The treatment plan required mother to, among other things,
(1) submit three UAs per month; and (2) engage in treatment at
Crossroads or an alternative treatment facility. The treatment plan
1 did not specify where mother was to take UAs, but the court later
stated, “I really need the UAs done at Intervention.”
¶4 Four months after adjudication, the Department moved to
terminate mother’s parental rights. Two months later, the juvenile
court held a two-day termination hearing. At the end of each day,
after hearing testimony that mother had not submitted any UAs
during the pendency of the case, the court ordered mother to
submit to same-day UAs. Additionally, at the end of the second
day, the court also ordered hair follicle testing and held the
proceeding in abeyance to await the results.
¶5 The court then terminated mother’s parental rights to the
child. This decision was based, in part, on a hair follicle test that
showed that mother was “using a variety of controlled substances.”
The court also found that the treatment plan required mother to
complete UAs but that “mother didn’t do any of them.” The court
concluded that there were “compliance issues throughout this case”
and that mother did not do “anything that was required.”
II. Preservation
¶6 In dependency and neglect proceedings, appellate courts will
not consider issues that were not preserved in the juvenile court.
2 See People in Interest of M.B., 2020 COA 13, ¶ 14. To preserve an
issue for appeal, a party must present the court with “adequate
opportunity to make findings of fact and conclusions of law on [the]
issue.” Forgette v. People, 2023 CO 4, ¶ 21 (quoting People v.
Melendez, 102 P.3d 315, 322 (Colo. 2004)).
¶7 Mother concedes that her argument on appeal — that the
juvenile court deprived her of “fundamentally fair procedures” by
ordering the same-day UAs taken at one specific facility — is not
preserved. However, she urges us to apply the miscarriage of
justice exception to preservation.
III. Miscarriage of Justice Exception
¶8 In limited circumstances, an appellate court may exercise its
discretion to address an unpreserved issue on appeal to avoid a
miscarriage of justice. People in Interest of A.E., 914 P.2d 534, 539
(Colo. App. 1996); see also M.B., ¶ 21 (“[G]iven the constitutional
nature of parental rights, we will recognize a miscarriage of justice
exception for review of unpreserved errors.”). The miscarriage of
justice exception has a high bar and a narrow scope, applying only
to limited situations in which an error by the juvenile court, not
otherwise properly preserved for appeal, results in a grossly unfair
3 outcome for the parent. M.B., ¶¶ 23-24; A.E., 914 P.2d at 539. But
see People in Interest of S.Z.S., 2022 COA 133, ¶ 21 n.1 (declining to
apply miscarriage of justice exception where issue was “inherently
fact-dependent,” and mother failed to develop the requisite record).
¶9 Mother has not demonstrated that the juvenile court’s
termination judgment resulted in a grossly unfair outcome. She
argues that “[b]y the court repeatedly disregarding known issues
[with UAs], [she] was subjected to an unfair and unreasonable
process that infringed on the basic fairness of the termination
proceedings guaranteed to her by the Fifth Amendment.”
Specifically, she contends that “the trial court heavily based its
termination order on the parents’ compliance with urinalysis
testing.” But the challenged UAs had no apparent impact on the
court’s termination judgment. See People in Interest of E.B., 2022
CO 55, ¶ 17 (a parent cannot prevail on a due process claim absent
a showing of harm or prejudice); People in Interest of J.A.S.,
160 P.3d 257, 262 (Colo. App. 2007) (“A parent may not obtain
relief on a due process claim absent a showing of harm or
prejudice.”).
4 ¶ 10 In its written order, the court explained that “[t]ermination of
parental rights was held in abeyance, pending the results of hair
follicle testing,” not pending the results of the challenged UAs.
(Emphasis added.) Mother submitted to hair follicle testing and
tested positive for amphetamine, methamphetamine, fentanyl, and
methadone. The juvenile court based its oral ruling, in part, on this
positive test. While it is true that the court also found that mother
did not take any UAs, this referred to UAs required by the treatment
plan, not the UAs separately ordered at the termination hearing
which mother now challenges. And her claim that “[h]ad she been
subjected to a fair process this entire case may have unfolded
differently” is speculative. See DiCocco v. Nat’l Gen. Ins. Co.,
140 P.3d 314, 316 (Colo. App. 2006) (appellate court do not address
“uncertain or contingent future matters”).
¶ 11 Even if we accept mother’s argument that she experienced
difficulties in submitting UAs as ordered, she fails to explain how
the UA orders deprived her of due process. Due process entitles
parents to “fundamentally fair procedures” before their parental
rights are terminated. E.B., ¶ 16 (citation omitted). This principle
requires that a parent be provided with “notice of the allegations in
5 the termination motion, the opportunity to be heard, the
opportunity to have counsel if indigent, and the opportunity to call
witnesses and engage in cross examination.” People in Interest of
A.M. v. T.M., 2021 CO 14, ¶ 18. Mother does not assert that the
juvenile court failed to provide her with these procedures, and she
has not identified any additional procedural protections that were
necessary to satisfy due process under the circumstances presented
here.
¶ 12 Based on the foregoing, we decline to address mother’s claim
for the first time on appeal.
IV. Disposition
¶ 13 We affirm the judgment.
JUDGE J. JONES and JUDGE BROWN concur.