24CA0360 Peo in Interest of ASN 10-31-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0360 La Plata County District Court No. 22JV21 Honorable Kim Soon Shropshire, Judge
The People of the State of Colorado,
Appellee,
In the Interest of A.S.N., a Child,
and Concerning M.B. and K.M.P.,
Appellants.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE WELLING Brown and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 31, 2024
Sheryl Rogers, County Attorney, Katie A. Dittelberger, Assistant County Attorney, Durango, Colorado, for Appellee
Rachel D. Muhonen, Guardian Ad Litem
Elizabeth A. McClintock, Office of Respondent Parents’ Counsel, Colorado Springs, Colorado, for Appellant M.B.
Robin Tieman, Office of Respondent Parents’ Counsel, Boulder, Colorado, for Appellant K.M.P. ¶1 In this dependency and neglect action, K.M.P. (mother) and
M.B. (father) appeal the judgment terminating their parent-child
legal relationships with A.S.N. (the child). We affirm.
I. Background
¶2 The Archuleta County Department of Human Services filed a
petition in dependency and neglect, alleging that the child was born
affected by illegal substances and expressing concern about
domestic violence in father and mother’s relationship. The juvenile
court adjudicated the child dependent and neglected. The court
also adopted a treatment plan for mother.
¶3 At mother and father’s request, venue was changed to La Plata
County. The juvenile court there adopted a treatment plan for
father. After an additional safety assessment, the La Plata County
Department of Human Services (the Department) requested
mother’s and father’s treatment plans be amended to address
concerns about domestic violence. After a contested hearing, the
court amended the treatment plans.
¶4 The Department later moved to terminate both parents’
parental rights. Almost two years after the petition was filed, the
juvenile court granted the motion.
1 II. Appropriate Treatment Plan
¶5 Father contends that the juvenile court erred by finding that
his treatment plan was appropriate when it included a requirement
that he address domestic violence concerns. We disagree.
A. Standard of Review and Applicable Law
¶6 Except in some limited circumstances not applicable here, a
juvenile court must adopt an appropriate treatment plan for a
parent following a dispositional hearing. § 19-3-508(1)(e)(I), C.R.S.
2024; People in Interest of Z.P.S., 2016 COA 20, ¶ 15. The purpose
of a treatment plan is to preserve the parent-child legal relationship
by assisting the parent in overcoming the problems that required
intervention into the family. People in Interest of L.M., 2018 COA
57M, ¶ 25. Therefore, an appropriate treatment plan is one that is
approved by the court, relates to the child’s needs, and provides
treatment objectives that are reasonably calculated to render the
parent fit to provide adequate parenting to the child within a
reasonable time. § 19-1-103(12), C.R.S. 2024; People in Interest of
K.B., 2016 COA 21, ¶ 13.
¶7 We measure the appropriateness of a treatment plan by its
likelihood of success in reuniting the family, which we assess in
2 light of the facts existing at the time the juvenile court approved the
plan. People in Interest of B.C., 122 P.3d 1067, 1071 (Colo. App.
2005). The court may modify a treatment plan when new
information or changed circumstances render a previously approved
treatment plan no longer appropriate. Z.P.S., ¶¶ 26-27. The fact
that a treatment plan isn’t ultimately successful doesn’t mean that
it was inappropriate when the court approved it. People in Interest
of M.M., 726 P.2d 1108, 1121 (Colo. 1986).
¶8 A juvenile court has discretion to formulate a treatment plan
that relates to the child’s needs and is reasonably calculated to
render the parent fit within a reasonable period of time. People in
Interest of M.W., 2022 COA 72, ¶ 32. A juvenile court abuses its
discretion when its actions are manifestly arbitrary, unreasonable,
or unfair or based on an erroneous understanding or application of
the law. Id. at ¶ 12.
B. Analysis
¶9 After a contested hearing, the juvenile court adopted a
treatment plan for father that included an objective that the child
“experience a home environment free from physical violence and
coercive control.” The objective included action steps requiring
3 father to “demonstrate non-abusive, non-violent behavior,”
acknowledge past abuse and violent behavior, attend a domestic
violence treatment program, encourage mother’s connection with
the child and her support system, and refrain from physically
violent and coercive behaviors in the future.
¶ 10 As part of the termination judgment, the juvenile court found
that the domestic violence objective in the treatment plan was both
appropriate and necessary. The court also found “by clear and
convincing evidence, that [father] emotionally, psychologically, and
physically abuses [mother].”
¶ 11 During the hearing to amend the treatment plan and the
termination hearing, father maintained that he wasn’t a perpetrator
of domestic violence because he hadn’t been criminally charged or
convicted of domestic violence. The juvenile court specifically
considered and rejected this argument, finding that (1) “domestic
violence can, and in this case does, exist outside a formal criminal
system;” (2) father wasn’t credible in his denial given “his own
behavior and demeanor during trial, the testimony and evidence
presented regarding domestic violence, past law enforcement
involvement, and [mother]’s interactions with [father] during trial;”
4 and (3) the results of the parent-child interactional assessment,
which revealed father’s “hyperfocus on [mother], to the exclusion of
being fully engaged with the child.” Accordingly, the court found
that “the provisions of the treatment plan which addressed the
emotional and physical safety of the child in the home, with no
elements of domestic violence, [were] appropriate.”
¶ 12 The record supports these findings, made at both the
dispositional and termination hearings. The caseworker testified
that domestic violence “is not just a criminal act, it is a pattern of
coercive and controlling behavior that is often unreported to law
enforcement.” The guardian ad litem’s expert on victim/offender
dynamics testified that physical violence or injury “does not have to
be a part of it and is oftentimes used as coercive control . . . there
may not be any violence involved at all.” The caseworker testified
that the original referral included information about two incidents
— one the day of the child’s birth and one a few days later — where
the parents were fighting and law enforcement became involved.
The caseworker testified that she and other Department employees
observed father’s coercive control of mother “on multiple occasions.”
Mother and father failed to appear for meetings with the
5 Department when they were fighting. Department staff observed
bruising on mother, which she would try to explain away without
prompting. Mother told her family and the Department that she
wanted to leave father but was “extremely fearful of retaliation.”
Father himself testified that when mother attempted to leave the
relationship he called the Department and told them that mother
was using illegal substances. The caseworker testified that father
frequently spoke on behalf of mother and, in at least one text
conversation with the caseworker, responded impersonating
mother.
¶ 13 Importantly, the caseworker testified that the domestic
violence in mother and father’s relationship needed to be addressed
before reunification could safely occur. The caseworker testified
that “the level of fighting and tension in their relationship continues
to prevent [mother and father] from being able to be fully present for
[the child].” Both mother and the caseworker testified that mother
declined to attend family time without father, even though the
Department offered to transport her. The caseworker also testified
that domestic violence, including patterns of coercive and
controlling behavior, impact children “significantly.” The
6 caseworker opined that “the impact of domestic violence on really
small children, especially, is pretty profound.” The caseworker
expressed concern about reunification because if the child “were to
be full time in their home, she would absolutely be exposed to
violence and chaos” based on the caseworker’s observations of the
power and control dynamic between father and mother.
¶ 14 The record also supports the juvenile court’s detailed findings
regarding its observations of the dynamic between mother and
father during the termination hearing. The court noted that “when
questioned on domestic violence . . . [mother] looked to [father] at
every question and her eyes flicked to him during her answers, her
body language shifted dramatically, including a rounding of the
shoulders, picking at her fingers, and her voice lowered to the point
she was difficult to hear.” The record reflects that mother looked to
father during her testimony. Indeed, at one point, father audibly
interrupted mother’s testimony to tell her what to say. In his
testimony, father denied that mother ever had injuries while the
case was pending, despite testimony from the caseworker and the
placement provider to the contrary.
7 ¶ 15 The court found that mother “exhibits a level of anxiety, and
fear, even in the presence of other people when she should
otherwise feel safe. [Father] is not even able to manage his own
anger in front of the judicial body.” It’s within the juvenile court’s
purview to determine witness credibility. See In re Marriage of
Kann, 2017 COA 94, ¶ 36 (“[O]ur supreme court has . . . expressed
unbridled confidence in trial courts to weigh conflicting
evidence . . . .”); see also Carrillo v. People, 974 P.2d 478, 486 (Colo.
1999) (recognizing “the trial court’s unique role and perspective in
evaluating the demeanor and body language of live witnesses” and
“discourag[ing] an appellate court from second-guessing those
judgments based on a cold record”).
¶ 16 Father claims that the addition of the domestic violence
objective in his treatment plan “was not in response to safety
concerns identified during an assessment of the family.” But the
record belies this assertion. The petition filed in Archuleta County
identified domestic violence as a concern in the initial assessment.
At the hearing to amend father’s treatment plan, the caseworker
testified that the Department also conducted a safety assessment
8 that identified domestic violence as a “specific and observable threat
to the child,” which was a barrier to returning the child home.
¶ 17 Likewise, the record doesn’t support father’s assertion that he
“could not participate in domestic violence treatment” because “he
had never been charged with a criminal offense and he was not
willing to admit that he had committed such a criminal offense.”
Because father made a similar argument at the termination
hearing, the juvenile court addressed it in the termination
judgment, as follows:
[Father] would have the court find that [the domestic violence provider] said he did not have to engage in domestic violence treatment because he’s never been charged and convicted of domestic violence and therefore, cannot be made to attend treatment . . . . The court strenuously disagrees with [father’]s interpretation . . . . What [the domestic violence provider] concluded is that [father] denies he has ever perpetrated domestic violence. If a perpetrator will not admit or acknowledge they have engaged in domestically violent behavior, treatment will, in essence, have no effect. If a perpetrator has a conviction or pending criminal charges, this can be used to challenge the denial and become a starting place for treatment. [Father] has no criminal charges nor convictions. Therefore, in the face of this outright denial, [the domestic violence treatment provider] concluded that “since he was unable to
9 acknowledge violence by him, it was determined that having him do individual domestic violence counseling was wasteful of time.”
¶ 18 Based on this observation, the court found that father’s
“denial [was], in effect, a refusal to engage in domestic violence
treatment” or address the “violent and coercive and controlling
behavior” which was a barrier to reunification with the child. The
record supports these findings.
¶ 19 The domestic violence provider testified that she was a
licensed therapist approved by the Domestic Violence Offender
Management Board to provide treatment “for clients who are
mandated to do domestic violence treatment.” She further testified
that father “can’t be in the treatment program because there’s no
domestic violence charge, but [she] could do individual domestic
violence focused treatment with him.” The domestic violence
provider testified that domestic violence treatment would include
things like taking accountability and victim empathy, but father’s
focus “was more in that they had psychological stressors and they
had lost custody . . . so [she couldn’t] do domestic violence
treatment with somebody who says there’s not domestic violence.”
10 Although the domestic violence provider offered, and father agreed
to, individual counseling, father didn’t come to their scheduled
appointment and declined the Department’s further efforts to
provide individual counseling.
¶ 20 Finally, father contends that the juvenile court erred in
referencing a criminal matter in its findings regarding the
appropriateness of the treatment plan. At the treatment plan
hearing, the court disclosed that it presided over a criminal matter
involving mother and therefore had background information that it
considered, in addition to the caseworker’s testimony, “with regard
to certain behaviors that have occurred.” At the termination
hearing, the court disclosed that other cases were “set in [its]
division and therefore the court does have knowledge” and, later in
the proceedings, that it received information “not just through this
particular case but through related correlated criminal cases.”
However, despite the court’s clear and repeated disclosure of its
knowledge and consideration of the criminal matter involving
mother, father didn’t raise any objection. We therefore decline to
address this contention now. See People in Interest of T.E.R., 2013
COA 73, ¶ 30 (generally, issues not raised in the trial court will not
11 be considered on appeal); see also People v. Rediger, 2018 CO 32,
¶¶ 39-40 (when a party waives an issue below, we do not review it
on appeal).
III. Reasonable Efforts
¶ 21 Mother contends that the juvenile court erred by finding that
the Department made reasonable efforts to provide her with
substance abuse and domestic violence treatment. We aren’t
persuaded.
A. Applicable Law and Standard of Review
¶ 22 A department must make reasonable efforts to rehabilitate
parents and reunite families following the out-of-home placement of
an abused or neglected child. §§ 19-1-103(114), 19-3-100.5,
19-3-604(2)(h), C.R.S. 2024. “Reasonable efforts” means “the
exercise of diligence and care” to reunify parents with their child.
§ 19-1-103(114).
¶ 23 To that end, services that are provided in accordance with
section 19-3-208, C.R.S. 2024, are consistent with reasonable
efforts. § 19-1-103(114). The services that “must be available and
provided” as determined by individual case planning include,
among others, screening, assessments, home-based family and
12 crisis counseling, information and referral services to assistance
resources, family time, and placement services. § 19-3-208(2)(b).
Additional services may be required if funding is available,
including transportation, childcare, diagnostic and mental health
services, drug and alcohol treatment services, and family support
services. § 19-3-208(2)(d).
¶ 24 To evaluate whether a department made reasonable efforts, a
juvenile court should consider whether the provided services were
appropriate to support the parent’s treatment plan. People in
Interest of S.N-V., 300 P.3d 911, 915 (Colo. App. 2011). But a
department has “discretion to prioritize certain services or
resources to address a family’s most pressing needs in a way that
will assist the family’s overall completion of the treatment plan.”
People in Interest of My.K.M. v. V.K.L., 2022 CO 35, ¶ 33. So,
whether a department made reasonable efforts “must be measured
holistically rather than in isolation with respect to specific
treatment plan objectives.” Id. at ¶ 35.
¶ 25 The parent is ultimately responsible for using the provided
services to obtain the assistance needed to comply with the
treatment plan. People in Interest of J.C.R., 259 P.3d 1279, 1285
13 (Colo. App. 2011). The court may therefore consider a parent’s
unwillingness to participate in treatment when determining whether
a department made reasonable efforts. See People in Interest of
A.V., 2012 COA 210, ¶ 12.
¶ 26 Whether a juvenile court properly terminated parental rights
presents a mixed question of fact and law 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. But we review de novo the juvenile court’s legal conclusions
based on those facts. See id. In particular, the ultimate
determination of whether the Department provided reasonable
efforts is a legal conclusion we review de novo. People in Interest of
A.S.L., 2022 COA 146, ¶ 8.
B. Substance Abuse Treatment
¶ 27 Mother’s treatment plan included an objective that she “will be
physically available to meet all of [the child]’s needs and will ensure
all of [the child’s] basic needs are met.” As relevant here, the
14 objective included action steps requiring that mother complete a
substance use evaluation and follow any treatment
recommendations. Mother completed the evaluation, which
recommended that she attend treatment two to four times a month
for at least six months, “with a combination of group and individual
sessions to address anxiety, depression, and gain relapse
prevention skills.” Mother attended a follow-up appointment with
the clinician three months later. The clinician testified that she
called mother several times after the appointment to engage mother
in the recommended treatment, but she wasn’t able to reach her.
¶ 28 Ten months after the evaluation, mother told the caseworker
that she didn’t have a good connection with the clinician and
wanted a different provider. The caseworker attempted to connect
with mother’s preferred provider, but could only find information
indicating that the provider wasn’t in private practice. Mother
didn’t respond to the caseworker’s request for more information.
¶ 29 The juvenile court found that the Department provided mother
with reasonable — and at times, active — efforts towards
reunification. These efforts included case management services,
placement services, gas voucher assistance, family time services,
15 transportation, telephones, information about domestic violence
survivor organizations, shelters, and Medicaid, and referrals for a
parent-child interactional assessment and a substance abuse
evaluation.
¶ 30 Mother now contends that the Department didn’t make
reasonable efforts because it failed to address her request for a
different therapeutic provider. Mother doesn’t provide — and we
aren’t aware of — any authority that indicates that a department
must provide a referral to a provider of a parent’s choice.
¶ 31 In any event, the juvenile court considered mother’s argument
and found that mother “did not pursue finding another treatment
provider as was her responsibility . . . . [W]hen advised on ways she
could obtain a different provider, [mother] never followed through.”
The court found that mother “took only minimal steps to complete
the evaluation but did nothing further to comply with this
requirement of the treatment plan . . . . [Mother] cannot admit, let
alone address, her addiction issues, despite more than ample efforts
by [the Department] to engage her in treatment.”
¶ 32 The record supports these findings regarding the Department’s
efforts to provide mother with substance abuse treatment. The
16 Department made a timely referral for a substance abuse
evaluation. Ten months later, mother told the Department she
wanted a different provider. The caseworker testified that she
obtained a release of information from mother and attempted to
locate the provider that mother had requested. When the
caseworker was unable to reach mother’s preferred provider, the
caseworker asked mother for more information. Both the
caseworker and the original clinician testified that they could have
helped mother get connected with a different therapeutic provider,
but mother didn’t ask them to do so. The record therefore supports
the juvenile court’s finding that it was mother’s failure to follow
through with treatment, and not a lack of reasonable efforts, that
prevented her from successfully completing this objective. See A.V.,
¶ 12.
C. Domestic Violence Treatment
¶ 33 Mother’s amended treatment plan included an objective that
she “will use her knowledge of domestic violence victimization and
safety strategies to enhance her and [the child]’s safety and well-
being.” The treatment plan originally included an action step that
mother meet with a specific provider, Alternative Horizons, but was
17 amended five months later to reflect mother’s request to meet with a
different provider, Rise Above Violence.
¶ 34 The juvenile court found that the Department made multiple
referrals for mother to comply with this treatment plan objective.
The court also found that the Department made reasonable efforts
by providing mother with information about the domestic violence
survivor resources, including local agencies, shelters that could
house her if she decided to leave father, and other safety planning
attempts. The court found that, “despite these efforts, [mother] did
not engage in any aspects of her treatment plan.”
¶ 35 Mother contends that the juvenile court erred in making these
findings because the Department “never attempted to engage in
safety planning with mother” despite a requirement in the
treatment plan that mother “meet with the caseworker, learn what
services were available and create a safety plan.”
¶ 36 But this contention misstates the record made by the
Department when the domestic violence objective was adopted. At
the contested disposition hearing, the caseworker testified that
mother needed to meet with the caseworker to obtain a referral to
the domestic violence provider. But the caseworker made clear that
18 the treatment plan required mother to “work with the local domestic
violence shelter to identify a safety plan for herself.”
¶ 37 The record made at the termination hearing further supports
the juvenile court’s findings. The caseworker testified that she
made mother aware of the scope of services available through both
domestic violence survivor organizations. The expectation and hope
was for mother to “meet with a domestic violence advocate because
the safety planning process is very intensive.” The caseworker
made clear that a safety plan should be made with a domestic
violence advocate and not a caseworker because the advocates are
specially trained and have a specific safety planning tool that is “far
more detailed and comprehensive” than what was available through
the Department. In any event, the caseworker testified that the
Department followed up with mother often, gave her information
about the resources that were available, and offered to take mother
to an appointment with the domestic violence survivor organization
where she could make the required safety plan. Despite these
efforts, the caseworker testified that mother didn’t follow through
with scheduling an appointment, attending an appointment, or
creating a safety plan during that appointment.
19 ¶ 38 The juvenile court’s factual findings are supported by the
record. And considering those findings, we agree with the court’s
conclusions that the Department made reasonable efforts to
rehabilitate mother and reunify the family. Thus, we discern no
error.
IV. Disposition
¶ 39 The judgment is affirmed.
JUDGE BROWN and JUDGE MOULTRIE concur.