Peo in Interest of BJC

• Court: Colorado Court of Appeals
• Decided: May 8, 2025
• Docket: 24CA1694
• Status: Unpublished

Opinion

24CA1694 Peo in Interest of BJC 05-08-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1694 El Paso County District Court No. 23JV30556 Honorable Robin Chittum, Judge

The People of the State of Colorado,

Appellee,

In the Interest of B.J.C., a Child,

and Concerning B.C.,

Appellant.

JUDGMENT AFFIRMED

Division V Opinion by JUDGE FREYRE Schock and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 8, 2025

Kenneth R. Hodges, County Attorney, Melanie E. Gavisk, Assistant County Attorney, Colorado Springs, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem

Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant ¶1 In this dependency and neglect proceeding, Be.C. (father)

appeals the judgment terminating his parent-child legal

relationship with B.J.C. (the child). We affirm.

I. Background

¶2 After receiving a report that the child was born drug-exposed

and suffering withdrawal symptoms, the El Paso County

Department of Human Services (the Department) filed a petition in

dependency and neglect. Upon the child’s release from the hospital,

the Department placed him with maternal grandfather. But

because grandfather was not a permanent placement option, the

child was transferred out of state to the care of maternal

grandmother, where he remained for the duration of the case.

¶3 The juvenile court adjudicated the child dependent and

neglected and adopted a treatment plan for father. Father was

incarcerated at the time but was released shortly thereafter.

¶4 One and a half months after the juvenile court adopted

father’s treatment plan, the Department moved to terminate his

parental rights. Two months later, the Department filed a second

motion for termination. Following a hearing, the juvenile court

granted the second motion and terminated father’s parental rights.

1 II. Reasonable Time to Comply with the Treatment Plan

¶5 Father contends that the juvenile court erred by terminating

his parental rights because he did not have adequate time to

comply with his treatment plan. We disagree.

A. Due Process

¶6 Father asserts that, by terminating his parental rights before

affording him adequate time to comply with his treatment plan, the

juvenile court violated his due process right to a fundamentally fair

proceeding.

¶7 The procedure by which the parent-child relationship is

terminated must satisfy due process. Santosky v. Kramer, 455 U.S.

745, 753-54 (1982) (holding that government intervention in “[t]he

fundamental liberty interest of natural parents in the care, custody,

and management of their child” requires “fundamentally fair

procedures”). Due process requires that a parent be given notice of

the allegations in 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. See

People in Interest of M.B., 70 P.3d 618, 622 (Colo. App. 2003). Due

2 process also requires that the criteria for termination be proved by

clear and convincing evidence. Santosky, 455 U.S. at 769-70.

¶8 Here, father had (1) notice of the allegations in the

Department’s termination motion; (2) notice of both the hearing on

advisement and the termination hearing; (3) the opportunity to be

heard at the termination hearing; (4) appointed counsel to represent

his interests; and (5) the opportunity to call witnesses and cross-

examine witnesses at the termination hearing. The juvenile court

also applied the clear and convincing standard when entering its

findings and orders, and, as discussed below, the evidence

supported the findings. We conclude, therefore, that father’s due

process rights were not violated.

B. Applicable Law and Standard of Review

¶9 Implicit within the criteria for termination under section 19-3-

604(1)(c), C.R.S. 2024, is a requirement that a parent have a

reasonable amount of time to comply with their treatment plan.

People in Interest of D.Y., 176 P.3d 874, 876 (Colo. App. 2007).

What constitutes a reasonable time is fact specific and varies from

case to case. Id. But a reasonable time is not an indefinite time

and what is reasonable in a particular case must be determined by

3 considering the physical, mental, and emotional conditions and

needs of the child. People in Interest of S.Z.S., 2022 COA 133, ¶ 25.

Where, as here, a child is under six years old at the time the

petition is filed, the action is subject to 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.

¶ 10 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 L.M., 2018 COA 57M, ¶ 17. We review the court’s factual

findings for clear error but review its legal conclusions de novo.

People in Interest of S.R.N.J-S., 2020 COA 12, ¶ 10. The credibility

of witnesses; sufficiency, probative value, and weight of the

evidence; and the inferences and conclusions drawn from the

evidence are within the discretion of the juvenile court. People in

Interest of A.M. v. T.M., 2021 CO 14, ¶ 15.

C. Analysis

¶ 11 The juvenile court found that father had a reasonable amount

of time to work on his treatment plan but, despite the resources

4 provided by the Department, there was no change in his condition

over the fifteen months of the case.

¶ 12 Father is correct that the Department initially moved to

terminate his parental rights one and a half months after the

juvenile court formally adopted his treatment plan and just two

days after he was released from incarceration. We tend to agree

with father that the Department acted prematurely in moving to

terminate his parental rights so soon after the court adopted his

treatment plan and before father had any meaningful opportunity to

comply. See People in Interest of J.C.R., 259 P.3d 1279, 1284 (Colo.

App. 2011) (“The state must afford a parent a reasonable period to

comply with a court-approved treatment plan before moving to

terminate parental rights.”); see also People in Interest of S.N. v.

S.N., 2014 CO 64, ¶ 11 n.4 (explaining that “[i]f the treatment plan

fails, the People may then file a motion to terminate the parent-child

relationship”) (emphasis added).

¶ 13 Nonetheless, we are not convinced that the Department’s

hasty motion affected father’s substantial rights. C.A.R. 35(c). The

termination hearing was not held for another four months after

father was released from incarceration. Thus, father had a total of

5 five and a half months to work on his treatment plan before his

parental rights were terminated. See People in Interest of A.J., 143

P.3d 1143, 1152 (Colo. App. 2006) (“[P]eriods as short as five to

nine months have been held to be sufficient time to comply with a

treatment plan.”). Further, the juvenile court stated in its

termination order that it was proceeding not on the Department’s

initial termination motion but rather on its second, filed two

months after the first.

¶ 14 Moreover, the Department continued to provide father with

resources and referrals after filing the initial termination motion.

For example, while the substance abuse treatment provider could

not meet with father during his incarceration, the caseworker made

an appointment for father to meet with the provider shortly after his

release. The caseworker left father a physical copy of the

appointment date before his release and discussed it with him

during an in-person meeting. But father did not attend the

appointment. Even so, the referral remained open until the

termination hearing over three months later in case father chose to

participate. And after his release, father was able to have liberal

contact with the child, including phone and video calls supervised

6 by the child’s placement on a flexible schedule. But father

attempted contact only one time in the four months between his

release and the termination hearing. The Department was also

willing to provide financial assistance to father so he could travel to

see the child in person, but father did not take any steps to

effectuate a trip. Also, the Department (1) provided father with a

phone, bus passes, and a referral to a life skills worker; (2)

completed a diligent search to find father after he stopped

communicating; and (3) offered to provide father with a fee waiver

so he could obtain state identification for employment. But father

did not maintain contact with the Department and did not utilize

these resources to complete his treatment plan objectives.

¶ 15 Relying on D.Y., father asserts that once the Department

moved to terminate, its commitment to reunification was

“equivocal.” But D.Y. is factually distinguishable from this case.

There, the county department “proceeded as if no reasonable

treatment plan could be developed” or approved and did not make

referrals for services to allow the parent to demonstrate compliance

with the treatment plan. D.Y., 176 P.3d at 877. But here, the

record reflects that (1) the Department provided father with

7 numerous referrals and resources even after filing the motion as

discussed above; (2) the Department would have withdrawn the

termination motion had father become engaged; and (3) father did

not communicate with, or respond to, the caseworker for over three

months before the termination hearing. See People in Interest of

R.B.S., 717 P.2d 1004, 1006 (Colo. App. 1986) (finding that the

court need not give the parent additional time to comply with their

treatment plan when they have made little to no progress).

¶ 16 Considering that this was an EPP case, we cannot say that the

juvenile court erred by terminating father’s parental rights after he

had over five months to work on his treatment plan and

demonstrated little engagement with the provided resources to meet

his treatment plan objectives. See J.C.R., 259 P.3d at 1285 (it is the

parent’s responsibility to use the provided services to comply with

the treatment plan).

III. Less Drastic Alternatives

¶ 17 Father next contends that the juvenile court erred by finding

that there were no less drastic alternatives to termination, such as

an allocation of parental responsibilities (APR). We are not

persuaded.

8 A. Applicable Law

¶ 18 Implicit in the statutory scheme for termination is the

requirement that the juvenile court consider and eliminate less

drastic alternatives to termination. People in Interest of M.M., 726

P.2d 1108, 1122 (Colo. 1986). When considering less drastic

alternatives, the court gives primary consideration to the child’s

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

604(3). A court may consider and weigh various factors in

determining the viability of a less drastic alternative, including

whether (1) a less drastic alternative is available, People in Interest

of D.P., 160 P.3d 351, 356 (Colo. App. 2007); and (2) the alternative

option provides the child with adequate permanency or meets the

child’s needs, People in Interest of T.E.M., 124 P.3d 905, 910 (Colo.

App. 2005).

¶ 19 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. If a

juvenile court considers a less drastic alternative but finds instead

that termination is in the child’s best interests, it must reject the

alternative and order termination. Id. at ¶ 32. And under those

9 circumstances, we must affirm the court’s decision if its findings

are supported by the record. People in Interest of B.H., 2021 CO 39,

¶ 80.

B. Analysis

¶ 20 The juvenile court considered less drastic alternatives to

termination but ultimately concluded termination was in the child’s

best interests. The court weighed the loss of the child’s relationship

with father against the benefits to the child of adoption. The court

found that the child’s relationship with father was “nonexistent,”

and the benefits of adoption greatly outweighed any future potential

sense of loss.

¶ 21 The record supports these findings. At the time of the

termination hearing, the case had been open for over fifteen months

— the child’s entire life — and father had not had any contact with

the child. See People in Interest of A.R., 2012 COA 195M, ¶ 38 (“In

determining whether placement with a relative . . . is a viable less

drastic alternative to termination, the court may consider . . .

whether an ongoing relationship with the parent would be beneficial

or detrimental to the child.”).

10 ¶ 22 Maternal grandmother, with whom the child was placed, was

meeting all the child’s needs and had support from her extended

family. She, along with maternal grandfather, were the only

parents the child knew. Furthermore, maternal grandmother

preferred adoption over an APR. See People in Interest of S.N-V.,

300 P.3d 911, 920 (Colo. App. 2011) (a juvenile court may consider

whether the caregiver favors adoption over an APR). The

caseworker opined that the child needed a stable and permanent

home, which could only be assured through adoption. See J.C.R.,

259 P.3d at 1285 (“Permanent placement is not a viable less drastic

alternative to termination if the children need a stable, permanent

home that can only be assured by adoption.”).

¶ 23 Father asserts that the Department “prematurely

discontinu[ed]” relative searches thereby failing to “rule out less

drastic alternatives to termination,” such as relatives that may have

accepted an APR. But the caseworker testified that the child was in

a kinship home, and father did not provide a relative resource

affidavit or potential family members to assess as placement

options. See People in Interest of M.T., 121 P.3d 309, 314 (Colo.

App. 2005) (holding that a department “is not responsible for

11 ferreting out and investigating relatives who have not been

identified as placement alternatives”). Furthermore, father was

“confident and comfortable with the . . . placement” with maternal

grandmother. Although the Department’s regulations may have

required more searches, as father notes, those regulations do not

provide the governing legal standard when the juvenile court

considers and eliminates less drastic alternatives to termination.

¶ 24 Father last argues that an APR, in and of itself, would provide

the child with sufficient permanency and, therefore, the juvenile

court erred by finding that termination was in the child’s best

interests. Even though there was no identified placement willing to

accept an APR, the juvenile court still generally considered an APR

as an alternative to termination. The juvenile court found, however,

that while an APR might meet the child’s needs, it was not in his

best interests. See A.M., ¶¶ 27, 32. In reaching this conclusion,

the juvenile court focused on the child’s lack of a relationship with

father and the detriment to the child of continued uncertainty and

instability. This finding is supported by the caseworker’s testimony

regarding the child’s young age, father’s lack of contact with the

child, and the child’s adjustment to maternal grandmother’s home.

12 Ultimately, the caseworker opined that termination best served the

child’s physical, mental, and emotional needs. See L.M., ¶ 29.

¶ 25 Because the record supports the juvenile court’s finding that

termination was in the child’s best interests, we discern no basis for

reversal.

IV. Disposition

¶ 26 The judgment is affirmed.

JUDGE SCHOCK and JUDGE SULLIVAN concur.