Peo in Interest of BJM

• Court: Colorado Court of Appeals
• Decided: April 3, 2025
• Docket: 24CA0938
• Status: Unpublished

Opinion

24CA0938 Peo in Interest of BJM 04-03-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0938 Conejos County District Court No. 22JV30005 Honorable Crista Newmyer-Olsen, Judge

The People of the State of Colorado,

Petitioner,

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

and Concerning R.S.,

Appellant,

and

C.R.M.,

Appellee.

JUDGMENT AFFIRMED

Division I Opinion by JUDGE J. JONES Brown and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 3, 2025

No Appearance for Petitioner

Josie Burt, Guardian Ad Litem

The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for Appellant Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellee ¶1 In this dependency and neglect action, R.S. (mother) appeals

the judgment allocating parental responsibilities for B.J.M. (child).

We affirm.

I. Background

¶2 The Conejos County Department of Social Services

(Department) filed a petition in dependency and neglect alleging

that mother and the child tested positive for amphetamine upon the

child’s birth and that mother admitted to relapsing on

methamphetamine days before the birth. The Department was also

concerned about the parents’ lack of stable housing and C.R.M.’s

(father) alcohol abuse, criminal history, and history of domestic

violence.

¶3 The child was classified as medically fragile and required a

gastronomy tube (g-tube) for feedings. Following her release from

the hospital, the child was placed in a medical foster home.

¶4 The juvenile court adjudicated the child dependent and

neglected and adopted treatment plans for the parents.

1 ¶5 Well over a year into the case, the court authorized a trial

reunification, placing the child with mother at her residence in

Alamosa. Not long after, mother moved for an allocation of parental

responsibilities (APR) designating her the primary residential parent

and sole decision-maker. Father opposed her request, proposing

instead that he be the sole decision-maker and that the child

primarily reside with him in Denver.

¶6 The court held a multi-day APR hearing over the course of

three weeks. On the first morning of the hearing, mother’s counsel

sought to withdraw the APR motion because mother had a

substance use “lapse,” which meant that counsel could not “argue

that she’s a fit parent as to right now.” Despite this, mother

ultimately maintained her original position that she be made the

child’s primary residential parent and the sole decision-maker. At

the end of the first day of the hearing, the court shifted legal

custody of the child back to the Department due to mother’s lapse

but maintained placement with mother, citing concern about the

effects of disrupting the child’s attachment.

2 ¶7 A week after the first day of the APR hearing, the court held a

contested placement hearing. Based on concerns that mother’s

unconfirmed urinalysis (UA) screening was positive for

“meth/amphetamines,” that mother refused to send the child’s

necessary medical supplies for father’s visitation, and that she had

been combative with the caseworker, the court shifted placement to

father. The court also ordered the Department to obtain confirmed

results for mother’s UA screening.

¶8 Subsequently, mother’s UA screening was confirmed and

tested positive for only what she had been prescribed. However,

because other UA test results had not been confirmed by the end of

the hearing, the court took the case under advisement before ruling

on the APR motion.

¶9 After receiving confirmed negative results for those UAs, the

court issued a written ruling. The court ultimately ordered that

father be the primary residential parent, have sole decision-making

responsibility, and have all parenting time except for mother’s eight

hours of supervised parenting time each month.

3 II. Discussion

A. Standard of Review

¶ 10 Allocating parental responsibilities is a matter within the

sound discretion of the juvenile court. See In re Parental

Responsibilities Concerning B.R.D., 2012 COA 63, ¶ 15. The

juvenile court abuses its discretion when its decision is manifestly

arbitrary, unreasonable, or unfair or when it misapplies the law.

M.A.W. v. People in Interest of A.L.W., 2020 CO 11, ¶ 32. As the

trier of fact, the juvenile court determines the sufficiency, probative

effect, and weight of the evidence, and assesses the credibility of

witnesses. People in Interest of A.J.L., 243 P.3d 244, 249-50 (Colo.

2010); see also B.R.D., ¶ 15 (when there is record support for the

court’s findings, its resolution of conflicting evidence is binding on

review).

B. Applicable Law

¶ 11 The Colorado Children’s Code authorizes a juvenile court to

enter an order allocating parental responsibilities when it maintains

jurisdiction in a case involving a child who has been adjudicated

dependent or neglected. § 19-1-104(6), C.R.S. 2024; People in 4 Interest of E.Q., 2020 COA 118, ¶ 10. When allocating parental

responsibilities in a dependency and neglect proceeding, the court

must consider the legislative purposes of the Children’s Code under

section 19-1-102, C.R.S. 2024. People in Interest of J.G., 2021 COA

47, ¶ 18. The overriding purpose of the Children’s Code is to

protect a child’s welfare and safety by providing procedures through

which the child’s best interests can be served. Id. at ¶ 19. Thus,

the court must allocate parental responsibilities in accordance with

the child’s best interests. People in Interest of L.B., 254 P.3d 1203,

1208 (Colo. App. 2011); see § 19-3-507(1)(a), C.R.S. 2024. While

the court may consider the factors listed in the Uniform Dissolution

of Marriage Act, section 14-10-124(1.5)(a), C.R.S. 2024, the focus

must be on the protection and safety of the child and not the

parents’ custodial interests. People in Interest of H.K.W., 2017 COA

70, ¶ 13.

C. Analysis

1. Substantial Compliance Finding

¶ 12 We reject mother’s argument that the court erred by finding

that father substantially complied with his treatment plan. Even 5 though the court made such a finding, it wasn’t required to do so.

This is because when the court allocated parental responsibilities

between the parents and did not terminate parental rights, it was

not required to make findings regarding parental fitness or

treatment plan compliance to determine which APR was in the

child’s best interests. See L.B., 254 P.3d at 1208 (APR must be

determined in accordance with child’s best interests; finding of

parental unfitness not required for APR for a child adjudicated

dependent or neglected); see also § 19-3-507(1)(a).

2. APR Primarily to Father

¶ 13 Mother also contends that the court erred by granting father

“permanent custody” of the child. She supports her argument by

citing three key points: (1) the fact that father started domestic

violence treatment only two months before the APR hearing; (2) her

own compliance with her treatment plan; and (3) the unconfirmed

UA result that the court partially relied on when shifting temporary

placement. We are unpersuaded.

6 ¶ 14 In allocating parental responsibilities, the court found that,

despite receiving services tailored to her needs during the case,

mother showed minimal growth in her ability to regulate her

emotions. It also found that mother tried to isolate the child from

father and the Department and had a habit of delaying or cancelling

father’s scheduled family time. And the court found that the

evidence concerning the child’s “drastic decline” in condition from

February 12, 2024, to her doctor’s appointment the next day

(February 12 incident) illustrated that mother “will not hesitate to

set [the child’s] needs and welfare aside to further her own desires

to get back at [father],” and that she “falsif[ied] medical issues.”

Last, while noting that father needs to be accountable for his

actions, complete required domestic violence treatment, and comply

with any protection orders in effect, the court found that “the

individual who is attempting to use the child as a tool to exert

power and control over the other at this point is [mother].”

¶ 15 The record supports the court’s findings. Mother admitted

that she used methamphetamine two months before the APR

7 hearing because she was angry about father’s weekend family time

and feeling that he was being “favor[ed]” in this case. And the court

heard the following evidence:

• According to an expert in domestic violence, a parent can

use children as a form of power and control and

examples of this behavior include (1) falsifying medical

issues to discredit the other parent and (2) engaging in a

pattern of interfering with the other’s family time.

• Mother loudly announced, in the lobby of the facility

hosting father’s virtual family time, that she wanted to

see father in a casket.

• Mother cancelled or delayed father’s family time multiple

times for varying reasons.

• After the first day of the APR hearing, mother cancelled

several medical appointments for the child and attempted

to cancel father’s fiancee’s g-tube training.

• Before two of father’s family time sessions at the hospital

(where the child had been admitted on several occasions

8 throughout the case), mother indicated she was leaving

the hospital over frustration about father’s visits.

• On other occasions preceding father’s family time at the

hospital, mother told the caseworker the child had been

discharged (when the caseworker later learned the child

was still admitted) and reported to the police that father

violated the protection order restraining him from contact

with her, although it didn’t result in his arrest.

¶ 16 The court also heard testimony about the February 12

incident. On that date, which marked the end of father’s first

weekend visit, the caseworker transported the child from Denver to

mother’s home in Alamosa. The caseworker and father testified

that the child was in a good condition on that day, her hygiene was

appropriate, her g-tube site was clean, and father had replaced the

tubing on that day. The caseworker, who changed the child’s

diaper during the trip, didn’t notice significant diaper rash, only

that the area was “a little red.” After being in mother’s care for

roughly twenty-four hours, mother took the child to a doctor’s

9 appointment with concerns about her treatment in father’s care.

The treating pediatrician testified that on February 13, there was

crusted drainage around the child’s g-tube site, her g-tube hadn’t

been flushed regularly, and she had a severe diaper rash with

sores. And the pediatrician testified that mother reported she

learned from father that he hadn’t flushed the child’s g-tube over

the weekend. However, father testified that he didn’t say that to

mother and that the g-tube had to be flushed after every feeding.

¶ 17 The court also found, with record support, that mother was

the only one in her circle trained to care for the child’s medical

needs, she struggled to make all of the child’s appointments, and

the hospital near her in Alamosa wasn’t equipped to meet the

child’s needs. In contrast, the court found, with record support,

that (1) father, his fiancee, and his mother were trained in how to

care for the child; (2) his fiancee was working toward certification as

a parent certified nursing assistant; (3) father lived twenty minutes

from Children’s Hospital in Denver; and (4) father took steps at

unnecessary cost to ensure that the child’s needs were met when

10 mother didn’t provide the child’s necessary medical supplies, such

as her glasses or hearing aids.

¶ 18 We reject mother’s arguments regarding father’s domestic

violence treatment, her treatment plan compliance, and the

unconfirmed UA result because she essentially asks us to reweigh

the evidence, which we can’t do. People in Interest of K.L.W., 2021

COA 56, ¶ 62. It is exclusively within the juvenile court’s purview

to resolve conflicting evidence. See B.R.D., ¶ 15; A.J.L., 243 P.3d at

249-50. And the court’s weighing of the evidence led it to explicitly

conclude that granting an APR primarily to mother created too high

a risk to the child’s safety “where there is no support network in

place, medical facilities are limited, and where [mother] will

continue to have to confront the stressful reality that [father] is

entitled to parenting time.” We reiterate that treatment plan

compliance isn’t determinative as the sole question before a court

when it determines which APR is in the child’s best interests. See

L.B., 254 P.3d at 1208. Moreover, neither the APR ruling nor the

wider record suggest that the juvenile court relied on the

11 unconfirmed UA result in permanently allocating parental

responsibilities.

¶ 19 We also reject mother’s argument that the court’s judgment

does not fulfill the Children’s Code purpose of ensuring the child’s

safety. See J.G., ¶¶ 18-19. To the contrary, the court’s ruling

centered the child’s safety and welfare. As discussed above, the

court explicitly described the heightened risk to the child’s safety of

making mother the primary residential parent and decision-maker.

Importantly, the court noted that the February 12 incident would

raise “significant safety concerns” for any child but was even more

troublesome given how medically fragile and complex the child is.

3. Holding Judgment in Abeyance

¶ 20 Last, mother asserts that “safety concerns” for the child

remained at the time of the APR hearing and thus the court should

have held its ruling in abeyance to allow the Department to address

these concerns. Its failure to do so, she summarily asserts,

amounted to a “fail[ure] to comply with the requirements of the

Children’s Code.” Mother doesn’t say what these concerns were nor

12 does she provide citations to the record or say which requirements

of the Children’s Code the court purportedly violated. Because she

failed to develop this argument, we decline to address it on appeal.

See People in Interest of D.B-J., 89 P.3d 530, 531 (Colo. App. 2004)

(declining to address an appellate argument presented without

supporting facts, specific argument, or specific supporting

authorities); see also C.A.R. 28(a)(7)(B) (argument section of

appellant’s brief must contain “citations to the authorities and parts

of the record on which the appellant relies”).

¶ 21 In sum, because the court’s APR determination has record

support, and because it correctly applied the law, we discern no

abuse of discretion. See M.A.W., ¶ 32; B.R.D., ¶ 15.

III. Disposition

¶ 22 We affirm the judgment.

JUDGE BROWN and JUDGE YUN concur.