Peo in Interest of CC

Opinion

21CA0523 Peo in Interest of CC 12-09-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA0523

Jefferson County District Court No. 19JV452

Honorable Ann Gail Meinster, Judge

The People of the State of Colorado,

Appellee,

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

and Concerning S.C.,

Appellant.

JUDGMENT AFFIRMED

Division VI

Opinion by JUDGE JOHNSON

Fox and Welling, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced December 9, 2021

Kimberly Sorrells, County Attorney, Sarah Oviatt, Assistant County Attorney,

Golden, Colorado, for Appellee

Anna N.H. Ulrich, Guardian Ad Litem

The Morgan Law Office, Kris P. Morgan, Colorado Springs, Colorado, for

Appellant

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¶ 1 In this dependency and neglect proceeding, S.C. (mother)

appeals the juvenile court judgment terminating her parent-child

legal relationship with C.C. (the child). We affirm.

I. Background

¶ 2 In May 2019, the child, who was then five months old, was

found unresponsive while in the care of mother’s boyfriend. A

physician later determined that the child had sustained brain

damage due to a lack of oxygen caused by unsafe sleep practices.

The physician classified this as nonaccidental trauma. As a result,

the Jefferson County Division of Children, Youth and Families

(Division) initiated the dependency and neglect proceeding.

¶ 3 The juvenile court placed the child in the Division’s custody.

And, based on mother’s admission, the court adjudicated the child

dependent and neglected. The juvenile court also adopted a

treatment plan that required mother to (1) participate in individual

therapy to address mental health and safety issues; (2) demonstrate

an understanding of the child’s needs and attend the child’s

medical appointments; and (3) visit the child.

¶ 4 Later, the Division moved to terminate the legal relationship

between mother and the child. After a contested hearing in late

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February and early March 2021, the juvenile court terminated

mother’s parental rights.

II. Standard of Review

¶ 5 The juvenile court may terminate parental rights if it finds, by

clear and convincing evidence, that (1) the child was adjudicated

dependent and neglected; (2) the parent has not complied with an

appropriate, court-approved treatment plan or the plan has not

been successful; (3) the parent is unfit; and (4) the parent’s conduct

or condition is unlikely to change in a reasonable time. § 19-3-

604(1)(c), C.R.S. 2021; People in Interest of C.H., 166 P.3d 288, 289

(Colo. App. 2007).

¶ 6 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. Determining the proper

legal standard to be applied in a case and applying that standard to

the particular facts of the case are questions of law that we review

de novo. M.A.W. v. People in Interest of A.L.W., 2020 CO 11, ¶ 31.

¶ 7 We will not, however, disturb the court’s factual findings and

conclusions when the record supports them. Id. at ¶ 32; see also

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A.M., ¶ 15. Indeed, the credibility of the witnesses and the

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

inferences and conclusions to be drawn from it are within the

juvenile court’s discretion. People in Interest of C.A.K., 652 P.2d

603, 613 (Colo. 1982).

III. Likelihood of Change

¶ 8 Mother contends that the juvenile court erred by concluding

that she could not become a fit parent within a reasonable time. In

support of her argument, mother asserts that (1) she had

substantially complied with the treatment plan and (2) COVID-

related restrictions affected her ability to gain necessary skills and

demonstrate that she could care for the child. We are not

persuaded.

A. Applicable Law

¶ 9 An unfit parent is one whose conduct or condition renders him

or her unable or unwilling to give a child reasonable parental care.

People in Interest of D.P., 160 P.3d 351, 353 (Colo. App. 2007).

Reasonable parental care requires, at a minimum, that the parent

provide nurturing and safe parenting sufficiently adequate to meet

the child’s physical, emotional, and mental health needs. People in

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Interest of A.J., 143 P.3d 1143, 1152 (Colo. App. 2006).

Significantly, a parent may be unfit as to one, but not all, of his or

her children. People in Interest of D.L.C., 70 P.3d 584, 588 (Colo.

App. 2003).

¶ 10 In determining whether a parent can become fit in a

reasonable time, the court may consider whether the parent made

any changes during the dependency and neglect case, the parent’s

social history, and the chronic or long-term nature of the parent’s

conduct or condition. D.P., 160 P.3d at 353. A reasonable time is

not indefinite and must be determined by considering the child’s

conditions and needs. A.J., 143 P.3d at 1152.

¶ 11 Additionally, because the child was under the age of six when

the petition was filed, the expedited permanency planning

provisions applied and required that he be placed in a permanent

home as expeditiously as possible. §§ 19-1-102(1.6), 19-1-123, 19-

3-702(5)(c), C.R.S. 2021.

B. Analysis

¶ 12 Evidence presented at the termination hearing established

that the child had extensive needs. An expert in pediatrics

explained that the child had sustained damage to the cell structure

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in his brain and his brain had stopped growing. As a result, the

child

• had permanent visual impairment;

• would not be able to “progress like a normal child would with

higher learning”;

• would be unable to walk or move independently with purpose;

• had extreme irritability and difficulty soothing himself;

• was unable to swallow properly and relied on a G-tube for

hydration, nutrition, and medication;

• showed signs of abnormal muscle tone;

• was at risk of joint contracture if he remained in one position

for too long, which required him to be moved frequently

throughout the day, and, if not monitored, would affect his

ability to later be placed in a wheelchair; and

• had developed two seizure conditions — myoclonic seizures as

well as infantile spasms, which were hard to detect, and, if not

monitored, would result in the potential of further brain

damage or cardiac arrest.

¶ 13 Because of these conditions, the child needed to have his

respiration, bowel sounds, heart, lungs, G-tube, and skin checked

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multiple times each day. He also had to be repositioned and have

braces put on and off every few hours. And the child took nine

medications per day, which had to be administered at three

different times.

¶ 14 As a result of these severe health issues, the child required

extensive medical treatment, including medical appointments, and

he also participated in occupational and physical therapy three

times each week. Given his severe developmental delays, he also

engaged in twice weekly speech and vision therapy, as well as

weekly music therapy.

¶ 15 The medical appointments required the child to visit several

medical providers. Specifically, the child saw (1) a pediatrician

every six months; (2) a gastroenterologist every six months; (3) an

endocrinologist every year; (4) an eye doctor every six months;

(5) the Nonaccidental Brain Injury Clinic (NBIC) every six months;

(6) a nephrologist every year; (7) a specialist to fit his braces every

six months; and (8) a neurologist specializing in epilepsy every three

to six months.

¶ 16 To be sure, the juvenile court found that mother tried to

engage in the services required by the treatment plan and to learn

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to meet the child’s needs. And the court recognized that mother

had regained custody of the child’s younger sibling, born during the

pendency of this case, who had been subject to a separate

dependency and neglect proceeding. And the juvenile court

recognized that mother could provide the child with love. Even so,

the court determined that mother remained unable to meet the

child’s needs.

¶ 17 The record supports this determination. Even before the child

was discharged from the hospital, mother received education from

the child’s therapists and nurses. A nurse care coordinator also

worked with mother for more than a year to help her understand

the complexity of the child’s needs and ensure that she had access

to training to learn how to meet those needs. This included

providing mother with information concerning available G-tube

training.

¶ 18 Despite these efforts, mother failed to follow through with the

G-tube training. And, in late 2019, mother missed an in-person

appointment for the child at the NBIC clinic. At a different medical

appointment, mother refused to receive hands-on training regarding

how to administer a shot to treat the child’s infantile spasms.

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Mother said she could not stand to watch the child get an injection

and left the room.

¶ 19 After the onset of the COVID-19 pandemic in March 2020, the

nature of some of these services changed. For example, mother was

only able to have video visits with the child for many months.

Similarly, most of the child’s medical and therapeutic appointments

were conducted via video. But mother was still able to participate

in these medical appointments and the Division arranged for one

weekly session of the child’s physical and vision therapies to occur

during mother’s video visits with the child. The Division scheduled

these therapies to coincide with the mother’s visitation via video to

assist educating the mother about caring for the child.

¶ 20 Mother correctly points out that a psychologist who evaluated

her concluded that she likely had difficulty learning skills via video

because she was in the lower end of the borderline range of

intellectual functioning. The psychologist explained that mother

was a “hands-on learner” and needed “one-to-one teaching” and

repetition.

¶ 21 Regardless, the record establishes that mother continued to

miss opportunities to demonstrate that she could meet the child’s

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needs. An expert in pediatric rehabilitation explained that it was

critical for the child to consistently attend medical and therapeutic

appointments. Yet, mother attended just two of the child’s

twenty-six medical appointments that occurred via video between

May and November 2020. She also failed to attend the child’s

vision appointment the next month. And mother missed another

two medical appointments for the child in early 2021.

¶ 22 Indeed, mother agreed that she had missed a lot of the child’s

medical appointments because she was “going through a very dark

phase” before the child’s younger sibling was returned to her care.

Mother also acknowledged that she still needed training related to

using the G-tube, as well as learning about the child’s seizures.

And mother testified that she would need to become more familiar

with the child’s new medications.

¶ 23 The caseworker further explained that mother had recently

reported that she was uncomfortable speaking to the child’s medical

treatment providers. The nurse care coordinator likewise testified

that mother indicated that she was intimidated by the use of

medical terminology and the number of people present at the child’s

medical appointments.

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¶ 24 Separate from the record support that mother was unable to

handle the child’s extensive life-long medical needs, mother does

not challenge the juvenile court’s determination that the child

would not be safe in her care because she continued to live with the

same boyfriend who was responsible for the child’s trauma. The

record supports that, although mother acknowledged that the child

was severely injured while in the care of her boyfriend, she

minimized the injuries or care the child would need for the rest of

his life and instead chose to attend the boyfriend’s criminal

hearings rather than the child’s medical appointments. And the

record supports that some of the child’s injuries did not result from

unsafe sleeping practices, as a physician opined that the bruising

was indicative of the child being hit or slapped on the face. Mother

seemed unable to recognize the risk posed to the child by staying

with the boyfriend, despite the boyfriend’s past behavior of passing

out and leaving the child crying in his crib unattended.

¶ 25 Under these circumstances, we will not disturb the juvenile

court’s determination that mother’s condition as an unfit parent

was unlikely to change in a reasonable time.

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IV. Conclusion

¶ 26 The judgment is affirmed.

JUDGE FOX and JUDGE WELLING concur.