Peo in Interest of DF

Opinion

20CA2022 Peo in Interest of DF 01-27-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA2022

Logan County District Court No. 18JV40

Honorable Michael K. Singer, Judge

The People of the State of Colorado,

Appellee,

In the Interest of Dem.F., Ki.F., Dek.F., Ky.F., Children,

and Concerning T.F. and C.S.,

Appellants.

JUDGMENTS AFFIRMED

Division III

Opinion by JUDGE J. JONES

Lipinsky and Gomez, JJ., concur

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

Announced January 27, 2022

Alan Samber, County Attorney, Kimberlee R. Keleher, Assistant County

Attorney, Sterling, Colorado, for Appellee

Barry Meinster, Guardian Ad Litem

Michael Kovaka, Office of Respondent Parents’ Counsel, Littleton, Colorado, for

Appellant T.F.

Patrick R. Henson, Office of Respondent Parents’ Counsel, Denver, Colorado,

for Appellant C.S.

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¶ 1 In this dependency and neglect proceeding, T.F. (father) and

C.S. (mother) separately appeal the juvenile court’s judgments

terminating their parent-child legal relationships with their

children. We affirm both judgments.

I. Procedural History

¶ 2 In December 2018, the Logan County Department of Human

Services filed a dependency and neglect petition regarding five-year-

old Dem.F., three-year-old Ki.F., two-year-old twins Dek.F. and

Ky.F., and an older half-sibling who isn’t subject to this appeal. In

support of the petition, the Department asserted that

• mother’s home was in dire condition and an investigating

caseworker had smelled a foul odor coming from the home

even before opening the door;

• the twins were found locked in a basement bedroom that had

large bags of dirty diapers and was covered in flies as well as

urine and fecal matter;

• the twins, who were each in a separate “pack-n-play” with no

diaper, were covered in urine, fecal matter, rashes, and scabs;

• mother reported that she would bring the twins upstairs for

“an hour at a time”; and

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• medical staff had diagnosed the twins with dehydration, full-

body dermatitis, and severe neglect.

¶ 3 The juvenile court placed the children in the Department’s

custody. Mother admitted that the children were in an injurious

environment, while father, who was incarcerated when the case

began, stipulated that the children were without proper care

through no fault of his own. Based on these admissions, the court

adjudicated the children dependent and neglected. At that time,

the court also adopted a treatment plan for father.

¶ 4 Not long after that, the Department filed motions asking the

court to determine that appropriate treatment plans could not be

devised for the parents in relation to the twins and to terminate

their parental rights on that basis. Mother relinquished her

parental rights to the twins. And the Department withdrew the

motions in relation to father.

¶ 5 In May 2019, the court issued a dispositional order adopting a

treatment plan for mother. The court also issued a further

dispositional order in relation to father and the twins.

¶ 6 Later, the Department moved to terminate father’s parental

rights to each of the four children, as well as mother’s parental

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rights to Dem.F. and Ki.F. Following a hearing in October and

November 2020, the juvenile court entered separate judgments

granting the termination motions.

¶ 7 Mother and father separately appealed the termination

judgments. At father’s request, this court stayed the appeal and

remanded the case to the juvenile court to ensure compliance with

the Indian Child Welfare Act of 1978 (ICWA). Specifically, we

directed the juvenile court to have notice of the termination

proceeding given to two federally recognized Miwok tribes identified

in father’s request for a remand. After these notices were provided,

the juvenile court determined that ICWA is inapplicable. We then

denied father’s subsequent request to expand the remand to

include eight other tribes in the same ancestral group and

recertified the appeal.

II. ICWA Compliance

¶ 8 To start, we consider father’s contention that the record

doesn’t demonstrate compliance with ICWA’s provisions because no

notice was given to eight of the eleven federally recognized Miwok

tribes.

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A. The Law

¶ 9 ICWA’s provisions are for the protection and preservation of

Indian tribes and their resources, and to protect Indian children

who are members of or are eligible for membership in an Indian

tribe. 25 U.S.C. § 1901(2), (3). ICWA also recognizes that Indian

tribes have a separate interest in Indian children that is equivalent

to, but distinct from, parental interests. B.H. v. People in Interest of

X.H., 138 P.3d 299, 303 (Colo. 2006); see also Mississippi Band of

Choctaw Indians v. Holyfield, 490 U.S. 30, 52 (1989).

¶ 10 If the court knows or has reason to know that an Indian child

is involved in a child custody proceeding, including termination of

parental rights, it must ensure that the Department provides notice

to the potentially concerned tribe or tribes. 25 U.S.C. § 1912(a);

§ 19-1-126(1)(b), C.R.S. 2021; see also People in Interest of L.L.,

2017 COA 38, ¶ 24. To adhere to ICWA’s notice provisions, the

Department must directly notify each tribe by registered mail with

return receipt requested of the pending child custody proceeding

and its right to intervene. People in Interest of M.V., 2018 COA 163,

¶ 26.

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¶ 11 Where the identity and location of the tribe is known, the

Department must directly notify that tribe. See L.L., ¶ 34. If, on

the other hand, the parent is only able to identify a tribal ancestral

group, the Department must notify each of the tribes in that

ancestral group. People in Interest of L.H., 2018 COA 27, ¶ 8. And

copies of these notices must be sent to the appropriate regional

director of the Bureau of Indian Affairs (BIA). 25 C.F.R. § 23.11(a)

(2020); see also M.V., ¶ 28.

¶ 12 Whether ICWA’s notice requirements were satisfied is a

question of law that we review de novo. See People in Interest of

T.M.W., 208 P.3d 272, 274 (Colo. App. 2009).

B. Analysis

¶ 13 In response to inquiry from the court at a hearing in January

2019, father indicated that he believed the children were enrolled or

eligible to be enrolled in a Miwok tribe but was unsure of its

location. However, during the same hearing, father’s counsel

clarified that the tribe was the California Valley Miwok Tribe and

requested the Department to look into “that tribe.” And, at a later

hearing, counsel reiterated that father’s “family line is affiliated with

the California Valley Miwok Tribe.” The BIA’s register of tribal

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agents identifies the California Valley Miwok Tribe as a federally

recognized tribe. See Designated Tribal Agents for Service of Notice,

85 Fed. Reg. 24,004 (Apr. 30, 2020).

¶ 14 True, at the start of the termination hearing, the juvenile court

recalled that “[father] did assert membership in the Miwok tribe in

California.” And, as previously noted, this court remanded the case

to ensure that notice was given to two additional Miwok tribes. At a

hearing on remand, father told the court that he knew only that he

was affiliated with a Miwok tribe, but he was unable to identify the

specific tribe. But these circumstances don’t overcome the fact that

at the time of the termination hearing, father had asserted that he

and the children were affiliated with a specific Miwok tribe — the

California Valley Miwok Tribe — as opposed to a general affiliation

with the Miwok tribal ancestral group.

¶ 15 The Department gave notice of the proceeding to the California

Valley Miwok Tribe, as well as the BIA. The California Valley Miwok

Tribe responded by indicating that neither father nor the children

are tribal members. Additionally, following the remand, the

Department sent notice of the proceeding to two other federally

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recognized Miwok tribes. They also determined that the children

are not tribal members or eligible for membership.

¶ 16 As a result, the record demonstrates compliance with ICWA.

III. Qualification of Expert Witness

¶ 17 Next, we turn to mother’s assertion that the juvenile court

abused its discretion by qualifying a therapist who evaluated her

visits with Dem.F. and Ki.F. as an expert in infant mental health.

¶ 18 Expert testimony is testimony that could not be offered

without specialized experience, knowledge, or training. Venalonzo

v. People, 2017 CO 9, ¶ 23. CRE 702 governs the admissibility of

expert testimony:

If scientific, technical, or other specialized

knowledge will assist the trier of fact to

understand the evidence or to determine a fact

in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or

education, may testify thereto in the form of an

opinion or otherwise.

¶ 19 A court may qualify an expert witness under any of the five

bases specified in CRE 702. Huntoon v. TCI Cablevision of Colo.,

Inc., 969 P.2d 681, 690 (Colo. 1998). The determination whether a

witness is qualified to render an expert opinion is left to the court’s

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discretion. See id. We will uphold the court’s ruling unless it was

manifestly arbitrary, unreasonable, or unfair. Id.

¶ 20 Mother correctly points out that the therapist acknowledged

that she was still in the process of obtaining her certification in

infant mental health. But contrary to mother’s assertion, a witness

isn’t required to “hold a specific degree, training certificate,

accreditation, or membership in a professional organization, in

order to testify on a particular issue.” Id.

¶ 21 The record reveals that the therapist had education,

experience, and training related to infant mental health. The

therapist had a bachelor’s degree in psychology, a master’s degree

in counseling, and a postgraduate certificate for treating children

and adolescents. She had also been a registered play therapist for

about six years, which required her to have training related to

working with young children.

¶ 22 In addition to her education, the therapist had completed two

internships — one working with mothers and their infants in a

postpartum depression clinic and the other working with children

through a mental health center. The therapist had also worked as

an in-home provider supporting families involved in dependency

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and neglect cases. And, later, the therapist had opened her own

practice, which involved treating children and families.

¶ 23 The therapist said that throughout her career she had

annually participated in conferences and workshops focusing on

attachment and bonding, which incorporated the mental health of

infants. Indeed, the therapist explained that attachment and

bonding had been an area of primary focus during her career.

¶ 24 Given this record, we conclude that the juvenile court acted

within its discretion by accepting the therapist as an expert in

attachment and bonding, early childhood trauma, and infant

mental health.

IV. Termination of Parental Rights

¶ 25 Father and mother also challenge the court’s termination

ruling. Father asserts that the termination judgment must be

reversed because he didn’t receive any visitation services and the

Department interfered with his efforts to have relationships with the

children. Mother contends that the court erred by determining that

(1) the Department made reasonable efforts to reunify her with

Dem.F. and Ki.F. when it failed to offer visits as well as family

therapy; and (2) there was no less drastic alternative to termination.

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A. Termination Criteria and Standard of Review

¶ 26 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 hasn’t complied with an

appropriate, court-approved treatment plan or the plan hasn’t 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).

¶ 27 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. A determination of the

proper legal standard to be applied in a case and the application of

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.

¶ 28 However, we won’t disturb the court’s factual findings and

conclusions if they have record support. A.M., ¶ 15; People in

Interest of C.A.K., 652 P.2d 603, 613 (Colo. 1982). Indeed, the

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credibility of the witnesses and the sufficiency, probative effect, and

weight of the evidence, as well as the inferences and conclusions to

be drawn from it, are within the province of the juvenile court.

C.A.K., 652 P.2d at 613.

B. The Provision of Services

1. The Legal Framework

¶ 29 In determining parental unfitness and the likelihood that a

parent’s conduct or condition will change, the court must consider

whether reasonable efforts have been unable to rehabilitate the

parent. § 19-3-604(2)(h); People in Interest of S.N-V., 300 P.3d 911,

915 (Colo. App. 2011). Thus, before the court may terminate

parental rights under section 19-3-604(1)(c), the state must make

reasonable efforts to rehabilitate parents and reunite families.

§§ 19-1-103(114), 19-3-100.5(1), 19-3-208, C.R.S. 2021; People in

Interest of C.Z., 2015 COA 87, ¶ 55.

¶ 30 “Reasonable efforts” means the “exercise of diligence and care”

for a child who is in out-of-home placement. § 19-1-103(114). The

reasonable efforts standard is satisfied when services are provided

in accordance with section 19-3-208. § 19-1-103(114). Among

other things, the Department must offer screening, assessments,

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and individual case plans; information and referrals to available

public and private assistance resources; and visitation services.

§ 19-3-208(2)(b)(I), (III)-(IV). If funding is available, it must also

provide family support services, including family counseling. § 19-

3-208(2)(d)(VII).

¶ 31 Even so, the reasonable efforts that a Department must

provide are linked to the objectives of a parent’s treatment plan.

People in Interest of K.B., 2016 COA 21, ¶ 16. Indeed, in

determining whether reasonable efforts have been unable to

rehabilitate the parent, the court must first consider whether the

services provided were appropriate to support the parent’s

treatment plan. Id.; see also S.N-V., 300 P.3d at 915.

¶ 32 And, significantly, the child’s health and safety are the

paramount concerns in determining whether services, including

visitation, are necessary and appropriate. People in Interest of A.A.,

2020 COA 154, ¶ 17. In making this determination, the court may

rely on the recommendations of experts, such as therapists. See

People in Interest of B.C., 122 P.3d 1067, 1071 (Colo. App. 2005).

But the court must make the ultimate determination whether

visitation and other services are appropriate based on the child’s

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health and safety and cannot delegate that decision to others. Id. at

1070-71; People in Interest of D.G., 140 P.3d 299, 302 (Colo. App.

2006).

2. Father’s Ability to Contact and Visit the Children

¶ 33 The court initially approved a treatment plan that didn’t

authorize face-to-face visitation for father. Rather, it required him

to maintain written and telephone contact with the children as

allowed by the court, the prison, the guardian ad litem, and the

Department. As part of the subsequent dispositional order, the

court determined that it wasn’t appropriate for father to have visits

with the twins. And, in later hearings, the court found that it

wasn’t appropriate for father to have visits with any of the children.

¶ 34 Although the court ultimately determined that father couldn’t

visit the children, it didn’t restrict his ability to have written contact

with them. Father wrote letters to each of the children. He had

also submitted to the Department photographs and pictures that he

had created for the children.

¶ 35 Yet, the caseworker testified that she hadn’t provided the

letters or pictures to the children based on the recommendations of

the older children’s therapists and a clinical social worker. Another

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clinical social worker similarly testified that she had determined

that it wouldn’t be beneficial to the twins’ growth and development

to have contact with father.

¶ 36 Nonetheless, even if we assume that the court erred by failing

to approve face-to-face visits or oversee father’s ability to have

written contact with the children, we discern no basis for reversal.

Father doesn’t explain, and we are unable to understand, how

allowing him to have visits or contact with the children through

letters and pictures would have rendered him a fit parent who was

able to care for the children. Father remained incarcerated in

prison and wasn’t eligible for parole until nearly a year after the

termination hearing.

¶ 37 Additionally, evidence supports the court’s finding that father

has mental health disorders that render him unable to meet the

children’s needs within a reasonable time. A psychologist who

evaluated father diagnosed him as having (1) post-traumatic stress

disorder; (2) bipolar disorder; (3) an unspecified anxiety disorder

with dissociative features; and (4) a very severe mixed personality

disorder. Father’s personality disorder is characterized by

antisocial, narcissistic, borderline, and schizotypal features. The

15

psychologist explained that the personality disorder causes father

to be unable to trust anyone or show the empathy that is necessary

to safely raise children.

¶ 38 Based on this evidence, we won’t disturb the termination

judgment.

3. Visitation and Family Therapy Services for Mother

¶ 39 Mother was initially able to have supervised visits with Dem.F.

and Ki.F. However, the Department became concerned about how

Dem.F. and Ki.F. were responding to mother during visits, as well

as their behavior after visits. As a result, in May 2019, mother

participated in a visitation assessment.

¶ 40 The therapist who conducted the assessment determined that

having visits with mother was negatively impacting the social,

emotional, and physical health of Dem.F. and Ki.F. The therapist

explained that Dem.F. showed a disorganized attachment to

mother, which meant that he no longer relied on her in a trusting,

safe capacity. Ki.F. had an avoidant attachment, which the

therapist described as a complete lack of attachment to mother.

For example, during that assessment, Ki.F. referred to mother as

“[Dem.F.’s] mom.”

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¶ 41 After mother completed the assessment, the court, without

objection, approved a treatment plan that precluded mother from

having visits with Dem.F. and Ki.F. until it determined otherwise.

And, at subsequent hearings, the court found that it wasn’t

appropriate for Dem.F. and Ki.F. to have visits with mother. By

doing so, the court relieved the Department of its obligation to

provide visitation services for mother. And mother doesn’t assert

that the court failed to base these determinations on the health and

safety of Dem.F. and Ki.F.

¶ 42 Additionally, the Department did make continuing efforts to

ascertain if it was appropriate for Dem.F. and Ki.F. to have visits

with mother. The Department arranged for the same therapist who

had completed the initial visitation assessment to conduct a re-

evaluation in August 2020. The purpose of the re-evaluation was to

again assess the children’s relationship with mother and see if any

progress had been made since the initial assessment.

¶ 43 During the re-evaluation, the therapist observed that mother

had made some progress as she was better able to play with the

children and observe how they were responding to her. But mother

continued to have difficulty recognizing the children’s nonverbal

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cues showing mistrust and fear. Thus, the therapist believed that

mother remained unable to safely parent Dem.F. and Ki.F.

¶ 44 Mother correctly points out that the Department didn’t

arrange for her to engage in family therapy. But the treatment plan

didn’t contemplate mother participating in therapy with Dem.F. and

Ki.F. Thus, this wasn’t a service that the Department was required

to provide.

¶ 45 Moreover, the record is devoid of any indication that family

therapy would have been appropriate based on the children’s health

and safety. Indeed, the therapist who completed the visitation

assessment explained that family therapy would only be

appropriate once the children were therapeutically ready for it and

mother was able to take accountability for her actions.

¶ 46 Given this record, we discern no error in the termination

judgment.

C. Less Drastic Alternative

¶ 47 Finally, we turn to mother’s contention that the court erred by

determining that there was no less drastic alternative to

termination. She argues that she had successfully completed her

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treatment plan and that giving her more time to participate in

family therapy was a viable alternative. Again, we aren’t persuaded.

1. The Law

¶ 48 When considering termination under section 19-3-604(1)(c),

the court must also consider and eliminate less drastic alternatives

to termination. People in Interest of M.M., 726 P.2d 1108, 1122

(Colo. 1986). This determination is implicit in, and thus

intertwined with, the statutory criteria for termination. People in

Interest of L.M., 2018 COA 57M, ¶ 24.

¶ 49 A parent must be given a reasonable time to comply with an

appropriate treatment plan before the court may terminate parental

rights. 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. This determination may also be

influenced by whether a parent’s conduct or condition is likely to

change in a reasonable time. See People in Interest of J.C.R., 259

P.3d 1279, 1284 (Colo. App. 2011).

¶ 50 And, as with all termination criteria, the court must give

primary consideration to the child’s physical, mental, and emotional

conditions and needs. § 19-3-604(3); A.M., ¶ 20. Thus, the court

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may consider whether an ongoing relationship with the parent

would be beneficial or detrimental to the child and the child’s need

for permanency when determining whether there is a viable

alternative to termination. L.M., ¶ 29. Indeed, the primary and

controlling issue in termination proceedings is the determination of

what will serve the child’s interests and welfare. A.M., ¶ 20.

2. The Record

¶ 51 The record reveals that mother had more than sixteen months

to engage in the services required by her treatment plan. And the

juvenile court recognized that mother had engaged in a variety of

services and made progress in many areas. Specifically, it found

that mother had completed two psychological evaluations, engaged

in therapy, took recommended psychotropic medication, found and

maintained employment, improved the condition of her home,

complied with probation, and learned some ways to empathize with

her children.

¶ 52 Despite these efforts, the court determined that mother had a

significant, long-standing mental illness that rendered her unable

to provide nurturing parenting for Dem.F. and Ki.F. within a

reasonable time. The record supports this determination.

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¶ 53 The psychologist who twice evaluated mother determined that

she had an unspecified depressive disorder as well as a personality

disorder with histrionic, compulsive, and turbulent traits. The

psychologist explained that the personality disorder meant that

mother sought the attention of others and had a tendency to be

emotional in a superficial manner without much awareness of

underlying needs or feelings. And she used denial, avoidance, and

minimization as coping mechanisms. The psychologist also

elaborated that mother struggled with being aware of and

expressing her own feelings, which, in turn, limited her ability to

accurately see and meet her children’s needs. In the end, the

psychologist believed that mother’s personality disorder rendered

her unable to meet the children’s needs.

¶ 54 The psychologist acknowledged that mother had showed some

significant and positive changes, including addressing her

depression, during the follow-up evaluation in September 2020.

Nonetheless, the psychologist observed that mother’s personality

functioning of avoiding and denying serious issues had stayed the

same. Indeed, the psychologist described the personality disorder

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as a chronic, long-standing condition, which was unlikely to change

in a reasonable time for Dem.F. and Ki.F.

¶ 55 The therapist who assessed mother’s interactions with Dem.F.

and Ki.F. also believed that mother wouldn’t be able to remedy the

children’s unhealthy attachment to her in a reasonable time. The

therapist estimated that it would take at least a year or more to do

so given the children’s extended out-of-home placement, Dem.F.’s

continued disorganized attachment to mother, Ki.F.’s avoidant

attachment, and mother’s continuing inability to attend to the

children’s cues and recognize their mistrust in her. The therapist

further explained that these attachment issues wouldn’t be

improved simply by having mother have more contact with the

children because continuing to expose the children to visits that led

to dysregulation would only reinforce pathology that would be

detrimental to their well-being.

¶ 56 The record further reveals that Dem.F. and Ki.F., who had

been in multiple placements during the nearly two years that the

case had been open, needed permanency. After initially being

placed in a local foster home, Dem.F. and Ki.F. transitioned to the

care of a kinship provider. However, the kinship provider was

22

unable to continue caring for them and they were placed in a

different foster family. When that foster family had to relocate to a

different part of the state, the Department moved Dem.F. and Ki.F.

to a different local foster home. But that local foster care provider

wasn’t able to serve as a long-term placement and, as a result, the

Department moved the children to a different foster home.

¶ 57 Ki.F. remained in that foster home, but Dem.F., who had

significant struggles in the home, had been moved to a respite

foster care provider. During the pendency of the termination

hearing, the Department learned that Dem.F. was receiving

inappropriate care in the respite home and had to move him to yet

another foster care provider.

¶ 58 Finally, Dem.F. and Ki.F. were under the age of six when the

Department initiated the dependency and neglect proceeding,

rendering the expedited permanency planning provisions

applicable. They required that the children 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.

¶ 59 For these reasons, we won’t disturb the juvenile court’s

determination that extending the time for mother to continue

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working on the treatment plan was not a less drastic alternative to

termination.

V. Conclusion

¶ 60 The judgments are affirmed.

JUDGE LIPINSKY and JUDGE GOMEZ concur.