Peo in Interest of EDA

Opinion

21CA0701 Peo in Interest of EDA 01-27-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA0701

Adams County District Court No. 20JV59

Honorable Patrick Harold Pugh, Judge

The People of the State of Colorado,

Appellee,

In the Interest of E.D.A., a Child,

and Concerning J.N.S. and D.A.,

Appellants.

JUDGMENT AFFIRMED

Division VII

Opinion by JUDGE BROWN

Berger and Johnson, JJ., concur

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

Announced January 27, 2022

Heidi M. Miller, County Attorney, Julie Thomerson, Assistant County Attorney,

Westminster, Colorado, for Appellee

Anna N.H. Ulrich, Guardian Ad Litem

Pamela K. Streng, Office of Respondent Parents’ Counsel, Georgetown,

Colorado, for Appellant J.N.S.

Harald Van Gaasbeek, Office of Respondent Parents’ Counsel, Fort Collins,

Colorado, for Appellant D.A.

1

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

and D.A. (father) appeal the juvenile court’s judgment terminating

their parent-child legal relationships with E.D.A. (the child). We

affirm the judgment.

I. Background

¶ 2 The Adams County Human Services Department (the

Department) filed a petition in dependency and neglect, alleging

that the three-year-old child was with mother when she was

stopped by police while driving a stolen vehicle that contained

methamphetamine and foils. After she was arrested, mother asked

her partner to take the child to paternal aunt and uncle.

¶ 3 Father was in another state at the time of mother’s arrest, but

the petition alleged that, on the day the Department requested a

court hold to obtain custody of the child, father went to paternal

uncle’s house and absconded with the child. Father later returned

the child, and the Department placed him with a great aunt and

uncle, where he stayed for the remainder of the proceeding.

¶ 4 The juvenile court adjudicated the child dependent and neglect

by default. The court adopted treatment plans for mother and

father requiring, among other things, that they (1) complete

2

substance abuse and mental health evaluations and engage in any

recommended treatment; (2) submit to random sobriety testing; (3)

participate in child protection therapy; and (4) visit the child

regularly.

¶ 5 The Department later moved to terminate mother’s and

father’s parental rights. After a hearing, the juvenile court

terminated the parent-child legal relationships between mother,

father, and the child.

II. Continuance

¶ 6 Father contends that the juvenile court abused its discretion

by denying his counsel’s request for a continuance so that he could

be located to reappear and testify at the Webex hearing. We

disagree.

A. Relevant Law

¶ 7 A parent has a fundamental liberty interest in the care,

custody, and control of their child. Troxel v. Granville, 530 U.S. 57,

66 (2000). To protect the parental liberty interest, due process

requires the court to provide fundamentally fair procedures to a

parent facing termination. A.M. v. A.C., 2013 CO 16, ¶ 28; see also

L.L. v. People in Interest of R.W., 10 P.3d 1271, 1276 (Colo. 2000).

3

Due process is flexible and calls for such procedural protections as

the situation demands. A.M., 2013 CO 16, ¶ 28. At a minimum, it

requires that a parent receive adequate notice of a termination

hearing and the opportunity to be heard and defend. People in

Interest of E.B., 2022 COA 8, ¶ 11. The right to be heard includes

affording the parent the right to cross-examine adverse parties and

call witnesses to testify. A.M., 2013 CO 16, ¶ 29.

¶ 8 The Children’s Code directs courts to “proceed with all

possible speed to a legal determination that will serve the best

interests of the child.” § 19-1-102(1)(c), C.R.S. 2021.

Consequently, when ruling on a motion to continue a termination

hearing, the juvenile court must balance the need for orderly and

expeditious administration of justice against the facts underlying

the motion and the child’s need for permanency. C.S. v. People in

Interest of I.S., 83 P.3d 627, 638 (Colo. 2004). The juvenile court

may grant a continuance “only upon a finding that a manifest

injustice would occur in the absence of a continuance.” Chief

Justice Directive 96-08, Directive Concerning the Processing of

Dependency and Neglect Cases, § 4 (Dec. 2, 1996).

4

¶ 9 Because the child was less than six years old when the

petition in dependency and neglect was filed, the expedited

permanency planning (EPP) provisions apply. See §§ 19-1-102(1.6),

19-1-123, C.R.S. 2021; E.B., ¶ 13. The EPP provisions require that

the child be placed in a permanent home as expeditiously as

possible and that the court hold the termination hearing within 120

days after the motion to terminate parental rights is filed. §§ 19-1-

102(1.6), 19-3-508(3)(a), 19-3-602(1), C.R.S. 2021. In EPP cases,

the juvenile court shall not delay or continue the termination

hearing “unless good cause is shown and unless the court finds

that the best interests of the child will be served by granting a delay

or continuance.” § 19-3-104, C.R.S. 2021; see also §§ 19-3-

508(3)(a), 19-3-602(1).

¶ 10 Whether to grant a motion for a continuance is a decision

within the juvenile court’s discretion, and we will not disturb its

ruling on appeal absent an abuse of that discretion. C.S., 83 P.3d

at 638. A court abuses its discretion when its ruling is manifestly

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

E.B., ¶ 14.

5

B. Additional Background

¶ 11 The juvenile court held the termination hearing via Webex. In

opening statement, father’s attorney stated that father intended to

testify. Father appeared by video at the beginning of the hearing

but, during the caseworker’s testimony, he disconnected. The court

asked father’s attorney to reach out to him and ask him to

reconnect.

¶ 12 When the caseworker’s testimony concluded, father’s attorney

reported that she could not reach him. The juvenile court recessed

for lunch and asked father’s attorney to continue to try to contact

father. After the lunch break, father’s attorney again reported that

she had tried to text, phone, and email father, but was unable to

reach him. She requested a continuance so that father could be

located, arguing that a parent has a due process right to be present

and defend against the motion to terminate.

¶ 13 The court noted that the case had been pending for fourteen

months, that the hearing had been set for a couple of months, and

that each parent had appeared at only one prior hearing in the

case. It acknowledged that “parents should have the right to testify

if they so choose,” but it explained that a parent does not have a

6

constitutional right to be present during the hearing if represented

by competent counsel. It further noted that it had no indication

that father was physically unable to appear and testify. “[B]ased on

the totality of the circumstances” at the time, the court found that a

continuance would not be in the child’s best interests. It denied the

request but instructed father’s attorney to continue trying to locate

father, including by sending someone from her office to his

residence, while it proceeded to hear mother’s testimony.

¶ 14 After mother’s testimony, father’s attorney again requested a

continuance to have additional time to locate father. After

specifically considering “the due process implications” of its

decision, the juvenile court again denied the request for a

continuance. It found that father’s failure to log back on to the

virtual platform without explanation did not justify continuing the

hearing and that proceeding with the hearing did not violate father’s

due process rights. The court noted, however, that if father could

demonstrate that his failure to reappear at the Webex hearing was

“due to forces outside of his own control or his own decisions,” it

would entertain a motion under C.R.C.P. 59 or 60.

7

C. Analysis

¶ 15 Because this is an EPP case, the juvenile court should not

have continued the termination hearing unless father showed good

cause for the continuance and unless the court found that the best

interests of the child would be served by the continuance. § 19-3-

104. Even assuming that father’s unexplained absence from the

Webex hearing constituted good cause, the court found that a

continuance was not in the best interests of the child. Because the

record supports this finding, the court did not abuse its discretion

by denying the continuance.

¶ 16 Although this was an EPP case, the child had been out of the

home for fourteen months and more than 100 days had passed

since the Department filed its motion to terminate parental rights.

The court expressed its concerns about further delay when denying

the motion to continue. Even so, father’s attorney did not argue

that there was good cause to continue the hearing or that the

child’s best interests would be served by the requested continuance.

Instead, father’s attorney argued only that father would be denied

due process if the court did not continue the hearing to allow him to

appear.

8

¶ 17 When a parent has the opportunity to appear at a termination

hearing through counsel, their absence does not offend due

process. People in Interest of V.M.R., 768 P.2d 1268, 1270 (Colo.

App. 1989). Father received notice of, appeared at, and was

represented by counsel at the termination hearing. When it came

time for father’s testimony, father was no longer logged on to

Webex. The court gave father’s attorney a few hours to locate him,

but he did not respond to texts, phone calls, or emails.

¶ 18 On appeal, father does not explain why he disconnected from

the hearing, why his counsel could not reach him during the rest of

the full-day hearing, or why he was not able to reconnect to the

Webex platform. As a result, his case is dissimilar to E.B., in which

a division of this court concluded that the juvenile court abused its

discretion by declining to continue a termination hearing to allow

the father to reappear after he dropped from the Webex platform.

E.B., ¶ 17. Counsel for the father in E.B. represented to the court

during the hearing that the father had a “Wi-Fi phone,” meaning he

could only make calls when connected to Wi-Fi. Id. at ¶ 6. He told

the court that the paternal grandparents had informed him that the

father had been using Wi-Fi at a gas station to connect to the

9

virtual hearing but was asked to leave that location. Id. at ¶¶ 6-7.

The father was then unable to reconnect to the Webex platform. Id.

at ¶ 7.

¶ 19 Unlike the father in E.B., father here does not identify

anything in the record suggesting that his failure to return to the

Webex hearing was not by choice. Instead, he focuses on what he

would have testified to if present — the Department’s efforts to

support reunification, his efforts to contact the Department and

communicate about the treatment plan, and his efforts to see the

child. But he does not claim that this evidence was only available

through his testimony, and he was represented by competent

counsel at the hearing who was able to examine the remaining

witnesses about these topics. Accordingly, father was not denied

due process.

¶ 20 In addition, father makes no meaningful argument that a

continuance would serve the child’s best interests. He argues only

that it was in the child’s best interests “for his father to be afforded

his due process rights” and that a continuance would not have had

“any detrimental effect on the child” because the kinship placement

was meeting the child’s needs. We have already concluded that

10

father was not denied his due process rights. And detriment to the

child is not the standard by which the juvenile court was to

evaluate father’s request for a continuance.

¶ 21 Ultimately, the juvenile court found that further delay was not

in the child’s best interests and that finding is supported by the

record. We perceive no abuse of discretion.

III. Termination of Parental Rights

¶ 22 Father contends that the juvenile court erred by finding him

unfit to parent the child and unlikely to become fit in a reasonable

time. Mother contends that the court erred by finding that the

Department made reasonable efforts to reunify her with the child.

Finally, both parents contend that the court erred by finding no

available less drastic alternative to termination. We disagree with

each of these contentions and therefore affirm the juvenile court’s

termination judgment.

A. Statutory Criteria and Standard of Review

¶ 23 To terminate parental rights, the Department must establish

by clear and convincing evidence that (1) the child has been

adjudicated dependent or neglected; (2) the parent did not comply

with or was not successfully rehabilitated by an appropriate, court-

11

approved treatment plan; (3) the parent is unfit; and (4) the parent’s

conduct or condition is unlikely to change within 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).

¶ 24 Where resolution of an issue necessitates application of the

termination statute to evidentiary facts, it presents a mixed

question of fact and law. People in Interest of A.M. v. T.M., 2021 CO

14, ¶ 15. We review the juvenile court’s factual findings for clear

error. C.R.C.P. 52. The credibility of witnesses; the sufficiency,

probative effect, and weight of the evidence; and the inferences and

conclusions to be drawn therefrom are all within the province of the

juvenile court. People in Interest of C.A.K., 652 P.2d 603, 613 (Colo.

1982). But a determination of the proper legal standard to be

applied 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.

B. Fitness and Additional Time

¶ 25 Father contends that the juvenile court erred by finding him

unfit to parent the child. He argues that the Department presented

no evidence that father was unwilling to give the child reasonable

12

parental care because it “had no evidence or knowledge to assess

[father’s] ability to care for his son.” In the alternative, father

contends that the district court erred by finding that he was

unlikely to become fit in a reasonable time. We disagree.

1. Relevant Law

¶ 26 An unfit parent is one whose condition or conduct renders

them unable 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 and

conditions.” § 19-3-604(2); see also People in Interest of A.J., 143

P.3d 1143, 1152 (Colo. App. 2006).

¶ 27 In determining unfitness, the court shall consider, among

other things, a parent’s excessive use of controlled substances and

whether reasonable efforts by child-caring agencies have been

unable to rehabilitate the parent. § 19-3-604(2)(e), (h). “Reasonable

efforts” means “the exercise of diligence and care” to reunify a

parent with their children, and it includes “[s]ervices provided by a

13

county or city and county in accordance with section 19–3–208.” §

19–1–103(114), C.R.S. 2021.

¶ 28 The Department is responsible for providing services to

support the objectives of the parent’s treatment plan, which in turn

must be reasonably calculated to render the parent fit to provide

adequate parenting to the child within a reasonable time. § 19-1-

103(12). Thus, the objectives of the parent’s treatment plan, the

services provided to meet the objectives, and the parent’s

compliance with the objectives are inextricably linked with the

court’s determination of fitness. See People in Interest of S.N-V., 300

P.3d 911, 915 (Colo. App. 2011); People in Interest of K.B., 2016

COA 21, ¶ 16.

¶ 29 When determining whether a parent’s conduct or condition is

likely to change within a reasonable time, a juvenile court may

consider whether any change has occurred during the pendency of

the dependency and neglect proceeding, the parent’s social history,

and the chronic or long-term nature of the parent’s conduct or

condition. E.S.V. v. People in Interest of C.E.M., 2016 CO 40, ¶ 22.

A reasonable time is not an indefinite time, and it must be

14

determined by considering the physical, mental, and emotional

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

2. Analysis

¶ 30 On appeal, father does not contend that his treatment plan

was inappropriate or that the Department failed to make reasonable

efforts to reunify him with the child. Thus, his fitness depends in

significant part on his compliance with and the success of his

treatment plan. In EPP cases, however, no parent shall be found to

be in reasonable compliance with or have been successful at a

court-approved treatment plan when the parent has not attended

visits with the child as set forth in the treatment plan, unless good

cause can be shown for failing to visit, or when a parent exhibits

the same problems addressed in the treatment plan without

adequate improvement. § 19-3-604(1)(c)(I)(A)-(B).

¶ 31 The juvenile court found that father was not fit based on

ongoing concerns about his mental health, substance abuse, and

ability to care for and protect the child. The court noted that father

did not meaningfully participate in his treatment plan and, most

importantly, did not regularly visit the child and had not seen the

child in ten months. The court found that father made little

15

progress in the fourteen months the case was open and did not

show that he was willing or able to dedicate himself to treatment

and become fit in a reasonable time. The record supports the

juvenile court’s findings.

¶ 32 Father’s treatment plan required that he maintain and

enhance his bond with the child by, among other things, visiting

regularly with the child. The caseworker testified that father had

only one in-person, supervised visit with the child early in the case.

During that visit the child screamed, ran away from the parents,

and tried to hide. The child pressed himself against the wall and

was not receptive to father’s attempts to play or give affection.

Although the child later settled down during that visit and allowed

mother to hold and comfort him, he never warmed to father.

¶ 33 Following that first visit, father participated in a few virtual

visits. The Department arranged an in-person visit for the child’s

birthday in June of 2020. Great aunt and uncle transported the

child from their home in Colorado Springs to Denver for the visit,

but father did not show up, leaving the child distraught. Father did

not see the child again and stopped communicating with the

caseworker.

16

¶ 34 Father’s treatment plan also required that he stabilize his

mental health and address issues of substance abuse by, among

other things, completing a dual-diagnosis evaluation, consistently

engaging in treatment, and complying with requests for random

drug testing. The caseworker testified that she referred father for

urinalysis tests (UAs) and for a dual-diagnosis mental health and

substance abuse assessment, but he did not participate in those

services. The caseworker told the court that she had the same

concerns about father’s mental health and substance abuse

problems as she did when the proceeding began.

¶ 35 In addition, father’s treatment plan required that he work with

the Department to address and minimize child protection concerns

by, among other things, cooperating with the Department, notifying

the caseworker of any changes of address, and resolving all criminal

matters. And the treatment plan required that father provide the

child with a safe and stable home where the child’s basic needs

were sufficiently met. The caseworker testified that father did not

maintain contact with the Department and that she did not know

where father lived or worked. She also testified that father had

17

been incarcerated at various times throughout the case, including

during February and March preceding the April 2021 hearing.

¶ 36 The caseworker further testified that, in her opinion, father

was not able to meet the child’s physical, emotional, or mental

health needs. She concluded that it would not be in the child’s best

interests to allow father more time to address the issues that

brought the family to the attention of the Department because the

child had not seen him in ten months, the child protection concerns

identified by the Department “would not be able to be resolved in a

reasonable amount of time,” and, even if such issues were

addressed, rebuilding a relationship with the child “would take a

long, long time.”

¶ 37 Despite this record, father argues that the Department did not

present evidence that he was unwilling or unable to give the child

reasonable parental care because the caseworker admitted she had

no evidence or knowledge of father’s ability to care for the child. By

relying on the caseworker’s testimony to find him unfit, he

contends, the juvenile court erroneously placed the burden on him

to prove that he could provide reasonable parental care instead of

requiring the Department to prove by clear and convincing evidence

18

that he could not. For this same reason, he argues that the court

erred by finding that his conduct or condition was unlikely to

change within a reasonable time; he does not otherwise

demonstrate how that finding was clearly erroneous.

¶ 38 True, the caseworker testified that, because father had not

kept in touch with the Department or engaged in visits or

treatment, she was not able to fully assess his ability to parent.

But it is a parent’s responsibility to comply with the treatment plan.

People in Interest of A.H., 736 P.2d 425, 428 (Colo. App. 1987). And

the evidence establishes that father did not comply with even the

basic requirements of communicating with the Department or

visiting the child so that the Department could make the

assessment he now claims is lacking.

¶ 39 The Department put in place services to render father fit by

meeting the objectives of his treatment plan, but father did not take

advantage of the services and remained unfit. See People in Interest

of K.T., 129 P.3d 1080, 1082 (Colo. App. 2005) (concluding that

mother’s failure to comply with certain treatment plan objectives

demonstrated that she was not committed to meeting the child’s

needs and was unfit to parent). On this record, we cannot conclude

19

that the juvenile court erred when it found father unfit and unlikely

to become fit in a reasonable time.

C. Reasonable Efforts

¶ 40 Mother contends that the juvenile court erred by finding that

the Department made reasonable efforts to rehabilitate her and

reunify her with the child because the caseworker did not

communicate with her while she was incarcerated to learn about

how her homelessness or lack of a phone prevented her from

participating in services. We are not persuaded.

1. Relevant Law

¶ 41 The state must make reasonable efforts to reunify the family

when an abused or neglected child is placed out of the home. § 19-

3-100.5, C.R.S. 2021. “‘Reasonable efforts’ . . . means the exercise

of diligence and care . . . for children . . . who are in . . . out-of-

home placement . . . .” § 19-1-103(114). When a court decides

whether a parent is unfit or whether her conduct or condition will

change, it must evaluate whether the Department’s reasonable

efforts have been unable to rehabilitate her. § 19-3-604(2)(h); S.N-

V., 300 P.3d at 915.

20

¶ 42 The Department satisfies the reasonable efforts standard if it

provides services in accordance with section 19-3-208, C.R.S. 2021.

See People in Interest of J.A.S., 160 P.3d 257, 262 (Colo. App. 2007).

Such services include screening, assessments, home-based family

and crisis counseling, information and referral services to available

public and private assistance resources, visitation services for

parents with children in out-of-home placement, and placement

services including foster care and emergency shelter. § 19-3-

208(2)(b). Additional services should be made available if they are

determined to be necessary and appropriate by the case plan and if

adequate funding exists. § 19-3-208(2)(d). Examples of additional

services include providing transportation to required services when

other transportation is not available, mental health services, and

drug and alcohol treatment services. Id.

¶ 43 Once services are provided, however, the parent becomes

responsible for utilizing those services to obtain the assistance that

she needs to comply with her treatment plan’s requirements.

People in Interest of J.C.R., 259 P.3d 1279, 1285 (Colo. App. 2011).

21

2. Analysis

¶ 44 The juvenile court found that the Department made

reasonable efforts to rehabilitate mother. It found that the

Department made referrals for a dual-diagnosis evaluation, sobriety

monitoring, and visitation services. The court acknowledged

mother’s testimony that she could not participate in most services

because she did not have access to a phone. But it found that

mother did not notify the caseworker of this barrier and that the

Department “cannot put forward reasonable efforts to overcome an

obstacle of which it is not aware.” In sum, it found that mother was

able to have some communication with the caseworker and a few

video visits with the child, but it was mother’s responsibility to tell

the caseworker why she could not have more consistent

engagement. Evidence in the record supports the court’s findings.

¶ 45 The caseworker testified that, following the first in-person visit

with the child, mother was referred for virtual visits but did not

respond to the provider’s efforts to reach her. Even so, mother was

able to have one or two video visits each month facilitated by great

aunt and uncle.

22

¶ 46 The caseworker referred mother for UAs but she never

provided a sample.

¶ 47 The caseworker referred mother for a dual-diagnosis

evaluation, which she eventually completed. The evaluation

recommended that mother attend dual-diagnosis treatment, but she

did not attend the intake for treatment.

¶ 48 At the hearing, mother testified that a caseworker visited her

while she was incarcerated. She also testified that she did not

engage in any services because she was homeless and because she

did not have a phone or means to access virtual services. But she

admitted that she did not tell the caseworker about her living

situation or lack of a phone. The caseworker testified that the

Department could have provided assistance for mother to access

virtual services, but that she did not know mother needed this help.

¶ 49 Based on this record, we cannot conclude that the juvenile

court erred when it found that the Department made reasonable

efforts.

D. Less Drastic Alternatives

¶ 50 Mother and father both contend that the juvenile court erred

by finding no less drastic alternative to termination. Specifically,

23

they argue that the juvenile court should have ordered an allocation

of parental responsibilities (APR) to great aunt and uncle. We are

not persuaded.

1. Relevant Law

¶ 51 The juvenile court must consider and eliminate less drastic

alternatives before it terminates the parent-child legal relationship.

T.M., ¶ 19. When considering less drastic alternatives, the court

bases its decision on the best interests of the child, giving primary

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

conditions and needs. § 19-3-604(3). “[I]f a proposed alternative to

termination is to be deemed viable, it must not only be adequate, it

must be in the child’s best interests.” T.M., ¶ 27.

¶ 52 When determining whether placement with a relative or other

person is a viable alternative to termination, the juvenile court may

consider various factors, including whether an ongoing relationship

with the parent would be beneficial or detrimental to the child.

People in Interest of A.R., 2012 COA 195M, ¶ 38. This

determination will be influenced by a parent’s fitness to care for the

child’s needs. See  § 19-3-604(2); A.R., ¶ 38. Long-term placement

with a relative is not a viable less drastic alternative to termination if

24

the child needs a stable, permanent home that can only be assured

by adoption. People in Interest of M.B., 70 P.3d 618, 627 (Colo. App.

2003).

2. Analysis

¶ 53 The juvenile court found no available less drastic alternative to

termination. It found that the parents had not maintained a bond

with the child, did not have stable living environments, and had

pending criminal matters. The court noted that the benefit of

stability and permanency outweighed an ongoing relationship with

the parents and that adoption was in the child’s best interest.

Evidence supports the juvenile court’s findings.

¶ 54 The caseworker testified that father had not seen the child for

ten months at the time of the termination hearing. Mother had only

sporadic video visits and occasionally saw the child at family

functions. Both parents had periods of incarceration throughout

the proceeding and the court took judicial notice of several pending

criminal matters.

¶ 55 The caseworker testified that the child had been with great

aunt and uncle for over a year and that adoption by them was in

his best interests. She explained that the child displayed

25

aggression, needed socialization and a regular schedule, and

required play therapy. She testified that the child was thriving in

great aunt and uncle’s care.

¶ 56 The parents argue that no evidence suggested that great aunt

and uncle were opposed to an APR and only wanted to adopt. But

that evidence would be relevant only if the juvenile court found that

an APR would be in the child’s best interests. See T.M., ¶ 32 (“[I]f a

trial court considers a less drastic alternative in connection with its

overall consideration of the statutory criteria for termination and

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

the alternative and order termination.”). Here, the court found,

with record support, that a less drastic alternative to termination

was not in the child’s best interests.

¶ 57 Based on this record, we cannot conclude that the juvenile

court erred when it found that an APR to great aunt and uncle was

not an available less drastic alternative to termination.

IV. Conclusion

¶ 58 We affirm the judgment.

JUDGE BERGER and JUDGE JOHNSON concur.