Peo in Interest of EH

• Court: Colorado Court of Appeals
• Decided: February 13, 2025
• Docket: 24CA0477
• Status: Unpublished

Opinion

24CA0477 Peo in Interest of EH 02-13-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0477 El Paso County District Court No. 21JV380 Honorable Lin Billings Vela, Judge

The People of the State of Colorado,

Appellee,

In the Interest of E.H., a Child,

and Concerning S.B.,

Appellant.

JUDGMENT AFFIRMED

Division A Opinion by CHIEF JUDGE ROMÁN Graham* and Taubman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 13, 2025

Kenneth R. Hodges, County Attorney, Shannon Boydstun, Assistant County Attorney, Colorado Springs, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem

Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 S.B. (mother) appeals the judgment terminating her parent-

child legal relationship with E.H. (the child). We affirm.

I. Background

¶2 In June 2021, law enforcement officers contacted mother,

arrested her on an active warrant, and found methamphetamine in

her backpack. They also observed that the child was extremely

dirty, did not have proper footwear, and had splinters in his feet

that had become infected. The El Paso County Department of

Human Services (Department) assumed temporary legal custody of

the child and filed a petition in dependency and neglect. Mother

admitted the allegations in the petition, and the juvenile court

adjudicated the child dependent and neglected.

¶3 In August 2021, the juvenile court adopted a treatment plan

for mother that required her to (1) support the child and build a

relationship with him; (2) determine what type of commitment she

could make to the child and what role she would have in the child’s

life; and (3) abstain from further criminal activity and comply with

her criminal cases. In November 2021, mother was released from

the county jail, and the Department proposed an amended

treatment plan, which required her to (1) cooperate with the

1 Department and professionals; (2) attend family time; (3) address

her substance abuse issues; (4) become self-sufficient; (5) develop

parenting skills; and (6) demonstrate parental protective capacity.

The court adopted the amended treatment plan in December 2021.

¶4 A few months later, the Department learned that mother had

relocated to Missouri to address an open criminal case that she had

in that state. Mother was sentenced to probation, but after she

failed to comply with her probation sentence, the Missouri criminal

court revoked probation and resentenced her to a five-year

probationary sentence, along with drug court. Only a few months

after she was resentenced, mother absconded from probation

supervision, until she was eventually arrested and resentenced to

prison.

¶5 In September 2023, the Department moved to terminate

mother’s parental rights. The juvenile court held an evidentiary

hearing on the motion in January 2024. After hearing the evidence,

the court granted the Department’s motion and terminated mother’s

parental rights.

2 II. Discussion

¶6 Mother asserts, for the three reasons described below, that the

juvenile court erred by terminating her parental rights. We disagree

with all three contentions.

A. Termination Criteria and Standard of Review

¶7 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. 2024.

¶8 Whether the juvenile court properly terminated parental rights

is a mixed question of fact and law. People in Interest of A.M. v.

T.M., 2021 CO 14, ¶ 15; see also People in Interest of A.S.L., 2022

COA 146, ¶ 8 (applying the same standard of review to whether a

department of human services satisfied its obligation to make

reasonable efforts). We review the court’s factual findings for clear

error, but we review de novo its legal conclusions based on those

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

3 B. Treatment Plan

¶9 Mother first asserts that the juvenile court violated her due

process right to a fundamentally fair proceeding when it terminated

her parental rights based on noncompliance with the original

treatment plan that had not been in effect for two years. As

explained below, we decline to address mother’s contention because

she invited the error.

¶ 10 “The doctrine of invited error prevents a party from

complaining on appeal of an error that he or she has invited or

injected into the case; the party must abide the consequences of his

or her acts.” People v. Rediger, 2018 CO 32, ¶ 34. The invited error

doctrine applies to errors implicating constitutional rights. See

Horton v. Suthers, 43 P.3d 611, 619 (Colo. 2002); see also Montoya

v. People, 2017 CO 40, ¶ 35 (noting that “the constitutional

requirement that the prosecution prove the elements of a crime

beyond a reasonable doubt” does not foreclose a defendant’s loss of

the right to demand such proof because of the defendant’s own

conduct). But it nevertheless applies in only a narrow range of

cases in which the error results from trial strategy and not mere

oversight. Rediger, ¶ 34.

4 ¶ 11 During the caseworker’s testimony, the juvenile court pointed

out to the county attorney that the Department’s termination

motion only mentioned the original treatment plan and not the

amended treatment plan. As a result, the court said that it had

only “prepped” for the original treatment plan and therefore the

court had concerns that there may be a due process issue based on

lack of notice to mother. See A.M., ¶ 18 (noting that, in a

termination proceeding, due process requires that a parent be given

notice of the allegations); see also People in Interest of T.D., 140 P.3d

205, 218 (Colo. App. 2006) (“A motion to terminate is sufficient so

long as it is couched in the statutory language set forth” in section

19-3-604(1)(c).), abrogated on other grounds by People in Interest of

A.J.L., 243 P.3d 244 (Colo. 2010).

¶ 12 Even though mother’s counsel admitted that he knew about

the amended treatment plan and that he was prepared to address

both treatment plans, counsel still asserted that mother would

suffer prejudice if the juvenile court allowed the Department to

present evidence related to the amended treatment plan. See

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

parent may not obtain relief on a due process claim absent a

5 showing of harm or prejudice.”). Therefore, mother’s counsel

requested that the court either (1) “restrict arguments against

noncompliance relating to the amended treatment plan” and “focus

on the treatment plan listed in the motion” or (2) continue the

hearing to allow the Department to file an amended motion.

¶ 13 Although mother’s counsel admitted that he was “aware” of

the amended treatment plan and was prepared to address both

treatment plans, the juvenile court nevertheless agreed with

mother’s request because counsel “represent[ed] that he had

prepared his case on how the motion was drafted.” The court then

gave the Department the option to proceed under the original

treatment plan or continue the hearing, and the county attorney

chose the latter. After hearing the evidence, the court found that

mother’s treatment plan was appropriate and that she had failed to

comply with it.

¶ 14 On appeal, mother asserts that the juvenile court could not

terminate her parental rights based on a treatment plan that was

no longer in effect at the time of the termination hearing. In the

alternative, she contends that, even if the court could consider the

original treatment plan, that treatment plan was inappropriate

6 because it was intended for an incarcerated parent. But, as

described above, mother requested the course of action that created

these issues. In other words, because the Department was not

allowed to present its case as intended, mother could not complain

about its reliance on the original treatment plan. And mother does

not assert on appeal that her counsel’s actions were inadvertent;

rather, counsel clearly believed that it was to mother’s advantage to

limit the Department’s presentation of its case. See Rediger, ¶ 34.

In sum, mother invited the error that she now asks us to correct,

and we decline to address her contention because she must “abide

the consequences” of her acts. Id.

C. Reasonable Efforts

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

the Department made reasonable efforts to rehabilitate her and

reunify her with the child. We disagree.

1. Applicable Law

¶ 16 Before a juvenile court may find a parent unfit, the county

department of human services must make reasonable efforts to

rehabilitate parents and reunite families. §§ 19-1-103(114),

19-3-208, 19-3-604(2)(h), C.R.S. 2024. Reasonable efforts means

7 the “exercise of diligence and care” to reunify parents with their

children. § 19-1-103(114).

¶ 17 Services provided in accordance with section 19-3-208 satisfy

the reasonable efforts standard. § 19-1-103(114). Among the

services required under section 19-3-208 are screenings,

assessments, and individual case plans for the provision of services;

home-based family and crisis counseling; information and referral

services to available public and private assistance resources; family

time; and placement services. § 19-3-208(2)(b).

¶ 18 The juvenile court should consider whether the services

provided were appropriate to support the parent’s treatment plan,

People in Interest of S.N-V., 300 P.3d 911, 915 (Colo. App. 2011), by

“considering the totality of the circumstances and accounting for all

services and resources provided to a parent to ensure the

completion of the entire treatment plan,” People in Interest of

My.K.M. v. V.K.L., 2022 CO 35, ¶ 33. But the parent is ultimately

responsible for using the services to comply with the plan. People in

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

may consider a parent’s unwillingness to participate in treatment in

8 determining whether the department made reasonable efforts. See

People in Interest of A.V., 2012 COA 210, ¶ 12.

2. Analysis

¶ 19 The juvenile court found that the Department made

reasonable efforts to rehabilitate mother and reunify her with the

child, which included providing a phone and bus passes, making

referrals for substance abuse treatment, and paying for treatment

services in Missouri. However, the court determined that, because

mother did not use the services provided by the Department, she

did not become a fit parent in a reasonable time.

¶ 20 The record supports the juvenile court’s findings. The

caseworker testified that mother was incarcerated in the county jail

for the first few months of the case and after she was released,

mother did not contact the Department for several months.

Eventually, the Department located mother in Missouri and

arranged for her to have virtual visits with the child. The record

also shows that mother began serving a probation sentence in

Missouri, which required her to engage in substance abuse

treatment. Mother’s probation officer testified that the Department

was paying for mother’s services, but she did not comply with her

9 treatment and continued to test positive for illegal substances.

Mother eventually disengaged from her probation requirements, but

the Department continued to engage mother in visits (when she was

responsive) until July 2023.

¶ 21 Despite this record, mother maintains, for the following three

reasons, that the juvenile court erred by finding that the

Department made reasonable efforts. We are not persuaded.

¶ 22 First, relying on unsworn statements made during various

court hearings throughout the case, mother asserts that the

Department failed to identify and monitor treatment providers. But

these statements are not evidence, and the juvenile court could not

properly consider them at the termination hearing. Therefore, we

cannot consider these statements on appeal. And the evidence

presented at the termination hearing otherwise shows that the

Department arranged treatment services for mother through her

probation officer in Missouri and provided virtual visits supervised

by the foster mother or a professional provider. We therefore

discern no error.

¶ 23 Second, based on her own testimony at the termination

hearing, mother asserts that the “caseworkers rarely took her calls

10 or responded to her messages,” and as a result, she was prevented

from attending family time. But the juvenile court did not find

mother’s testimony credible. Rather, it found credible the

caseworker’s testimony that mother (1) had not reached out to her

for nearly a year and (2) did not need to contact the caseworker to

schedule visits because her referral remained open. Because

credibility determinations are left to the court’s sound discretion,

we discern no error in its findings. See A.J.L., 243 P.3d at 249-50.

¶ 24 Finally, we reject mother’s assertion that the Department

failed to make reasonable efforts to arrange family time for her

during her most recent incarceration in the Missouri prison system.

The record shows that mother was incarcerated in December 2023,

or just over a month before the termination hearing. The

caseworker said that the Department’s incarcerated parent liaison

had attempted to contact mother’s case manager at the prison but

made contact just a few days before the termination hearing. The

caseworker said that the Department had not been able to set up

visits yet as a result. Therefore, the record shows that, although the

Department had not arranged visits, it had attempted to do so. See

People in Interest of E.D., 2025 COA 11, ¶ 3 (concluding that a

11 department can satisfy its reasonable efforts obligation by making

available and providing appropriate therapeutic family time services

“even if those services don’t successfully result in face-to-face

contact”). Under those circumstances, we discern no error.

¶ 25 In sum, the record supports the juvenile court’s findings that

(1) the Department provided mother with the appropriate resources

to engage with her treatment plan, but (2) she did not take

advantage of those resources and was unsuccessful in becoming fit.

See A.V., ¶ 12; J.C.R., 259 P.3d at 1285. We therefore discern no

error in the court’s conclusion.

D. Fit Within a Reasonable Time

¶ 26 Mother argues that the juvenile erred by finding that she could

not become fit within a reasonable time. We disagree.

¶ 27 An unfit parent is one whose conduct or condition renders the

parent 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 needs and conditions.

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

parent’s noncompliance with a treatment plan generally

“demonstrates a lack of commitment to meeting the child’s needs

and, therefore, may also be considered in determining unfitness.”

People in Interest of D.P., 181 P.3d 403, 408 (Colo. App. 2008).

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

likely to change in a reasonable time, the juvenile court may

consider whether any change has occurred during the proceeding,

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

the parent’s conduct or condition. People in Interest of D.L.C., 70

P.3d 584, 588-89 (Colo. App. 2003). Where a parent has made little

to no progress on a treatment plan, the court need not give the

parent additional time to comply. See People in Interest of R.B.S.,

717 P.2d 1004, 1006 (Colo. App. 1986).

¶ 29 The determination of a reasonable period is fact-specific and

varies from case to case. People in Interest of D.Y., 176 P.3d 874,

876 (Colo. App. 2007); see also People in Interest of S.Z.S., 2022

COA 133, ¶ 24. However, a reasonable time is not an indefinite

time, and it must be determined by considering the child’s physical,

mental, and emotional conditions and needs. S.Z.S., ¶ 24. As in

13 this case, when a child is under six years old, the juvenile court

must also consider the EPP provisions, which require that the child

be placed in a permanent home as expeditiously as possible. See

§§ 19-1-102(1.6), 19-1-123, 19-3-702(5)(c), C.R.S. 2024.

¶ 30 The juvenile court found that mother’s conduct or condition

was unlikely to change in a reasonable time, noting that “things

[were] worse off now than they were roughly a year ago.” In

support, the court found that mother continued to “minimize the

impact of substance use” on the child and had not made sufficient

progress in her treatment to address the concerns that initiated the

case. The court also considered evidence that the child “urgently”

needed treatment for Hepatitis C, which he could not get until he

was in a stable home.

¶ 31 The record supports the juvenile court’s findings. As noted,

the record shows that mother did not successfully engage in

substance abuse treatment or participate in family time for

significant periods of the case. And because mother did not comply

with her probation sentence, she was resentenced to prison and

would not be eligible for parole until 2026. Foster mother reported

14 that the child could not begin the medication he needed to cure his

Hepatitis C until he had a stable placement of more than six

months. The caseworker also opined that mother could not become

fit within a reasonable time for this child, considering the lack of

engagement overall.

¶ 32 Nevertheless, mother maintains that the record shows that

she could become fit within a reasonable time. Specifically, she

directs our attention to evidence that she had not used illegal

substances for several months, was exercising parenting time with

her other child, had taken steps to address domestic violence

issues, and had been employed during the case. But some of

mother’s argument again relies on her testimony, which, as stated

above, the juvenile court did not find credible. See A.J.L., 243 P.3d

at 249-50. And mother’s argument would otherwise require us to

reweigh the evidence and substitute our judgment for that of the

juvenile court, which we cannot do. See S.Z.S., ¶ 29. Rather,

because the record supports the court’s findings, we will not disturb

the court’s determination that mother was unlikely to become fit

within a reasonable time.

15 III. Disposition

¶ 33 The judgment is affirmed.

JUDGE GRAHAM and JUDGE TAUBMAN concur.