24CA1410 Peo in Interest of EJMH 03-20-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1410 El Paso County District Court No. 22JV30248 Honorable Diana K. May, Judge
The People of the State of Colorado,
Appellee,
In the Interest of E.J.M.H., a Child,
and Concerning K.H.,
Appellant.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE WELLING Kuhn, J., concurs Schutz, J., specially concurs
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 20, 2025
Kenneth 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 ¶1 In this dependency and neglect proceeding, K.H. (mother)
appeals the judgment terminating her parent-child legal
relationship with E.J.M.H. (the child). We affirm.
I. Background
¶2 In September 2022, the El Paso County Department of Human
Services filed a petition in dependency and neglect regarding the
then-newborn child. The Department alleged that the child tested
positive for marijuana and methamphetamine at birth. The
Department was concerned about mother’s substance use and
involvement in the criminal justice system. Unfortunately, at the
time of the child’s birth, mother was diagnosed with a severe and
advanced form of cancer that required surgery, radiation, and
ongoing chemotherapy.
¶3 The juvenile court granted temporary legal custody to the
Department, and the child was placed in foster care. Mother agreed
to a deferred adjudication that required her to communicate with
the Department, attend supervised family time, engage in
substance abuse treatment, develop protective parental capacities,
establish self-sufficiency, and participate in life skills services.
Shortly thereafter, the court adopted an amended treatment plan
1 allowing some flexibility regarding urinalysis (UA) testing based on
mother’s illness.
¶4 The Department later moved to terminate mother’s parental
rights. Within a month of that motion being filed, mother moved to
modify her treatment plan to include additional accommodations
under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.
§§ 12101-12213. The juvenile court granted mother’s motion and
ordered the Department to provide most of mother’s requested
accommodations.
¶5 The juvenile court then held a two-day contested termination
hearing over the course of three months. Approximately twenty-two
months after the case opened, the court revoked the deferred
adjudication and granted the termination motion.
II. Statutory Criteria and Standard of Review
¶6 The juvenile court may terminate parental rights if it finds, by
clear and convincing evidence, that (1) the child was adjudicated
dependent or 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
2 or condition is unlikely to change within a reasonable time. § 19-3-
604(1)(c), C.R.S. 2024.
¶7 The question of whether a juvenile court properly terminated
parental rights is a mixed question of fact and law. People in
Interest of S.R.N.J-S., 2020 COA 12, ¶ 10; People in Interest of A.S.L.,
2022 COA 146, ¶ 8. Thus, we review the court’s factual findings for
clear error but review de novo its legal conclusions based on those
facts. S.R.N.J-S., ¶ 10; A.S.L., ¶ 8.
III. Reasonable Efforts and ADA Accommodations
¶8 Mother contends that the juvenile court erred by finding that
the Department made reasonable efforts to rehabilitate her because
the Department failed to make reasonable accommodations for her
severe illness. We aren’t persuaded.
A. Applicable Law
¶9 To determine whether a parent is unfit, the juvenile court
must consider whether the department of human services made
reasonable efforts to rehabilitate the parent and reunite the family.
See §§ 19-3-100.5(1), 19-3-604(2)(h), C.R.S. 2024; People in Interest
of S.N-V., 300 P.3d 911, 915 (Colo. App. 2011). “Reasonable efforts”
means the “exercise of diligence and care.” § 19-1-103(114), C.R.S.
3 2024. Appropriate services provided in accordance with section 19-
3-208, C.R.S. 2024, satisfy the reasonable efforts standard. § 19-1-
103(114).
¶ 10 Under section 19-3-208(2)(b), a department must provide
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 services; and placement services.
And, if funding is available, section 19-3-208(2)(d) requires a
department to provide additional services such as transportation
and drug and alcohol services. However, services must be provided
only if they are determined to be necessary and appropriate based
on the individual case plan. § 19-3-208(2)(b), (d).
¶ 11 Additionally, the ADA requires a public entity, such as a
county department of human services, to make reasonable
accommodations for qualified individuals with disabilities. See
People in Interest of C.Z., 2015 COA 87, ¶¶ 11-12. Thus,
departments and juvenile courts must account for and, if possible,
make reasonable accommodations for a parent’s disability when
providing rehabilitative services. People in Interest of S.K., 2019
4 COA 36, ¶ 34. As a result, a juvenile court must consider whether
a department made reasonable accommodations under the ADA in
determining if it made reasonable efforts to rehabilitate the parent.
Id.
¶ 12 The parent is responsible for disclosing information regarding
their disability and should identify any modifications to the
treatment plan that they believe are necessary to accommodate the
disability. Id. at ¶ 21; see also People in Interest of S.Z.S., 2022 COA
133, ¶ 16 (“For a parent to benefit from a reasonable
accommodation, the parent must raise the issue of the ADA’s
applicability in a timely manner.”). In considering whether
reasonable accommodations can be made for a parent’s disability,
the juvenile court’s paramount concern must remain the child’s
health and safety. S.K., ¶ 36. Thus, what constitutes a reasonable
accommodation will vary from case to case based on the child’s
needs, the nature of the parent’s disability, and the available
resources. Id. at ¶ 39.
¶ 13 Last, a parent is ultimately responsible for utilizing the
services provided by a department to obtain the assistance needed
to comply with their treatment plan. People in Interest of J.C.R.,
5 259 P.3d 1279, 1285 (Colo. App. 2011). In determining whether a
department made reasonable efforts, a juvenile court should
consider the totality of the circumstances and account for all
services and resources provided to a parent, measuring them
holistically rather than in isolation with respect to specific
treatment plan objectives. See People in Interest of My.K.M. v.
V.K.L., 2022 CO 35, ¶¶ 33, 35.
B. Analysis
¶ 14 The juvenile court found that the Department made
reasonable efforts to rehabilitate mother and reunite her with the
child. The court also found that the Department made reasonable
accommodations for mother’s illness as required by the ADA. It
concluded that mother’s failure to comply with her treatment plan
was due to the choices that she made, not her illness or the
Department’s failure to make reasonable efforts and
¶ 15 The record supports the juvenile court’s findings. The
caseworker testified that she arranged UAs and made several
referrals for substance abuse evaluations, supervised family time,
and life skills services. The caseworker also testified that
6 throughout the case, the Department provided mother with a total
of four cell phones and several bus passes.
¶ 16 Moreover, shortly after the court adopted the initial treatment
plan, the caseworker collaborated with mother’s counsel to amend
it to include accommodations for mother’s illness. Specifically, the
caseworker amended the plan to ensure that mother’s family time
referral would remain open no matter how many times mother
cancelled or missed family time sessions. The amended treatment
plan also stated that any missed UAs wouldn’t be automatically
considered positive if mother called the caseworker to let her know
that she was unable to attend the UA appointment due to her
illness. And the Department offered to accept the UAs from
mother’s cancer treatment providers in lieu of the UAs it set up to
show ongoing sobriety.
¶ 17 Later in the case, mother requested additional ADA
accommodations, which included providing her with a cell phone
with unlimited data; transporting her to and from family time and
substance abuse treatment appointments; the option to have virtual
family time and substance abuse treatment; and the option to have
the child transported to her if she was too ill to attend family time.
7 The juvenile court found that the Department had already been
providing transportation services and cell phones but nonetheless
ordered the Department to provide the requested accommodations,
except for transporting the child to mother. The court found that
this request wasn’t in the child’s best interests because at the time,
mother was homeless, so it was unclear where family time would
occur if the Department brought the child to her. And the court
noted that the requested transportation was unnecessary because
mother could have virtual family time if she was too ill to attend in
person.
¶ 18 The Department complied with the juvenile court’s order for
accommodations by ensuring that mother’s family time and life
skills referrals included transportation services, providing mother
with the option of video parenting time when she was unable to
travel for visits, and providing her with an additional phone with
unlimited minutes and data.
¶ 19 Despite these accommodations, the record shows that mother
didn’t comply with her treatment plan. The caseworker testified
that mother didn’t regularly attend court or team meetings, rarely
responded when she reached out to her, and didn’t sign releases of
8 information until seven months into the case. Mother didn’t
complete a substance abuse evaluation or show that she was sober,
either by providing UAs or allowing the Department to access her
medical records. And she didn’t engage in the provided life skills
services.
¶ 20 Further, the caseworker estimated that mother missed at least
half of her family time sessions throughout the case, while the
family time supervisor estimated that she missed around seventy-
five percent of the scheduled sessions. The caseworker testified
that even after she made the transportation referral, mother didn’t
utilize it. And the family time supervisor testified that mother
generally didn’t contact her to let her know when she was unable to
attend or to request a make-up session.
¶ 21 Although mother argues that the Department failed to make
reasonable efforts and provide ADA accommodations, she doesn’t
identify any specific services or accommodations that were lacking.
And because the juvenile court’s findings that the Department
made reasonable efforts and provided ADA accommodations are
supported by the record, we discern no basis for reversal.
9 IV. Additional Time
¶ 22 Mother also contends that the juvenile court erred by finding
that there were no less drastic alternatives to termination when it
could have allowed mother more time to work on her treatment plan
given her medical condition. We construe this argument as a
challenge to the court’s finding that mother couldn’t become fit
within a reasonable time, not a challenge to the court’s finding that
there was no less drastic alternative to termination. See People in
Interest of A.R., 2012 COA 195M, ¶ 44 (stating that a less drastic
alternative analysis considers whether any placement, short of
termination, would be in the child’s best interest). Nonetheless, we
discern no basis for reversal.
¶ 23 A parent must have a reasonable amount of time to work on a
treatment plan before the juvenile court terminates their parental
rights. People in Interest of D.Y., 176 P.3d 874, 876 (Colo. App.
2007). The determination of a reasonable period is necessarily fact
specific, and thus, what constitutes a reasonable time to comply
with a treatment plan varies from case to case. Id. But a
reasonable time isn’t an indefinite time, and it must be determined
10 by considering the physical, mental, and emotional conditions and
needs of the child. S.Z.S., ¶ 25.
¶ 24 In determining whether a parent’s conduct or condition is
likely to change and whether the parent can become fit in a
reasonable time, the juvenile court may consider whether any
changes occurred during the dependency and neglect proceeding.
K.D. v. People, 139 P.3d 695, 700 (Colo. 2006). And when a child is
under six years old, the juvenile court must also consider the
expedited permanency planning (EPP) provisions, which require
that such children be placed in a permanent home as expeditiously
as possible. §§ 19-1-102(1.6), 19-1-123(1)(a), 19-3-702(5)(c), C.R.S.
2024; see also S.Z.S., ¶ 25.
¶ 25 The juvenile court considered whether mother could become fit
within a reasonable amount of time but ultimately concluded she
couldn’t. The court noted that the EPP provisions applied and that
the case had been open for twenty-two months. The court found
that mother didn’t address the issues that brought her family to the
Department’s attention and that based on mother’s refusal to
engage in services throughout the case, she wouldn’t be able to
11 address those issues even if given more time. The court also found
that it wouldn’t be reasonable or in the child’s best interests to
allow mother additional time based on the child’s young age and
mother’s unwillingness to cooperate or engage in services.
¶ 26 The record supports the juvenile court’s findings. By the time
of termination, approximately fourteen months had passed since
the court adopted mother’s amended treatment plan, but she still
hadn’t successfully resolved the Department’s concerns. She
hadn’t completed any substance abuse treatment, provided proof of
ongoing sobriety, or engaged in life skills services. And the
caseworker, who the court qualified as an expert in child protection
and welfare, opined that based on mother’s lack of progress
throughout the case, she didn’t think that mother would change
within a reasonable amount of time. The caseworker testified that
even if mother began engaging in services, it would take at least six
months for her to address the Department’s concerns, and she
opined that allowing more time wouldn’t be in the child’s best
interests based on her age and need for permanency. Indeed, by
the time of termination, the child had been out of the home for her
entire twenty-two-month life.
12 ¶ 27 We reject mother’s argument that the juvenile court should
have allowed more time because “a majority of the
accommodations . . . required for [mother’s] illness-related
disabilities were not implemented until very late” in the
proceedings. True, the court granted mother’s motion for ADA
accommodations only three months before the termination hearing.
But in that order, the court found, with record support, that the
Department had been providing transportation services and cell
phones to mother — the two main accommodations she requested.
Further, the record indicates that during the five months following
the court’s order that the Department provide the additional
accommodations mother requested, she still didn’t engage in any
substance abuse treatment or life skills services, provide proof of
ongoing sobriety, or consistently attend family time.
¶ 28 Finally, we reject mother’s argument that the juvenile court
should have allowed mother more time to work on her treatment
plan because the court didn’t consider the importance of the child’s
relationship with mother or the lack of evidence showing that
“maintaining the parent-child relationship would harm the child in
any way.” To the contrary, the court found that mother hadn’t
13 made efforts to bond with the child or put the child’s needs first.
While it’s true that the family time supervisor testified that the child
was comfortable with mother and that family time generally went
well, the caseworker opined that, based on mother’s “lack of
engagement with family time,” mother hadn’t created a bond with
the child. The caseworker also opined that, based on mother’s lack
of engagement in treatment, she “would not be a proper, healthy
caregiver for [the] child.” And we don’t reweigh the evidence or
substitute our judgment for that of the juvenile court. People in
Interest of K.L.W., 2021 COA 56, ¶ 62.
¶ 29 Based on the foregoing, we conclude that the juvenile court
properly analyzed whether mother could become fit within a
reasonable time. And because the court’s determination is
supported by the record, we won’t disturb it.
V. Disposition
¶ 30 The judgment is affirmed.
JUDGE KUHN concurs.
JUDGE SCHUTZ specially concurs.
14 JUDGE SCHUTZ, specially concurring.
¶ 31 I agree with the majority’s conclusion that the juvenile court
did not err by finding and concluding that the El Paso County
Department of Human Services used reasonable efforts to render
mother a fit parent. I also agree that mother was provided a
reasonable amount of time to comply with the treatment plan.
¶ 32 But I write separately to express my concern with the
majority’s decision to change the issue that mother actually
presented on appeal — whether the district court erred by failing to
conclude that there was a less drastic alternative to termination —
into a contention that mother chose not to raise on appeal —
whether she had a reasonable period to comply with the treatment
plan.
¶ 33 Procedurally, converting an issue brought by a party into an
issue that the party did not raise violates the party presentation
principle. As both the United States Supreme Court and the
Colorado Supreme Court have reminded us, the party presentation
principle is a core component of our adversary system.
See Greenlaw v. United States, 554 U.S. 237 (2008) (“In our adversary system, in both civil and criminal cases, in the first instance and on
15 appeal, we follow the principle of party presentation. That is, we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present . . . . [A]s a general rule, ‘[o]ur adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.’”) (quoting Castro v. United States, 540 U.S. 375 (2003) (Scalia, J., concurring in part and concurring in judgment)); accord United States v. Sineneng-Smith, 590 U.S. 371, 375-76 (2020); Galvan v. People, 2020 CO 82, ¶ 45.
Compos v. People, 2021 CO 19, ¶ 35.
¶ 34 Mother is represented in this appeal by an attorney
experienced in presenting dependency and neglect appeals.
Certainly mother’s counsel knew the difference between “a
reasonable amount of time to comply with the treatment plan”
contention versus “a less drastic alternative” contention. Counsel
chose to present a less drastic alternative argument. Principles of
party presentation dictate that we address the argument actually
presented by mother’s counsel. See id.
¶ 35 I appreciate that a less drastic alternative argument
sometimes presents, at least indirectly, the question of whether a
parent was afforded a reasonable amount of time to comply with a
16 treatment plan. But the two issues are not the same. If there is a
reasonable alternative to termination of a parent’s rights that is in
the child’s best interest — irrespective of whether mother was
afforded a reasonable period to comply with the treatment
plan — the court is bound to adopt the less drastic alternative. See
People in Interest of C.Z., 2015 COA 87, ¶ 61 (“The court must
consider and eliminate less drastic alternatives before terminating
parental rights.”); People in Interest of M.M., 726 P.2d 1108, 1123
(Colo. 1986) (“Clearly, adherence to the statutory criteria for
termination requires a trial court to consider less drastic
alternatives and to reject those alternatives as unavailing before
entering an order of termination.”). By collapsing the less drastic
alternative contention into a lack of reasonable time contention, we
deprive mother of the ability to raise these issues separately.
¶ 36 Substantively, by converting the less drastic alternative
contention into a reasonable time contention, we also fail to give full
recognition to the extraordinary importance of family connections.
See § 19-1-102(1)(a)-(b), C.R.S. 2024 (Among the purposes of the
Children’s Code are “[t]o secure for each child subject to these
provisions such care and guidance, preferably in his own home, as
17 will best serve his welfare and the interests of society” and “[t]o
preserve and strengthen family ties whenever possible, including
improvement of home environment.”). If a child can be placed with
a provider who is willing to accept the placement without a
termination of parental rights, it leaves open the possibility that a
parent may eventually make transformations that allow them to
have a meaningful and positive presence in their child’s life. Doing
so protects the familial and legal relationship between children,
their parents, and their extended family. Of course, leaving a case
open also creates the possibility that the child may not be able to
achieve a sense of well-being and permanence that is essential to
their mental and emotional health and development. See § 19-3-
100.5, C.R.S. 2024 (discussing the importance of achieving timely
permanence for children, particularly those under the age of three).
But the appropriate balance between these competing concerns is
best addressed by our juvenile courts making an informed
assessment about whether, in a given case, holding open the
prospect of a future bona fide relationship between the child and
their family outweighs the benefits of achieving permanency for the
child through a formal termination of parental rights.
18 ¶ 37 I also appreciate that a less drastic alternative inquiry is
usually made in the context of whether there is a placement
provider that will accept placement of the child without a
termination of parental rights. See People in Interest of A.R., 2012
COA 195M, ¶ 44 (“[A] less drastic alternative analysis considers
whether any placement, short of termination, would be in the
child’s best interest.”). But a less drastic alternative can also exist
even if no change in the current placement is contemplated,
provided the current placement is in the child’s best interest.
People in Interest of A.M. v. T.M., 2021 CO 14, ¶ 27 (“[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.”). For example,
suppose the current placement was willing to accept an allocation
of parental rights (APR) while leaving some parental rights in place.
That APR would be an appropriate less drastic alternative so long as
the current placement was consistent with the child’s best
interests.
¶ 38 In addition, leaving a case open when there is a reasonable
possibility that a parent may make future progress, even though
they have thus far failed to make changes within a reasonable time,
19 may be a less drastic alternative if it is in the child’s best interest.
On the other hand, a juvenile court may conclude that there is no
less drastic alternative to termination if leaving the case open for an
extended period would be damaging to the child’s best interest or,
relatedly, that it would jeopardize a permanent placement that is in
the child’s best interest. See id.; People in Interest of S.N-V., 300
P.3d 911, 920 (Colo. App. 2011) (noting that a court may consider
whether a placement option prefers adoption rather than an APR in
its decision to reject less drastic alternatives).
¶ 39 That is what happened here. The juvenile court recognized
that mother was making a less drastic alternative argument. The
court addressed that claim head-on and made specific findings
explaining why leaving this case open in the hope that mother
would comply with her treatment plan in the future was not a less
drastic alternative. In reaching its conclusion, the court did not
rely on a conclusory assertion that “the child needs the permanency
that only adoption can provide,” or some similar bromide. See A.M.,
¶ 42 (“It is . . . the better practice for a trial court to make express
findings regarding less drastic alternatives — as the trial court did
here — but we will not require the trial court to do so.”).
20 ¶ 40 Rather, the court made pertinent findings based on the
evidence presented:
The Court has considered less drastic alternatives. Mother did request less drastic alternatives in January 2024. Since January, Mother has not demonstrated any desires to change to allow for more time for less drastic alternatives. Her visitation has gotten less frequent. . . .
Mother has not shown any proof of sobriety.
Mother has not been able to consistently see her child. The most visits Mother has had are two in the month of March.
No additional time is reasonable based on the age of the child, that will change Mother’s position and her willingness to cooperate and do what is in the best interest of her child.
This case has been open for 22 months.
Mother has no interest in addressing the issues that caused this case to open or to address her substance abuse.
There has not been any bonding with the child.
Mother has no interest in putting the child’s needs first.
Even if the Court granted six additional months, Mother would not progress in this case.
21 Mother is unable to meet the child’s needs and she has been unsuccessful in completing her treatment plan.
¶ 41 Based on these findings, the court reasoned:
[T]he foster family has continuously engaged with the child and met her needs. Furthermore, . . . it’s the only home she’s known, it’s the only parents she’s known. They meet her needs and the Court finds that the termination of her parental rights serves the emotional, mental, and physical needs of [the child]. With primary consideration given to the physical, mental, and emotional conditions, the Court finds the department has evaluated and ruled out a reasonable number of identified alternative placements. The Court has considered and eliminated all reasonable less drastic alternatives to the termination and the Court finds there are no less drastic alternatives that are in the best interest of this child based on her age, based on what has specifically occurred in this case.
¶ 42 These findings and conclusions are grounded in the evidence,
and they support the trial court’s conclusion that there was no less
drastic alternative to termination of mother’s parental rights.
¶ 43 Thus, because I conclude that the Department used
reasonable efforts and there was no less drastic alternative to
termination of mother’s parent rights, I concur with the majority’s
conclusion that the termination order must be affirmed.