Peo in Interest of EJW

• Court: Colorado Court of Appeals
• Decided: January 30, 2025
• Docket: 24CA0306
• Status: Unpublished

Opinion

24CA0306 Peo in Interest of EJW 01-30-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0306 Arapahoe County District Court No. 20JV547 Honorable Don J. Toussaint, Judge

The People of the State of Colorado,

Appellee,

In the Interest of E.J.W., J.M.R., and G.D.W., Children,

and Concerning N.J.R.,

Appellant.

JUDGMENT AFFIRMED

Division I Opinion by JUDGE J. JONES Brown and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 30, 2025

Ron Carl, County Attorney, Jordan Lewis, Assistant County Attorney, Aurora, Colorado, for Appellee

Sheena Knight, Guardian Ad Litem

Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant ¶1 In this dependency and neglect proceeding, N.J.R. (father)

appeals the juvenile court’s judgment terminating his parent-child

legal relationships with E.J.W., J.M.R., and G.D.W. (the children).

We affirm.

I. Background

¶2 In 2020, the Arapahoe County Department of Human Services

received a report of concern alleging that father had committed an

act of domestic violence against mother. At the time of the alleged

incident, father was under the influence and the children were

present. Based on these concerns, the Department initiated a

petition in dependency and neglect. The juvenile court adjudicated

the children dependent and neglected and adopted a treatment plan

for father.

¶3 Two years after the petition was filed, the Department moved

to terminate father’s parental rights. The court held a four-day

evidentiary hearing. At the conclusion of the hearing, the court

granted the motion.

II. Fit Within a Reasonable Time

¶4 Father asserts that the juvenile court erred by finding that he

couldn’t become a fit parent within a reasonable time because, in

1 his view, he made significant progress in his treatment plan

objectives. We aren’t convinced.

A. Standard of Review and Applicable Law

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

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

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 within a

reasonable time. § 19-3-604(1)(c), C.R.S. 2024; People in Interest of

E.S., 2021 COA 79, ¶ 10.

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

“unable or unwilling to give the child reasonable parental care to

include, at a minimum, nurturing and safe parenting sufficiently

adequate to meet the child’s physical, emotional, and mental health

needs and conditions.” § 19-3-604(2). In determining whether a

parent’s conduct or condition is likely to change within a reasonable

time, “the court may consider whether any change has occurred

during the proceeding, the parent’s social history, and the chronic

2 or long-term nature of the parent’s conduct or condition.” People in

Interest of S.Z.S., 2022 COA 133, ¶ 24.

¶7 What constitutes a reasonable time is fact specific and must

be determined by considering the physical, mental, and emotional

conditions and needs of each child. Id. at ¶ 25. A “reasonable

time” isn’t an indefinite time. Id. And even when a parent has

made recent progress on a treatment plan, the court isn’t required

to give the parent more time to comply. See id. at ¶¶ 24-25. When,

as in this case, a child is under six years old at the time the petition

is filed, the action is subject to the expedited permanency planning

(EPP) provisions, and the court must consider the child’s need to be

placed in a permanent home as expeditiously as possible. §§ 19-1-

102(1.6), 19-1-123, C.R.S. 2024.

¶8 Whether a juvenile court properly terminated parental rights

presents a mixed question of fact and law because it involves the

application of the termination statute to evidentiary facts. People in

Interest of A.M. v. T.M., 2021 CO 14, ¶ 15. “We review the juvenile

court’s findings of evidentiary fact — the raw, historical data

underling the controversy — for clear error and accept them if they

have record support.” People in Interest of S.R.N.J-S., 2020 COA 12,

3 ¶ 10. We review de novo the juvenile court’s legal conclusions. See

id.; People in Interest of A.S.L., 2022 COA 146, ¶ 8.

¶9 It is for the juvenile court, as the trier of fact, to determine the

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

assess witness credibility. People in Interest of A.J.L., 243 P.3d 244,

249-50 (Colo. 2010).

B. Analysis

¶ 10 The juvenile court determined that father was unfit, that he

hadn’t substantially completed his treatment plan objectives, and

that he was unlikely to become fit within a reasonable period of

time. The court also found that “[t]here [was] no legitimate reason

to delay permanency again” and that the children needed the

permanency and stability only termination could provide. The court

noted that this was an EPP case that had “languished for

approximately thirty-two months.”

¶ 11 The record supports father’s assertion that he complied with

portions of his treatment plan, which included objectives requiring

him to maintain caseworker contact; comply with pretrial services;

address issues of domestic violence, mental health, and substance

use; obtain stable housing and employment; complete parenting

4 education; demonstrate protective parenting; and live a legal

lifestyle. The caseworker testified that father received no new

criminal charges, completed some substance use treatment, and

was largely compliant with pretrial services. Father also completed

a parenting class and participated in substance use, psychological,

and domestic violence evaluations.

¶ 12 But, contrary to father’s assertions, the record largely shows

that father failed to substantially comply with nearly every aspect of

his treatment plan. The caseworker testified that father’s

communication with the Department was sporadic and

inappropriate, and that father routinely fixated on mother’s issues

instead of his own. Father frequently missed pretrial urinalysis

tests or tested positive for substances. While father reported that

he had obtained stable housing and employment, he failed or

refused to provide verification to the Department. He was never

able to articulate what he learned from his parenting education

class or how domestic violence could negatively impact his children.

He was unsuccessfully discharged from a men’s therapy group after

he made repeated inappropriate statements about women that

made others in the group uncomfortable. And while father had no

5 new criminal charges, the Department sought a protection order

against him, which he soon violated by threatening to kill a

parenting time coach.

¶ 13 True, as father asserts, the children were reportedly happy to

see him when family time occurred. However, the record also

shows father would fixate on mother during family time sessions

and would become unable to control his emotions when receiving

feedback. At one point, father declined to participate in family time

with his children until he received a new parenting time coach. And

family time was later suspended by court order after father

threatened a second parenting time coach. While the court gave

father a path to resume visits, father never completed the necessary

work to reinstate family time.

¶ 14 There was no evidence that father ever engaged in the

domestic violence evaluation recommendations or treatment during

the two years the case had been open, which was the primary

reason the Department became involved with the family. The

caseworker testified that she continued to have domestic violence

concerns because father hadn’t indicated he was willing to make

6 any changes at all and continued to minimize the issue of domestic

violence.

¶ 15 Above all, the caseworker testified that, given the children’s

needs, she didn’t believe it was appropriate for them to have to wait

any longer because the case had been open well beyond the EPP

guidelines and the children were “in desperate need of

permanency.”

¶ 16 Given this record, we can’t conclude that the juvenile court

erred by finding father couldn’t become fit within a reasonable time.

III. Continuance

¶ 17 Father next contends that the juvenile court erred by denying

his request to continue the termination hearing. We disagree.

A. Applicable Law

¶ 18 The Colorado 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). Thus, when ruling on a

motion to continue, the juvenile court should “balance the need for

orderly and expeditious administration of justice against the facts

underlying the motion and the child’s need for permanency.”

7 People in Interest of R.J.B., 2021 COA 4, ¶ 11; see also C.S. v. People

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

¶ 19 When, as in this case, the EPP provisions apply, the court

must not grant a delay unless good cause is shown and the court

finds that the child’s best interests will be served by granting a

continuance. §§ 19-3-104, 19-3-508(3)(a), 19-3-602(1), C.R.S.

2024.

¶ 20 We review a juvenile court’s denial of a motion to continue for

an abuse of discretion. R.J.B., ¶ 13. A court abuses its discretion

when its ruling is manifestly arbitrary, unfair, or unreasonable.

People in Interest of C.Y., 2018 COA 50, ¶ 13.

¶ 21 Contrary to father’s argument, the juvenile court granted a

continuance specifically to allow father time to prepare his case in

chief. At the end of the first day of the termination hearing, the

court set a second day forty-three days out, explaining to father

what he needed to do to ensure that his witnesses would testify. At

the start of that second day, father asked for a continuance to allow

for his witnesses to appear. The court allowed the Department to

present the remainder of its case and granted father a continuance

8 to secure his witnesses. About two months later, on the third day

of the hearing, father asked for a second continuance because one

of his witnesses wasn’t present.

¶ 22 In evaluating this request, the court found that the

termination hearing had already been continued once and that the

case had been open well beyond the EPP guidelines. See §§ 19-1-

102(1.6), 19-1-123.

¶ 23 On appeal, father asserts that denying his request for a second

continuance was not in the children’s best interests, but he offers

no argument or evidence supporting his claim.

¶ 24 We conclude that the court didn’t abuse its discretion because

it properly weighed the need for orderly and expeditious

administration of justice against the facts underlying father’s

request and the children’s need for permanency. See R.J.B., ¶ 11.

IV. Appointment of Counsel

¶ 25 Father last argues that the juvenile court violated his right to

due process by refusing to appoint counsel for him at the

termination hearing and requiring him to appear pro se. We aren’t

persuaded.

9 A. Applicable Law

¶ 26 The Children’s Code provides that parents have a right “to be

represented by counsel at every stage” of a dependency and neglect

proceeding. § 19-3-202(1), C.R.S. 2024. But a parent’s right to

counsel in a termination proceeding is a statutory right, not a

constitutional one. People in Interest of B.H., 2021 CO 39, ¶ 57.

¶ 27 Due process requires the appointment of counsel only where

“the parent’s interests are at [their] strongest, where the state’s

interests are at their weakest, and the risks of error are at their

peak.” C.S., 83 P.3d at 637. Thus, a due process claim fails if “the

risk of an erroneous result at [the] termination hearing was low.”

B.H., ¶ 55. That may be the case when, for example, the parent has

requested his attorney’s withdrawal, and the weight of the evidence

and history of the case make it unlikely that appointment of a new

attorney would “turn the tide” in the parent’s favor. Id. at ¶ 58

(citation omitted). We review procedural due process claims de

novo. Id. at ¶ 49.

¶ 28 We agree with the Department’s and the guardian ad litem’s

assertion that because father has not demonstrated how the court’s

10 refusal to appoint counsel at the termination hearing created actual

prejudice, his due process claim must fail.

¶ 29 Father was appointed counsel at the onset of the case.

Father’s first attorney later went on leave, and co-counsel took over

father’s case. When the first attorney returned from leave, both

attorneys remained on the case. They both later moved to withdraw

and, following a hearing, the court granted the motion over father’s

objection and appointed new counsel for father.

¶ 30 Later on, father’s third appointed attorney moved to withdraw.

Father was notified of the motion to withdraw, informed of his right

to object within fourteen days, and given notice of the upcoming

hearings. The court waited an additional four days past the

required fourteen days and, receiving no objection from father,

granted the motion to withdraw. Father then chose not to appear at

the pre-trial conference, despite receiving notice and confirming his

receipt of such notice via email.

¶ 31 At the termination hearing, father requested that counsel be

appointed for him again. The court denied that request, finding

that father had waived his right to an attorney.

11 ¶ 32 The record establishes that the risk of an erroneous result at

the termination hearing was low. Id. at ¶ 55; see also People in

Interest of E.B., 2022 CO 55, ¶ 17 (a parent can’t prevail on a due

process claim absent a showing of harm or prejudice).

¶ 33 As described above, the evidence showed that (1) father had

not substantially engaged in his treatment plan and had not

demonstrated any behavior change; (2) the children needed

permanency; and (3) there continued to be concerns about domestic

violence and father’s ability to be a protective, safe parent.

¶ 34 These facts demonstrate that the appointment of a new

attorney could have done little to “turn the tide” of the hearing in

father’s favor. B.H., ¶ 59. Thus, “[g]iven the low risk of a wrong

result, father has not demonstrated a due process violation because

the absence of counsel did not render the proceeding fundamentally

unfair.” Id. at ¶ 64.

V. Disposition

¶ 35 The judgment is affirmed.

JUDGE BROWN and JUDGE YUN concur.