23CA2103 Peo in Interest of EMG 09-19-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA2103 Boulder County District Court Nos. 19JV290 & 20JV283 Honorable Dea M. Lindsey, Judge
The People of the State of Colorado,
Appellee,
In the Interest of Es.M.G., Ez.M.G., V.E.M. and Vi.M, Children,
and Concerning C.M.H.,
Appellant,
and V.M.,
Appellee.
JUDGMENT AFFIRMED
Division VII Opinion by JUDGE SCHUTZ Tow and Pawar, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced September 19, 2024
Benjamin Pearlman, County Attorney, Cheryl Koh-Sicotte, Assistant County Attorney, Boulder, Colorado, for Appellee The People of the State of Colorado
Josi McCauley, Guardian Ad Litem for Es.M.G., Ez.M.G., and V.E.M.
Alison A. Bettenberg, Guardian Ad Litem for Vi.M.
Andrew A. Gargano, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant C.M.H. Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellee V.M. ¶1 C.H. (mother) appeals the judgment allocating parental
responsibilities for (1) Es.M.G. and Ez.M.G. to C.F. (maternal great-
aunt) and (2) V.E.M. and Vi.M. to L.P. (paternal grandmother). We
affirm.
I. Background
¶2 In December 2019, the Boulder County Department of
Housing and Human Services filed a petition in dependency and
neglect based on allegations of domestic violence between mother
and father V.M. Es.M.G. and Ez.M.G., were placed with their
father, J.M.G., while V.E.M. remained in mother’s care. After
J.M.G. was deported to Mexico, the children returned to mother’s
care. The juvenile court adjudicated the children dependent and
neglected and adopted treatment plans for the parents.
¶3 In July 2020, mother gave birth to Vi.M. A few months later,
mother and V.M. were involved in another domestic violence
incident, so the Department filed a new petition in dependency and
neglect naming Vi.M. and it removed all four children from the
home. The Department eventually placed J.M.G.’s children,
Es.M.G. and Ez.M.G. (the older children), with maternal great-aunt
and V.M.’s children, V.E.M. and Vi.M. (the younger children), with
1 their paternal grandmother. The juvenile court adjudicated Vi.M.
dependent and neglected and adopted treatment plans for father
V.M. and mother.
¶4 Mother’s initial treatment plan required her to
(1) communicate and cooperate with the Department and
professionals; (2) address her mental health needs; (3) provide for
the children’s needs in a safe and stable environment; and
(4) engage in appropriate family time with the children. Specifically,
mother’s treatment plan required, among other things, that she
work with a therapist to address her trauma and verbally aggressive
behavior, as well as participate in weekly sessions with a
Community Infant Program (CIP) therapist to better understand the
children’s needs. When the juvenile court adopted a treatment plan
in the second case, it also amended mother’s initial treatment plan
to require her to maintain a substance-free lifestyle.
¶5 In February 2023, the Department moved to terminate the
parents’ parental rights. However, approximately three weeks
before the scheduled termination hearing, the Department asked
the juvenile court to convert the termination hearing to an
allocation of parental responsibilities (APR) hearing. The court
2 agreed to do so and held a four-day APR hearing in August 2023.
After hearing the evidence, the court entered an APR that, as
relevant here, gave (1) maternal great-aunt primary residential
custody and sole decision-making authority for the older children;
(2) paternal grandmother primary residential custody and sole
decision-making authority for the younger children; and (3) no
parenting time to mother until she “establishes proof of her
participating consistently in trauma-based treatment for her mental
health and substance abuse treatment for her sobriety.” The court
certified the APR order into the parents’ previous domestic relations
cases and closed the dependency and neglect cases.
II. Indian Child Welfare Act
¶6 Mother first asserts that the juvenile court did not comply with
the provisions of the Indian Child Welfare Act (ICWA) of 1978, 25
U.S.C. §§ 1901-1963, and Colorado’s ICWA statute, § 19-1-126,
C.R.S. 2024. Specifically, mother asserts that the court erred by
failing to make proper inquiries and concluding that it did not have
reason to know that the child was an Indian child. We disagree.
¶7 ICWA’s inquiry provisions apply to dependency and neglect
proceedings, including those resolved through an allocation of
3 parental responsibilities. People in Interest of K.G., 2017 COA 153,
¶ 5, overruled on other grounds by People in Interest of E.A.M. v.
D.R.M., 2022 CO 42. We review de novo whether the juvenile court
complied with ICWA. People in Interest of T.M.W., 208 P.3d 272,
274 (Colo. App. 2009).
¶8 First, we disagree with mother’s assertion that the juvenile
court failed to properly inquire whether the children were Indian
children. In dependency and neglect proceedings, a court must
inquire of the parties at the commencement of the proceeding
whether they know or have reason to know that a child is an Indian
child. § 19-1-126(1)(a)(I)(A); C.R. ICWA P. 3(a). Mother submits
that this language requires the court to make an ICWA inquiry at
every hearing. But ICWA does not require this. See C.R. ICWA P.
3(c) (“A court may conduct multiple hearings within a child custody
proceeding. This rule does not require an inquiry at each such
hearing.”). Rather, the inquiry should occur at the first child
custody hearing in the case, such as an initial temporary custody
hearing, and any subsequent new child custody proceeding, such
as a proceeding to terminate parental rights. Id.; see also 25 U.S.C.
§ 1903(1)(i) (A “child custody proceeding” includes, as relevant here,
4 ‘“foster care placement’” which shall mean any action removing an
Indian child from its parent or Indian custodian for temporary
placement in a foster home or institution or the home of a guardian
or conservator where the parent or Indian custodian cannot have
the child returned upon demand, but where parental rights have
not been terminated.”); K.G., ¶ 5.
¶9 In addition, if the court has information suggesting that the
child may have Indian heritage but lacks sufficient information to
have reason to know the child is an Indian Child, the juvenile court
must direct the department to exercise due diligence to allow the
court to obtain sufficient information to determine whether the
child meets the definition of an Indian Child. § 19-1-126(3); C.R.
ICWA P. 3(f); see also E.A.M., ¶ 6.
¶ 10 In the present case, the juvenile court made an ICWA inquiry
at the initial temporary custody hearing. Mother told the court that
she did not think that she had any Indian heritage. After the
Department filed the second case, the court again inquired into
whether mother had any Indian heritage. This time mother said
that she “would have to look into that.” The court provided mother
with an ICWA assessment form, which she later submitted and
5 indicated that she did not have any Indian heritage. Therefore, the
record shows that the court made proper ICWA inquiries in this
case. See § 19-1-126(1)(a)(I)(A); C.R. ICWA P. 3(a), (c); People in
Interest of C.A., 2017 COA 135, ¶ 15.
¶ 11 Second, the record does not establish that the juvenile court
had reason to know that the children were Indian children. See
§ 19-1-126(1)(a)(I)-(II) (describing factors supporting a reason to
know); 25 C.F.R. § 23.107(c) (2023). A mere assertion of Indian
heritage, without more, is insufficient to give the court reason to
know that a child is an Indian child. E.A.M., ¶ 56. As noted,
mother initially denied any Indian heritage, and the court found
that it did not have reason to know that the child was an Indian
child.
¶ 12 However, about a month before the APR hearing, mother
submitted a new ICWA assessment form, in which she identified
possible Shoshone heritage. In response to that disclosure, and in
accordance with its obligations under section 19-1-126(3), the
Department sent ICWA notices to all the Shoshone tribes. Most of
those tribes indicated that the children were not members or
eligible for membership. The other tribes did not respond, even
6 though they had received notice and had an adequate time to
respond prior to the termination hearing. See 25 U.S.C. § 1912(a);
People in Interest of J.O., 170 P.3d 840, 842 (Colo. App. 2007)
(noting that a hearing should not be held unless a tribe receives
notice at least ten days before the hearing). Mother did not assert
in the juvenile court, nor does she contend on appeal, that the
Department failed to exercise due diligence under section 19-1-
126(3) by sending notice to each of the Shoshone tribes.
¶ 13 Finally, we reject mother’s contention that the Department
failed to provide an appropriate notice to the Shoshone-Paiute
Tribes of the Duck Valley Reservation. The record reveals that the
Department sent a timely notice to these Tribes, but that they did
not provide any response to the notice.
¶ 14 In sum, the record shows that the juvenile court made
adequate ICWA inquires, and based on the information it received,
the court did not have reason to know that the children were Indian
children. See § 19-1-126(1)(a)(I)(A); C.R. ICWA P. 3(a), (c); E.A.M.,
¶ 56. The record also shows that the Department sent timely
notices to the Shoshone affiliated tribes based on mother’s
assertion of possible heritage. And mother does not contend that
7 the Department failed to exercise due diligence under section 19-1-
126(3). See H.J.B. v. People in Interest of A-J.A.B., 2023 CO 48, ¶ 5.
We therefore conclude that the court complied with ICWA and that
ICWA does not apply in this case.
III. Continuance
¶ 15 Mother next contends that the juvenile court erred by denying
her motion to continue based on her counsel’s inability to
adequately prepare for the APR hearing. We disagree.
¶ 16 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), C.R.S. 2024. 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.” People in Interest of R.J.B., 2021 COA 4, ¶ 11.
¶ 17 In expedited permanency planning cases where, as here, a
child is under six years of age at the time the petition is filed a
juvenile court cannot grant a continuance unless the moving party
establishes (1) good cause for the continuance and (2) that the
continuance will serve the child’s best interests. § 19-3-104, C.R.S.
8 2024. If a court does grant a continuance under this section, then
it must reschedule the hearing within thirty days. Id.
¶ 18 We review the denial of a continuance motion for an abuse of
discretion. See C.S. v. People in Interest of I.S., 83 P.3d 627, 638
(Colo. 2004). We will not disturb the juvenile court’s decision
absent a showing that it was manifestly arbitrary, unreasonable, or
unfair. People in Interest of M.B., 2020 COA 13, ¶ 41.
¶ 19 Less than a week before the APR hearing, mother moved for a
continuance. In her motion, she asserted that the APR hearing
should be continued so that the parties could engage in mediation.
In response, the Department and the children’s guardians ad litem
(GALs) filed a motion to strike because mother’s request for a
continuance was untimely. Even though mother did not assert in
her continuance motion that her counsel needed additional time to
prepare, the Department and GALs noted that “preparation for a
[termination] hearing versus an APR hearing is essentially the same
given the facts of this case.”
¶ 20 Mother then responded to the motion to strike, disagreeing
with the suggestion that preparing for a termination hearing was
the same as preparing for an APR hearing. For example, mother
9 reported that she was “prepared with one particular expert who was
ready to testify as to why rights should not be terminated” but who
“had not analyzed what parenting time mother should receive.”
Mother also argued that she would “likely no longer be able to
utilize that expert if the continuance is not granted.”
¶ 21 The juvenile court addressed the continuance motion at a
pretrial conference three days before the start of the APR hearing.
Mother’s counsel did not provide any further detail for her request
to continue, stating that the court was “aware of [her] client’s
position in regards to a continuance.” The court denied the motion
to continue, stating, as relevant here, that, because an “APR is a
less drastic alternative to termination,” mother’s counsel “would
certainly be prepared to talk about and argue and get experts
involved, if they thought that that would be helpful to their
position.” The court then issued a written order, finding that
mother had failed to establish that her counsel could not be
prepared for an APR hearing and a continuance was not in the
children’s best interests.
¶ 22 We perceive no abuse of discretion in the juvenile court’s
ruling. See C.S., 83 P.3d at 638. The court properly weighed the
10 need for orderly and expeditious administration of justice against
the facts underlying the motion and the children’s need for
permanency. See R.J.B., ¶ 11. Mother’s counsel had provided only
vague reasons why she could not be prepared for the hearing.
Indeed, mother did not tell the court the name of the expert who
she would “no longer be able to utilize.” Nor did she specifically
request more time to retain a new expert witness for the APR
hearing. Rather, mother listed four potential expert witnesses on
her exhibit list, three of whom testified at the hearing. The fourth
witness was one of mother’s therapists, and mother does not
suggest that her therapist had any opinion about how much
parenting time mother should be afforded in an APR.
¶ 23 One of mother’s experts did opine that she should continue to
have weekly visits in the community under the APR. What’s more,
the first case had been open for over three years, mother had the
same attorney for the entire case, and mother’s attorney had over
six months to prepare for a termination hearing.
¶ 24 Notably, mother does not contest the juvenile court’s
application of section 19-3-104 to her request, and she does not
address either of the statutory factors on appeal. Rather, she
11 simply asserts that the court’s decision to deny the motion to
continue violated her due process rights. As described above,
mother had notice of the proceedings, an opportunity to present
evidence and cross-examine witnesses, and the assistance of legal
counsel. See M.B., ¶ 30 (describing what process is due in
dependency and neglect actions). And mother does not explain with
any specificity what other evidence she would have offered if a
continuance had been granted. See People in Interest of E.B., 2022
CO 55, ¶ 22 (noting that a parent must establish “actual prejudice
resulting from the juvenile court’s denial of [a] requested
continuance” to succeed on a due process claim).
IV. Reasonable Efforts
¶ 25 Mother also argues that the juvenile court erred by allocating
parental responsibilities because the Department did not make
reasonable efforts to reunify her with the child. A department must
make reasonable efforts in a dependency or neglect case before a
court may enter an APR to a nonparent. See People in Interest of
A.S.L., 2022 COA 146, ¶ 20. Mother argues for the first time on
appeal that the Department failed to make reasonable efforts to
12 reunify her with her children. We decline to address the merits of
mother’s reasonable efforts argument.
¶ 26 In civil cases, such as dependency or neglect proceedings,
appellate courts will “review only issues presented to and ruled on
by the lower court.” M.B., ¶ 14. To preserve an issue for appellate
review, a party must alert the juvenile court to the issue so that the
court has an adequate opportunity to make findings of fact and
conclusions of law. Forgette v. People, 2023 CO 4, ¶ 21; see also
Brown v. Am. Standard Ins. Co. of Wis., 2019 COA 11, ¶ 21 (“If a
party raises an argument to such a degree that the court has the
opportunity to rule on it, that argument is preserved for appeal.”).
But a party is not required to use talismanic language to preserve
an issue for appeal. People in Interest of S.Z.S., 2022 COA 133,
¶ 18.
¶ 27 In her written closing argument, mother did not assert that
the Department had failed to make reasonable efforts or ask the
juvenile court to deny the motion for an APR as a result. Instead,
mother agreed with an APR to the kinship providers, but argued for
some limited decision-making responsibilities and liberal parenting
time with the children. In other words, mother did not contest the
13 motion for an APR but rather disagreed with the Department’s and
fathers’ proposed terms for the APR. The relief that mother now
requests — reversing the APR and requiring the Department to
make further efforts to rehabilitate her and reunify her with the
child — is therefore contrary to the relief that she requested at the
APR hearing.
¶ 28 To the extent that mother now asserts that she preserved her
appellate contention by questioning the caseworker about the
services (or lack thereof) provided by the Department, we are not
persuaded. “[M]erely calling an issue or fact to the court’s
attention, without asking for any relief, is insufficient to preserve an
issue for review.” Forgette, ¶ 23.
¶ 29 Because mother never challenged the Department’s reasonable
efforts at the APR hearing, the juvenile court was not on notice that
it needed to address whether the Department made reasonable
efforts. See id. at ¶ 21. As a result, the court entered an APR
without making specific findings as to whether the Department had
made reasonable efforts. We are therefore unable to review the
court’s findings relative to the reasonableness of the department’s
efforts because the court did not make any. Rather, for us to review
14 mother’s appellate claim, we would need to make factual findings,
which we cannot do. See Harriman v. Cabela’s Inc., 2016 COA 43,
¶ 77; see also S.Z.S., ¶ 21.
¶ 30 In sum, we conclude that mother did not properly preserve her
argument that the Department failed to use reasonable efforts. See
People in Interest of E.C., 259 P.3d 1272, 1276 (Colo. App. 2010)
(concluding that the parent had “waived his right to raise” a
reasonable efforts argument on appeal because he “did not assert
that the Department’s efforts to rehabilitate and reunite the family
were deficient” or “bring the matter to the D&N court’s attention in
any other way”); see also People in Interest of A.L.B., 994 P.2d 476,
480 (Colo. App. 1999) (declining to address an appellate claim that
“was not argued to the trial court at the conclusion of the
evidentiary hearing”). We therefore decline to address the merits of
her argument.
V. Parenting Time
¶ 31 Mother also argues that the juvenile court erred by entering an
APR that did not award her any parenting time. We disagree.
¶ 32 When allocating parental responsibilities in a dependency and
neglect proceeding, the juvenile court must consider the legislative
15 purposes of the Children’s Code under section 19-1-102, People in
Interest of C.M., 116 P.3d 1278, 1281 (Colo. App. 2005), and
allocate parental responsibilities in accordance with the children’s
best interests, L.A.G. v. People in Interest of A.A.G., 912 P.2d 1385,
1391 (Colo. 1996).
¶ 33 An APR is within the juvenile court’s discretion and will not be
disturbed on review if competent evidence supports the judgment.
See People in Interest of A.M.K., 68 P.3d 563, 565 (Colo. App. 2003).
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 the credibility of witnesses. People in Interest of A.J.L., 243
P.3d 244, 249-50 (Colo. 2010); see also In re Parental
Responsibilities Concerning B.R.D., 2012 COA 63, ¶ 15 (when there
is record support for the court’s findings, its resolution of
conflicting evidence is binding on review). But whether the court
applied the correct legal standard in making its findings is a
question of law that we review de novo. People in Interest of N.G.G.,
2020 COA 6, ¶ 10.
¶ 34 In declining to allocate any parenting time to mother, the
juvenile court primarily relied on the expert opinion of a therapist,
16 who worked with mother at CIP. Based on the therapist’s opinions,
the court found that mother “demonstrated different parenting
styles dependent on her mood,” and because of this instability, the
children did not “trust” mother. For example, the therapist testified
that, although mother had the capacity to parent, she was often
“distracted” by her own issues and could not be “present” for the
children. The therapist said that mother’s “unpredictability
create[d] a lot of anxiety and stress” for the children, and as a
result, they could not trust her. Based on these observations, the
therapist recommended that mother not have contact with the
children because they would not be able “to grow and develop in the
ways that are optimal for them” until they have a break from the
“anxiety and stress” brought on by contact with mother.
¶ 35 The juvenile court also considered the caseworker’s testimony
agreeing with the therapist’s position. The caseworker testified that
mother should not have parenting time with the children, but if she
did, it should be “very, very limited until she could demonstrate
significant progress on her mental health,” sobriety, and
relationships with the kinship providers. The caseworker also
testified that mother had the “capacity, but not the willingness, to
17 apply what she’s learned in all of [her] therapies,” and therefore the
children needed a “pause” so mother could follow a “roadmap” to
reestablish parenting time. Finally, the caseworker said that
maintaining the current family time schedule — one supervised
visit per week — would not provide the necessary “change” the
children needed to assure permanency.
¶ 36 The juvenile court then weighed these opinions against the
opinion of mother’s visitation supervisor, who continued to
recommend parenting time. The visitation supervisor testified that
mother demonstrated fairly consistent attendance at visits, and the
visitation supervisor never had to end a visit because of a safety
issue. And she opined that mother should be allowed to have
weekly parenting time in the community under the APR.
¶ 37 Finally, the juvenile court considered mother’s relationship
with the kinship providers. The court found that mother had
“obliterated relationships between herself and the care providers,
putting her own needs first at every turn.” The court also found
that mother’s actions jeopardized the children’s placements. For
example, maternal great-aunt testified that, because of mother’s
actions, she could not keep the children in her home if the court
18 awarded mother parenting time. Similarly, paternal grandmother
testified that she would not be willing to keep the children in her
home if the court forced her to have contact with mother, and she
advocated against mother having parenting time.
¶ 38 Ultimately, after considering the therapist’s and caseworker’s
expert opinions — weighed against the visitation supervisor’s
opinion — and considering mother’s difficult relationship with the
kinship providers, the juvenile court concluded that “no visits at all
would be best for the children to free them from this conflict” and
provide them with the “permanence, routine, structure, and overall
well-being” that they needed. See A.J.L., 243 P.3d at 249-50; § 19-
1-102(1)(c)-(d). Because there is record support for the juvenile
court’s determination that withholding parenting time from mother
was in the children’s best interests, we may not disturb the court’s
judgment. See People in Interest of L.B., 254 P.3d 1203, 1208 (Colo.
App. 2011).
¶ 39 We also reject mother’s contention that the juvenile court
erred by failing to provide her with the benefit of the Troxel
presumption. See People in Interest of J.G., 2021 COA 47, ¶ 21
(“[I]n proceedings between a parent and nonparent, the parent is
19 entitled to a constitutional presumption that the parent acts in the
child’s best interests.” (citing Troxel v. Granville, 530 U.S. 57, 68
(2000))). In dependency and neglect cases, an order adjudicating a
child dependent or neglected deprives the unfit parent of a Troxel
presumption, People in Interest of N.G., 2012 COA 131, ¶ 33, but
the presumption may be restored when a parent complies with the
treatment plan during a case and demonstrates that they can safely
parent the children, see N.G.G., ¶ 2. If the parent is entitled to the
Troxel presumption, it “can be rebutted only by findings based on
clear and convincing evidence that the grant of parental
responsibilities to the non-parent is in the child’s best interests.” In
re Parental Responsibilities Concerning B.J., 242 P.3d 1128, 1134
(Colo. 2010).
¶ 40 In support of her position, mother directs our attention to
evidence showing that she complied with parts of her treatment
plan, including evidence that she had stable housing, attended
parenting time, participated in therapy, and complied with her
probation sentence. But other evidence established that mother
had not successfully complied with important components of her
treatment plan, including substance use and mental health.
20 Because the juvenile court found that mother had not complied
with her treatment plan and could not safely parent the children,
she was not entitled to the Troxel presumption, and we cannot
reweigh the evidence or substitute our judgment for that of the
juvenile court to reach a different conclusion. See People in Interest
of K.L.W., 2021 COA 56, ¶ 62.
¶ 41 Finally, we reject mother’s contention that the juvenile court
misapplied the best interest factors in section 14-10-124, C.R.S.
2024, of the Uniform Dissolution of Marriage Act (UMDA). In a
dependency and neglect case, the court may consider provisions of
the UMDA, including the best interest factors in section 14-10-124,
so long as the court’s focus remains on the child’s safety and
protection and not on the parent’s custodial interests. People in
Interest of H.K.W., 2017 COA 70, ¶ 13. Mother maintains that the
factors in section 14-10-124 “weigh heavily” in favor of allowing her
continued contact with the children. While we recognize that the
court mentioned the factors in its recitation of the law, it is unclear
to us whether it applied those factors, especially considering that it
did not mention any of them in the remainder of its ruling. We
21 therefore reject mother’s assertion because it would again require
us to engage in factfinding. See S.Z.S., ¶ 21.
VI. Disposition
¶ 42 The judgment is affirmed.
JUDGE TOW and JUDGE PAWAR concur.