Peo in Interest of EMG

Opinion

24CA0816 Peo in Interest of EMG 01-09-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0816 Delta County District Court No. 20JV35 Honorable Kimberly Karn, Judge

The People of the State of Colorado,

Appellee,

In the Interest of E.M.G. and E.Y.G., Children,

and Concerning C.N.G.,

Appellant.

JUDGMENT AFFIRMED

Division IV Opinion by JUDGE KUHN Harris and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 9, 2025

John F. Baier, County Attorney, Jodie L. Behrmann, Assistant County Attorney, Jason Wilson, Assistant County Attorney, Adriana Hartley, Assistant County Attorney, Delta, Colorado, for Appellee

Josie L. Burt, Counsel for Youth, Glenwood Springs, Colorado, for E.M.G.

Jenna L. Mazzucca, Counsel for Youth, Salida, Colorado, for E.Y.G.

Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant ¶1 In this dependency and neglect proceeding, the juvenile court

terminated C.N.G.’s (mother) parent-child legal relationships with

E.M.G. and E.Y.G. (the children). Mother appeals the juvenile

court’s termination judgment as to E.Y.G. only. Her sole contention

on appeal is that the court erred by finding that no less drastic

alternative to termination existed. We affirm.

I. Background

¶2 In December 2020, the Delta County Department of Human

Services became involved with the family due to concerns about

mother’s substance abuse and reports that unsafe persons were in

the family home while the children were present. Additional

concerns arose regarding mother’s criminal activity, her failure to

follow a safety plan, and reports she may abscond with the

children. Based upon these concerns, the Department initiated a

petition in dependency and neglect.

¶3 Mother admitted to the allegations in the petition and the

juvenile court adjudicated the children dependent and neglected.

The court then adopted a treatment plan for mother.

1 ¶4 Mother was initially compliant with the treatment plan. The

children were eventually returned to her care, and the Department

moved to dismiss the case.

¶5 However, a few months after the motion to dismiss was filed,

mother was involved in a domestic violence incident during which

the children were present. E.Y.G. was accidentally injured during

this incident because of mother’s actions. Because of this, the

Department withdrew its motion, the children were removed from

mother’s care, and mother’s treatment plan was amended to

include requirements that she seek anger management, therapy,

and domestic violence counseling.

¶6 In October 2023, the Department moved to terminate parental

rights. The juvenile court held an evidentiary hearing in March

2024. The court issued its findings of fact and conclusions of law

the next month, granting the Department’s motion and terminating

parental rights.1

1 The children’s father did not appeal the termination judgment.

2 II. Analysis

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

there were no less drastic alternatives to termination of her parental

rights. We disagree.

A. Standard of Review and Applicable Law

¶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. A determination of the

proper legal standard to be applied in a case 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.

¶9 However, we review the court’s factual findings for clear error

and will not disturb them if they are supported by the record. Id. at

¶ 32; see also A.M., ¶ 15. “The credibility of the witnesses; the

sufficiency, probative value, and weight of the evidence; and the

inferences and conclusions to be drawn from the evidence are

within the discretion of the [juvenile] court.” A.M., ¶ 15.

3 ¶ 10 The juvenile court may terminate parental rights if it finds, by

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

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 or condition is unlikely to change in a reasonable time.

§ 19-3-604(1)(c), C.R.S. 2024.

¶ 11 The juvenile court must consider and eliminate less drastic

alternatives before terminating parental rights. People in Interest of

M.M., 726 P.2d 1108, 1122-23 (Colo. 1986). When making this

determination, the court must give primary consideration to the

child’s physical, mental, and emotional conditions and needs. See

§ 19-3-604(3); People in Interest of K.B., 2016 COA 21, ¶ 35.

¶ 12 For a less drastic alternative to be viable, it must do more than

“adequately” meet a child’s needs. A.M., ¶ 27. Rather, the

proposed alternative must be the “best” option for the child. Id.

Therefore, if the court considers a less drastic alternative but finds

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

proposed alternative and order termination. Id. at ¶ 32. Permanent

placement is not a viable less drastic alternative if the child needs a

4 stable, permanent home that can only be assured by adoption.

People in Interest of S.N-V., 300 P.3d 911, 920 (Colo. App. 2011).

¶ 13 When the juvenile court considers a less drastic alternative

and still determines that the termination of parental rights is in the

child’s best interests, we must affirm that decision if the court’s

findings are supported by the record. People in Interest of B.H.,

2021 CO 39, ¶ 80.

B. The Juvenile Court Didn’t Err by Finding No Less Drastic Alternatives to Termination of Mother’s Parental Rights as to E.Y.G.

¶ 14 Mother asserts that the juvenile court erred when it found that

there were no less drastic alternatives to termination because the

court could have allowed mother additional time to work on her

treatment plan, which would have allowed her to reunite with

E.Y.G.2

¶ 15 However, the court did consider allowing more time for mother

to comply with her treatment plan. It found that this was “not an

2 E.M.G. filed a brief in this case “[i]n an abundance of caution that

the arguments raised on appeal could jeopardize the underlying termination to E.M.G.” We conclude that mother only challenges the termination judgment as to E.Y.G. Accordingly, we do not further address E.M.G.’s arguments.

5 option,” given mother’s lack of treatment plan compliance, the

length of time the case had been open, and the lack of a secure

attachment relationship between mother and the children. The

court further found that “[m]other [was] literally not doing anything

to comply with her treatment plan” and that she was unfit. The

record supports the court’s findings.

¶ 16 The record shows that, as noted, mother originally complied

with portions of her treatment plan. But after the Department

moved to withdraw its motion to dismiss the case in April 2022,

mother ceased engaging in services. By the time of the termination

hearing, mother had not engaged in any services in the fifteen

months prior to the termination hearing, had not demonstrated

progress in abstaining from substance use, and had inconsistent

visits with the children.

¶ 17 Specifically, mother failed to comply with numerous aspects of

her treatment plan. She did not participate in moral recognition

therapy, dialectical behavior therapy, or domestic violence and

substance abuse treatment. And she did not complete urinalysis

tests (UAs) as often as her treatment plan required. When she did

provide UAs or hair follicle tests, they were frequently positive for

6 methamphetamines. She further admitted that she had used

methamphetamine as recently as two weeks prior to the termination

hearing.

¶ 18 Moreover, the record shows that out of thirty-nine possible

family time visits with the children, mother missed twenty-two.

Indeed, at the time of the termination hearing, she had not seen the

children in at least four months.

¶ 19 Mother argues that termination was nonetheless not in

E.Y.G.’s best interests because E.Y.G. was not in a permanent

placement. While a child’s placement is relevant to the termination

decision, it is not dispositive.

¶ 20 Rather, the termination statute requires a court to give

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

conditions and needs. See § 19-3-604(3); K.B., ¶ 35. Evidence that

a child is in a permanent placement is relevant to those needs and

may be considered at a termination hearing. But permanency is

not an absolute requirement that must be satisfied before a court

can terminate parental rights. See § 19-3-604. Rather, placement

is an issue that the court must consider “[f]ollowing an order of

termination.” § 19-3-605(1), C.R.S. 2024.

7 ¶ 21 And while it’s true that the court must consider the child’s

best interests in determining whether less drastic alternatives exist,

the record shows that the juvenile court did so here. See A.M.,

¶ 27, B.H., ¶ 80.

¶ 22 The court explicitly found termination to be in the children’s

best interests. In doing so, the court found that an allocation of

parental responsibilities (APR) wasn’t in the best interests of the

children because it wouldn’t “provide the children with permanency

and the stability they need”; there was no secure attachment

between mother and the children; E.Y.G.’s behaviors had increased

due to her “limbo” status; and E.Y.G. was “willing to sacrifice

herself to help [m]other.” These findings are supported by the

record.

¶ 23 The caseworker — who was qualified as an expert in child

welfare and child protection — testified that the children “needed

more of a permanency” than what an APR could offer. The

caseworker also testified that the strained relationship between

mother and the children was a barrier to permanency. She opined

that the children had an “unsecure attachment” with mother

because they were afraid to talk to mother due to fear of retaliation

8 or anger. And as the caseworker stated, the children did not feel

like they could be safe with mother in the family home.

¶ 24 To illustrate this last point, the caseworker recounted a report

of E.Y.G.’s encounter with a man who made inappropriate sexual

advances towards her and mother reportedly dismissing the

behavior as a joke. The incident had such an impact on E.Y.G.

that, after a later chance encounter with the man, she needed to be

placed in a qualified residential treatment program due to mental

health concerns.

¶ 25 True, E.Y.G. testified at the termination hearing that she was

not willing to be adopted and did not want mother’s parental rights

to be terminated. But E.Y.G. also gave testimony suggesting that

such an outcome wouldn’t be in her best interests. For example,

she testified that she wanted to protect her mother and did not care

if her mother was sober or if her mother could protect her. And she

further acknowledged that living with her mother would not help

her but again expressed that she did not care about the potential

impact to herself.

9 ¶ 26 And notably, while E.Y.G. opposed adoption and termination

of mother’s parental rights in the juvenile court, she asks us to

affirm the termination on appeal.

¶ 27 Considering this record, then, we conclude that the juvenile

court did not err by finding that there were no less drastic

alternatives to termination of mother’s parental rights. See B.H.,

¶ 80.

III. Disposition

¶ 28 The judgment is affirmed.

JUDGE HARRIS and JUDGE YUN concur.