24CA1472 Peo in Interest of EP 04-10-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1472 Weld County District Court No. 23JV67 Honorable W. Troy Hause, Judge
The People of the State of Colorado,
Petitioner,
In the Interest of E.P. and I.P., Children,
and Concerning F.P.,
Appellant.
JUDGMENT AFFIRMED
Division I Opinion by JUDGE BROWN J. Jones and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 10, 2025
No appearance for Petitioner
Jenna L. Mazzucca, Guardian Ad Litem
Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant ¶1 In this dependency and neglect proceeding, F.P. (father)
appeals the judgment allocating parental responsibilities for E.P.
and I.P. (the children) to M.H. (mother). We affirm.
I. Background
¶2 The Weld County Department of Human Services (Department)
filed a petition in dependency and neglect alleging an extensive
history of domestic violence and reported instances of child sexual
abuse by father. The juvenile court adjudicated the children
dependent and neglected and adopted treatment plans for the
parents.
¶3 Later, the court ordered the children, who had been placed
with kin, to be returned to mother’s care and custody. Six months
after the court adopted father’s treatment plan, father became
incarcerated. Mother then moved for an allocation of parental
responsibilities (APR).
¶4 After the APR hearing, the court designated mother the
primary custodial parent and ordered that she have sole
decision-making responsibility. The court did not grant father
parenting time for several reasons, including a criminal protection
order prohibiting him from having contact with the children.
1 II. Applicable Law and Standard of Review
¶5 When entering an APR in a dependency and neglect
proceeding, the court must consider the legislative purposes of the
Children’s Code under section 19-1-102, C.R.S. 2024. People in
Interest of J.G., 2021 COA 47, ¶ 18. The overriding purpose of the
Children’s Code is to protect a child’s welfare and safety by
providing procedures through which the child’s best interests can
be served. Id. at ¶ 19. Thus, the court must allocate parental
responsibilities in accordance with the child’s best interests. People
in Interest of L.B., 254 P.3d 1203, 1208 (Colo. App. 2011); see also
People in Interest of H.K.W., 2017 COA 70, ¶ 13 (while the court
may consider the factors listed in the Uniform Dissolution of
Marriage Act, section 14-10-124(1.5)(a), C.R.S. 2024, the focus
must be on the protection and safety of the child and not the
parents’ custodial interests).
¶6 An APR is within the sound discretion of the juvenile court
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
2 evidence, and to assess the credibility of witnesses. People in
Interest of A.J.L., 243 P.3d 244, 249-50 (Colo. 2010). But we review
de novo whether the court applied the correct legal standard in
allocating parental responsibilities. People in Interest of N.G.G.,
2020 COA 6, ¶ 10.
III. Discussion
A. Reasonable Efforts
¶7 Father principally argues that the juvenile court erred when it
did not grant him any parenting time because the Department did
not make reasonable efforts to reunite him with the children. We
reject this contention.
1. Preservation
¶8 The guardian ad litem argues that father failed to preserve this
issue for review because he did not first raise it to the juvenile
court. However, even assuming father’s argument was preserved,
we reject it.
2. Analysis
¶9 A department must make reasonable efforts to rehabilitate
parents and reunite families following the placement of abused or
neglected children out of the home. §§ 19-1-103(114), 19-3-100.5,
3 19-3-208(1), 19-3-604(2)(h), C.R.S. 2024. Reasonable efforts
“means the exercise of diligence and care . . . for children . . . who
are in[, or at imminent risk of being placed in,] foster care or
out-of-home placement.” § 19-1-103(114). But the children were
not in out-of-home placement when the court entered the APR
judgment; rather, mother had custody of the children. See
§ 19-1-103(107) (placement out of the home means placement in a
home or center operated or licensed by the Department of Human
Services).
¶ 10 In addition, the juvenile court allocated parental
responsibilities between parents, not to a nonparent. Cf. People in
Interest of A.S.L., 2022 COA 146, ¶ 20 (the court is required to
consider reasonable efforts when it enters an APR to a nonparent).
Accordingly, the court was not required to consider whether the
Department made reasonable efforts or make reasonable efforts
findings as part of the APR judgment. Cf. id.; § 19-3-604(2)(h)
(termination statute providing that, in deciding whether a parent is
unfit, the court “shall consider,” among other things, whether
“[r]easonable efforts by child-caring agencies . . . have been unable
to rehabilitate the parent or parents”). Instead, as outlined above,
4 the court had to allocate parental responsibilities in accordance
with the children’s best interests. L.B., 254 P.3d at 1208.
¶ 11 We are also not persuaded by father’s argument that the
Department’s efforts were deficient because it failed to comply with
sections 17-42-105(3)(b), 19-1-131, and 19-3-508(1)(e)(I), C.R.S.
2024. Father’s reliance on these authorities is misplaced.
¶ 12 Section 17-42-105(3) provides that the department of
corrections, not the Department here, shall ensure that children and
parents who are incarcerated “have access to opportunities that
facilitate continued relationships.” See § 17-1-102(2), C.R.S. 2024
(defining the “Department” for purposes of Title 17 as the
department of corrections). Section 19-1-131 provides that the
state department of human services, not the Department here, shall
“promulgate rules” to facilitate communication and family time
between children and their parents who are incarcerated. See
§ 19-1-103(53) (defining the “Department” for purposes of Title 19
as the state department of human services). And section
19-3-508(1)(e)(I) does not apply when a parent becomes
continuously incarcerated after the dispositional hearing, which
5 was the case here. Compare § 19-3-508(1)(e)(I) with
§ 19-3-508(1)(e)(III).
¶ 13 Even assuming father intended to cite section
19-3-508(1)(e)(III) (and assuming the court was required to consider
whether the Department made reasonable efforts as part of the APR
judgment, something we have already concluded the court was not
required to do) we would still disagree with father’s argument.
Subsection (1)(e)(III) provides that “[i]f, after the dispositional
hearing,” a parent becomes continuously incarcerated for more
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24CA1472 Peo in Interest of EP 04-10-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1472 Weld County District Court No. 23JV67 Honorable W. Troy Hause, Judge
The People of the State of Colorado,
Petitioner,
In the Interest of E.P. and I.P., Children,
and Concerning F.P.,
Appellant.
JUDGMENT AFFIRMED
Division I Opinion by JUDGE BROWN J. Jones and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 10, 2025
No appearance for Petitioner
Jenna L. Mazzucca, Guardian Ad Litem
Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant ¶1 In this dependency and neglect proceeding, F.P. (father)
appeals the judgment allocating parental responsibilities for E.P.
and I.P. (the children) to M.H. (mother). We affirm.
I. Background
¶2 The Weld County Department of Human Services (Department)
filed a petition in dependency and neglect alleging an extensive
history of domestic violence and reported instances of child sexual
abuse by father. The juvenile court adjudicated the children
dependent and neglected and adopted treatment plans for the
parents.
¶3 Later, the court ordered the children, who had been placed
with kin, to be returned to mother’s care and custody. Six months
after the court adopted father’s treatment plan, father became
incarcerated. Mother then moved for an allocation of parental
responsibilities (APR).
¶4 After the APR hearing, the court designated mother the
primary custodial parent and ordered that she have sole
decision-making responsibility. The court did not grant father
parenting time for several reasons, including a criminal protection
order prohibiting him from having contact with the children.
1 II. Applicable Law and Standard of Review
¶5 When entering an APR in a dependency and neglect
proceeding, the court must consider the legislative purposes of the
Children’s Code under section 19-1-102, C.R.S. 2024. People in
Interest of J.G., 2021 COA 47, ¶ 18. The overriding purpose of the
Children’s Code is to protect a child’s welfare and safety by
providing procedures through which the child’s best interests can
be served. Id. at ¶ 19. Thus, the court must allocate parental
responsibilities in accordance with the child’s best interests. People
in Interest of L.B., 254 P.3d 1203, 1208 (Colo. App. 2011); see also
People in Interest of H.K.W., 2017 COA 70, ¶ 13 (while the court
may consider the factors listed in the Uniform Dissolution of
Marriage Act, section 14-10-124(1.5)(a), C.R.S. 2024, the focus
must be on the protection and safety of the child and not the
parents’ custodial interests).
¶6 An APR is within the sound discretion of the juvenile court
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
2 evidence, and to assess the credibility of witnesses. People in
Interest of A.J.L., 243 P.3d 244, 249-50 (Colo. 2010). But we review
de novo whether the court applied the correct legal standard in
allocating parental responsibilities. People in Interest of N.G.G.,
2020 COA 6, ¶ 10.
III. Discussion
A. Reasonable Efforts
¶7 Father principally argues that the juvenile court erred when it
did not grant him any parenting time because the Department did
not make reasonable efforts to reunite him with the children. We
reject this contention.
1. Preservation
¶8 The guardian ad litem argues that father failed to preserve this
issue for review because he did not first raise it to the juvenile
court. However, even assuming father’s argument was preserved,
we reject it.
2. Analysis
¶9 A department must make reasonable efforts to rehabilitate
parents and reunite families following the placement of abused or
neglected children out of the home. §§ 19-1-103(114), 19-3-100.5,
3 19-3-208(1), 19-3-604(2)(h), C.R.S. 2024. Reasonable efforts
“means the exercise of diligence and care . . . for children . . . who
are in[, or at imminent risk of being placed in,] foster care or
out-of-home placement.” § 19-1-103(114). But the children were
not in out-of-home placement when the court entered the APR
judgment; rather, mother had custody of the children. See
§ 19-1-103(107) (placement out of the home means placement in a
home or center operated or licensed by the Department of Human
Services).
¶ 10 In addition, the juvenile court allocated parental
responsibilities between parents, not to a nonparent. Cf. People in
Interest of A.S.L., 2022 COA 146, ¶ 20 (the court is required to
consider reasonable efforts when it enters an APR to a nonparent).
Accordingly, the court was not required to consider whether the
Department made reasonable efforts or make reasonable efforts
findings as part of the APR judgment. Cf. id.; § 19-3-604(2)(h)
(termination statute providing that, in deciding whether a parent is
unfit, the court “shall consider,” among other things, whether
“[r]easonable efforts by child-caring agencies . . . have been unable
to rehabilitate the parent or parents”). Instead, as outlined above,
4 the court had to allocate parental responsibilities in accordance
with the children’s best interests. L.B., 254 P.3d at 1208.
¶ 11 We are also not persuaded by father’s argument that the
Department’s efforts were deficient because it failed to comply with
sections 17-42-105(3)(b), 19-1-131, and 19-3-508(1)(e)(I), C.R.S.
2024. Father’s reliance on these authorities is misplaced.
¶ 12 Section 17-42-105(3) provides that the department of
corrections, not the Department here, shall ensure that children and
parents who are incarcerated “have access to opportunities that
facilitate continued relationships.” See § 17-1-102(2), C.R.S. 2024
(defining the “Department” for purposes of Title 17 as the
department of corrections). Section 19-1-131 provides that the
state department of human services, not the Department here, shall
“promulgate rules” to facilitate communication and family time
between children and their parents who are incarcerated. See
§ 19-1-103(53) (defining the “Department” for purposes of Title 19
as the state department of human services). And section
19-3-508(1)(e)(I) does not apply when a parent becomes
continuously incarcerated after the dispositional hearing, which
5 was the case here. Compare § 19-3-508(1)(e)(I) with
§ 19-3-508(1)(e)(III).
¶ 13 Even assuming father intended to cite section
19-3-508(1)(e)(III) (and assuming the court was required to consider
whether the Department made reasonable efforts as part of the APR
judgment, something we have already concluded the court was not
required to do) we would still disagree with father’s argument.
Subsection (1)(e)(III) provides that “[i]f, after the dispositional
hearing,” a parent becomes continuously incarcerated for more
than thirty-five days, then the caseworker, upon knowledge of the
incarceration “shall provide information that details the services
and treatment available to a parent at the facility or jail . . . or the
caseworker’s efforts to obtain the information at the next scheduled
court hearing.” § 19-3-508(1)(e)(III). The next scheduled court
hearing was the APR hearing. At that hearing, the caseworker
testified that her understanding was that there were not services
available to father at the jail in which he was incarcerated at the
time of the hearing and that the Department had been making “an
ongoing effort” to “mak[e] contact and hav[e] a direct person at each
6 jail . . . in the state to be able to coordinate around what services
are available to the parents.” Thus, the Department complied.
B. Parenting Time
¶ 14 To the extent father argues that the juvenile court erred
because it “could have” awarded him parenting time in anticipation
of a future modification of the criminal protection order, we are not
persuaded.
¶ 15 The court determined that allocating all parenting time to
mother was in the children’s best interests. In doing so, the court
found that father was incarcerated at the time of the APR hearing
and prohibited from having contact with the children because of a
criminal protection order. And although the court was not required
to find that father was unfit to enter the APR to mother, it made
such a finding because, among other reasons, father had not
progressed on his treatment plan.
¶ 16 The record supports the court’s findings. The caseworker
testified that
• at the time of the APR hearing, father was incarcerated
and could not have contact with the children because of
a criminal protection order;
7 • father’s contact with the children was limited or
prohibited for periods throughout the case because of
multiple criminal protection orders;
• father did not fully engage with services;
• father failed to sign required releases of information; and
• a counseling provider had concerns about father’s
honesty during sessions.
Moreover, the caseworker opined that father needed to address
various issues to complete his treatment plan including “concerns
of violence as well as the sexual abuse and boundary concerns that
led to the filing of this case.”
¶ 17 The court reasoned,
It’s clear that father cannot have parenting time until the protection order is modified . . . and the father does need to make an effort to build an attachment and re-establish a relationship with the children once he can safely have contact again.
Obviously, I have no idea when that is going to occur. What I expect is that there would be a motion filed by either party in the [domestic relations] case, [that] outlines if he was convicted, how long has it been since he has seen the children, what is the status of the relationship.
8 At that point in time the Court [could] order unsupervised contact, supervised contact or possibly therapeutic contact [but] for me to decide that today is completely speculative. I have not a clue . . . [w]hat is going to happen in [father’s criminal] cases.
¶ 18 In sum, the court determined, with record support, that
allocating all parenting time to mother was in the children’s best
interests based on the circumstances existing at the time of the
hearing, including father’s unfitness and inability to have any
contact with them. See N.G.G., ¶ 29 (the court’s determination of a
child’s best interests must be based on circumstances existing at
the time of the proceeding). On this record, we conclude that the
court did not abuse its discretion by declining to fashion a
parenting time plan in anticipation of a speculative future event.
See A.M.K., 68 P.3d at 565.
IV. Disposition
¶ 19 The judgment is affirmed.
JUDGE J. JONES and JUDGE YUN concur.