Peo in Interest of FS

• Court: Colorado Court of Appeals
• Decided: March 6, 2025
• Docket: 24CA1270
• Status: Unpublished

Opinion

24CA1270 Peo in Interest of FS 03-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1270 Jefferson County District Court No. 22JV30220 Honorable Lindsay L. VanGilder, Judge

The People of the State of Colorado,

Appellee,

In the Interest of F.S., a Child,

and Concerning A.S.,

Appellant.

JUDGMENT AFFIRMED

Division A Opinion by JUSTICE MARTINEZ* Román, C.J., and Graham*, J., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 6, 2025

Kimberly Sorrells, County Attorney, Sarah Oviatt, Assistant County Attorney, Golden, Colorado, for Appellee

Debra W. Dodd, Guardian Ad Litem

Robin Tieman, Office of Respondent Parents’ Counsel, Boulder, Colorado, for Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 In this dependency and neglect proceeding, A.S. (mother)

appeals the judgment terminating her parent-child legal

relationship with F.S. (the child). We affirm.

I. Background

¶2 In November 2022, the Jefferson County Division of Children,

Youth, and Families filed a petition in dependency and neglect

concerning the then-two-month-old child. The Division alleged

concerns about mother’s mental health because she had recently

been transported from an Intervention Community Corrections

Services (ICCS) facility to a mental health facility after showing

symptoms of psychosis. The child had been living with mother at

the ICCS facility, and the staff members were concerned that

mother might harm her.

¶3 When the case opened, the Division named R.S. and John Doe

as potential fathers of the child. Mother had stated that she

believed the father was deceased and refused to provide his name.

The Division had located a potential father named R.S., who had no

contact with the children and no involvement in the caring or

providing for the child. At the time the Verified Petition for

1 Dependency and Neglect was filed, the Department had no

knowledge whether R.S. was alive.

¶4 The juvenile court granted temporary legal custody to the

Division. Approximately one month into the proceeding, the

Division placed the child with mother’s cousin, where she remained

for the rest of the case.

¶5 The juvenile court adjudicated the child dependent or

neglected and adopted a treatment plan that required mother to

address her substance use and mental health issues; create a safe

and stable environment for the child; and attend supervised family

time. Shortly after mother was released from ICCS, the Division

became concerned that her new boyfriend was physically abusing

her. Based on those concerns, the court amended mother’s

treatment plan to require that she engage in domestic violence

victim services.

¶6 The Division later moved to terminate mother’s parental rights.

About two weeks before the termination hearing, mother filed a

forthwith motion to establish parentage, claiming that her boyfriend

was the child’s presumed father because he had voluntarily added

his name to the child’s birth certificate. At the termination hearing,

2 mother argued that the court was required to hold a parentage

hearing and determine if mother’s boyfriend was the child’s legal

father before it could proceed. The juvenile court disagreed, finding

that it could proceed with the termination hearing as to mother.

After considering the evidence, the court granted the termination

motion but held its order in abeyance pending a parentage hearing.

¶7 Approximately one month later, the juvenile court held a

parentage hearing, but mother and her boyfriend did not appear.

Based on offers of proof, the court found that mother’s boyfriend

was not a presumed parent under section 19-4-105(2), C.R.S. 2024.

The court then lifted the abeyance and entered the final judgment

terminating mother’s parental rights.

II. Statutory Criteria and Standard of Review

¶8 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

or condition is unlikely to change in a reasonable time.

§ 19-3-604(1)(c), C.R.S. 2024.

3 ¶9 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. Timing of the Parentage Determination

¶ 10 Mother first contends that the juvenile court erred by holding

the termination hearing before it determined whether mother’s

boyfriend was the child’s legal father. She argues that by

proceeding to termination before determining parentage, the court

“eliminat[ed] a possible less drastic alternative to termination.” We

disagree.

¶ 11 First, to the extent mother argues that the juvenile court was

prohibited from terminating her parental rights before it determined

whether her boyfriend was the child’s legal parent, she is incorrect.

She contends that a juvenile court cannot terminate one parent’s

rights unless the other parent has been given the opportunity to

complete a treatment plan and work toward reunification. But

parental rights are personal between each parent and each child

4 and not contingent upon another parent’s rights. People in Interest

of J.L.M., 143 P.3d 1125, 1127 (Colo. App. 2006). And the statutes

governing termination of the parent-child legal relationship do not

proscribe termination of one parent’s rights to the exclusion of the

other. Id.; see also §§ 19-3-601 to -612, C.R.S. 2024.

¶ 12 Second, part of mother’s argument is based on a

misunderstanding of the proceedings and is moot. Specifically, she

contends that if the juvenile court had held a parentage hearing

before the termination hearing, it may have determined that

mother’s boyfriend was the child’s legal father. She further

contends that if, after being determined to be the child’s legal

father, mother’s boyfriend had been given a treatment plan, he may

have successfully completed it. She then asserts that after

successful completion of a treatment plan, mother’s boyfriend could

have been considered as a placement option and less drastic

alternative to termination of mother’s parental rights.

¶ 13 However, before the juvenile court entered the final judgment

terminating mother’s rights, it held a parentage hearing and

determined that her boyfriend did not meet any of the presumptions

for parentage under section 19-4-105(2). Thus, contrary to

5 mother’s assertions, the court had determined that her boyfriend

was not the child’s legal father prior to terminating her rights.

¶ 14 Mother does not challenge the court’s parentage

determination. Nor does she explain how the outcome of the

parentage hearing would have been different if the court had held it

before the termination hearing. Accordingly, her argument based

on the possibility of mother’s boyfriend being the child’s legal father

is moot because the court determined that he is not the legal father.

See In re Marriage of Tibbetts, 2018 COA 117, ¶ 8 (an issue is moot

when a judgment, if rendered, would have no practical legal effect

on the existing controversy).

¶ 15 Next, mother’s argument that the juvenile court’s decision to

proceed with the termination hearing prevented it from considering

her boyfriend as a less drastic alternative is predicated on a

misinterpretation of the law — that a person must be a child’s legal

parent to be considered as a placement option or less drastic

alternative. To the contrary, it is well-established that a

department may place a child with non-parents. For example,

departments are encouraged to place children with kin, which

includes both relatives and non-relatives. See § 19-3-403(3.6)(a)(V),

6 C.R.S. 2024 (noting that the juvenile court shall give preference to

placement with kin); § 19-1-103(91), C.R.S. 2024 (defining “kin” as

“a relative of the child, a person ascribed by the family as having a

family-like relationship with the child, or a person who has a prior

significant relationship with the child”). Thus, regardless of

whether mother’s boyfriend was the child’s legal father or not, the

Division could have considered him as a placement option.

¶ 16 Nonetheless, nothing in the record indicates that either

mother or her boyfriend asked the Division to evaluate him as a

placement option. See People in Interest of Z.P., 167 P.3d 211, 215

(Colo. App. 2007) (although the department must evaluate a

reasonable number of persons identified by the parents as possible

placement alternatives, it has no obligation to independently

identify and evaluate other possible placement alternatives). The

most mother requested was that her boyfriend attend family time

with her. But mother’s boyfriend never provided a release of

information or consented to a background check so that he could

participate in family time. Further, the record shows mother’s

boyfriend never responded to the caseworker’s attempts to contact

7 him, nor did he ask to see the child, to be added to the case, or for

a treatment plan.

¶ 17 Last, at the termination hearing, mother did not present any

evidence indicating that her boyfriend wanted to be considered as a

placement option or that allocating parental responsibilities to him

would have been in child’s best interests. Even if she had, the

juvenile court categorically rejected less drastic alternatives to

termination because it found that there was “not enough of a

relationship” between mother and the child to maintain the

parent-child relationship and that termination was in the child’s

best interests. See People in Interest of A.R., 2012 COA 195M, ¶ 38

(when analyzing less drastic alternatives, a juvenile court may

consider whether an ongoing relationship with a parent would be

beneficial to the child); People in Interest of N.D.V., 224 P.3d 410,

421 (Colo. App. 2009) (a juvenile court may consider whether the

child is bonded with the parent in analyzing whether a less drastic

alternative exists); People in Interest of A.M. v. T.M., 2021 CO 14, ¶

27 (for a less drastic alternative to be viable, it must do more than

“adequate[ly]” meet a child’s needs; rather, the less drastic

alternative must be the “best” option for the child). The court’s

8 findings were supported by the caseworker’s testimony that mother

had not seen the child in four months and the caseworker’s expert

opinion that termination was in the child’s best interests.

IV. Reasonable Efforts

¶ 18 Mother also contends that the juvenile court erred by finding

that the Division made reasonable efforts to rehabilitate her and

reunify her with the child. We are not persuaded.

¶ 19 The Division argues that mother failed to preserve her

reasonable efforts arguments because she did not raise them before

the termination hearing. See People in Interest of D.P., 160 P.3d

351, 355-56 (Colo. App. 2007) (declining to review a reasonable

efforts finding because the parent failed to object to services

provided before the termination hearing); but see People in Interest

of S.N-V., 300 P.3d 911, 916 (Colo. App. 2011) (holding that a

parent’s failure to object to services does not bar appellate review of

a reasonable efforts finding). However, we need not determine

whether she preserved her reasonable efforts arguments, or was

required to, because even if we assume she did, we discern no basis

for reversal.

9 ¶ 20 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” for children who are in

out-of-home placement. § 19-1-103(114), C.R.S. 2024. Services

provided in accordance with section 19-3-208, C.R.S. 2024, satisfy

the reasonable efforts standard. § 19-1-103(114). 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). Moreover, a parent is ultimately responsible

for using the services to obtain the assistance needed to comply

with their treatment plan. People in Interest of J.C.R., 259 P.3d

1279, 1285 (Colo. App. 2011).

¶ 21 Mother argues that “while the [Division] initially made efforts

to ensure that [she] had access to basic services,” it failed to

continue to provide reasonable efforts or “ensure that she had the

services and referrals she needed for the months prior to

termination.” Besides arguing that mother’s family time was

10 inadequate and that the caseworker failed to regularly meet with

her, mother does not identify any services or referrals she needed

that the Division did not provide. Based on our review of the

record, we are not persuaded that the Division failed to meet its

reasonable efforts burden because it did not provide adequate

family time or schedule regular meetings with her.

¶ 22 First, we disagree with mother’s assertion that her family time

was “illegally suspended” during the four months leading up to the

termination hearing. Rather, the caseworker testified that the

family time provider paused mother’s referral after mother failed to

“keep consistent contact” with the provider and missed several

family time sessions. At that point, the family time provider

required that mother attend a meeting to discuss barriers before

family time sessions would resume. Despite the provider’s attempts

to contact mother to discuss a meeting, mother did not respond.

Thus, the record indicates that the lack of family time during the

four months leading up to termination was caused by mother’s

failure to contact the provider and set up a meeting, not by the

Division’s failure to arrange or provide family time services. See id.

11 at 1285 (a parent is ultimately responsible for using the services

provided by a department).

¶ 23 Second, we disagree with mother’s assertion that the Division

failed to make reasonable efforts because the caseworker had not

met with mother or scheduled a family engagement meeting since

the fall of 2023. The caseworker testified that around that time,

she began having difficulties communicating with mother and that

mother stopped engaging with the Division. The caseworker also

testified that on numerous occasions throughout the case, mother

got new phone numbers and email addresses but did not tell the

caseworker about them, so the caseworker had no way to contact

her. Also, the caseworker attempted to meet with mother before or

after her family time sessions on several occasions, but she was

unable to because mother did not attend.

¶ 24 Further, although we agree that it is generally helpful for a

caseworker to have regular contact with a parent, nothing in section

19-3-208 requires that a caseworker meet with a parent a certain

number of times throughout a case. Mother does not explain how a

meeting with the caseworker, on its own, would have helped to

rehabilitate her or reunite the family. See § 19-3-208(1) (services

12 are only required if they are determined to be necessary and

appropriate based on the individual plan). Rather, she asserts the

Division and the caseworker should have met with her to “ensure

she had the services and referrals she needed.” But, as noted

above, mother does not identify what services or referrals she

needed, nor does she explain what she would have asked for if the

caseworker had met with her regularly.

¶ 25 Based on the foregoing, we discern no error in the juvenile

court’s determination that the Division made reasonable efforts to

rehabilitate mother and reunite her with the child.

V. Disposition

¶ 26 The judgment is affirmed.

CHIEF JUDGE ROMÁN and JUDGE GRAHAM concur.