Peo in Interest of HM

• Court: Colorado Court of Appeals
• Decided: October 31, 2024
• Docket: 24CA0566
• Status: Unpublished

Opinion

24CA0566 Peo in Interest of HM 10-31-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0566 Jefferson County District Court No. 23JV30094 Honorable Ann Gail Meinster, Judge

The People of the State of Colorado,

Appellee,

In the Interest of H.M., a Child,

And Concerning D.R. and P.M.,

Appellants.

JUDGMENT AFFIRMED

Division A Opinion by JUDGE TAUBMAN* Román, C.J., and Martinez*, J., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 31, 2024

Kimberly Sorrells, County Attorney, Claire M. Czajkowski, Assistant County Attorney, Golden, Colorado, for Appellee

Debra W. Dodd, Guardian Ad Litem

The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for Appellant D.R.

Bergner Law Office, LLC, Stephanie Bergner, Leif Ericson, Carbonale, Colorado, for Appellant P.M.

*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, D.R. (mother) and

P.M. (father) appeal the judgment terminating their parent-child

legal relationships with H.M. (the child). We affirm.

I. Background

¶2 In April 2023, the Jefferson County Division of Children and

Families filed a petition in dependency and neglect regarding the

then-two-day-old child and alleging concerns about the parents’

substance use. The Division noted that the child had tested

positive for amphetamine at birth and was experiencing withdrawal

symptoms which required neonatal intensive care. After forty-six

days in the hospital, the child was released and placed in foster

care.

¶3 The juvenile court adjudicated the child dependent or

neglected. The court adopted treatment plans that required the

parents to address their substance abuse issues, develop stability

and parenting skills, and attend family time.

¶4 The Division later moved to terminate the parents’ legal

relationships with the child. In February 2024, following an

evidentiary hearing, the juvenile court granted the motion.

1 II. Discussion

¶5 Both parents contend that the juvenile court erred by finding

that they could not become fit within a reasonable time. Mother

asserts that the court rushed to terminate her rights despite her

engagement in treatment and family time. Father asserts that the

court erred by terminating his rights less than five months after his

treatment plan was adopted without considering whether additional

time would have been in the child’s best interests. We are not

persuaded.

A. Standard of Review

¶6 A juvenile court’s termination of parental rights presents a

mixed question of law and fact because it involves application of the

termination statute to evidentiary facts. People in Interest of

S.R.N.J-S., 2020 COA 12, ¶ 10, 486 P.3d 1201, 1204. We review

the court’s factual findings for clear error, but we review de novo

the court’s legal conclusions based on those facts. Id.

¶7 The credibility of the witnesses, as well as the sufficiency,

probative effect, and weight of the evidence, and the inferences and

conclusions to be drawn from the evidence, are within the province

of the juvenile court. People in Interest of A.J.L., 243 P.3d 244,

2 249-50 (Colo. 2010). We do not reweigh the evidence or substitute

our judgment for that of the juvenile court. People in Interest of

K.L.W., 2021 COA 56, ¶ 62, 492 P.3d 392, 402.

B. Applicable Law

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

clear and convincing evidence, that (1) the child was adjudicated

dependent and neglected; (2) the parent has not reasonably

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.

¶9 A parent is unfit if the parent is unable or unwilling to give a

child reasonable parental care. People in Interest of S.Z.S., 2022

COA 133, ¶ 23, 524 P.3d 1209, 1216. “Reasonable parental care

requires, at a minimum, that the parent provide nurturing and

protection adequate to meet the child’s physical, emotional, and

mental health needs.” S.R.N.J-S., ¶ 9, 486 P.3d at 1204. A parent’s

noncompliance with a treatment plan generally “demonstrates a

lack of commitment to meeting the child’s needs and, therefore,

3 may also be considered in determining unfitness.” People in Interest

of D.P., 181 P.3d 403, 408 (Colo. App. 2008).

¶ 10 Parents must have a reasonable amount of time to work on a

treatment plan before the juvenile court terminates their parental

rights. People in Interest of D.Y., 176 P.3d 874, 876 (Colo. App.

2007). The determination of a reasonable period is necessarily fact

specific, and thus, what constitutes a reasonable time to comply

with a treatment plan may vary from case to case. Id. However, a

reasonable time is not an indefinite time, and it must be determined

by considering the physical, mental, and emotional conditions and

needs of the child. S.Z.S., ¶ 24, 524 P.3d at 1216. Periods as short

as five to nine months have been held to be sufficient to comply

with a treatment plan. People in Interest of A.J., 143 P.3d 1143,

1152 (Colo. App. 2006).

¶ 11 In determining whether a parent’s conduct or condition is

likely to change and whether the parent can become fit in a

reasonable time, the juvenile court may consider several factors,

including whether any change occurred during the dependency and

neglect proceeding, the parent’s social history, and the chronic or

long-term nature of the parent’s conduct or condition. K.D. v.

4 People, 139 P.3d 695, 700 (Colo. 2006). As in this case, when a

child is under six years old at the time of filing the petition in

dependency and neglect, the juvenile court must also consider the

expedited permanency planning (EPP) provisions, which require

that such children be placed in a permanent home as expeditiously

as possible. §§ 19-1-102(1.6), 19-1-123, 19-3-702(5)(c), C.R.S.

2024; see also S.Z.S., ¶ 25, 524 P.3d at 1216.

C. Analysis

¶ 12 The juvenile court considered whether mother or father could

become fit within a reasonable amount of time but ultimately

concluded they could not. The court found that neither parent had

complied with his or her treatment plan and that the same

problems addressed in the plans still existed “without adequate

improvement” at the time of the termination hearing. The court

relied “very heavily on the history of the case” and noted that the

parents had been involved in four prior dependency and neglect

cases, two of which resulted in termination of parental rights, and

all of which involved substance abuse. The juvenile court found

that the parents had “chronic and long term substance abuse

issues” and had not demonstrated any change “over the last 14

5 years.” The court also noted that the case was subject to the EPP

provisions and found that it would not be in the child’s best

interests to allow additional time for the parents to work on their

treatment plans.

¶ 13 The record supports these findings. It shows that although

treatment and services were available throughout the case, by the

time of termination, neither parent had successfully addressed the

concerns that initially brought the child to the Division’s attention.

To address their substance abuse issues, both parents were

required to complete substance abuse evaluations, attend

recommended treatment, and provide urinalysis (UA) tests twice per

week. However, the caseworker testified that mother completed her

substance abuse evaluation but only attended one group session

and only completed one UA, which was positive for amphetamine,

marijuana, and fentanyl. Although father signed a release of

information, he never completed a substance abuse evaluation,

attended any treatment, or completed any UAs.

¶ 14 It is true, as mother points out, that she testified she was

receiving methadone treatment and had started drug and alcohol

classes by the time of the termination hearing. However, mother

6 also testified that she had used substances only two weeks before

the hearing. Further, the caseworker’s testimony and report, which

was admitted as evidence during the hearing, indicate that mother

never provided any documentation of treatment or classes in which

she claimed to have been engaged. Thus, we are unpersuaded by

mother’s argument that the juvenile court should have allowed her

more time based on her testimony that she had recently engaged in

treatment. See In re Marriage of Kann, 2017 COA 94, ¶ 36, 488

P.3d 245, 252 (“[O]ur supreme court has . . . expressed unbridled

confidence in trial courts to weigh conflicting evidence.”).

¶ 15 It is also true, as father points out, that the juvenile court

terminated his parental rights approximately one week less than

five months after it adopted his treatment plan. However, the

record shows that the court’s adoption of father’s treatment plan

was delayed because, although the Division repeatedly attempted to

serve father between June and August 2023, it eventually had to

serve him by publication. The record also indicates that even before

the court adopted father’s treatment plan, the Division offered him

services, but he chose not to engage. Specifically, the caseworker’s

report stated that she had met with father several times in April

7 and May 2023, and that around that time, father signed a release of

information so she could refer him for a substance abuse

evaluation. Although a parent is not obligated to cooperate with the

department’s requests prior to service and adjudication, see e.g.

People in Interest of M.H-K., 2018 COA 178, ¶¶ 77-80, 433 P.3d 627,

639, we do not perceive any error in the court’s consideration of

father’s historical lack of engagement, including his lack of

engagement during the timeframe prior to the adoption of his

treatment plan. See K.D., 139 P.3d at 700 (the juvenile court may

consider the chronic or long-term nature of the parent’s conduct or

condition in determining whether the parent can become fit within a

reasonable amount of time).

¶ 16 Nor are we persuaded by father’s argument that the juvenile

court improperly focused on his past conduct instead of his

progress in this case and his bond with the child. Even if the court

had only considered father’s conduct during these proceedings, the

evidence showed that father did not engage in any substance abuse

treatment or provide any evidence of sobriety at any point during

this case, including the almost five-month period after the court

adopted his treatment plan.

8 ¶ 17 Both parents also point out that they attended family time and

argue that they should have been given more time based on that

engagement. But the juvenile court found that the parents did not

“attend regularly enough” to keep it from finding non-compliance

with family time requirements of their treatment plans. This finding

is supported by the caseworker’s testimony and report, which

indicated that the parents’ family time attendance was inconsistent

and that after the child was released from the hospital, mother

missed twenty-eight visits, while father missed thirty-four. Partial

or even substantial compliance with a treatment plan does not

necessarily render a parent fit. People in Interest of K.B., 2016 COA

21, ¶ 26, 369 P.3d 822, 828.

¶ 18 The record also shows, as the juvenile court found, that the

parents’ issues with substance abuse were long-term or chronic.

The caseworker’s report states that both parents had an “extensive

history with the Division regarding concerns of substance use with

their six other children.” The report indicates that the first

dependency and neglect case, which was filed after mother gave

birth to a child who tested positive for marijuana and cocaine, was

opened in 2011. Since that time, at least three other dependency

9 and neglect cases, all involving substance abuse, were opened

regarding the parents’ older children. At the time of the termination

hearing, none of the parents’ older children were in their care. Also,

the case prior to this one ended in termination only two months

before the child in this case was born and tested positive for

amphetamine. By the time of the termination hearing — thirteen

years after the first case opened — the parents were still struggling

with substance abuse. As noted above, mother only provided one

UA, which was positive, and had used illicit substances as recently

as two weeks before the hearing. And, although father testified he

was sober, the juvenile court did not find his testimony to be

credible, as he had not engaged in any treatment or provided any

UAs to show such sobriety.

¶ 19 Last, at the time of termination, the child had been out of the

home for her entire life. Contrary to father’s assertion, the juvenile

court considered whether a continuance to allow the parents more

time would be in the child’s best interests but concluded it would

not. While father argues that a continuance would not have

negatively impacted the child, the caseworker opined that

termination was in the child’s best interests because the child

10 needed stability and permanency. Although the caseworker did not

expressly testify that the child’s age was a factor in her opinion

regarding permanency, our legislature has recognized that “children

undergo a critical bonding and attachment process prior to the time

they reach six years of age” and that “a child who has not bonded

with a primary adult during this critical stage will suffer significant

emotional damage which frequently leads to chronic psychological

problems and antisocial behavior when the child reaches

adolescence and adulthood.” § 19-1-102(1.6).

¶ 20 In sum, the juvenile court properly determined that neither

parent could become fit within a reasonable time by considering the

evidence showing their partial compliance and weighing it against

the contrary evidence and the child’s needs. Because the record

supports the court’s determination, we may not disturb the

judgment.

III. Disposition

¶ 21 The judgment is affirmed.

CHIEF JUDGE ROMÁN and JUSTICE MARTINEZ concur.