Peo in Interest of JEB

• Court: Colorado Court of Appeals
• Decided: January 9, 2025
• Docket: 24CA0640
• Status: Unpublished

Opinion

24CA0640 Peo in Interest of JEB 01-09-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0640 El Paso County District Court No. 21JV182 Honorable Robin Chittum, Judge

The People of the State of Colorado,

Appellee,

In the Interest of J.E.B., a Child,

and Concerning R.D.S.,

Appellant.

JUDGMENT AFFIRMED

Division IV Opinion by JUDGE HARRIS Yun and Kuhn, JJ., concur

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

Kenneth Hodges, County Attorney, Melanie Douglas, Contract Attorney, Colorado Springs, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem

Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant ¶1 R.D.S. (father) appeals the judgment terminating his parent-

child legal relationship with J.E.B. (the child). We affirm.

I. Background

¶2 In February 2021, the El Paso County Department of Human

Services (Department) filed a petition in dependency and neglect,

alleging, among other things, that father and mother were involved

in a domestic violence dispute, which resulted in father’s arrest.

After a bench trial, the juvenile court adjudicated the child

dependent and neglected. The court then adopted a treatment plan

for father that required him to (1) communicate with the

Department; (2) develop parental protective capacity; (3) provide a

safe and stable home; (4) address domestic violence concerns; and

(5) engage in family time.

¶3 In November 2023, the Department moved to terminate

father’s parental rights. The juvenile court held an evidentiary

hearing in February 2024. After hearing the evidence, the court

terminated father’s parent-child legal relationship with the child.

II. Termination of Parental Rights

¶4 Father asserts that the juvenile court erred by terminating his

parental rights because the Department failed to establish, by clear 1 and convincing evidence, that (1) his treatment plan was

appropriate and (2) the Department made reasonable efforts to

rehabilitate him. For the reasons described below, we discern no

reversible error.

A. Applicable Law and Standard of Review

¶5 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 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.

¶6 In determining fitness under section 19-3-604(1)(c), the

juvenile court must consider whether the county department of

human services made reasonable efforts to rehabilitate the parent

and reunite the parent with the child. §§ 19-1-103(114), 19-3-208,

19-3-604(2)(h), C.R.S. 2024. The reasonable efforts standard is

satisfied if the department provides services in accordance with

section 19-3-208. § 19-1-103(114). In turn, section 19-3-208

2 requires departments to provide screenings, assessments, and

individual case plans for the provision of services; home-based

family and crisis counseling; information and referral services to

available public and private assistance resources; family time; and

placement services. § 19-3-208(2)(b).

¶7 In assessing the department’s reasonable efforts, the juvenile

court should consider whether the services provided were

appropriate to support the parent’s treatment plan, People in

Interest of S.N-V., 300 P.3d 911, 915 (Colo. App. 2011), by

“considering the totality of the circumstances and accounting for all

services and resources provided to a parent to ensure the

completion of the entire treatment plan,” People in Interest of

My.K.M. v. V.K.L., 2022 CO 35, ¶ 33. The parent is ultimately

responsible for using the services to comply with the plan, People in

Interest of J.C.R., 259 P.3d 1279, 1285 (Colo. App. 2011), and the

court may consider a parent’s unwillingness to participate in

treatment in determining whether the department made reasonable

efforts, see People in Interest of A.V., 2012 COA 210, ¶ 12.

3 ¶8 When a parent in a dependency and neglect case has a

qualifying disability under the Americans with Disabilities Act of

1990 (ADA), the juvenile court must also consider whether

reasonable accommodations were made for the parent’s disability

when finding that (1) a parent’s treatment plan was appropriate and

(2) the department made reasonable efforts. People in Interest of

S.K., 2019 COA 36, ¶ 34; § 19-3-208(2)(g) (noting that services

provided by a department must comply with the ADA). But the ADA

is not a defense to termination, People in Interest of T.B., 12 P.3d

1221, 1223 (Colo. App. 2000), and “the requirement to make

reasonable accommodations [does not] lower the standards for

parents with disabilities,” S.K., ¶ 36.

¶9 Whether a juvenile court properly terminated parental rights

presents a mixed question of fact and law because it involves the

application of the evidentiary facts to the termination statute.

People in Interest of A.M. v. T.M., 2021 CO 14, ¶ 15; see also People

in Interest of A.S.L., 2022 COA 146, ¶ 8 (noting that a consideration

of whether a department of human services satisfied its obligation

to make reasonable efforts also presents a mixed question of fact

4 and law). We review the court’s factual findings for clear error, but

we review de novo the court’s legal conclusions based on those

facts. People in Interest of S.R.N.J-S., 2020 COA 12, ¶ 10.

B. ADA

¶ 10 Father contends that the juvenile court and the Department

failed to comply with the ADA. But for the reasons we explain

below, the issue was not before the juvenile court, and we decline to

address it for the first time on appeal. See People in Interest of M.B.,

2020 COA 13, ¶ 14 (“[A]ppellate courts review only issues presented

to and ruled on by the lower court.”).

¶ 11 First, father did not alert either the Department or the juvenile

court that he had a qualifying disability under the ADA before the

termination hearing. To be sure, a parent is not necessarily

required to raise an ADA claim before the termination hearing to

preserve it for our review. See People in Interest of C.Z., 2015 COA

87, ¶ 9 (addressing an ADA claim raised for the first time in closing

argument at the termination hearing). But by failing to raise this

issue during the case, the juvenile court did not have an

opportunity to determine whether father had a disability, and if he

5 did, to order the Department to provide him with reasonable

accommodations. See People in Interest of S.Z.S., 2022 COA 133,

¶¶ 16-17. As a result, we do not have a record of whether (1) father

had a disability; (2) any specifics about his disability; (3) what

accommodations he needed; and (4) whether those accommodations

were reasonable. See id. at ¶ 21 (noting that whether a parent is a

qualified individual with a disability under the ADA requires a fact-

specific determination that, if disputed, the juvenile court must

resolve in the first instance); see also S.K., ¶ 35 (“What constitutes a

reasonable accommodation will be based on an individual

assessment.”).

¶ 12 Second, father did not ask the juvenile court to deny the

termination motion because he had a disability, his treatment plan

was inappropriate, or the Department did not provide reasonable

accommodations for his disability. See S.Z.S., ¶ 18 (To preserve an

ADA claim, the parent should “present the court with an adequate

opportunity to make findings of fact and legal conclusions on the

ADA issue”). Although father concedes that he did not raise the

ADA at the termination hearing, he now maintains that he was

6 unable to do so because he did not have the opportunity to make an

opening statement or closing argument. Yet, counsel never

requested to make an opening statement or closing argument. Nor

did he ask for a continuance to make an oral closing or request the

opportunity to file a written closing argument. And although

father’s counsel challenged the reasonableness of the Department’s

efforts during cross-examination, none of these questions

specifically raised the ADA or suggested that father had a disability.

¶ 13 Third, even though father did not alert the Department or the

juvenile court that he had a disability, father now contends that the

information available to the Department and the court provided

them with “constructive notice” of his disability. See S.K., ¶ 22

(noting that, if a disability is “obvious,” a department may be

required to accommodate the disability, even if the parent does not

inform the department about the disability). Specifically, father

maintains that the “fact [that he was found incompetent to proceed

in his criminal cases] was tantamount to conclusive evidence that

[he] suffered from mental-health related disabilities.” We are not

persuaded for the following reasons:

7 • Even though father was incompetent to proceed for a few

months during the criminal case, he was eventually

declared competent to proceed. See § 16-8.5-101(5),

C.R.S. 2024 (If a person is competent to proceed, the

person “does not have a mental disability.”).

• There is no equivalent procedure in dependency and

neglect proceedings for a person who is incompetent to

proceed. Rather, if a person has trouble understanding

the proceedings, counsel should request a guardian ad

litem (GAL). See § 19-1-111(2)(c), C.R.S. 2024 (allowing a

court to appoint a GAL for a parent “who has been

determined to have a behavioral or mental health

disorder”). In this case, father’s counsel had an

opportunity to request a GAL but declined to do so.

• Before the termination hearing, father’s counsel reported

to the court that, following father’s completion of the

restoration program in his criminal case, father was

“stable mentally.” The court also advised father on the

8 termination motion at that time, and father indicated

that he understood the proceeding.

Given all this, we are not convinced that the Department and the

juvenile court had “constructive notice” that father had a disability

under the ADA and needed accommodations.

¶ 14 Finally, father urges us to address his unpreserved appellate

argument under the miscarriage of justice exception to the

preservation rule. See People in Interest of E.S., 2021 COA 79, ¶ 14

(noting that, in very limited situations, an appellate court may

address unpreserved issues in dependency and neglect cases to

avoid a miscarriage of justice). For reasons we explain below in

addressing father’s ineffective assistance of counsel claim, counsel’s

failure to raise the ADA in the juvenile court did not prejudice

father. Thus, our decision to forgo review of the ADA claim will not

result in a miscarriage of justice.

C. Reasonable Efforts

¶ 15 Father also contends that the juvenile court erred by finding

that the Department made reasonable efforts to rehabilitate him

and reunify him with the child. We discern no reversible error.

9 ¶ 16 As noted, the main protective issue that brought this case to

the Department’s attention was domestic violence. Father’s

treatment plan required him to, among other things, address his

domestic violence conduct and engage in family time. Therefore, at

a minimum, the Department needed to provide father with a

domestic violence evaluation (and treatment if recommended) and

supervised family time services. The record does not indicate that

the Department ultimately provided either of these services to

father.

¶ 17 Nevertheless, we discern no reversible error in the juvenile

court’s conclusion that the Department made reasonable efforts to

provide visitation and other services. The juvenile court found that

the Department “tried to get services” set up for father but it was

“difficult” because “he was in and out of custody.” Each time father

was released, the Department made referrals for father in the

community, but then he would go back into custody. Ultimately,

the court concluded that this cycle, not the Department’s lack of

efforts, resulted in father’s inability to engage in services.

10 ¶ 18 The record supports these findings. The caseworkers’

supervisor testified that the Department could not provide services

for father at the jail during the early part of the case because of

COVID-19 restrictions. In addition, a protection order prohibited

father from having contact with the child. After the protection order

was vacated, the child’s therapist recommended that father not visit

with the child for a period of time that extended into 2023.

According to the supervisor, when father was released from

custody, he asked about visits, “but by the time [the Department]

got [visits] set up, he was back in [custody].” And then, when he

was in custody, the Department “would get ready to have the video

visits, and [father] would get released.”

¶ 19 As for other services, the supervisor said that after COVID-19

restrictions were lifted, there were service providers contracted by

the Department to work with father. But he was “bouncing in and

out [of custody]” and because “he wasn’t staying in one place long

enough,” the Department could not get any services set up for him.

Additionally, she explained that the Department could not contact

11 father or provide him services while he was in the state hospital in

Pueblo.

¶ 20 In sum, the record shows the Department attempted to

provide services to father, but his continued criminal activity and

incarceration prevented him from accessing those services.

Because the record supports the court’s findings that these

complications, not the Department’s lack of efforts, prevented father

from becoming a fit parent, we discern no reversible error.

III. Ineffective Assistance of Counsel

¶ 21 Finally, father argues that his counsel provided ineffective

assistance by failing to notify the Department and the court about

his disability and request ADA accommodations or, in the

alternative, to raise a defense at the termination hearing based on

the Department’s failure to accommodate his disability. We discern

no basis for a remand.

¶ 22 A parent has a statutory right to appointed counsel in a

termination proceeding. § 19-3-202(1), C.R.S. 2024; see also §§ 19-

1-105(2), 19-3-602(2), C.R.S. 2024. A parent’s statutory right to

counsel includes the right to effective assistance of counsel. See

12 A.R. v. D.R., 2020 CO 10, ¶ 47; see also People in Interest of C.H.,

166 P.3d 288, 290 (Colo. App. 2007).

¶ 23 In evaluating a claim of ineffective assistance of counsel in

termination proceedings, we apply the same test that we would

when evaluating an ineffective assistance of counsel claim in a

criminal case. See A.R., ¶¶ 48, 60. Under this test, the parent

must establish that (1) counsel’s performance was outside the wide

range of professionally competent assistance and (2) the parent was

prejudiced by counsel’s deficient performance — that is, there is a

reasonable probability that but for counsel’s unprofessional errors,

the outcome of the proceeding would have been different. Id. at

¶ 60. “If the parent fails to establish either prong of this test, the

claim fails.” People in Interest of C.B., 2019 COA 168, ¶ 26.

¶ 24 Under this approach, an appellate court must remand for an

evidentiary hearing if the parent’s allegations are sufficiently

specific and compelling to constitute a prima facie showing of

ineffective assistance of counsel. A.R., ¶ 63. However, if the

parent’s allegations lack sufficient specificity, the ineffective

assistance claim may be summarily denied. Id.

13 ¶ 25 Even assuming, without deciding, that counsel’s performance

was deficient, we conclude that father has failed to sufficiently

allege prejudice. Father asserts that, if his counsel had requested

his records from the state hospital and provided them to the

Department, then the Department would have provided him with a

mental health evaluation and treatment. And if he had treatment,

then he could have become a fit parent in a reasonable time. But

the record shows that starting in October 2022, the Department

intended to “refer [father for] a . . . neuropsychological evaluation”

but could not because he was incarcerated, and it could not “locate

providers who c[ould] go to” the county jail. Father was released

from custody during the summer of 2023, but before the

caseworker could find him, she learned that he had “picked up new

charges” and had “been detained.” He remained in custody for the

rest of the proceedings.

¶ 26 Thus, the record shows that father did not participate in any

mental health services because of the frequency with which he went

into and out of custody during the case. In light of this evidence,

we conclude that even if counsel had raised the ADA so that father’s

14 treatment plan was modified and the Department made referrals for

a mental health evaluation and treatment, the outcome of the

proceeding would have likely been the same.

¶ 27 Nor are we convinced that, had father’s counsel raised the

ADA for the first time at the termination hearing, the outcome of the

termination proceeding would have been different because (1) the

ADA cannot be raised as a defense to the termination of parental

rights, T.B., 12 P.3d at 1223; and (2) “[a] parent who waits until the

eleventh hour to request a modification under the ADA may

thoroughly undermine h[is] ability to establish that such

modification is reasonable, particularly once the best interests of

the child are taken into account,” S.Z.S., ¶ 16 (quoting State in

Interest of K.C., 2015 UT 92, ¶ 27).

¶ 28 Accordingly, we conclude that father has not raised sufficiently

specific and compelling allegations to constitute a prima facie

showing of ineffective assistance of counsel. See A.R., ¶ 63; see

also People v. Sherman, 172 P.3d 911, 914 (Colo. App. 2006) (noting

that a claim that is too speculative will not satisfy the prejudice

prong). Thus, we will not disturb the termination judgment.

15 IV. Disposition

¶ 29 The judgment is affirmed.

JUDGE YUN and JUDGE KUHN concur.