Peo in Interest of KD

Opinion

24CA0476 Peo in Interest of KD 10-17-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0476 Weld County District Court No. 21JV60 Honorable James F. Hartmann, Judge

The People of the State of Colorado,

Appellee,

In the Interest of K.D., a Child,

and Concerning D.D. and A.G.,

Appellants.

JUDGMENT AFFIRMED

Division V Opinion by JUDGE FREYRE Grove and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 17, 2024

Bruce T. Barker, County Attorney, David S. Anderson, Assistant County Attorney, Greeley, Colorado, for Appellee

Jenna L. Mazzucca, Guardian Ad Litem

Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant D.D.

Just Law Group, LLC, John F. Poor, Denver, Colorado for Appellant A.G. ¶1 A.G. (mother) and D.D. (father) each appeal the juvenile

court’s judgment terminating their parent-child legal relationship

with K.D. (the child). We affirm.

I. Background

¶2 In January 2021, the Weld County Department of Human

Services filed a petition in dependency and neglect after it

investigated reports that father had abused the then-six-month-old

child, and that the child was dirty, hungry, and bruised. In October

2021, the court ordered a deferred adjudication of the child and

adopted treatment plans for both parents. It placed the child with

L.G. (mother’s adoptive parent) from January 2021 until August

2022 and then moved the child to a maternal aunt and uncle’s

home. The court also appointed each parent a guardian ad litem

(GAL).

¶3 Father’s treatment plan required him to (1) cooperate with

case professionals and maintain contact with the caseworker;

(2) complete mental health and substance abuse evaluations and

follow any recommendations, including urinalysis testing;

(3) engage in all family time; (4) find appropriate housing; and

(5) find stable employment or qualify for public benefits. Mother’s

1 treatment plan contained the same requirements and also required

her to participate in domestic violence therapy.

¶4 Throughout the case, father had a pending felony burglary

charge and was involved with pretrial services. As well, mother was

convicted of misdemeanor child abuse and criminal mischief.

¶5 In October 2022, the court revoked the deferred adjudication

and adjudicated the child dependent and neglected with regard to

both parents. The Department asserted that neither parent had

complied with their treatment plan, that they were unsuccessful,

and then filed a motion to terminate their parental rights. In March

2023, while the termination motion was pending, the court

amended the parents’ treatment plans to include that each

complete a neuropsychological evaluation and a parent-child

interactional and that they comply with the requirements of their

criminal cases.

¶6 The termination hearing was set for September and October

2023. Days before the hearing, father filed a motion to continue

and a notice of the applicability of the Americans with Disabilities

Act (ADA). Father’s notice requested accommodations in the form

of (1) support and resources to assist with his mild intellectual

2 disability, (2) incorporating these supports into his treatment and

services, and (3) using strategies listed in the neuropsychological

evaluation.

¶7 The court granted a second continuance and reset the

termination hearing for January 2024. After the hearing, the

juvenile court terminated both parents’ parental rights.

II. Termination Criteria and Standard of Review

¶8 A 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 within a reasonable time.

§ 19-3-604(1)(c), C.R.S. 2024.

¶9 Whether a juvenile court properly terminated parental rights

presents a mixed question of fact and law because it involves

application of the termination statute to evidentiary facts. People in

Interest of A.M. v. T.M., 2021 CO 14, ¶ 15. “We review the juvenile

court’s findings of evidentiary fact — the raw, historical data

underlying the controversy — for clear error and accept them if they

3 have record support.” People in Interest of S.R.N.J-S., 2020 COA 12,

¶ 10. But we review de novo the court’s legal conclusions based on

those facts. See id. In particular, the ultimate determination of

whether the Department provided reasonable efforts is a legal

conclusion we review de novo. People in Interest of A.S.L., 2022

COA 146, ¶ 8.

¶ 10 It is for the juvenile court, as the trier of fact, to determine the

sufficiency, probative effect, and weight of the evidence and to

assess witness credibility. People in Interest of A.J.L., 243 P.3d 244,

249-50 (Colo. 2010).

III. Reasonable Efforts

¶ 11 Mother and father contend that the juvenile court erred by

finding that the Department provided them with reasonable efforts.

The court explicitly prioritized the health and safety of the child and

found that “[t]here has been evidence presented that both parents

would qualify [as individuals with a disability] under the . . . ADA.

The court concluded that the Department complied with the

requirements of the ADA and provided reasonable efforts for both

parents. These findings are supported by the record and satisfy the

relevant legal requirements.

4 A. Applicable Law

¶ 12 Before the juvenile court may terminate parental rights under

section 19-3-604(1)(c), the state must make reasonable efforts to

rehabilitate the parent and reunite the family. §§ 19-3-100.5(1),

19-1-103(114), 19-3-208, 19-3-604(2)(h), C.R.S. 2024. “Reasonable

efforts” means the “exercise of diligence and care” for a child who is

in out-of-home placement, and the reasonable efforts standard is

satisfied when services are provided in accordance with section 19-

3-208. § 19-1-103(114).

¶ 13 When a department knows or should know that a parent has a

qualifying disability, it has an affirmative duty to make reasonable

accommodations for that parent when providing rehabilitative

services. People in Interest of S.K., 2019 COA 36, ¶¶ 22, 25, 34; see

42 U.S.C. § 12102(1) (defining “disability” under the ADA); see also

42 U.S.C. § 12131(2) (defining “qualified individual with a disability”

under the ADA). When a parent is found to be a qualified individual

with a disability, the juvenile court must consider whether the

department made reasonable accommodations for a parent’s

disability when determining whether it made reasonable

efforts. S.K., ¶ 34.

5 ¶ 14 To benefit from a reasonable accommodation, a parent must

raise the issue of the ADA’s applicability as early in the proceedings

as possible. See People in Interest of S.Z.S., 2022 COA 133, ¶ 16.

“The Department can accommodate, and the juvenile court can

address, only disabilities that are known to them.” S.K., ¶ 22.

¶ 15 The juvenile court should consider whether the provided

services were appropriate to support the parent’s treatment plan.

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

The parent is ultimately responsible for using those services to

obtain the assistance needed to comply with the treatment plan.

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

B. Efforts for Father

¶ 16 A court-qualified expert in neuropsychology who conducted

father’s neuropsychological evaluation diagnosed him as having a

mild intellectual disability. He opined that father’s disability made

it challenging for him to “compete tasks [and] to stay engaged” and

that he might need tasks to be repeated. He recommended that

father receive (1) “ADA accommodations” for this case, (2) individual

therapy, (3) a consultation regarding medication management for

his mental health symptoms instead of using THC, (4) referrals to a

6 community-centered board and a vocational rehabilitation center,

and (5) a referral to a special advocate to help him stay organized.

¶ 17 The evaluation stated that father “may benefit from” various

strategies to compensate for his intellectual disability, including,

(1) writing down important information and/or presenting it

visually; (2) using alarms, calendars, organizers, external

reminders, and mnemonic devises to keep track of important

information; (3) creating lists of tasks that need to be completed;

and (4) requesting important information in writing.

¶ 18 The court found, with record support, that the Department

offered father many of these services, even before the

neuropsychological evaluation recommended them.

• When the caseworker, who was experienced with working

with families with developmental disabilities, “started

having concerns that [father could have an] intellectual

disability,” during the first year of the case, she referred

father for a psychological evaluation. This evaluation

could have helped the Department determine what

supports father needed to succeed with his treatment

plan. And although the evaluator kept the referral open

7 for “an extraordinar[ily] long time,” father never

completed it.

• The Department “set up” individual therapy for father

but, at the time of termination, the provider had not

heard from him during the previous ninety days. The

caseworker, whom the court qualified as an expert in

child permanency, opined that father was not compliant

with this objective of his treatment plan.

• In order to ensure that father “was understanding what

the [D]epartment required of him,” father’s caseworker

and his parent advocate with the Office of the

Respondent Parent’s Counsel (ORPC) asked father to

repeat back what they had told him. They also wrote

things down for him, and the caseworker followed up

with father in text messages and emails.

• The caseworker kept father’s GAL and his ORPC parent

advocate “in the loop” about her attempts to meet with

father. Nevertheless, father missed sixteen months of

meetings with her over the course of the case.

8 • Father’s therapeutic visitation supervisor observed that

father had “a hard time retaining some conversations and

scheduling and following through” so the supervisor

worked with him on scheduling and provided consistent

reminders. He helped father write down important

information regarding scheduling. He — along with

father’s ORPC parent advocate — helped father use

alarms, calendars, and organizers. He maintained eye

contact when father spoke, listened to father’s questions,

and rephrased his feedback when it seemed father was

not understanding.

¶ 19 The Department also made additional accommodations after

the neuropsychological evaluation was completed. They included

those requested in father’s notice of the applicability of the ADA.

• The Department referred father to a community-centered

board, but father was unwilling to complete the

application for this service.

• The caseworker gave father the website to apply for

vocational rehabilitation “and told him if he needed

assistance, [she’d] be more than willing to help him fill

9 out those applications or . . . connect him with people to

assist him.” Father indicated he was “not interested” in

that service. Father was unable to find stable

employment during this case, and changed jobs four or

five times.

• The caseworker referred father for a medication

management appointment, but father did not set up the

appointment.

• The caseworker continued to help father set up alarms

and reminders on his phone and to use a calendar to

write down appointments.

¶ 20 The Department also provided services individualized to father

beyond those recommended in the neuropsychological evaluation,

but father did not comply. The caseworker scheduled her monthly

contact with father either at his home or in the community where

he wished. The Department provided him therapeutic visitation,

offered him transportation and flexible scheduling, and made the

visits virtual at his request. Nevertheless, father missed many visits

without good cause. And, despite his inconsistent employment,

father refused to apply for Supplemental Security Income benefits.

10 ¶ 21 The Department referred father to domestic violence impact

therapy throughout the case, but he did not complete it. The

Department referred father to a substance abuse evaluation, which

he completed after some delay, but he never participated in any

recommended treatment. And at the time of the termination

hearing, the caseworker was concerned about father’s THC use

because of the amount he was using.

¶ 22 To the extent father claims that the Department did not make

reasonable efforts because it never shared the results of the

neuropsychological evaluation with his other providers, the record

belies this claim, and to the extent it does not, any error was

harmless.

¶ 23 First, although the evaluator testified that he intended for the

report to be shared with providers, the written evaluation lists no

such requirement. Moreover, father’s therapeutic parenting time

supervisor testified that he was not provided with the

neuropsychological evaluation report, but the caseworker testified

that she provided the report to him. Nevertheless, the record shows

that the parenting time supervisor made the accommodations it

recommended.

11 ¶ 24 Finally, we are not convinced by father’s assertion that the

parent-child interactional was flawed because the evaluator asked

father, against the recommendations of the neuropsychological

evaluation, to multitask. The neuropsychological evaluation

indicated that multitasking should be avoided when possible. And

the court-qualified parent-child interactional expert opined that

having the child present while interviewing the parent was

“standard practice” and “how [she] was trained.”

¶ 25 The Department’s efforts support the court’s findings and

amply support the legal requirements for both accommodation

under the ADA and reasonable efforts under the Children’s Code.

C. Efforts for Mother

1. Adult GAL

¶ 26 As an initial matter, mother contends that her need for a GAL

to “better engage in her case by facilitating her understanding of the

nature and significance of the proceedings,” put the Department “on

notice” that mother “likely suffered from a significant mental health

or cognitive disability.” We disagree and find no record support for

her claim that the court appointed a GAL because of a significant

mental health or cognitive disability.

12 ¶ 27 Under the Children’s Code, a GAL may be appointed for a

parent in dependency and neglect proceedings “who has been

determined to have a behavioral or mental health disorder or an

intellectual and developmental disability by a court of competent

jurisdiction.” § 19-1-111(2)(c), C.R.S. 2024. The juvenile court has

discretion to make the appointment. People in Interest of L.A.C., 97

P.3d 363, 366 (Colo. App. 2004).

¶ 28 Here, the court stated that mother’s substance abuse

evaluation suggested that her “agitation” may prevent her from

understanding the proceedings. The court then informed the

parties that it would entertain a motion for a GAL for mother. The

court granted mother’s motion for a GAL eleven days later.

¶ 29 Because the court’s determination was based on information

in her substance abuse evaluation, we are not convinced that the

Department was “on notice” of an intellectual or developmental

disability.

2. Preservation of ADA Claim

¶ 30 We agree with the Department and GAL that mother did not

preserve her claim that the Department failed to comply with the

ADA. The record shows that mother never claimed to be a person

13 with a disability, and never asked the Department to accommodate

her disability or to provide her with accommodations or specialized

services under the ADA. Thus, we conclude that mother did not

preserve her ADA claim, and we need not address it. See S.Z.S.,

¶¶ 15-18 (declining to consider the mother’s argument that she was

denied reasonable accommodations under the ADA when her

counsel argued she had “psychological issues” but did not mention

the ADA, did not assert that mother had a qualifying disability, and

did not request accommodations for the disability); see also People

in Interest of K.L-P., 148 P.3d 402, 403 (Colo. App. 2006)

(“[A]rguments never presented to, considered by, or ruled upon by a

trial court may not be raised for the first time on appeal.”).

3. Accommodations Provided

¶ 31 Even assuming mother had preserved her ADA claim, we

conclude it would not be successful because the record shows the

Department provided her with the services recommended in her

neuropsychological evaluation.

¶ 32 Mother’s evaluation included the diagnoses of “borderline

intellectual functioning,” a “mild” math-specific learning disorder,

and depression. She also received provisional diagnoses of

14 paranoid personality disorder and generalized anxiety. The

evaluator recommended individual therapy, a domestic violence

evaluation, vocational training, and life skills services. Mother’s

evaluation, like father’s, also stated that she “may benefit from”

strategies to compensate for her borderline intellectual functioning,

including, (1) writing down important information and/or

presenting it visually; (2) using alarms, calendars, organizers,

external reminders, and mnemonic devices to keep track of

important information; (3) creating lists of tasks that need to be

completed; and (4) requesting important information in writing.

Finally, the evaluation suggested the following practices for those

working with mother: good eye contact, active listening,

unconditional positive regard, and warm acceptance.

¶ 33 Again, the court found, with record support, that the

Department provided mother some of these services even before

they were recommended in the neuropsychological evaluation.

• The caseworker ensured that mother’s ORPC parent

advocate was “present and part of the scheduling for any

home visits” to support mother. Despite this, over the

15 course of the case, mother was not in contact with the

caseworker for a period of fifteen months.

• Mother requested assistance with navigating the different

appointments in the case, and the caseworker referred

mother to a life skills program. The caseworker made

this referral three times, but mother never engaged.

Life skills services would have “accommodated the

recommendation[s] [in her] neuropsychological

[evaluation].”

• The caseworker asked mother to repeat things back to

her to ensure mother’s understanding, wrote down next

steps for mother, and followed up with mother after

appointments.

• Mother was offered domestic violence therapy through

her criminal case, but, at the time of the termination

hearing, she had participated in only half of the sessions.

¶ 34 After the neuropsychological evaluation, the Department also

provided mother with the following services:

• Individual therapy and group therapy, but mother did

not complete them. Mother’s substance abuse and

16 mental health evaluator testified that she never reviewed

mother’s neuropsychological report, but that she

conducted a clinical assessment update based on a

referral from the Department in March 2023.

• The caseworker worked closely with mother’s ORPC

parent advocate and GAL, in whom mother “had more

trust,” in order to accommodate mother’s provisional

diagnosis of paranoia.

¶ 35 The Department also provided services to mother beyond those

recommended in the neuropsychological evaluation, but mother did

not comply.

• The caseworker referred mother to Eye Movement

Desensitization and Reprocessing psychotherapy, a kind

of mental health therapy. Mother did not comply.

• The caseworker testified that mother did not consistently

comply with the urinalysis testing her treatment plan

required. In the month before the termination hearing,

she completed only two of the ten tests requested.

• The caseworker was concerned by “the amount of THC

[mother] was using” and mother was referred for a new

17 substance abuse evaluation. Mother never completed the

• The caseworker referred mother to seven visitation

agencies; mother was discharged unsuccessfully from

six. Mother missed visits every month, even when the

visitation was to take place in her own home. Mother

was never able to progress from supervised to

unsupervised visitation.

• At the time of the termination hearing, the caseworker

did not know where mother was residing or if she had

obtained financial assistance or employment to provide

for the child.

¶ 36 Given these efforts, which satisfy the legal requirements for

ADA accommodation and reasonable efforts, we perceive no error in

the court’s determination that the Department made adequate

efforts to rehabilitate mother.

IV. Less Drastic Alternatives

¶ 37 Both parents assert that the juvenile court erred in

determining that there were no viable less drastic alternatives to

termination. They claim that the court could have allocated

18 parental responsibilities to paternal grandparents. Mother also

argues that an allocation of parental responsibilities (APR) to

paternal grandparents would not “threaten the [c]hild’s best

interests.” We perceive no error.

A. Relevant Law

¶ 38 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.

¶ 39 When deciding whether long-term or permanent placement

with a relative or other person is a viable less drastic alternative to

termination, the court may consider various factors including

whether a permanent placement prefers adoption rather than an

APR. People in Interest of Z.M., 2020 COA 3M, ¶ 31.

¶ 40 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. A.M., ¶ 32. Permanent

placement isn’t a viable less drastic alternative if the child needs a

19 stable, permanent home that can only be assured by adoption. S.N-

V., 300 P.3d at 920.

¶ 41 When the juvenile court considers a less drastic alternative

and still determines that terminating 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. Analysis

¶ 42 The court concluded that “there are no less drastic

alternatives available . . . short of termination of parental rights.”

Considering the best interests of the child, the court determined

that the termination was the only option because the child needed

to “know who his permanent caregivers will be.” The record

supports this determination.

¶ 43 The caseworker investigated placement with mother’s two

suggested placements for the child, but both said they would not be

able to provide for the child. The caseworker also investigated

paternal grandparents at father’s request. However, paternal

grandparents did not comply with the background checks

necessary to become placement providers.

20 ¶ 44 We acknowledge the parents’ arguments that there is some

indication in the record that an APR might be viable. For example,

an expert testified that a “well-structured” APR order can serve a

child’s best interests. And the parent-child interactional expert

opined that both parents had a “positive” but “weak” bond with the

child. However, the record shows that the current placement

providers were unwilling to accept an APR, and the caseworker

opined that an APR would not be in the child’s best interests.

Ultimately, the court determines the probative value of the evidence.

A.J.L., 243 P.3d at 249-50. Here, because the record supports the

court’s determination that the child’s best interests would not be

served by an APR, we will not disturb it on appeal.

V. Disposition

¶ 45 The judgment is affirmed.

JUDGE GROVE and JUDGE LUM concur.