Peo in Interest of LD

Opinion

21CA0619 Peo in Interest of LD 01-27-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA0619

Jefferson County District Court No. 20JV41

Honorable Lindsay VanGilder, Judge

The People of the State of Colorado,

Appellee,

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

and Concerning R.S. and L.S.D.,

Appellants.

JUDGMENT AFFIRMED

Division V

Opinion by JUDGE DUNN

Welling and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced January 27, 2022

Kimberly Sorrells, County Attorney, Sarah Oviatt, Assistant City Attorney,

Golden, Colorado, for Appellee

Gina G. Bischofs, Guardian Ad Litem

Law Offices of Brittany Radic, LLC, Brittany Radic, Aurora, Colorado, for

Appellant R.S.

Bergner Law Office, LLC, Stephanie Bergner, Leif Ericson, Carbondale,

Colorado, for Appellant L.S.D.

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¶ 1 R.S. (mother) and L.S.D. (father) appeal the judgment

terminating the parent-child legal relationship with L.D. (the child).

We affirm.

I. Background

¶ 2 In January 2020, the Jefferson County Division of Children,

Youth and Families filed a dependency and neglect petition

regarding the then-newborn child. The Division alleged that mother

and the child had tested positive for methamphetamine when the

child was born and that the child was experiencing withdrawal

symptoms. The Division also alleged that — while at the hospital —

the parents “went into a restroom for 45 minutes” and mother’s

urine drug screen “was later tampered with.”

¶ 3 The juvenile court adjudicated the child dependent and

neglected and adopted treatment plans for both parents.

¶ 4 The Division later moved to terminate the parents’ rights. And

in February 2021, following a hearing, the juvenile court granted

the motion.

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II. Termination of Parental Rights

A. General Law

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

clear and convincing evidence, that (1) the child has been

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 within a

reasonable time. § 19-3-604(1)(c), C.R.S. 2021; People in Interest of

E.S., 2021 COA 79, ¶ 10.

¶ 6 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

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

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

based on those facts. Id.

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B. Sufficient Time

¶ 7 Mother and father contend that the juvenile court failed to

provide them sufficient time to comply with their treatment plans.

We disagree.

¶ 8 Once the juvenile court approves an appropriate treatment

plan, it must give the parent a reasonable time to comply with it.

People in Interest of D.Y., 176 P.3d 874, 876 (Colo. App. 2007).

What constitutes a reasonable time to comply is fact-specific and

varies from case to case. Id. But a reasonable time is not indefinite

and must be determined by considering the child’s physical,

mental, and emotional conditions and needs. People in Interest of

J.C.R., 259 P.3d 1279, 1284 (Colo. App. 2011).

¶ 9 The juvenile court found that the parents hadn’t shown “any

reasonable compliance” with their treatment plans, noting “[t]here

have been virtually no [urinalysis tests], no treatment, and nothing

to address the concerns about the parties’ [substance abuse].” And

it observed that “methamphetamine addiction is not something that

disappears or goes away without any work, and there has been no

evidence of completed sessions or treatment that would address

that problem or concern.” Given the parents’ overall minimal

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engagement, the court found that additional time was unlikely to

change their parental fitness and treatment plan compliance.

¶ 10 The record supports these findings. Mother had

approximately eight months and father had approximately nine

months to comply with their respective treatment plans before the

termination hearing. See People in Interest of A.J., 143 P.3d 1143,

1152 (Colo. App. 2006) (“[P]eriods as short as five to nine months

have been held to be sufficient time to comply with a treatment

plan.”). Yet neither parent had demonstrated sobriety or

participated in substance use treatment. And given the lack of any

meaningful progress, that the court terminated the parent-child

relationship before the estimated completion date of the treatment

plans (May 2021) doesn’t mean the parents weren’t given enough

time. See People in Interest of R.B.S., 717 P.2d 1004, 1006 (Colo.

App. 1986) (a court may terminate the parent-child relationship

before the proposed period of treatment has ended).

¶ 11 Both parents argue, however, that the amount of time to

comply wasn’t sufficient given difficulties stemming from the

COVID-19 pandemic. But the case opened before the pandemic

started. And the evidence shows no identified pandemic-related

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barrier. In fact, when asked, the parents told the caseworker that

“they had all the resources they needed” and “there were no

barriers.”

¶ 12 To the extent mother argues there was no evidence that the

child’s physical, mental, and emotional needs would be impacted by

providing her with additional time to comply, we disagree. The

juvenile court found — with record support — that “the entirety of

this child’s one year of life has been outside of his biological

parents[’] care,” a year “is a very long time for a child this young,”

and the child was “thriving in the foster home.” And the caseworker

confirmed that the child had bonded to his caregivers and it was in

his best interest to terminate parental rights so he could be “free to

adopt.” See People in Interest of K.B., 2016 COA 21, ¶¶ 37, 40

(rejecting mother’s argument that it was in the children’s best

interests to give her more time to complete her treatment plan

because the record adequately supported the court’s finding that

the need for permanence outweighed any risk of terminating the

parent-child relationship).

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¶ 13 For these reasons, we reject the parents’ contention that the

court did not give them sufficient time to comply with their

treatment plans.

C. Reasonable Efforts

¶ 14 Mother and father also contend that the juvenile court erred

by finding that the Division made reasonable efforts to rehabilitate

them. In particular, they argue that the Division failed to provide

resources related to housing and technological assistance to enable

them to participate in virtual treatment and visitation.

¶ 15 The Division says we should not consider this argument

because the parties did not raise it before the termination hearing,

and thus it is not preserved.

¶ 16 To be fair, divisions of this court disagree on whether a parent

must challenge the Division’s reasonable efforts before the

termination hearing to preserve the issue for appellate review.

Compare 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 findings), with 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

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object to services provided before the termination hearing).

Because the outcome is the same either way, we elect to consider

the parents’ reasonable efforts argument.

¶ 17 The state must make reasonable efforts to rehabilitate parents

and reunite families following the out-of-home placement of abused

or neglected children. §§ 19-1-103(114), 19-3-100.5, 19-3-

604(2)(h), C.R.S. 2021. “Reasonable efforts” means “the exercise of

diligence and care” to reunify parents with their children. § 19-1-

103(114).

¶ 18 Services provided in accordance with section 19-3-208, C.R.S.

2021, satisfy the reasonable efforts standard. See § 19-1-103(114).

Among the services required under section 19-3-208 are screening,

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;

visitation services for parents with children in out-of-home

placement; and placement services including foster care and

emergency shelter. § 19-3-208(2)(b). Parents, however, are

responsible for using the services to obtain the necessary assistance

to comply with their treatment plans. J.C.R., 259 P.3d at 1285.

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¶ 19 The record supports the juvenile court’s finding that the

Division made reasonable efforts to provide rehabilitative services to

the parents and those efforts had not been successful. Indeed, it’s

largely undisputed that the Division devised treatment plans for the

parents, referred them for substance abuse treatment and sobriety

monitoring, gave them bus passes and resources for homeless

shelters, coordinated in-person and virtual visits, and facilitated

placement services for the child.

¶ 20 Even so, the parents argue that when the visits and treatment

services went virtual because of the COVID-19 pandemic, they were

unable to participate because they didn’t have reliable telephone,

computer, or internet access. But nothing in the record shows that

either parent reported any trouble accessing virtual services. In

fact, the caseworker testified that neither parent asked for

assistance with internet service or access to a telephone or

computer. Rather, the caseworker said that she asked the parents

about barriers to participating in treatment or visits throughout the

case, and they confirmed that “they had all the resources they

needed” and “there were no barriers.” The caseworker also

explained that mother responded to her by email and a text

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messaging app that required internet service. And the caseworker

stated that the parents never asked for a device or a “hot spot” to

assist them with virtual visits. The caseworker further testified that

if the parents had told her that they needed internet service, she

“could have addressed it.” For instance, when the parents raised a

transportation issue, the Division provided them with bus passes.

¶ 21 Mother also contends the Division failed “to provide reasonable

efforts” in “the area of housing” — specifically, that the Division

failed to provide her “housing vouchers.” But the caseworker

explained that the Division couldn’t provide housing vouchers

unless a parent was employed and demonstrating sobriety (which

neither parent did). Still, the caseworker testified that she talked

with mother about resources for homeless shelters and other

housing options. But it was up to mother to access those services.

See J.C.R., 259 P.3d at 1285.

¶ 22 And, finally, though mother contends that the Division failed

to provide adequate visitation services because the pandemic

required that some of the visits occur virtually, we are unpersuaded

for a couple of reasons. First, the Division never stopped providing

visitation services. Though the pandemic required the Division to

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move to virtual visits to protect the child as well as the parents and

caregivers, the Division still coordinated virtual visitation services.

But the parents did not consistently attend. Second, despite the

pandemic, there were periods throughout the case when the

parents had the opportunity for in-person visits. Nonetheless, the

parents still missed multiple visits.

¶ 23 For these reasons, we conclude the record supports the

juvenile court’s finding that the Division made reasonable efforts to

rehabilitate the parents.

D. Less Drastic Alternatives

¶ 24 Finally, we reject father’s contention that the juvenile court

erred by failing to consider the less drastic alternative of allowing

him “more time to complete treatment.”

¶ 25 The juvenile court must consider and eliminate less drastic

alternatives before it terminates the parent-child legal relationship.

People in Interest of L.M., 2018 COA 57M, ¶ 24. “[A] less drastic

alternative analysis considers whether any placement, short of

termination, would be in the child’s best interest.” People in Interest

of A.R., 2012 COA 195M, ¶ 44 (emphasis added).

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¶ 26 But father doesn’t argue that the court overlooked an

alternative placement that would have allowed it to end the

dependency and neglect action without terminating his parental

rights. Instead, he contends that the juvenile court should have

given him more time to become a fit parent. We therefore construe

father’s contention as a challenge to the juvenile court’s finding that

his conduct or condition was unlikely to change within a reasonable

time. See § 19-3-604(1)(c)(III) (providing that a juvenile court may

not terminate parental rights unless it finds, by clear and

convincing evidence, that the parent’s conduct or condition is

unlikely to change in a reasonable time).

¶ 27 In determining whether a parent’s conduct will meet the

child’s needs within a reasonable time, the court may consider

whether any change has occurred during the proceeding, the

parent’s social history, and the chronic or long-term nature of the

parent’s conduct or condition. People in Interest of D.L.C., 70 P.3d

584, 588-89 (Colo. App. 2003). A reasonable time is relative, not

indefinite, and it’s determined by the child’s physical, mental, and

emotional conditions and needs. A.J., 143 P.3d at 1152.

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¶ 28 Because the child was less than six years old when the

petition was filed, the expedited permanency planning (EPP)

provisions applied. §§ 19-1-102(1.6), 19-1-123, C.R.S. 2021. The

EPP provisions require that the child be placed in a permanent

home as expeditiously as possible. § 19-3-702(5)(c), C.R.S. 2021.

¶ 29 The juvenile court found that father had “ample” time to

complete his treatment plan, that he exhibited “the same problems

without any adequate improvement,” and that no “additional period

of time” would allow for the successful completion of the plan. As a

result, the court found that father was unfit and his conduct or

condition was “unlikely to change within a reasonable amount of

time.”

¶ 30 The record supports these findings. The case had been open

for over a year, and father had not resolved the substance use

issues that led to the Division’s involvement. Although father

completed the substance abuse evaluation, he didn’t participate in

the recommended treatment or consistently engage in sobriety

monitoring. He completed only two urine screens, one of which was

positive for methamphetamine. Because father hadn’t successfully

addressed his substance use concerns, the caseworker opined that

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“he is not a safe and sober caregiver” and “he might not be able to

meet [the child’s] immediate emotional or physical needs if he is

under the influence.” And beyond his continuing substance use,

father was also equally unsuccessful with other aspects of his plan.

He remained unemployed and attended less than half of the

scheduled visits. When he attended in-person visits, he didn’t bring

diapers or food for the child. His last in-person visit was in

September 2020, and his last virtual visit was several weeks before

the termination hearing.

¶ 31 And as we’ve explained, the juvenile court was required to

place the child in a permanent home “as expeditiously as possible.”

§ 19-3-702(5)(c). At the time of the termination hearing, the child

had been in a foster home for approximately one year.

¶ 32 Given this evidence, we conclude the record supports the

juvenile court’s findings that father’s condition was unlikely to

change in a reasonable amount of time.

III. Conclusion

¶ 33 We affirm the judgment.

JUDGE WELLING and JUDGE YUN concur.