24CA0755 Peo in Interest of MLD 02-06-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0755 Dolores County District Court No. 22JV1 Honorable William Young Furse, Judge
The People of the State of Colorado,
Appellee,
In the Interest of M.L.D., a Child,
and Concerning L.A.M.E. and L.J.D.,
Appellants.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE FOX Gomez and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 6, 2025
Dennis R. Golbricht, County Attorney, Durango, Colorado, for Appellee
Beth Padilla, Guardian Ad Litem
Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant L.A.M.E.
Robin Tieman, Office of Respondent Parents’ Counsel, Boulder, Colorado, for Appellant L.J.D. ¶1 In this dependency and neglect action, L.J.D. (father) and
L.A.M.E. (mother) appeal the judgment terminating their parent-
child legal relationships with M.L.D. (the child). We affirm.
I. Background
¶2 In June 2022, the Dolores County Department of Social
Services (Department) filed a petition in dependency and neglect
alleging that father was using and manufacturing illicit substances
in the family home and around the child. Mother was incarcerated
at the time the petition was filed.
¶3 The parents admitted the allegations in the petition and the
juvenile court adjudicated the child dependent and neglected. The
court then adopted treatment plans for the parents.
¶4 About eight months later, the court allowed the child to return
home to father on a trial basis. A month later, the Department
moved for, and the court granted, emergency removal of the child
after father admitted to a relapse and safety plan violations. Mother
was released from custody shortly thereafter.
¶5 Later, the guardian ad litem (GAL) moved to terminate the
parents’ parental rights. The juvenile court held a three-day
1 evidentiary hearing and, at the conclusion of the hearing,
terminated the parent-child legal relationships.
II. Statutory Criteria and Standard of Review
¶6 A juvenile court may terminate a parent’s 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. 2024; People in Interest of
E.B., 2022 CO 55, ¶ 19.
¶7 Whether a juvenile court properly terminated parental rights
presents a mixed question of fact and law because it involves the
application of the termination statute to evidentiary facts. People in
Interest of A.M. v. T.M., 2021 CO 14, ¶ 15. A determination of the
proper legal standard to be applied in a case and the application of
that standard to the particular facts of the case are questions of law
that we review de novo. M.A.W. v. People in Interest of A.L.W., 2020
CO 11, ¶ 31.
2 ¶8 However, we will not disturb the court’s factual findings and
conclusions when they are supported by the record. Id. at ¶ 32; see
also A.M., ¶ 15. The credibility of the witnesses as well as the
sufficiency, probative value, and weight of the evidence, and the
inferences and conclusions to be drawn from it are within the
court’s discretion. A.M., ¶ 15.
III. Father’s Arguments
A. Father’s Disability
¶9 Father first asserts that the juvenile court violated his right to
due process and the nondiscrimination provisions of federal and
state law, including Title II of the Americans with Disabilities Act of
1990 (ADA), 42 U.S.C. §§ 12131-12134. Specifically, he contends
he had an ADA-qualifying disability — substance use disorder —
and the court discriminated against him based on his disability
when it found that his “chronic substance use and conduct when
he . . . uses or relapses is unlikely to change within a reasonable
amount of time.” We decline to address father’s argument because
it was unpreserved.
¶ 10 We agree with the Department and the GAL that father never
asserted in the juvenile court that he had a qualifying disability.
3 We decline to address father’s assertion because a parent cannot
raise noncompliance with the ADA for the first time on appeal. See
People in Interest of S.Z.S., 2022 COA 133, ¶ 18; see also 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 Nevertheless, father maintains that we should address his
claim because the Department “was aware” of father’s substance
use disorder. However, the appropriate question is not whether the
Department was aware, but whether the court was. Because father
never sufficiently raised the ADA issue with the court, the court
made no findings on the issue. Therefore, we decline to address
father’s unpreserved claim because we would have to make factual
findings about whether father had a disability, which we cannot do.
See S.Z.S., ¶ 21 (“[B]ecause mother never raised the ADA issue,
even by implication, either before or during the termination hearing,
the juvenile court didn’t make any specific findings about the
applicability of the ADA for us to review.”); People in Interest of S.K.,
2019 COA 36, ¶ 21 n.2 (noting that whether a parent is a qualified
individual with a disability under the ADA requires a fact-specific
determination that a juvenile court must resolve).
4 ¶ 12 Regardless, father has not identified any specific
nondiscrimination provision of a state or federal statute that the
court violated or explained how noncompliance with that provision
would constitute a cognizable claim in a dependency and neglect
proceeding.
¶ 13 To the extent that father argues, in general, that his due
process rights were violated, we disagree. Generally, “due process
requires the state to provide fundamentally fair procedures to a
parent facing termination,” which include (1) notice of the hearing,
(2) advice of counsel, and (3) the opportunity to be heard and
defend. People in Interest of R.J.B., 2021 COA 4, ¶ 27. While father
asserts he was “not given a meaningful opportunity to defend
himself,” the record indicates otherwise. Father had notice of the
termination hearing; he had the advice of counsel; and, through
counsel during the hearing, he was able to question and present
witnesses — nearly all of whom addressed questions related to
father’s substance use — and mount a defense. Indeed, father
testified during the proceedings and addressed questions related to
his sobriety.
5 B. Reasonable Time
¶ 14 Father contends that the juvenile court erred by finding that
he could not become fit within a reasonable time. We disagree.
1. Relevant Law
¶ 15 “An unfit parent is one whose conduct or condition renders
[the parent] unable or unwilling to give a child reasonable parental
care.” S.Z.S., ¶ 23. At a minimum, reasonable parental care
requires that a parent provide nurturing and protection adequate to
meet the child’s physical, emotional, and mental health needs.
People in Interest of S.R.N.J-S., 2020 COA 12, ¶ 9.
¶ 16 Before a court can terminate the parent-child relationship,
there must be clear and convincing evidence that the parent cannot
become fit within a reasonable time. § 19-3-604(1)(c)(III).
¶ 17 A reasonable time is not an indefinite time but must be
considered based on the physical, mental, and emotional conditions
and needs of the child. S.Z.S., ¶ 25. When determining whether a
parent may become fit 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.” Id. at ¶ 24. Partial or even
6 substantial compliance with a treatment plan does not necessarily
render a parent fit. K.B., ¶ 26.
¶ 18 If a parent has made little to no progress on a treatment plan,
the court need not give the parent additional time to comply. See
S.Z.S., ¶ 24. When, as here, a child is under six years old, the court
must consider the expedited permanency planning (EPP) provisions,
which require that the child 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.
2. Analysis
¶ 19 Father argues the juvenile court erred by finding that he could
not become fit within a reasonable time because the court
improperly considered his disability, as described above. We reject
this argument for the reasons described above. He also asserts that
he was in substantial compliance with his treatment plan and that
there was no clear and convincing evidence that he was unfit or
unlikely to become fit within a reasonable time.
¶ 20 The juvenile court found that while father consistently worked
on his sobriety, he continued to test positive for illicit substances,
was unable to maintain the child’s safety during a return-home
7 trial, and had unresolved legal issues. The court further found that
father had failed to substantially comply with his treatment plan
and that he was unfit. Considering the EPP provisions, the court
determined that he could not become fit within a reasonable time.
¶ 21 The record supports the court’s findings. Father’s treatment
plan, in relevant part, required him to (1) establish and maintain
sobriety through substance use treatment and sobriety monitoring
without missing any testing; (2) provide a home environment that
supports the safety and well-being of his child; and (3) resolve any
outstanding court issues.
¶ 22 As father contends, there was testimony that he was positively
engaged in substance use treatment and his UA tests were clean of
any substances that could not be explained by his prescribed
medication. However, father frequently missed his UAs and tested
positive for illicit substances in hair follicle testing.
¶ 23 The caseworker testified that when the child was initially
removed from father’s home, she tested positive for amphetamines,
methamphetamines, and fentanyl. When the child was removed
from father’s home a second time, she tested positive for marijuana.
Father also admitted that he had relapsed around the time the child
8 was returned home, had driven with the child in the car, and had
allowed the child to be watched by an unapproved caregiver, all in
violation of the safety plan. And father had unresolved warrants
from out of state that would require jail time.
¶ 24 In sum, the court considered evidence of father’s compliance
with his treatment plan and still concluded he was unfit and
unlikely to become fit within a reasonable time. Because the record
supports the court’s findings, we may not reweigh the evidence or
substitute our judgment for the juvenile court’s. See S.Z.S., ¶ 29.
IV. Mother’s Arguments
A. Appropriate Treatment Plan
¶ 25 Mother contends that the juvenile court erred by finding that
her treatment plan was appropriate because it did not include
provisions for child parent psychotherapy (CPP). We disagree.
¶ 26 Except in some limited circumstances not applicable here, a
juvenile court must adopt an appropriate treatment plan for a
parent following a dispositional hearing. § 19-3-508(1)(e)(I), C.R.S.
2024; People in Interest of Z.P.S., 2016 COA 20, ¶ 15. The
treatment plan seeks to preserve the parent-child legal relationship
9 by assisting the parent in overcoming the problems that required
intervention with the family. People in Interest of L.M., 2018 COA
57M, ¶ 25. Therefore, an appropriate treatment plan is one that is
approved by the court, relates to the child’s needs, and provides
treatment objectives that are reasonably calculated to render the
parent fit to provide adequate parenting to the child within a
reasonable time. § 19-1-103(12), C.R.S. 2024; People in Interest of
K.B., 2016 COA 21, ¶ 13.
¶ 27 We measure the appropriateness of a treatment plan by its
likelihood of success in reuniting the family, which we assess in
light of the facts existing at the time the juvenile court approved the
plan. People in Interest of B.C., 122 P.3d 1067, 1071 (Colo. App.
2005). The court may modify a treatment plan when new
information or changed circumstances render a previously approved
treatment plan no longer appropriate. Z.P.S., ¶¶ 26-27. The fact
that a treatment plan isn’t ultimately successful doesn’t mean that
it was inappropriate when the court approved it. People in Interest
of M.M., 726 P.2d 1108, 1121 (Colo. 1986).
¶ 28 A juvenile court has discretion to formulate a treatment plan
that relates to the child’s needs and is reasonably calculated to
10 render the parent fit within a reasonable time. People in Interest of
M.W., 2022 COA 72, ¶ 32. A juvenile court abuses its discretion
when its actions are manifestly arbitrary, unreasonable, or unfair,
or based on an erroneous understanding or application of the law.
Id. at ¶ 12.
¶ 29 The juvenile court adopted an initial treatment plan for
mother, without objection, requiring her to (1) complete her
criminal sentence and abide by all rules; (2) provide a home
environment that supported the safety and well-being of the child
post-incarceration; and (3) attend all scheduled supervised visits
with the child upon release from incarceration.
¶ 30 Once mother was released from custody, her treatment plan
was amended with her agreement to include provisions related to
mental health treatment, maintaining a drug free environment, and
obtaining stable housing. Later, mother moved for the treatment
plan to be modified and, following a contested hearing, the court
denied her request.
11 ¶ 31 In the termination judgment, the court found that the
treatment plans were created with mother’s involvement and that
they were appropriate.
¶ 32 The record supports the court’s findings. True, mother’s
expert testified the Department should have offered child-parent
psychotherapy. However, the expert also testified it would not be
appropriate to start child-parent psychotherapy when a parent was
using substances. Mother self-reported using methamphetamines
in September 2023 and tested positive for substances in December
2023, three months before the termination hearing.
¶ 33 In any event, the juvenile court considered and rejected adding
child-parent psychotherapy to mother’s treatment plan during the
contested hearing. The court found that child-parent
psychotherapy would not address the issues that initially brought
the family before the court. See K.B., ¶ 13.
¶ 34 For these reasons, we discern no error in the juvenile court’s
determination that mother’s treatment plan was appropriate.
12 B. Reasonable Efforts
¶ 35 Mother asserts that the juvenile court erred by finding that the
Department made reasonable efforts to rehabilitate her and reunify
her with the child. We disagree.
¶ 36 Before a juvenile court may find a parent unfit, the court must
consider whether the county department of human services made
reasonable efforts to rehabilitate parents and reunite families.
§§ 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” to
reunify parents with their children. § 19-1-103(114).
¶ 37 Services provided in accordance with section 19-3-208 satisfy
the reasonable efforts standard. § 19-1-103(114). Among the
services required under section 19-3-208 are screenings,
assessments, and individual case plans for the provisions of
services; home-based family and crisis counseling; information and
referral services to available public and private assistance
resources; and family time and placement services. § 19-3-
208(2)(b). If funding is available, a department must also provide
substance abuse treatment services. § 19-3-208(2)(d)(V).
13 ¶ 38 A 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.
¶ 39 Whether a department of human services satisfied its
obligation to provide reasonable efforts is a mixed question of fact
and law. People in Interest of A.S.L., 2022 COA 146, ¶ 8. We review
the juvenile court’s factual findings for clear error and review de
novo its legal determination, based on those findings, as to whether
the department satisfied its reasonable efforts obligation. Id.
14 2. Analysis
¶ 40 The juvenile court found, with record support, that the
Department provided mother with several services, which included
payments for mother to attend her monthly in-person family time
and assistance with housing and application fees. The Department
also remained in regular contact with mother. Thus, the court
determined that reasonable efforts were made to rehabilitate
mother, but those efforts did not result in mother becoming fit.
¶ 41 First, we reject mother’s arguments that the Department failed
to provide reasonable efforts when they did not provide in-person
family time visits while mother was incarcerated, and when they
failed to provide sufficient in-person and virtual visits following her
release. It does appear that the Department provided all the family
time ordered by the court. However, the record shows that the
Department paid for mother’s bus tickets, hotels, and gas cards to
allow her to attend her monthly in-person family time with the
child. Notably, mother never requested in-person family time while
she was incarcerated, nor did she request an increase in family time
(virtually or in person) following her release.
15 ¶ 42 The record also does not support mother’s assertions that the
Department failed to perform a home visit or assist with housing
resources and employment. Rather, the caseworker testified a
home visit did not occur because mother declined to complete the
Interstate Compact on the Placement of Children (ICPC) process
due to the caseworker’s ongoing concerns about the home and her
potential eviction from the home. The Department also offered to
provide mother financial assistance for the application fees, move-in
fees, and rental payments. They gave mother various lists of
housing options. And while mother never requested assistance with
employment, the Department provided her with information on local
job opportunities and contacted a local agency that gave mother
employment information.
¶ 43 We also disagree with mother’s arguments that the
Department did not hold family engagement meetings or meet with
mother’s parole officer. Mother cites to no legal authority, and we
are not aware of any, that would require the Department to make
such efforts. Regardless, the record shows the Department
maintained regular communication with mother and contacted
mother’s parole officer.
16 ¶ 44 True, the Department did not assist mother with mental
health treatment. However, she was required to engage in mental
health treatment through her parole, had mental health services set
up before being paroled, and was not attending her mental health
appointments regularly at the time of the termination hearing.
¶ 45 The Department also did not provide referrals for mother’s
substance abuse treatment. However, mother repeatedly denied
she had any substance use concerns and substance abuse
treatment was not initially a part of her treatment plan. Later,
when the Department requested mother submit hair follicle or
cuticle testing, she repeatedly refused and argued sobriety
monitoring was covered by her parole. About three months before
the termination hearing, mother was ordered to undergo a
substance use evaluation and complete urinalysis (UA) testing. The
evaluation recommended she attend inpatient treatment and her
UA was positive for illicit substances. The Department encouraged
mother to attend inpatient treatment and inquired about services
for her in her local area. But mother did not complete the intake
process for inpatient treatment. She also attended one outpatient
session but failed to engage further.
17 ¶ 46 Thus, considering the totality of the circumstances, we
conclude the juvenile court did not err in finding the Department
provided reasonable efforts. See My.K.M., ¶ 33.
V. Disposition
¶ 47 The judgment is affirmed.
JUDGE GOMEZ and JUDGE LUM concur.