Peo in Interest of MM

Opinion

23CA2128 Peo in Interest of MM 07-18-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2128

El Paso County District Court No. 22JV30034

Honorable Robin Chittum, Judge

The People of the State of Colorado,

Appellee,

In the Interest of M.M. and J.M. III, Children,

and Concerning T.W.,

Appellant.

JUDGMENT AFFIRMED

Division III

Opinion by JUDGE YUN

Dunn and Moultrie, JJ., concur

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

Announced July 18, 2024

Kenneth R. Hodges, County Attorney, Shannon Boydstun, Assistant County

Attorney, Colorado Springs, Colorado for Appellee

Debra W. Dodd, Guardian Ad Litem

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

Colorado for Appellant

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¶ 1 T.W. (mother) appeals the judgment terminating her

parent-child legal relationships with M.M. and J.M. III (the

children). We affirm.

I. Background

¶ 2 The El Paso County Department of Human Services (the

Department) filed a petition in dependency and neglect, alleging

that mother physically abused and failed to supervise the children

and that she had a history of abusing substances. Mother admitted

the allegations, and the juvenile court adjudicated the children

dependent and neglected. The court then adopted a treatment plan

for mother that required, among other things, that she address her

substance abuse and mental health issues, participate in life skills

training, demonstrate parental protective capacity, and provide for

the children’s needs.

¶ 3 About a year later, the Department moved to terminate

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

hearing, after which it granted the Department’s motion and

terminated the parent-child legal relationships between mother and

the children.

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II. Reasonable Efforts

¶ 4 Mother asserts that the juvenile court erred by finding that the

Department made reasonable efforts to rehabilitate her and reunify

her with the children. We disagree.

A. Applicable Law and Standard of Review

¶ 5 Before a juvenile court may terminate parental rights under

section 19-3-604(1)(c), C.R.S. 2023, the county department of

human services must make reasonable efforts to rehabilitate

parents and reunite families. §§ 19-3-100.5(1), 19-1-103(114),

19-3-208, 19-3-604(2)(h), C.R.S. 2023. Reasonable efforts means

the “exercise of diligence and care” to reunify parents with their

children. § 19-1-103(114).

¶ 6 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 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). Other services,

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including transportation assistance, must also be provided if the

government has sufficient funding. § 19-3-208(2)(d).

¶ 7 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. But 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.

¶ 8 Whether a department of human services satisfied its

obligation to make 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 but review de novo its

legal determination, based on those findings, as to whether the

department satisfied its reasonable efforts obligation. Id.

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B. Analysis

¶ 9 The juvenile court found that the Department had made

reasonable efforts by “try[ing] to support and engage” mother and

“get[ting] her access to resources” that she needed to complete her

treatment plan. For example, the court found that the Department

arranged supervised family services and that the caseworker “even

supervised some visits herself.” The court also found that the

Department had “offered and provided transportation assistance,”

which included a monthly bus pass and rides from staff and

providers. The court further found that the Department had made

“many referrals” to “numerous providers” for substance abuse,

mental health, and life skills services.

¶ 10 However, the juvenile court concluded that the Department’s

efforts were “tempered” by mother’s “willingness to engage.”

Although mother completed substance abuse and mental health

evaluations, the court noted, she did not consistently participate in

treatment or monitored sobriety. The court found that mother had

only “sporadically” participated in life skills and that her minimal

participation did not result in stability in her life. And while the

court recognized mother’s participation in family time, it also found

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that mother continued to “struggl[e] with parental protective

capacity based on the issues that have come up during her

visitation.”

¶ 11 The record supports the juvenile court’s findings. The

caseworker testified that mother completed substance abuse and

mental health evaluations and the Department made “numerous

referrals to numerous providers,” but mother did not engage in

treatment. The caseworker also reported that mother completed

just three drug screens, all of which were positive for

methamphetamine. The caseworker said that the Department

made three referrals for life skills; the life skills worker for the third

provider described mother’s engagement as “sporadic” at best. The

caseworker and a family time supervisor also discussed two

different incidents that occurred at family time — one in which

mother “flipped” over a table and another where she threw a chair

at an employee. Finally, the caseworker testified that the

Department gave mother “a bus pass on a monthly basis” and

provided her with rides, as well as “resource lists of individuals that

she could connect with to have transportation services set up.” And

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the caseworker indicated that the life skills worker and mother’s

family time supervisor also provided mother with rides.

¶ 12 Despite this record, mother asserts that the Department failed

to make reasonable efforts because it did not provide her with

(1) adequate family time services; (2) necessary transportation to

her services, particularly visits; and (3) housing resources.

¶ 13 We first address mother’s assertion that the Department failed

to provide her with family time services for three reasons. We reject

all three reasons.

¶ 14 First, we are not persuaded by mother’s contention that the

Department failed to provide her with visits for “weeks at a time.”

Mother directs us to only a single circumstance of this purported

failure, which occurred before the juvenile court adopted a

treatment plan for her. At that time, the court found that the

Department had not made reasonable efforts, and it ordered the

Department to make up the missed visits. On appeal, mother has

not directed us to anything in the record to indicate that the

Department subsequently failed to provide these make-up visits

and therefore failed to provide adequate family time services.

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¶ 15 Second, mother argues that the Department did not provide

video visits to her during a very brief period about three months

before the termination hearing. The record shows that, after

mother threw a chair at the family time supervisor and was

discharged from services, the caseworker made additional referrals

but could not find a new provider. Meanwhile, the juvenile court

declined the guardian ad litem’s request to suspend mother’s visits

after the incident and ordered that the children have “video visits

until they get back into therapy.” The caseworker testified that the

Department did not offer any video visits because she started

supervising in-person visits shortly after the court’s order. As a

result, mother missed, at most, one week of family time, and we

therefore discern no reversible error.

¶ 16 Third, mother asserts that the Department failed to make

reasonable efforts because it never expanded or liberalized her

family time, even though the juvenile court gave it discretion to do

so. But section 19-3-208(2)(b) only requires that the Department

provide family time services “as determined necessary and

appropriate by individual case plans.” Stated another way, to

satisfy the reasonable efforts requirement, the Department must

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provide family time as ordered by the court, which, except as

described above, mother does not challenge. The record therefore

shows that the Department satisfied its burden under section

19-3-208, and we are not convinced that it had any duty to exercise

its discretion to expand or liberalize family time, especially while

there were concerns with mother’s behavior during family time.

¶ 17 Next, we turn to mother’s assertion that the Department failed

to provide her with adequate transportation services. Specifically,

she contends that the record shows that the caseworker gave her

only two rides and did not know how many rides the life skills

worker had provided. But, as noted above, the record shows that

mother also received rides from the family time supervisor and that

the Department provided her with bus passes and other resources

for rides throughout the case. Thus, because the record supports

the juvenile court’s finding that the Department provided adequate

transportation services as required by section 19-3-208(2)(d)(I) and

mother has not directed us to anything in the record showing that

she missed a visit or a treatment appointment due to the

Department’s failure to provide adequate transportation services,

we reject her assertion.

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¶ 18 Finally, we disagree with mother’s assertion that the

Department did not provide her with housing resources. Here,

mother notes that she “lacked safe and appropriate housing for her

family” because her home “did not have functioning kitchen

appliances or even a locking front door.” But the record shows that

the Department bought mother a microwave and arranged for

someone to install a new door. Mother also asserts that “the

caseworker testified . . . that she was not aware of where [mother]

lived and had not even asked [her] about her housing situation.”

But the context of this testimony was that, about three weeks

before the termination hearing, the caseworker learned that mother

was getting evicted and therefore the caseworker could not confirm

whether mother had housing at the time of the hearing.

¶ 19 In sum, we conclude that the record supports the juvenile

court’s findings that the Department provided the necessary

resources for mother to comply with her treatment plan but she did

not use those resources to become a fit parent. See A.V., ¶ 12;

J.C.R., 259 P.3d at 1285. We therefore decline to disturb the

court’s judgment.

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III. Less Drastic Alternatives

¶ 20 Mother next contends that the juvenile court failed to properly

consider less drastic alternatives, such as an allocation of parental

responsibilities (APR).

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We disagree.

¶ 21 Before terminating parental rights under section

19-3-604(1)(c), the juvenile court must consider and eliminate less

drastic alternatives. People in Interest of M.M., 726 P.2d 1108,

1122-23 (Colo. 1986). In considering less drastic alternatives, a

court must give primary consideration to the child’s physical,

mental, and emotional conditions and needs. § 19-3-604(3); People

in Interest of Z.P., 167 P.3d 211, 214 (Colo. App. 2007). Long-term

placement may not be a viable alternative to termination if the child

needs a stable, permanent home that can be assured only by

adoption. Z.P., 167 P.3d at 214.

¶ 22 For a less drastic alternative to be viable, it must do more than

“adequate[ly]” meet a child’s needs; rather, it must be the “best”

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Mother presents this argument in the reasonable efforts section of

her brief. As our supreme court has previously concluded, a

challenge to “the Department’s search for placement options”

should be construed as a challenge to less drastic alternatives, not

reasonable efforts. People in Interest of B.H., 2021 CO 39, ¶¶ 78-79.

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option for the child. People in Interest of A.M. v. T.M., 2021 CO 14,

¶ 27. Therefore, if the juvenile court considers a less drastic

alternative but finds instead that termination is in the child’s best

interests, it must reject the less drastic alternative and order

termination. Id. at ¶ 32. And under those circumstances, we must

affirm the court’s decision if its findings are supported by the

record. People in Interest of B.H., 2021 CO 39, ¶ 80.

¶ 23 In this case, the juvenile court found that there was no less

drastic alternative to termination, noting that the Department had

investigated “other family members,” but there were not “any other

family members . . . willing to do [an] APR except for [the] maternal

grandmother, who is not [an] appropriate” placement option. The

court noted that the children had been in their paternal aunt’s care

for “a good chunk of time” and they were “thriving in her care.”

¶ 24 The juvenile court further found that, even if an APR was an

available option, it would not be in the children’s best interests.

Specifically, the court noted that, because these children had been

in multiple placements (even before the case began), they “needed to

know that they [were not] moving again for the sake of their mental

and emotional well-being.” Therefore, the court concluded that

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termination, not an APR, was in the children’s best interests, so

that the children “know that they are in a permanent home.”

¶ 25 Mother first contends that the juvenile court erred because the

Department failed to conduct a diligent search for relatives. But,

for the purpose of less drastic alternatives, the Department is not

required to independently identify and evaluate possible placement

options. Z.P., 167 P.3d at 215. Instead, the Department is only

required to evaluate a reasonable number of persons the parent

identifies as placement options. People in Interest of D.B-J., 89 P.3d

530, 532 (Colo. App. 2004). Mother did not identify any placement

options, either in the juvenile court or on appeal, that the

Department failed to investigate and evaluate. We therefore discern

no error.

¶ 26 Mother next asserts that the Department “never fully explored

the possibility of an APR” to the paternal aunt because the

caseworker only provided the paternal aunt “with a form document

listing the available permanency options and asked [the paternal

aunt] to let her know which option she chose.” Nevertheless, it is

undisputed that the paternal aunt did not want an APR and

preferred to adopt the children. See S.N-V., 300 P.3d at 920 (noting

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that a court may consider whether a placement option prefers

adoption rather than an APR in its decision to reject less drastic

alternatives); see also People in Interest of P.D., 41 Colo. App. 109,

113, 580 P.2d 836, 838 (1978) (noting that a court cannot award an

APR to an unwilling person who is not the child’s parent). Because

mother has not directed us to any authority requiring the

Department to do more than ask the placement option about her

preference for an adoption or APR, we reject her argument.

¶ 27 Finally, mother contends that the Department should have

“reevaluate[d] placement” with the maternal grandmother. The

caseworker testified that the Department eliminated the maternal

grandmother as a placement option because she did not have the

ability to meet the children’s needs, allowed mother to have

unauthorized contact with the children, and had reportedly

emotionally and physically abused the children. See People in

Interest of T.E.M., 124 P.3d 905, 910 (Colo. App. 2005) (placement

with a relative is not a less drastic alternative if the placement

option cannot appropriately care for the child). Based on

statements made by the county attorney at a hearing in September

2023, mother suggests that the Department failed to reevaluate the

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maternal grandmother after the juvenile court ordered it to do so in

March 2023. But the caseworker testified at the termination

hearing that she reassessed the maternal grandmother for

placement and continued to have the same concerns.

¶ 28 At any rate, even assuming that the maternal grandmother

was an appropriate placement option, we discern no error. As

noted, the juvenile court found that an APR was not in the

children’s best interests because they needed permanency that

could not be achieved through an APR. See Z.P., 167 P.3d at 214.

In other words, the court determined, with record support, that an

APR, regardless of the placement option, was not a less drastic

alternative to termination.

IV. Disposition

¶ 29 The judgment is affirmed.

JUDGE DUNN and JUDGE MOULTRIE concur.