24CA1278 Peo in Interest of PA 06-05-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1278 Adams County District Court No. 23JV30071 Honorable Caryn A. Datz, Judge
The People of the State of Colorado,
Appellee,
In the Interest of P.A., a Child,
and Concerning K.C.S.,
Appellant.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE KUHN Welling and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 5, 2025
Heidi M. Miller, County Attorney, Katherine Gregg, Assistant County Attorney, Westminster, Colorado, for Appellee
Jenna L. Mazzucca, Guardian Ad Litem
Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant ¶1 In this dependency and neglect proceeding, K.C.S. (mother)
appeals the judgment terminating her parent-child legal
relationship with P.A. (the child). We affirm.
I. Background
¶2 In April 2023, the Adams County Human Services Department
filed a petition in dependency and neglect after mother exhibited
concerning behaviors, including apparent delusions, and was
placed on a mental health hold following the birth of the child.
¶3 The juvenile court accepted mother’s no-fault admission to the
petition and adjudicated the child dependent and neglected. The
court adopted a treatment plan for mother. The court appointed
legal counsel for mother, and it also appointed a guardian ad litem
to assist her in view of her extensive mental health history.
¶4 The Department later moved to terminate mother’s rights. The
juvenile court held an evidentiary hearing in June 2024. The next
day, it granted the motion and terminated mother’s parental rights.
II. Analysis
¶5 Mother contends that the juvenile court erred by terminating
her parental rights because (1) the Department did not provide her
with reasonable accommodations under the Americans with
1 Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, and thus it failed
to make reasonable efforts to rehabilitate her and reunify her with
the child; (2) she received ineffective assistance of counsel before
and during the termination hearing; and (3) the record does not
support the court’s finding that there were no less drastic
alternatives to termination. We consider each of these contentions
in turn.
A. Mother’s ADA Reasonable Efforts Claim
¶6 Mother first contends that the juvenile court erred by finding
that the Department made reasonable efforts to rehabilitate her
when it failed to accommodate her mental health concerns in
violation of the ADA.
¶7 The Department and the guardian ad litem assert, and we
agree, that this argument is not properly before us because mother
failed to preserve it in the juvenile court. See People in Interest of
M.B., 2020 COA 13, ¶ 14 (“[G]enerally, appellate courts review only
issues presented to and ruled on by the lower court.”).
¶8 It is undisputed that mother never asserted to either the
Department or the juvenile court that she had a qualifying disability
within the meaning of the ADA. Nor did she suggest any
2 modifications to her treatment plan or request any accommodations
for her disability that would allow her to better engage with the plan
or the case. See id. Because she failed to raise this issue during
the case, the juvenile court did not have an opportunity to
determine whether mother had a disability, to evaluate any
requested accommodations, or to order the Department to provide
her with reasonable accommodations. See People in Interest of
S.Z.S., 2022 COA 133, ¶¶ 16-17; see also People in Interest of S.K.,
2019 COA 36, ¶ 35 (“What constitutes a reasonable accommodation
will be based on an individual assessment.”). And the parties did
not have the opportunity to develop a factual record for our review.
See S.K., ¶ 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).
¶9 Still, mother argues that we should address her unpreserved
ADA 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”). In support of her argument,
3 mother points out that, because she had previously been reported
to have bipolar disorder and her mental health was a consistent
concern in the case, she “clearly” suffered from a disability of which
the case professionals were aware. 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).
¶ 10 We agree with mother that if a department knows or has
reason to know that a parent has a qualifying disability under the
ADA, then the department is obligated to provide that parent with
reasonable accommodations. Id. However, under these facts we
disagree with mother’s contention that the Department had reason
to know that she had a qualifying disability.
¶ 11 It’s true that the caseworker, who was qualified as an expert in
social work with an emphasis on child protection, testified that
mother’s mental health was an ongoing concern and that mother
frequently lacked focus or appeared paranoid. Hospital staff also
reported to the caseworker that mother had been diagnosed with
bipolar disorder, mild postpartum depression, mixed mood
regulation, and recommended ongoing treatment. And the
4 caseworker further opined that mother’s untreated mental health
made her an unsafe parent for the child.
¶ 12 However, the record also shows that the caseworker provided
mother with at least three referrals for a dual diagnosis that would
have evaluated her mental health issues, but she never completed
one. And the caseworker opined that, given her lack of expertise in
mental health, it was difficult without a full assessment to say
exactly what mother’s mental health concerns were. Indeed, the
caseworker testified that even though mother exhibited some
mental health problems, she was resourceful and able to identify
and access certain benefits.
¶ 13 Further, mother’s counsel never asserted that mother had a
qualifying disability under the ADA throughout the course of this
case. And mother’s counsel never identified or requested any
reasonable accommodations from either the Department or the
court. Critically, mother continually denied having any mental
health concerns. Mother also never asserted that she had a
disability or made a request for any type of accommodation.
Indeed, even on appeal mother fails to articulate what kind of
5 accommodation would have allowed her to meet the terms of her
treatment plan.
¶ 14 Under these circumstances, we can’t conclude that the
Department should have known that mother had a disability under
the ADA. And given that conclusion, we don’t see how the
Department could have unilaterally discerned what type of
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24CA1278 Peo in Interest of PA 06-05-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1278 Adams County District Court No. 23JV30071 Honorable Caryn A. Datz, Judge
The People of the State of Colorado,
Appellee,
In the Interest of P.A., a Child,
and Concerning K.C.S.,
Appellant.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE KUHN Welling and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 5, 2025
Heidi M. Miller, County Attorney, Katherine Gregg, Assistant County Attorney, Westminster, Colorado, for Appellee
Jenna L. Mazzucca, Guardian Ad Litem
Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant ¶1 In this dependency and neglect proceeding, K.C.S. (mother)
appeals the judgment terminating her parent-child legal
relationship with P.A. (the child). We affirm.
I. Background
¶2 In April 2023, the Adams County Human Services Department
filed a petition in dependency and neglect after mother exhibited
concerning behaviors, including apparent delusions, and was
placed on a mental health hold following the birth of the child.
¶3 The juvenile court accepted mother’s no-fault admission to the
petition and adjudicated the child dependent and neglected. The
court adopted a treatment plan for mother. The court appointed
legal counsel for mother, and it also appointed a guardian ad litem
to assist her in view of her extensive mental health history.
¶4 The Department later moved to terminate mother’s rights. The
juvenile court held an evidentiary hearing in June 2024. The next
day, it granted the motion and terminated mother’s parental rights.
II. Analysis
¶5 Mother contends that the juvenile court erred by terminating
her parental rights because (1) the Department did not provide her
with reasonable accommodations under the Americans with
1 Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, and thus it failed
to make reasonable efforts to rehabilitate her and reunify her with
the child; (2) she received ineffective assistance of counsel before
and during the termination hearing; and (3) the record does not
support the court’s finding that there were no less drastic
alternatives to termination. We consider each of these contentions
in turn.
A. Mother’s ADA Reasonable Efforts Claim
¶6 Mother first contends that the juvenile court erred by finding
that the Department made reasonable efforts to rehabilitate her
when it failed to accommodate her mental health concerns in
violation of the ADA.
¶7 The Department and the guardian ad litem assert, and we
agree, that this argument is not properly before us because mother
failed to preserve it in the juvenile court. See People in Interest of
M.B., 2020 COA 13, ¶ 14 (“[G]enerally, appellate courts review only
issues presented to and ruled on by the lower court.”).
¶8 It is undisputed that mother never asserted to either the
Department or the juvenile court that she had a qualifying disability
within the meaning of the ADA. Nor did she suggest any
2 modifications to her treatment plan or request any accommodations
for her disability that would allow her to better engage with the plan
or the case. See id. Because she failed to raise this issue during
the case, the juvenile court did not have an opportunity to
determine whether mother had a disability, to evaluate any
requested accommodations, or to order the Department to provide
her with reasonable accommodations. See People in Interest of
S.Z.S., 2022 COA 133, ¶¶ 16-17; see also People in Interest of S.K.,
2019 COA 36, ¶ 35 (“What constitutes a reasonable accommodation
will be based on an individual assessment.”). And the parties did
not have the opportunity to develop a factual record for our review.
See S.K., ¶ 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).
¶9 Still, mother argues that we should address her unpreserved
ADA 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”). In support of her argument,
3 mother points out that, because she had previously been reported
to have bipolar disorder and her mental health was a consistent
concern in the case, she “clearly” suffered from a disability of which
the case professionals were aware. 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).
¶ 10 We agree with mother that if a department knows or has
reason to know that a parent has a qualifying disability under the
ADA, then the department is obligated to provide that parent with
reasonable accommodations. Id. However, under these facts we
disagree with mother’s contention that the Department had reason
to know that she had a qualifying disability.
¶ 11 It’s true that the caseworker, who was qualified as an expert in
social work with an emphasis on child protection, testified that
mother’s mental health was an ongoing concern and that mother
frequently lacked focus or appeared paranoid. Hospital staff also
reported to the caseworker that mother had been diagnosed with
bipolar disorder, mild postpartum depression, mixed mood
regulation, and recommended ongoing treatment. And the
4 caseworker further opined that mother’s untreated mental health
made her an unsafe parent for the child.
¶ 12 However, the record also shows that the caseworker provided
mother with at least three referrals for a dual diagnosis that would
have evaluated her mental health issues, but she never completed
one. And the caseworker opined that, given her lack of expertise in
mental health, it was difficult without a full assessment to say
exactly what mother’s mental health concerns were. Indeed, the
caseworker testified that even though mother exhibited some
mental health problems, she was resourceful and able to identify
and access certain benefits.
¶ 13 Further, mother’s counsel never asserted that mother had a
qualifying disability under the ADA throughout the course of this
case. And mother’s counsel never identified or requested any
reasonable accommodations from either the Department or the
court. Critically, mother continually denied having any mental
health concerns. Mother also never asserted that she had a
disability or made a request for any type of accommodation.
Indeed, even on appeal mother fails to articulate what kind of
5 accommodation would have allowed her to meet the terms of her
treatment plan.
¶ 14 Under these circumstances, we can’t conclude that the
Department should have known that mother had a disability under
the ADA. And given that conclusion, we don’t see how the
Department could have unilaterally discerned what type of
accommodations mother might have needed given this record. We
therefore conclude that reviewing mother’s unpreserved ADA claim
isn’t necessary to avoid a miscarriage of justice under these
circumstances.
B. Ineffective Assistance of Counsel
¶ 15 Mother next contends that she received ineffective assistance
of counsel because her counsel was aware of her mental health-
related disabilities but failed to provide ADA notice or seek
amendments to the treatment plan. We disagree.
1. Applicable Law
¶ 16 A parent has a statutory right to appointed counsel in
dependency and neglect proceedings. § 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
6 of counsel. See 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).
¶ 17 In evaluating a claim of ineffective assistance of counsel in a
termination proceeding, 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 (citing Strickland v. Washington, 466 U.S.
668 (1984)). 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.
¶ 18 Under this approach, an appellate court ordinarily must
remand for an evidentiary hearing if the parent’s allegations are
sufficiently specific to constitute a prima facie showing of ineffective
assistance of counsel. A.R., ¶ 63. However, if the parent’s
allegations lack sufficient specificity, we may summarily deny the
ineffective assistance of counsel claim. Id.
7 2. Mother Doesn’t Demonstrate Prejudice For Her Ineffective Assistance of Counsel Claim
¶ 19 Even if we were to assume without deciding that counsel’s
performance fell below the range of professionally competent
assistance, mother has not shown that she was prejudiced by the
alleged error. Her assertions do not specifically show that, but for
her counsel’s failure to raise the ADA or to request
accommodations, the result of the termination hearing would have
been different.
¶ 20 For example, mother contends that if her counsel had filed
notice of a qualifying disability and requested amendments to the
treatment plan to ensure the plan “appropriately centered [on her]
mental health and provided for adequate support to facilitate [her]
engagement, there is a reasonable probability that [she] would have
obtained mental health treatment,” which in turn would have
enabled her to address the remaining child protection concerns that
led to the Department’s involvement. But mother does not explain
how her treatment plan could have been designed differently, does
not identify reasonable accommodations she needed, and does not
8 argue how those accommodations would have rendered her a fit
parent in a reasonable time for the child.
¶ 21 In short, mother’s allegations lack specificity to demonstrate
prejudice, and thus, she has not made a prima facie showing of
ineffective assistance of counsel. Id. at ¶ 60 (“If the parent’s
allegations lack sufficient specificity, then the ineffective assistance
of counsel claim may be summarily denied.”). Consequently, this
claim fails to satisfy the second prong of the Strickland test, and
mother has failed to show a reasonable probability that the result of
the proceeding would have been different. Id.
C. Less Drastic Alternatives
¶ 22 Lastly, mother contends that the juvenile court erred by
finding there were no less drastic alternatives to termination of her
parental rights. Specifically, she argues that the Department failed
to adequately investigate placement options she had provided to the
supervising caseworker and inappropriately placed the burden of
contacting those placements on mother. We discern no basis for
reversal.
9 1. Standard of Review and Applicable Law
¶ 23 Whether a juvenile court properly terminated parental rights
presents a mixed question of law and fact 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. We review de novo the
proper legal standard that applies in the case and the application of
that standard to the particular facts. M.A.W. v. People in the
Interest of A.L.W., 2020 CO 11, ¶ 31. However, we review the
court’s factual findings for clear error and will not disturb them
when they are supported by the record. Id. at ¶ 32; see also A.M.,
¶ 15.
¶ 24 A 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. 2024.
¶ 25 Implicit in the statutory scheme for termination is a
requirement that the juvenile court consider and eliminate less
10 drastic alternatives before entering an order of termination. People
in Interest of B.H., 2021 CO 39, ¶ 51; A.M., ¶ 19. When considering
less drastic alternatives, the court bases its decision on the best
interests of the child, giving primary consideration to the child’s
physical, mental, and emotional conditions and needs.
§ 19-3-604(3).
¶ 26 Ultimately, for a less drastic alternative to be viable, it must do
more than “adequate[ly]” meet a child’s needs; rather, the less
drastic alternative must be in the child’s best interest. A.M., ¶ 27.
Therefore, if the 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. B.H., ¶ 80.
2. The Record Supports the Juvenile Court’s Less Drastic Alternatives Findings
¶ 27 The juvenile court noted in its findings that there was evidence
to suggest that mother had provided additional potential placement
names shortly before the termination hearing and, “for unknown
reasons,” the caseworker’s supervisor directed mother to work with
11 those placement options to complete the kinship information on her
own.
¶ 28 However, the court also observed that at the time of the
termination hearing “there was no evidence of any identified family
members that were appropriate and available for placement of the
child.” The court also stated that because mother had made
serious accusations against the child’s caregivers in the past, it was
not convinced that mother would adhere to court orders on
parenting time. It therefore found that “any APR agreement would
likely result in conflict between the child’s caregivers and her parent
in a manner that would be emotionally unsafe and damaging and
could disrupt her permanency.”
¶ 29 Ultimately, the juvenile court concluded that “[u]nder the
totality of the circumstances, including the child’s age, her
developmental needs, and the length of time the child has been
placed outside of the home,” there were no available less drastic
alternatives and termination was in the child’s best interests.
¶ 30 It is concerning that the caseworker’s supervisor apparently
asked mother to work with the individual placement options to
complete the kinship paperwork, and nothing in this opinion should
12 be read as approving of that practice. Nonetheless, the record
supports the court’s findings.
¶ 31 The caseworker testified that she completed two searches for
family members, inquired with mother about potential placement
options, and reached out to numerous family members who either
declined placement or did not respond. Additionally, the
caseworker testified that, even if there was an available relative, the
child needed the permanency of adoption. And the caseworker
testified about her concerns that if a less drastic alternative was
granted, mother could cause disruption in the child’s placement as
she had a history of making serious and unsubstantiated
accusations against the child’s caregivers.
¶ 32 Because the record supports the court’s finding that
termination, and not a less drastic alternative, was in the child’s
best interests, we cannot disturb it. See A.M., ¶ 32; B.H., ¶ 80.
III. Disposition
¶ 33 The judgment is affirmed.
JUDGE WELLING and JUDGE SCHUTZ concur.