Peo in Interest of RAE

• Court: Colorado Court of Appeals
• Decided: December 26, 2024
• Docket: 24CA0892
• Status: Unpublished

Opinion

24CA0892 Peo in Interest of RAE 12-26-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0892 Montrose County District Court No. 19JV61 Honorable D. Cory Jackson, Judge

The People of the State of Colorado,

Appellee,

In the Interest of R.A.E., a Child,

and Concerning K.L.E.,

Appellant.

JUDGMENT AFFIRMED

Division VI Opinion by JUDGE WELLING Brown and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 26, 2024

Martha Phillips Whitmore, County Attorney, Julie R. Andress, Deputy County Attorney, Montrose, Colorado, for Appellee

Jenna L. Mazzucca, Guardian Ad Litem

Patrick R. Henson, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant ¶1 In this dependency and neglect action, K.L.E. (mother) appeals

the judgment terminating her parent-child legal relationship with

R.A.E. (the youth). We affirm.

I. Background

¶2 Montrose County Health and Human Services (the

Department) received a referral about the then-eight-year-old youth

with concerns that mother had abandoned the youth and his older

sister in Utah without making arrangements for their care.1 The

Department attempted to support B.E. (father), who brought the

children to Montrose County after being contacted by authorities in

Utah. However, there were also concerns in father’s home, and

about a month later, the Department filed a petition in dependency

and neglect, alleging instability, abandonment, and endangerment

by mother.

¶3 The juvenile court adjudicated the youth dependent and

neglected and adopted a treatment plan for mother. For a time,

mother made progress on her treatment plan and the youth

returned to her care for a trial home visit. However, the youth was

1 The sister was dismissed as a party before the termination

judgment and is not part of this appeal.

1 removed again about eight months later. Almost a year after the

second removal, the Department moved to terminate mother’s

parental rights. Three years after the petition was filed, the court

granted the motion.

¶4 Mother appealed, challenging the juvenile court’s jurisdiction

under the Uniform Child-custody Jurisdiction and Enforcement Act

(UCCJEA), §§ 14-13-101 to -403, C.R.S. 2024. A division of this

court remanded the case to the juvenile court to “analyze its non-

emergency jurisdiction, giving the parties an opportunity to present

relevant facts and applicable legal arguments.” See People in

Interest of R.A.E., (Colo. App. No. 23CA0524, Sept. 28, 2023) (not

published pursuant to C.A.R. 35(e)).

¶5 On remand, after an evidentiary hearing and consultation with

the Utah court, the juvenile court concluded that it had jurisdiction

and reinstated the termination judgment.

¶6 Mother now appeals the termination of her parental rights and

the juvenile court’s jurisdictional findings made on remand.

II. Jurisdiction Under the UCCJEA

¶7 Mother contends that the juvenile court erred by not

complying with the remand order, erroneously analyzing

2 jurisdiction under the UCCJEA, and reinstating the termination

judgment after obtaining jurisdiction. We aren’t persuaded.

A. Standard of Review and Applicable Law

¶8 We review de novo whether the juvenile court had subject

matter jurisdiction under the UCCJEA. People in Interest of S.A.G.,

2021 CO 38, ¶ 21. We defer, however, to a juvenile court’s factual

findings informing the determination of jurisdiction and won’t

disturb such findings unless they are clearly erroneous. Id.

¶9 The UCCJEA “establishes a comprehensive framework that a

Colorado court must follow to determine whether it may exercise

jurisdiction in a child-custody matter or whether it must defer to a

court of another state.” People in Interest of M.M.V., 2020 COA 94,

¶ 17.

¶ 10 A court has jurisdiction to make an initial child-custody

determination if, as relevant here, the state is the child or youth’s

home state. § 14-13-201(1)(a), C.R.S. 2024. A court that makes an

initial child-custody determination generally retains exclusive,

continuing jurisdiction. § 14-13-202, C.R.S. 2024. However, a

court that retains home state jurisdiction may “decline[] to exercise

jurisdiction on the ground that a court of [another state] is the more

3 appropriate forum to determine the custody of the child under a

provision of law adopted by that state that is in substantial

conformity with section 14-13-207 or 14-13-208[, C.R.S. 2024].”

§ 14-13-201(1)(c). As relevant here, section 14-13-207 allows a

court to “decline to exercise its jurisdiction at any time if it

determines that it is an inconvenient forum under the

circumstances and that a court of another state is a more

appropriate forum.” § 14-13-207(1).

¶ 11 If a juvenile court errs by failing to analyze its jurisdiction

under the UCCJEA before entering a judgment terminating parental

rights, it may, on remand, correct the error. S.A.G., ¶ 58. If the

court “does acquire non-emergency jurisdiction after a full

[UCCJEA] analysis, it may reinstate the termination judgment

based on the existing record.” Id.

B. Additional Background

¶ 12 As part of mother’s first appeal, a division of this court

remanded the case “[b]ecause the juvenile court never determined

which state was the child’s home state at the time of termination or

otherwise followed the UCCJEA’s procedures to acquire non-

emergency jurisdiction.” R.A.E., ¶ 29.

4 ¶ 13 To remedy this error, on remand the juvenile court contacted

the Utah court where the youth resided before being brought to

Colorado by father. See § 14-13-110(1), C.R.S. 2024. The juvenile

and Utah courts then held a joint evidentiary hearing. During that

hearing, mother revealed — for the first time — that custody orders

for the youth were entered in a domestic relations case in Utah.

After mother’s testimony, the Utah court located the divorce decree

and custody determination, which had been issued four years

before the petition in dependency and neglect was filed. Because

the decree was from a different district in Utah, the Utah court

asked to confer with the judge presiding over the domestic relations

case before making any jurisdictional determinations.

¶ 14 A few weeks later, the Utah court filed a letter with the juvenile

court. See § 14-13-110; see also Utah Code Ann. § 78B-13-110

(West 2024). The Utah court determined:

1. Utah was the youth’s home state, had initial jurisdiction,

and — because of the newly discovered child custody

determination made in Utah — had exclusive and

continuing jurisdiction over the child;

5 2. Utah was an inconvenient forum and Colorado was a

more convenient forum because (a) the original Utah

judge was retired and the replacement judge didn’t have

any knowledge of the youth; (b) the youth had resided in

Colorado for “a significant period of time and most of the

circumstances and facts involved in the Colorado case

took place in Colorado”; (c) there was a significant

distance from Montrose County to the Utah county where

the initial determination was made; (d) most of the

evidence was located in Colorado; and (e) Utah courts

had not had any involvement with the family for eight

years;

3. Colorado had a significant connection with the youth

because all members of the youth’s family resided there

and had done so for several years; and

4. Utah declined to exercise jurisdiction.

¶ 15 The juvenile court then issued an order on remand. In that

order, the court noted that, with the new information about the

child custody determination made in Utah, “the question is now

whether Colorado has jurisdiction to modify that determination.”

6 The court noted that the Utah court had (1) found that Utah was

the child’s home state, (2) determined that Colorado was a more

convenient forum, and (3) declined to exercise jurisdiction. The

court then concluded that it had jurisdiction to modify Utah’s initial

determination and reinstated the termination judgment.

C. Analysis

¶ 16 Mother first contends that the juvenile court erred by reaching

beyond the remand instructions. Because the Utah custody

determination was unknown to any of the participants in the case

at the time of the appeal, the original remand order focused on the

need for the juvenile court to determine if the youth had a home

state at the time of the termination hearing. R.A.E., ¶¶ 26, 30,

citing S.A.G., ¶¶ 26, 42-44. The remand order thus directed that

“[if] the court determines that it had non-emergency jurisdiction at

the time of the termination hearing, it shall specify which type of

jurisdiction it is invoking.” R.A.E., ¶ 30. Mother contends that the

juvenile court should have ended its analysis as soon as the Utah

and juvenile courts determined that Utah was the child’s home

state. We disagree.

7 ¶ 17 Once the existing custody determination became known to the

juvenile court, the relevant question shifted from what, if any, state

could claim home state status to whether Utah — the state that had

exclusive continuing jurisdiction — was going to continue to

exercise that jurisdiction. See § 14-13-201(1)(b), 14-13-203(1),

C.R.S. 2024; see also People in Interest of B.H., 2021 CO 39, ¶¶ 3,

42.

¶ 18 To the extent there was any error by the juvenile court in

continuing the UCCJEA analysis beyond the remand instructions,

the error is harmless because the court properly followed the

UCCJEA procedures once the Utah custody determination became

known to the court and the parties. Indeed, by doing so the

juvenile court averted error and delay that would have resulted had

the juvenile court uncritically followed the strict terms of the

remand instructions, which this court crafted based on incomplete

information.

¶ 19 Turning to the merits of the juvenile court’s jurisdictional

determination, based on the conferral with the Utah court and that

court’s findings, we conclude that the juvenile court properly

determined that it had jurisdiction to modify the Utah custody

8 order. Under the UCCJEA, Utah had initial and continuing

exclusive jurisdiction by virtue of having entered the original child

custody orders. See § 14-13-202. That jurisdiction continues until

one of a discrete number of circumstances arises. One such

circumstance is that a court of another state — in this case,

Colorado — obtains jurisdiction to modify the Utah child custody

determination. See § 14-13-203(1)(a).

¶ 20 A Colorado court can acquire jurisdiction to modify the Utah

child custody order only if (1) Colorado “has jurisdiction to make an

initial determination under section 14-13-201(1)(a) or 14-13-

201(1)(b),” and (2) Utah “determines . . . that a court of this state

would be a more convenient forum under a provision of law adopted

by that state that is in substantial conformity with section 14-13-

207.” § 14-13-203(1)(a). Here, both conditions were satisfied.

¶ 21 Section 14-13-201(1)(b) provides that Colorado has

jurisdiction to make an initial child-custody determination if “a

court of the home state of the child has declined to exercise

jurisdiction on the ground that this state is the more appropriate

forum.” During the conferral between the Colorado juvenile court

and the Utah court, the Utah court declined to exercise jurisdiction

9 on the ground that Colorado would be a more convenient and

appropriate forum. This vested Colorado with modification

jurisdiction. See § 14-13-203(1)(a). And acquiring modification

jurisdiction under the UCCJEA vests a juvenile court with

jurisdiction to adjudicate a child dependent and neglected under

the under the Children’s Code, see B.H., 2021 CO 39, ¶¶ 3, 45,

which in turn gives the juvenile court jurisdiction to terminate

parental rights, see People In Int. of E.W., 2022 COA 12, ¶ 19

(“[T]ermination is not a new child-custody proceeding or a

modification of a child-custody determination that requires the

juvenile court to re-assess its jurisdiction.”), aff'd sub nom. R.W. v.

People In Int. of E.W., 2022 CO 51. Thus, we also reject mother’s

contention that the termination of mother’s parental rights was a

separate or new “child-custody proceeding” under the UCCJEA

requiring a separate jurisdictional analysis. See S.A.G., ¶ 39 n.3

(“[I]n Colorado, a motion to terminate parental rights after a child

has been adjudicated dependent and neglected is a request for a

remedy, not the start of a second proceeding.” (citing § 19-3-

502(3)(a), C.R.S. 2024)).

10 ¶ 22 Simply put, after conferral with the Utah court, the juvenile

court properly concluded that it had jurisdiction to modify the Utah

child custody order and that this modification jurisdiction included

the authority to terminate parental rights.

¶ 23 Finally, mother contends that the juvenile court lacked

jurisdiction to reinstate the termination judgment once it concluded

that it didn’t have jurisdiction at the time of the termination

hearing. As best as we understand it, mother argues that the

Colorado Supreme Court cases relied on by the juvenile court don’t,

to her satisfaction, explain why reinstatement of a termination

judgment is possible. Regardless of mother’s disagreement with the

holdings in S.A.G. and B.H., the Colorado Supreme Court has made

clear that “if [a juvenile] court does acquire non-emergency

jurisdiction [on remand], it may reinstate the termination judgment

based on the existing record.” B.H., ¶ 83, see also S.A.G., ¶ 58 (“If

the juvenile court does acquire non-emergency jurisdiction after a

full section 14-13-201(1) analysis, it may reinstate the termination

judgment based on the existing record.”). We, like the juvenile

court, are obligated to follow these directives.

11 ¶ 24 In sum, the juvenile court properly addressed its earlier errors

related to jurisdiction under the UCCJEA and we discern no errors

in the court’s jurisdictional findings or conclusions on remand.

¶ 25 We turn next to mother’s contentions concerning the

termination judgment itself.

III. Termination of Parental Rights

A. Relevant Law and Standard of Review

¶ 26 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. 2024; People in Interest of

E.S., 2021 COA 79, ¶ 10.

¶ 27 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

12 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, including whether the Department engaged in

reasonable efforts. People in Interest of A.S.L., 2022 COA 146, ¶ 8.

¶ 28 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).

B. Reasonable Efforts

¶ 29 Mother contends that the juvenile court erred by finding the

Department made reasonable efforts because the Department didn’t

provide adequate services after the end of the trial home visit. We

aren’t persuaded.

1. Preservation

¶ 30 As a preliminary matter, we address the guardian ad litem’s

and Department’s contentions that mother didn’t properly preserve

her reasonable efforts claim for our review. Generally, issues not

raised in the juvenile court may not be raised for the first time on

appeal. People in Interest of T.E.R., 2013 COA 73, ¶ 30. Mother

13 asserts that her statement that she “didn’t have the support of

anybody else but herself” during closing argument was sufficient to

preserve the issue for our review.

¶ 31 We recognize that divisions of this court are split on whether a

parent must challenge the department’s reasonable efforts prior to

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

object to services provided before the termination hearing). We

need not resolve this question, however, because whether we

conclude that mother has failed to preserve the issue for appellate

review or whether we address the issue, the outcome is the same.

See People in Interest of C.N., 2018 COA 165, ¶ 14.

2. Relevant Law

¶ 32 Before a court may terminate parental rights under section

19-3-604(1)(c), the county department of human services must

make reasonable efforts to rehabilitate parents. §§ 19-1-103(114),

14 19-3-100.5(1), 19-3-208, 19-3-604(2)(h), C.R.S. 2024. Reasonable

efforts means the “exercise of diligence and care throughout the

state of Colorado for children and youth who are in foster care or

out-of-home placement.” § 19-1-103(114).

¶ 33 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 services; and placement services. § 19-3-208(2)(b).

¶ 34 In determining if the Department provided reasonable efforts,

the juvenile court should consider whether the services provided

were appropriate to support the parent’s treatment plan. S.N-V.,

300 P.3d at 915. The parent is ultimately responsible for using

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).

15 3. Additional Background

¶ 35 Mother testified that two and a half years after the petition

was filed, she “went to go meet somebody” on New Year’s Eve. She

took the youth with her. Mother testified that she smoked

marijuana laced with ketamine “along with other things” given to

her by the man she was meeting. Mother testified that the man

then took her and the youth to a hotel room, where the man

sexually assaulted mother. Mother acknowledged that she “put [the

youth] into a dangerous position.”

¶ 36 That same weekend, the youth’s sister reported to the

Department that she ran away after seeing mother use illegal

substances in their home.

¶ 37 Mother contacted the Department to report the youth’s sister

had run away but didn’t report the New Year’s Eve incident until

the Department received a separate referral for the youth about that

incident and confronted mother.

¶ 38 Because of these and other concerns about mother’s

substance dependence, the Department ended the trial home visit

with mother and removed the youth from her care.

16 4. Analysis

¶ 39 The juvenile court found that the Department made

reasonable efforts to provide rehabilitative services to mother, but

the efforts weren’t successful. The court found that mother stopped

engaging with metal health services after the trial home visit ended,

and she “fail[ed] to diligently pursue” services regardless of whether

the services were identified by her or referred by the Department.

The court found that, despite the Department’s attempts to help

mother pursue inpatient treatment, mother “failed to do her part to

follow up with getting engaged in those services.”

¶ 40 On appeal, mother contends that the Department failed to

provide her with information and referrals for mental health, health

care, or “trauma services” or other available assistance after she

reported being sexually assaulted on New Year’s Eve. But the

record belies mother’s claim. Mother testified that she was in

“regular treatment” but stopped attending after New Year’s Eve and

the end of the trial home visit. Mother reported that she was “in a

very unstable place” and “just kind of gave up.”

¶ 41 Mother had only sporadic contact with the Department after

the trial home visit ended, and the caseworker sometimes couldn’t

17 reach her for months at a time. At times mother reported being

engaged in services, but when the caseworker followed up with the

providers, she learned that mother had been discharged.

¶ 42 The caseworker testified that mother stopped engaging in

mental health services before the trial home visit ended. After the

youth was removed from the trial home visit, “almost immediately

[the Department and mother] set up a plan for [mother] to reengage

in services.” Mother did reengage on a “very limited” basis to

address her mental health.

¶ 43 The caseworker encouraged mother to pursue inpatient

treatment options that could address both her mental health and

substance dependence issues. The caseworker gave mother an

application to an inpatient treatment program and offered to turn

the completed application in for her, but mother didn’t follow

through.

¶ 44 By mother’s own testimony, the caseworker provided

resources for mental health services even after she relocated to

Utah. Mother also testified that she completed a mental health

evaluation with a provider in Utah, participated in regular

18 telehealth appointments with a therapist in Utah, and saw a

provider for medication management.

¶ 45 Thus, the record reveals that the Department provided

information and referrals for — and mother sporadically

participated in — mental health services throughout the almost

three years the dependency and neglect case was open, including

after the end of the trial home visit. While we agree with mother’s

contention that she likely would have benefitted from health care

and “trauma services” after the sexual assault, the record reveals

that she reported pursuing such services on her own in Utah. More

importantly for our analysis, these services are outside those

contemplated by the Children’s Code in light of mother’s treatment

plan. See § 19-3-208. We therefore discern no error with the

juvenile court’s conclusion that reasonable efforts were made to

provide rehabilitative services to mother, but those services weren’t

successful.

C. Less Drastic Alternative

¶ 46 Finally, mother contends that the juvenile court erred by

finding there was no less drastic alternative to termination because

mother “asked the court to order an allocation of parental

19 responsibilities (APR) to her foster-certified employer/friend until

the time she was ready to resume care for [the youth] in [a]

wholistic rehabilitation facility in California.” We discern no error.

1. Relevant Law and Standard of Review

¶ 47 A 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. In 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). The court may consider whether an ongoing relationship

with the parent would be beneficial or detrimental to the child.

People in Interest of A.R., 2012 COA 195M, ¶ 38. This

determination is “influenced by a parent’s fitness to care for [the]

child’s needs.” Id. 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. People in Interest of

Z.P., 167 P.3d 211, 214 (Colo. App. 2007).

¶ 48 Ultimately, for a less drastic alternative to be viable, it must do

more than “adequately” meet a child’s needs; rather, the less drastic

20 alternative must be the “best” option for the child. 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. Analysis

¶ 49 At the hearing, mother testified that a couple weeks before the

termination hearing she discovered an inpatient treatment program

in California that accepted families. Mother proposed that the

juvenile court grant an APR to her friend in Utah who was offering

to take the youth for ninety days until mother could become

established in the inpatient treatment program. Mother testified

that her friend “would take [the youth] temporarily” until the youth

could join her at the inpatient treatment program.

¶ 50 Mother’s proposed solution was — by her own admission —

temporary and not a less drastic alternative to termination of her

parental rights. Mother doesn’t raise, and therefore we don’t

address, her proposal at trial as an argument that she could have

become fit within a reasonable time.

21 ¶ 51 In any event, the juvenile court found that there was no less

drastic alternative that was either viable or would be in the youth’s

best interest. The court found, with record support, that the youth

“suffered from significant distress associated with an inconsistent

visit schedule with [mother]” and that termination of mother’s

parental rights was necessary to meet the youth’s physical,

emotional, and mental health needs.

¶ 52 Because these findings are supported by the record, we won’t

disturb them on review.

IV. Disposition

¶ 53 The judgment is affirmed.

JUDGE BROWN and JUDGE MOULTRIE concur.