24CA1114 Peo in Interest of RJM 04-10-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1114 Moffat County District Court No. 21JV5 Honorable Brittany Schneider, Judge
The People of the State of Colorado,
Appellee,
In the Interest of R.J.M., a Child,
and Concerning R.H.,
Appellant.
JUDGMENT AFFIRMED
Division I Opinion by JUDGE J. JONES Brown and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 10, 2025
Alison D. Casias, Special Assistant County Attorney, Dillon, Colorado, for Appellee
Debra W. Dodd, Guardian Ad Litem
Beth Padilla, Office of Respondent Parents’ Counsel, Durango, Colorado, for Appellant ¶1 In this dependency and neglect proceeding, R.H. (mother)
appeals the judgment terminating her parent-child legal
relationship with R.J.M. (the child). We affirm.
I. Background
¶2 In June 2021, mother was arrested after physically assaulting
the child’s twelve-year-old-sister and the child’s maternal
grandmother. The Moffat County Department of Human Services
then filed a petition in dependency and neglect regarding the then-
six-year-old child, who was present during the assault. The
Department raised concerns about mother’s substance abuse,
domestic violence, and involvement in the criminal justice system.
Initially, the Department placed the child with paternal
grandmother before returning the child to mother’s care. But the
Department later removed the child from mother’s care and again
placed him with paternal grandmother.
¶3 The juvenile court adjudicated the child dependent or
neglected and adopted a treatment plan that required mother to
attend substance abuse treatment and demonstrate sobriety;
refrain from engaging in criminal activity; attend individual therapy;
1 participate in life skills training and parenting classes; complete
domestic violence, psychological, and parenting capacity
evaluations and comply with any recommended treatment; develop
skills to meet the child’s needs; and cooperate with the Department.
¶4 Ten months after the juvenile court adopted mother’s
treatment plan, the Department moved to terminate her parental
rights. Though mother had been representing herself, she
requested court-appointed counsel, which the court granted. At the
Department’s recommendation, the court also appointed a guardian
ad litem (GAL) for mother.
¶5 Within a month of those appointments, mother’s counsel filed
a notice asserting that the Americans with Disabilities Act of 1990
(ADA), 42 U.S.C. §§ 12101-12213, applied to mother. The notice
asserted that mother had “an undiagnosed substance use disorder
and other undiagnosed mental health issues” but did not request
any specific accommodations; rather, it said that her counsel would
confer with the other professionals “should [mother] require any
accommodations or modifications.” Mother’s counsel then moved to
continue the termination hearing because the “professional team
2 need[ed] to determine what accommodations [were] necessary” for
mother. The court granted the continuance, noting that although
mother had not completed a psychological evaluation as required by
the treatment plan, her therapist had recommended a
neuropsychological evaluation, which was already scheduled.
¶6 Mother completed the neuropsychological evaluation in June
2023. However, the evaluation didn’t yield a diagnosis or any
treatment recommendations. Mother’s counsel then moved to
continue the termination hearing again so mother could participate
in a second neuropsychological evaluation. The court granted the
second continuance, and mother completed the second evaluation
in October 2023. Thereafter, mother’s counsel filed a notice of
requested accommodations, which were based on the psychologist’s
recommendations.
¶7 The juvenile court then held a three-day contested termination
hearing. Over two-and-a-half years after the filing of the petition,
the court terminated mother’s parental rights.
3 II. Statutory Criteria and Standard of Review
¶8 The juvenile court may terminate parental rights if it finds, by
clear and convincing evidence, that (1) the child was adjudicated
dependent or neglected; (2) the parent hasn’t complied with an
appropriate, court-approved treatment plan or the plan hasn’t 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.
¶9 The question of whether a juvenile court properly terminated
parental rights is a mixed question of fact and law. People in
Interest of S.R.N.J-S., 2020 COA 12, ¶ 10; People in Interest of A.S.L.,
2022 COA 146, ¶ 8. Thus, we review the court’s factual findings for
clear error but review de novo its legal conclusions based on those
facts. S.R.N.J-S., ¶ 10; A.S.L., ¶ 8.
III. ADA Accommodations
¶ 10 Mother contends that the juvenile court erred by finding that
her treatment plan was appropriate and that the Department made
reasonable efforts to rehabilitate her because the Department failed
to provide reasonable accommodations for her disability. We aren’t
persuaded. 4 A. Applicable Law
¶ 11 The ADA requires the juvenile court and the department of
human services to account for and, if possible, make reasonable
accommodations for a parent’s disability when devising a treatment
plan and providing rehabilitative services. People in Interest of S.K.,
2019 COA 36, ¶ 34. But the ADA doesn’t restrict the juvenile
court’s authority to terminate parental rights if a parent, even due
to a disability, isn’t able to meet a child’s needs. People in Interest
of C.Z., 2015 COA 87, ¶ 17. Rather, before terminating parental
rights under section 19-3-604(1)(c), the ADA requires the juvenile
court to consider whether reasonable accommodations were
provided when determining the appropriateness of a parent’s
treatment plan and whether the department made reasonable
efforts to rehabilitate the parent. S.K., ¶ 34.
¶ 12 Whether a parent is a qualified individual with a disability
under the ADA requires a case-by-case determination. Id. at ¶ 21.
Before a department can be required to provide reasonable
accommodations under the ADA, it must know that the individual
has a qualifying disability, either because that disability is obvious
5 or because someone has informed the department of the disability.
Id. at ¶ 22. Thus, while a department must provide appropriate
screening and assessments of a parent, the parent is responsible for
disclosing information regarding her disability. Id. at ¶ 21. And a
parent should also identify any modifications that she believes are
necessary to accommodate her disability. Id.
¶ 13 In considering whether reasonable accommodations can be
made for a parent’s disability, the juvenile court’s paramount
concern must always be the child’s health and safety. Id. at ¶ 36.
Thus, what qualifies as a reasonable accommodation will vary from
case to case based on the child’s needs, the nature of the parent’s
disability, and the available resources. Id. at ¶ 39.
B. Analysis
¶ 14 We first reject mother’s argument that the juvenile court
“ignore[d] the ADA and mother’s protected disability,” as evidenced
by the lack of ADA findings in its termination judgment. Though
the court didn’t specifically find that the ADA applied or conclude
that the Department provided reasonable accommodations for
mother’s disability, it acknowledged that mother had filed a notice
6 of ADA applicability. It then found that the Department “engaged in
significant efforts to assist . . . mother in getting psychological
evaluations done and seeking the necessary treatment.” It also
found that after the psychological evaluation was completed, the
Department “implemented [the] recommendations for
accommodation[s] suggested by [the psychologist].”
¶ 15 Mother doesn’t dispute these findings. Rather, she argues
that even before she had completed her psychological evaluation,
the Department should have provided reasonable accommodations
because it was “on notice” of her “obvious” disability throughout the
case.
¶ 16 It is true that the caseworker reported significant concerns
about mother’s confusion, delusional thinking, and erratic behavior
as early as August 2022. But we disagree with mother that those
concerns amounted to knowledge of an “obvious” qualifying
disability under the ADA because mother’s symptoms, on their own,
didn’t establish that mother had a “physical or mental impairment
that substantially limit[ed] one or more major life activities.” See 42
U.S.C. § 12102(1)(A). Instead, as noted by the juvenile court,
7 mother’s concerning behavior made it “very clear” that a
psychological evaluation was a “key component” of mother’s
treatment plan because it would “help determine the basis for her
behavior and how she [could] be treated.”
¶ 17 In other words, while it was obvious that mother had
concerning symptoms, an evaluation was necessary to determine
whether those symptoms stemmed from a qualifying disability
under the ADA, and, if so, what accommodations were required.
See S.K., ¶¶ 21-22. Indeed, the caseworker testified that the
Department couldn’t appropriately identify the necessary
accommodations to address mother’s mental health issues until she
completed a psychological evaluation.
¶ 18 To that end, the record shows that the Department made
repeated attempts to provide psychological evaluations to determine
if mother needed accommodations for a disability. The Department
scheduled a psychological evaluation for mother in April 2022, but
she didn’t attend. A few months later, as the Department expressed
increasing concerns about mother’s mental health, the court
advised mother of the importance of completing a psychological
8 evaluation, and the Department scheduled another one. Although
mother went to that appointment, she didn’t complete the
scheduled intake and decided to reschedule it for the end of
September 2022. She didn’t attend that appointment, nor did she
reschedule it.
¶ 19 Thereafter, the Department recommended that the court
appoint a GAL for mother. The court did so and specifically
directed mother’s GAL to “talk to [mother] about . . . this
psychological evaluation” because it was “crucial” for the court to
understand what was “going on in [mother’s] head.”
¶ 20 The Department then arranged a neuropsychological
evaluation, and mother completed it. But the professionals agreed
that the evaluation wasn’t helpful because it didn’t provide any
insight into mother’s mental health. The psychologist didn’t “feel
comfortable assigning a diagnosis because [mother] denied any
current psychological symptoms.” At that point, the court granted
mother’s request to continue the termination hearing, partly
because the neuropsychological evaluation was inconclusive, and
therefore the court didn’t have “potentially critical information”
9 about whether the ADA applied and whether reasonable
accommodations had been provided.
¶ 21 The Department arranged a second neuropsychological
evaluation, which mother completed in October 2023. The
psychologist diagnosed mother with unspecified schizophrenia
spectrum or other psychotic disorder and made specific treatment
recommendations. The psychologist testified that after she
completed mother’s evaluation, the Department contacted her and
asked her to attend a meeting to discuss whether “further
accommodations” were necessary. And the caseworker testified
that the Department provided every accommodation the
psychologist recommended.
¶ 22 We acknowledge that in April 2023, mother requested that the
court appoint an additional professional to help her understand the
importance of the psychological evaluation and require the
Department to arrange a medication evaluation for her. But by that
time, the court had already appointed a GAL to help her understand
the proceedings. And the GAL confirmed that “part of [her] role”
was to explain to mother why the psychological evaluation was
10 necessary. Further, instead of determining whether mother’s
request for the medication evaluation was reasonable or necessary,
the court reiterated that the completion of a psychological
evaluation was “critical” to determine what “special
accommodations” mother needed. In other words, the request for
the accommodation was premature. Indeed, after mother
completed the neuropsychological evaluation, the Department
arranged a medication evaluation with a psychiatrist at the
psychologist’s recommendation.
¶ 23 Last, we aren’t persuaded that mother’s treatment plan was
inappropriate because it “did not address the root-cause of mother’s
issues and did not include any [ADA] accommodations.” The
appropriateness of a treatment plan — as distinct from the
reasonableness of the efforts to implement that plan — must be
assessed in light of the facts existing at the time of the plan’s
approval. People in Interest of A.N-B., 2019 COA 46, ¶¶ 25-26.
When the court adopted mother’s treatment plan, the Department
had reported concerns about substance abuse and domestic
11 violence, and the treatment plan included goals related to both of
those concerns.
¶ 24 Additionally, mother doesn’t explain what she means by “root-
cause” of her issues. But assuming she means her mental health,
the treatment plan addressed that as well. It specifically required
her to engage in individual therapy and complete a psychological
evaluation. And at the time the court adopted the treatment plan,
mother had not raised the ADA, nor had she requested any
accommodations. See People in Interest of S.Z.S., 2022 COA 133, ¶
16 (if a parent knows or has reason to know she has an ADA-
cognizable disability, the issue should be raised before the court
adopts a treatment plan so the department can include requested
accommodations in the treatment plan and provide services
accommodating the disability throughout the case).
¶ 25 Moreover, while mother argues that the treatment plan should
have been modified to include the psychologist’s recommended
accommodations, she didn’t move the juvenile court to make such
modifications; instead, she simply filed a notice of those
accommodations. And mother doesn’t dispute that the Department
12 provided them. Thus, it is unclear how adding the accommodations
to her treatment plan would have affected the outcome of her case.
Accordingly, any error in failing to modify mother’s treatment plan
was harmless. See C.A.R. 35(c) (we may disregard any error not
affecting the party’s substantial rights); People in Interest of R.J.,
2019 COA 109, ¶ 22 (an error affects a substantial right if it can be
said with fair assurance that it substantially influenced the case’s
outcome or impaired the basic fairness of the proceeding).
¶ 26 In sum, the record shows that throughout the case, the
Department made significant efforts to identify mother’s disability
and determine whether accommodations were necessary. Once the
Department had that information, the record shows that it
reasonably accommodated for mother’s disability. Thus, in relation
to the ADA, we discern no error in the court’s findings that mother’s
treatment plan was appropriate and that the Department made
reasonable efforts to rehabilitate her and reunite her with the child.
13 IV. Fit within a Reasonable Time
¶ 27 Mother also contends that the juvenile court erred by finding
that she couldn’t become fit within a reasonable time. We aren’t
persuaded.
A. Applicable Law
¶ 28 A parent is unfit if she is unable or unwilling to give a child
reasonable parental care. S.Z.S., ¶ 23. “Reasonable parental care
requires, at a minimum, that the parent provide nurturing and
protection adequate to meet the child’s physical, emotional, and
mental health needs.” S.R.N.J-S., ¶ 9. A parent’s noncompliance
with a treatment plan generally “demonstrates a lack of
commitment to meeting the child’s needs and, therefore, may also
be considered in determining unfitness.” People in Interest of D.P.,
181 P.3d 403, 408 (Colo. App. 2008).
¶ 29 A parent must have a reasonable amount of time to work on a
treatment plan before the juvenile court terminates her parental
rights. People in Interest of D.Y., 176 P.3d 874, 876 (Colo. App.
2007). The determination of a reasonable period is necessarily fact
specific, and, thus, what constitutes a reasonable time to comply
with a treatment plan may vary from case to case. Id. In 14 determining whether a parent can become fit within a reasonable
time, the juvenile court may consider whether any change has
occurred during the pendency of the proceeding. K.D. v. People,
139 P.3d 695, 700 (Colo. 2006). A reasonable time isn’t an
indefinite time, and it must be determined by considering the
child’s physical, mental, and emotional conditions and needs.
S.Z.S., ¶ 24.
¶ 30 The juvenile court considered whether mother could become fit
within a reasonable amount of time but ultimately concluded that
she couldn’t. The court noted that mother’s treatment plan had
been in effect for over two years but found that she was
“uncooperative with the evaluation process until recently” and that
her condition “ha[d] not significantly improved even following her
compliance with psychological evaluations and the introduction of
medication.” The court also found that mother’s “late effort” and
“refusal to timely address [her] mental health issues” by obtaining a
diagnosis and treatment recommendations “interfered with her
ability to . . . repair her relationship with [the child” or provide for
15 his needs. The court concluded that the child had been “waiting for
permanency and deserve[d] permanency” and that mother had been
given a reasonable amount of time to comply with her treatment
plan.
¶ 31 The record supports these findings. By the time of
termination hearing, approximately twenty-six months had passed
since the court adopted mother’s amended treatment plan, yet she
hadn’t successfully resolved the concerns that gave rise to the case.
The caseworker testified that although mother had completed a
substance abuse evaluation, she hadn’t followed through with any
of the recommended treatment. While she had also completed a
mental health evaluation, mother had attended only one therapy
session. Further, she didn’t participate in life skills classes or
develop a list of potential caretakers who could fill in for her if she
was under the influence. And although mother had completed her
neuropsychological evaluation and started taking medication, the
caseworker noted that there had been no improvement in mother’s
thinking.
16 ¶ 32 The caseworker, as an expert in child protection, opined that
mother couldn’t safely parent the child because she hadn’t made
“adequate improvement” on the problems that existed at the
beginning of the case and wasn’t in a “mental health space” that
would allow her to provide the consistency and stability the child
needed. She also opined that “a reasonable amount of time ha[d]
already gone” because the child had been waiting for permanency
for over two-and-a-half years. Indeed, as noted by the child’s GAL,
the child had “been in out-of-home care for 793 [days].”
¶ 33 Next, the child’s therapist, who was qualified as an expert in
therapeutic evaluation and treatment of children, testified that
throughout the case, particularly in the “handful of months” leading
up to termination hearing, the child’s attachment to mother had
gotten worse. The therapist also opined that, while she didn’t know
how long it might take for mother to be able to safely parent the
child, it wasn’t in the child’s best interests to keep the case open to
allow mother more time to work on her treatment plan. In her view,
the child had waited a reasonable amount of time for mother to be
17 in a place to parent him and waiting longer or “spending another
day living in this ambivalence” wasn’t going to help him.
¶ 34 We reject mother’s argument that the juvenile court should
have allowed more time, given that she had only recently been
diagnosed with schizophrenia and started taking medication. True,
mother’s individual therapist and her retained expert witness both
testified that she hadn’t been taking her medication long enough to
experience its full effects, that she had recently made progress with
her mental health problems, and that it was possible for her to
become fit within a reasonable time. But the record indicates that
the delay in mother’s medication evaluation was due largely to her
refusal to complete a psychological evaluation. Moreover, the court
— as the finder of fact — heard testimony about mother’s recent
medication and treatment progress but ultimately determined that
it wouldn’t be in the child’s best interests to allow additional time.
See People in Interest of A.J.L., 243 P.3d 244, 252 (Colo. 2010)
(attributing more weight to more recent evidence may be
appropriate in some instances, but doing so is within a juvenile
court’s discretion). And we don’t reweigh the evidence or substitute
18 our judgment for that of the juvenile court. People in Interest of
K.L.W., 2021 COA 56, ¶ 62.
¶ 35 Based on the foregoing, we conclude that the juvenile court
properly analyzed whether mother could become fit within a
reasonable time. And because the court’s findings are supported by
the record, we decline to disturb its determination.
V. Less Drastic Alternatives
¶ 36 Last, mother contends that the juvenile court erred by
determining that there were no less drastic alternatives to
termination. Specifically, she argues that the court incorrectly
concluded that it couldn’t allocate parental responsibilities to
paternal grandmother over her objection. We disagree.
¶ 37 The consideration and elimination of less drastic alternatives
are implicit in the statutory criteria for termination. People in
Interest of A.M. v. T.M., 2021 CO 14, ¶ 40. In considering less
drastic alternatives, a juvenile court must give primary
consideration to the child’s physical, mental, and emotional
conditions and needs. People in Interest of Z.M., 2020 COA 3M,
¶ 29. A juvenile court may also consider, among other things, (1) 19 whether an ongoing relationship with a parent would be beneficial
to the child, which is influenced by a parent’s fitness to care for the
child’s needs, see People in Interest of A.R., 2012 COA 195M, ¶ 38;
(2) whether the child is bonded with the parent, see People in
Interest of N.D.V., 224 P.3d 410, 421 (Colo. App. 2009); (3) whether
an allocation of parental responsibilities (APR) provides adequate
permanence and meets the child’s needs, see A.R., ¶ 41; and (4)
whether the placement provider favors adoption over an APR, see
Z.M., ¶ 31.
¶ 38 For a less drastic alternative to be viable, it must do more than
adequately meet the child’s needs; it must be in the child’s best
interests. A.M., ¶ 27. Long-term or permanent placement with a
family member, short of termination, may not be in the child’s best
interests if it wouldn’t provide the permanence that adoption would
provide or otherwise meet the child’s needs. A.R., ¶ 41. If a
juvenile court considers a less drastic alternative but finds instead
that termination is in the child’s best interests, it must reject the
alternative and order termination. A.M., ¶ 32.
20 B. Analysis
¶ 39 Initially, we reject mother’s argument that the juvenile court
erred by concluding that it couldn’t enter an APR to paternal
grandmother over her objection. To the contrary, a division of this
court has held that a court can’t enter an APR to an unwilling party
who isn’t the child’s parent. See People in Interest of P.D., 580 P.2d
836, 838 (Colo. App. 1978). Mother suggests that we should
disregard this precedent because it is forty-six-years old and
because it is distinguishable from a case like this one, in which a
non-parent has intervened and showed a willingness to care for the
child. But she hasn’t provided any legal authority to support her
assertion that the reasoning in P.D. is inapplicable to this case.
¶ 40 In any event, the juvenile court didn’t reject an APR solely
because of grandmother’s unwillingness to accept it. True, the
court considered grandmother’s preference and found that she was
unwilling to accept an APR. See Z.M., ¶ 31. But it also considered
whether an ongoing relationship with mother would benefit the
child, whether the child was bonded to mother, and whether an
APR could provide adequate permanency based on the child’s
21 needs. See A.R., ¶¶ 38, 41; N.D.V., 224 P.3d at 421. Specifically,
the court found that child’s attachment to mother was “going in the
wrong direction.” The court noted that the child had been
diagnosed with post-traumatic stress disorder and anxiety and
found that mother couldn’t provide the stability and certainty the
child needed. The court reiterated that the child had been waiting
for permanency for over two-and-a-half years and concluded that
termination was in his best interests.
¶ 41 The record supports these findings. Contrary to mother’s
assertions, paternal grandmother testified that she understood the
different permanency options because she had discussed them with
the child’s GAL, the county attorney, and another attorney. Even
so, she testified that she wasn’t willing to accept an APR because
she didn’t believe it would be good for the child’s mental health or
in his best interests. Specifically, she didn’t believe an APR would
work because it wouldn’t give the child the security of knowing
where he would live from year to year.
¶ 42 Next, the child’s therapist testified that she couldn’t
“characterize [mother] and [the child] as having an excellent bond”
22 and that the child’s attachment to mother was getting worse. She
said that the child had post-traumatic stress disorder and
generalized anxiety, which made his need for predictability and
consistency greater than the norm. And she opined that mother
couldn’t meet the child’s emotional or mental health needs. The
therapist also opined that termination and adoption, not an APR,
was in the child’s best interests because an APR couldn’t ensure
permanency or the “feeling of my life can’t be ripped out from
underneath me at any given time.” She believed that the “most
ideal” option for the child was to have some contact with mother
without her being able to dictate his future.
¶ 43 Finally, the caseworker opined that an APR wouldn’t be in the
child’s best interests because the child needed consistency and
stability, which wouldn’t be provided through an APR. She went on
to opine that even if a caretaker was willing to accept an APR, it
would “not [be] appropriate in this case because [the child] need[ed]
to have absolute surety” of where his home would be.
¶ 44 Accordingly, because the record supports the juvenile court’s
finding that termination, not an APR, was in the child’s best
23 interests, we don’t see any basis for reversal. See People in Interest
of B.H., 2021 CO 39, ¶ 80 (when a juvenile court considers less
drastic alternatives but instead finds that termination is in the
child’s best interests, we are bound to affirm the decision so long as
the record supports its findings).
VI. Disposition
¶ 45 The judgment is affirmed.
JUDGE BROWN and JUDGE YUN concur.