24CA0726 Peo in Interest of TN 11-14-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0726 Adams County District Court No. 22JV30087 Honorable Caryn A. Datz, Judge
The People of the State of Colorado,
Appellee,
In the Interest of Tyl.N. and Tyr.N., Children,
and Concerning G.T.N. and S.J.P.,
Appellants.
JUDGMENT AFFIRMED
Division VII Opinion by JUDGE TOW Pawar and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 14, 2024
Heidi Miller, County Attorney, Lisa Vigil, Assistant County Attorney, Westminster, Colorado, for Appellee
Alison Bettenberg, Guardian Ad Litem
The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for Appellant G.T.N.
Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant S.J.P. ¶1 S.J.P. (mother) and G.T.N. (father) appeal the judgment
terminating their parent-child legal relationships with their
children, Tyl.N. and Tyr.N. We affirm.
I. Background
¶2 In November 2022, the Adams County Human Services
Department (Department) received a report that mother had given
birth to the children and admitted to using controlled substances
during her pregnancy. Mother had an open dependency and
neglect case at the time with an older child who had also tested
positive for methamphetamine at birth. The Department removed
the children and placed them in foster care.
¶3 Based on this information, the Department filed a petition in
dependency and neglect. After each parent entered a no-fault
admission, the juvenile court adjudicated the children dependent
and neglected. The court then adopted treatment plans for the
parents that required them to (1) address their substance
dependence and mental health concerns; (2) attend family time;
(3) provide a safe and stable home and meet the children’s needs;
and (4) cooperate with the Department and professionals.
1 ¶4 In August 2024, the Department moved to terminate the
parents’ parental rights. The juvenile court held an evidentiary
hearing over three days in March 2024. In a comprehensive written
order, the court granted the Department’s motion and terminated
the parents’ parental rights.
II. Reasonable Efforts
¶5 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
¶6 In deciding whether to terminate parental rights under section
19-3-604(1)(c), C.R.S. 2024, the juvenile court must consider
whether the county department of human services made reasonable
efforts to rehabilitate the parent and reunite the parent with the
child. §§ 19-1-103(114), 19-3-208, 19-3-604(2)(h), C.R.S. 2024.
The Colorado Children’s Code defines “reasonable efforts” as the
“exercise of diligence and care” to reunify parents with their
children. § 19-1-103(114).
¶7 The reasonable efforts standard is satisfied if the department
provides appropriate services in accordance with section 19-3-208.
2 § 19-1-103(114). Section 19-3-208 requires departments to
provide, when appropriate, 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). If additional funds are available, the
department must also provide “[d]rug and alcohol treatment
services.” § 19-3-208(2)(d)(V).
¶8 In assessing the department’s reasonable efforts, the juvenile
court should evaluate 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). The court
may consider a parent’s unwillingness to participate in treatment in
3 determining whether the department made reasonable efforts. See
People in Interest of A.V., 2012 COA 210, ¶ 12.
¶9 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 and review de novo
its legal determination, based on those findings, as to whether the
department satisfied its reasonable efforts obligation. Id.
B. Analysis
¶ 10 The juvenile court found that the Department made
reasonable efforts to rehabilitate mother and reunify her with the
children. The court found, among other things, that the
Department provided mother active case management, life skills
training, a dual diagnosis evaluation and treatment services,
monitored sobriety, housing assistance, and bus passes. The court
determined, however, that, despite these efforts, mother had not
utilized these services to successfully comply with her treatment
plan and become a fit parent.
¶ 11 The record supports the juvenile court’s findings. The
caseworker testified that the Department first referred mother to a
4 dual diagnosis evaluation in April 2023, but she did not complete it
until December 2023. The evaluator recommended the “highest
level of treatment,” which required mother to attend group therapy
three times a week. The caseworker reported that mother only
attended seventeen of twenty-seven scheduled sessions, and of
those seventeen, she appeared more than fifteen minutes late on
twelve occasions. The Department also provided mother with a list
of providers to accommodate her drug screens and later switched
from urinalysis testing to mouth swabs at mother’s request. The
caseworker said that mother completed just two screens during the
case (one of which was positive for methamphetamine) and missed
197 screens. The Department provided mother with local and
regional bus passes to allow her to travel to treatment and screens.
¶ 12 The record also shows that the Department provided mother
with housing resources, a life skills worker, and family time
services. For example, the caseworker said that the Department
provided mother with a list of housing resources and utilized a life
skills worker to help her access those resources. The life skills
worker aided mother in getting an apartment, and the Department
provided funding for rent. The caseworker even spoke with the
5 apartment manager and convinced him to reverse course on the
initial denial of mother’s application. Once mother had an
apartment, the Department arranged for mother to have supervised
visits in her home.
¶ 13 The record supports the juvenile court’s findings that (1) the
Department provided mother with appropriate resources to engage
with her treatment plan and (2) she did not take advantage of those
resources and was unsuccessful in becoming fit. See A.V., ¶ 12;
J.C.R., 259 P.3d at 1285. Nevertheless, mother asserts, for the
following three reasons, that the court erred. We disagree with all
three contentions.
¶ 14 First, mother argues that the caseworker should have met
with her during family time. But the caseworker explained that she
declined to meet with mother during her family time because it
would impede the visits. In fact, mother agreed with this sentiment,
testifying that she was “offended” that the caseworker wanted to
talk with her about the treatment plan during one particular visit
because “[t]hat’s the only time [she] get[s] with” her children. The
juvenile court also found, with record support, that “the caseworker
made significant efforts to contact and engage [mother],” but
6 mother “did not reciprocate these efforts.” For example, the record
shows that the caseworker attempted to contact mother monthly,
but mother was often unresponsive or would cancel appointments.
We therefore discern no error.
¶ 15 Second, we are not persuaded by mother’s assertion that the
Department should have provided her with drug screens at the
same location where she was attending therapy. The caseworker
said that the Department declined to do so because they had a
contract with another provider. Still, the caseworker said that
mother could submit drugs screens with her treatment provider if
she paid for them herself. And mother testified that she did set up
those drug screens but nevertheless failed to provide evidence of
any such screens. Noting that section 19-3-208 does not require
the Department to provide a parent with the provider of her choice,
we discern no error. See § 19-3-208(2)(b)(III), (d)(V).
¶ 16 Finally, mother argues that the Department did not make
reasonable efforts because it did not allow her to attend the
children’s medical appointments. To start, we note that mother’s
treatment plan did not require her to attend the children’s medical
appointments. And the record is unclear as to whether the
7 Department prohibited mother from attending these appointments,
as she suggests on appeal. At any rate, the caseworker testified
that mother had the providers’ contact information and was
“encouraged” to contact those providers to get updates, but mother
never did so. Given all this, we cannot say that the Department
failed to make reasonable efforts in this area.
III. Fit Within a Reasonable Time
¶ 17 Both parents contend that the juvenile court erred by
terminating their parental rights because the record showed that
they could become fit within a reasonable time. Again, we disagree.
¶ 18 Before the juvenile court may terminate parental rights under
section 19-3-604(1)(c), it must find, by clear and convincing
evidence, that (1) the parent did not comply with an appropriate,
court-approved treatment plan or the plan was not successful in
rendering the parent fit; (2) the parent is unfit; and (3) the parent’s
conduct or condition is unlikely to change in a reasonable time.
¶ 19 An unfit parent is one whose conduct or condition renders the
parent unable or unwilling to give a child reasonable parental care.
People in Interest of D.P., 160 P.3d 351, 353 (Colo. App. 2007).
8 Reasonable parental care requires, at a minimum, that the parent
provide nurturing and safe parenting sufficient to meet the child’s
physical, emotional, and mental needs and conditions. People in
Interest of A.J., 143 P.3d 1143, 1152 (Colo. App. 2006). 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).
¶ 20 A parent must have a reasonable amount of time to work on a
treatment plan before the juvenile court terminates parental rights.
People in Interest of D.Y., 176 P.3d 874, 876-77 (Colo. App. 2007).
¶ 21 When determining whether a parent’s conduct or condition is
likely to change in a reasonable time, the juvenile court may
consider whether any change has occurred during the proceeding,
the parent’s social history, and the chronic or long-term nature of
the parent’s conduct or condition. People in Interest of D.L.C., 70
P.3d 584, 588-89 (Colo. App. 2003). Where a parent has made little
to no progress on a treatment plan, the court need not give the
parent additional time to comply. See People in Interest of R.B.S.,
717 P.2d 1004, 1006 (Colo. App. 1986).
9 ¶ 22 The determination of a reasonable period is fact-specific and
varies from case to case. D.Y., 176 P.3d at 876; see also People in
Interest of S.Z.S., 2022 COA 133, ¶ 24. A reasonable time is not an
indefinite time, and it must be determined by considering the
child’s physical, mental, and emotional conditions and needs.
S.Z.S., ¶ 24. When a child is under six years old, as in this case,
the juvenile court must also consider the expedited permanency
planning (EPP) provisions, which require that the child be placed in
a permanent home as expeditiously as possible. See
§§ 19-1-102(1.6), 19-1-123, 19-3-702(5)(c), C.R.S. 2024.
¶ 23 Whether the juvenile court properly terminated parental rights
is a mixed question of fact and law. People in Interest of A.M. v.
T.M., 2021 CO 14, ¶ 15. We review the court’s factual findings for
clear error, and we review de novo its legal conclusions based on
those facts. People in Interest of S.R.N.J-S., 2020 COA 12, ¶ 10.
¶ 24 The juvenile court found that the parents had not complied
with their treatment plans, remained unfit, and were unlikely to
become fit within a reasonable time. Specifically, the court found
that the parents were unlikely to become fit within a reasonable
10 time because (1) they had “treatment plans in place for a full year,
with minimal progress”; (2) there was a lengthy history of substance
dependence and involvement in previous dependency and neglect
proceedings; and (3) the children needed permanency as “soon as
practicable.”
¶ 25 The record supports the juvenile court’s findings. The court
took judicial notice of mother’s six previous dependency and neglect
cases. The caseworker from the case immediately preceding the
current case testified that mother did not comply with treatment or
participate in monitored sobriety. In the present case, mother did
not complete a dual diagnosis evaluation until more than a year
after the case opened, minimally participated in treatment
thereafter, and missed nearly 200 drug screens. Mother testified
that she began using drugs over twenty years ago and had spent
time in prison for drug charges. The caseworker opined that
mother could not become fit within a reasonable time, noting that
she had already had enough time to comply but did not do so.
¶ 26 As for father, the record shows that, although he began
treatment somewhat earlier than mother, he did not fully engage.
For example, the caseworker said that father started treatment in
11 June 2023 before being discharged for noncompliance in October
2023. Then, he did another intake with a new provider in
November 2023, but never engaged. And in January 2024, he
entered detox and inpatient treatment but left after a few days. The
record also shows that father completed more drugs screens than
mother, but all his screens were positive for substances, and he had
not provided any screens since November 2023. Like mother, father
admitted to a long history of substance dependence going back over
twenty years. The caseworker opined that father could not become
fit within a reasonable time based on his lack of participation and
the children’s needs.
¶ 27 Nevertheless, both parents assert that the juvenile court erred
because they made sufficient progress during the case to warrant
additional time. For example, mother notes that she had housing,
completed the dual diagnosis evaluation, attended some therapy
sessions, cooperated with the life skills coach, and attended feeding
therapy, while father points to evidence that he consistently
attended family time and participated in services to address his
substance dependence issues. But the court considered this
evidence and still concluded that the parents were unlikely to
12 become fit in a reasonable time. Because the record supports the
court’s findings, as described above, we cannot reweigh the
evidence or substitute our judgment for that of the juvenile court.
See S.Z.S., ¶ 29. We therefore reject the parents’ assertions.
¶ 28 Mother also contends that, if the Department had made
reasonable efforts, then she could have become fit within a
reasonable time. We reject this argument for the same reasons
described in Part II.B. above.
¶ 29 Last, father maintains that the juvenile court erred because he
had only five months to comply with his treatment plan between
adoption of the treatment plan and filing of the termination motion.
But the most relevant timeframe is not how long the parent had
between adoption of the treatment plan and the filing of the
termination motion. Rather, it is the period that father had from
the treatment plan’s adoption to the termination hearing. See D.Y.,
176 P.3d at 876-77 (noting that the court erred when it gave father
only three months between adoption of the treatment plan and
termination of parental rights). And father had over a year to work
on his treatment plan. See A.J., 143 P.3d at 1152. Considering
that this was an EPP case, we cannot say that the court erred by
13 terminating father’s parental rights after giving him over a year to
work on his treatment plan.
IV. Less Drastic Alternative
¶ 30 Father argues that the juvenile court erred by finding that
there was no less drastic alternative to termination. We disagree.
¶ 31 In addition to the termination criteria in section
19-3-604(1)(c), the juvenile court must also consider and eliminate
less drastic alternatives. People in Interest of M.M., 726 P.2d 1108,
1122-23 (Colo. 1986). When 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). In
assessing less drastic alternatives to termination, the court may
consider, among other things, whether (1) an ongoing relationship
between the parent and child would be beneficial, People in Interest
of A.R., 2012 COA 195M, ¶ 38; (2) the child is bonded with the
parent, People in Interest of N.D.V., 224 P.3d 410, 421 (Colo. App.
2009); (3) the placement option prefers adoption over an allocation
of parental responsibilities (APR), S.N-V., 300 P.3d at 920; and
14 (4) an APR provides adequate permanence and stability for the
child, People in Interest of T.E.M., 124 P.3d 905, 910-11 (Colo. App.
2005).
¶ 32 To aid the juvenile court in determining whether there is a less
drastic alternative to termination, the department must evaluate a
reasonable number of people the parent identifies as placement
options. People in Interest of D.B-J., 89 P.3d 530, 532 (Colo. App.
2004). But the department is not obligated to “independently
identify and evaluate other possible placement alternatives.” Z.P.,
167 P.3d at 215.
¶ 33 For a less drastic alternative to be viable, it must do more than
“adequate[ly]” meet a child’s needs. A.M., ¶ 27. 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.
15 B. Analysis
¶ 34 The juvenile court found that there was no less drastic
alternative to termination and that termination and adoption were
in the children’s best interests. In doing so, the court found that
the Department had adequately investigated family members for
placement, but the court concluded that there was either no
available family to serve as a placement or they would not accept an
alternative to adoption. In any event, the court recognized that “the
mere existence of a relative placement willing to accept an
alternative to adoption” was not determinative of whether a less
drastic alternative existed because the alternative must also be in
the children’s best interests. And after considering the parent’s
unfitness and the children’s need for permanency, the court
ultimately rejected less drastic alternatives and ordered
termination.
¶ 35 The record supports the juvenile court’s findings. The
caseworker testified that the Department initiated two family
searches during the case. The caseworker spoke with family
members after the first search, but they declined placement
because they were unable to meet the children’s medical needs.
16 After the second search, the caseworker invited some family
members to a team meeting, at which the family members agreed
that the children should stay with the foster parents. However, the
caseworker said that she still initiated a home study for a relative
who said she could be a placement if the court “wanted to have the
babies go back to family.”
¶ 36 The caseworker opined that it was in the children’s best
interests to remain with their current placement because
transitioning to a new placement would be difficult for them. The
caseworker said that the foster parents could meet all the children’s
special needs and were interested in adopting them. She also
opined that an APR was not appropriate in this case because it
could not meet the children’s needs for permanency, the parents
had not made any progress, and there were ongoing child protection
concerns.
¶ 37 The record therefore shows that the juvenile court considered
less drastic alternatives but rejected them because they were not in
the children’s best interests. See A.M., ¶ 32. And because the
record supports the court’s finding, we cannot disturb it. See B.H.,
¶ 80.
17 ¶ 38 We are not persuaded to reach a different conclusion based on
father’s assertion that the Department failed to adequately
investigate relatives. As described above, the record shows that the
Department investigated relatives, but they were only interested in
being a placement option if the current placement did not work out.
The parents never asked the Department to investigate any specific
person for placement nor did they ask the juvenile court to place
the children with someone else. In any event, even if there was a
relative who was an appropriate placement option, the court found,
with record support, that an APR would not be in the children’s
best interests based on the factors previously discussed.
¶ 39 Nor are we convinced by father’s contention that a less drastic
alternative existed because he had a bond with the child. To be
sure, a juvenile court should consider whether a child has a bond
with a parent when deciding if there is a viable less drastic
alternative to termination. See N.D.V., 224 P.3d at 421. But this is
just one of the factors that is relevant in deciding whether a less
drastic alternative is in the children’s best interests. See A.R., ¶ 38
(noting that the court “may consider various factors” in its analysis
of less drastic alternatives). And the court determined that there
18 was no viable less drastic alternative to termination based on the
parent’s unfitness and the children’s need for permanency. The
record supports the court’s findings, and we cannot reweigh the
evidence or substitute our judgment to reach a different conclusion.
See B.H., ¶ 80; A.M., ¶ 32; see also S.Z.S., ¶ 29.
V. Disposition
¶ 40 The judgment is affirmed.
JUDGE PAWAR and JUDGE SCHUTZ concur.