24CA0242 Peo in Interest of TS 12-26-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0242 Jefferson County District Court No. 21JV493 Honorable Ann Gail Meinster, Judge
The People of the State of Colorado,
Appellee,
In the Interest of T.S., X.J.S., Al. S., and An. S., Children,
and Concerning D.A., S.M.S., and H.S.,
Appellants.
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE HARRIS Yun and Kuhn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 26, 2024
Kimberly Sorrells, County Attorney, Melanie Douglas, Special County Attorney, Golden, Colorado, for Appellee
Jeffrey C. Koy, Jordan Oates, and Lauren Dingboom, Guardians Ad Litem
Robin Tieman, Office of Respondent Parents’ Counsel, Boulder, Colorado, for Appellant D.A.
Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant S.M.S.
Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant H.S. ¶1 In this dependency and neglect proceeding, S.S. (mother),
H.S., and D.A. appeal the juvenile court’s judgment terminating
their parent-child legal relationships with Al.S., An.S., T.S., and
X.J.S. (the children).1 We affirm.
I. Background
¶2 In October 2021, the Jefferson County Division of Children,
Youth, and Families (Department) received reports of domestic
violence between mother and H.S. and of the parents’ physical
abuse of the children. When caseworkers went to the house to
investigate, six-year-old T.S. and almost-four-year-old X.J.S. told
the caseworker that H.S. often punched them, and that mother beat
them with a belt, a hanger, or “whatever [she] c[ould] find.” Those
children also recounted incidents of domestic violence between
mother and H.S., including the incident that prompted the
investigation. According to the children, H.S. pushed mother
against the wall and punched her, so mother pepper sprayed him.
This altercation occurred near Al.S. and An.S., the three-month-old
twins. When questioned, H.S. acknowledged that he regularly
1 H.S. is the father of Al.S., An.S., and T.S.; D.A. is X.J.S.’s father.
1 punched T.S. and X.J.S. in the arms, thighs, and chest and
expressed displeasure that the children “flinch[ed] when he [wa]s
around.” Mother insisted that she had not hit T.S. and X.J.S. with
a belt for a few months. And she denied that she and H.S. had had
any physical altercations since 2019, when she hit him with her
car. The car incident resulted in mother’s conviction for assault
and the issuance of a protection order, which mother and H.S. had
apparently routinely violated.
¶3 Based on the referrals and the investigation, the Department
initiated a dependency and neglect proceeding. The parents
admitted the allegations in the petition, and the children were
adjudicated dependent and neglected. The court then adopted
treatment plans for the parents.
¶4 In August 2022, the Department moved to terminate parental
rights. A seven-day termination hearing was held over a period of
three months. In the interim, H.S. pleaded guilty to child abuse
charges pertaining to T.S. and X.J.S.
¶5 At the conclusion of the termination hearing, the juvenile
court denied the motion. It found that while the evidence
supported termination of H.S.’s and D.A.’s parental rights, mother
2 had made progress in her treatment plan and might be able to
become fit within a reasonable time.
¶6 A few months after the termination hearing, the Department
obtained hundreds of recorded telephone calls between mother and
H.S. that showed mother had lied under oath and deceived the
court, the caseworkers, and service providers by continuing a
relationship with H.S. and allowing H.S. to have contact with the
children in violation of court orders. In the conversations, which
occurred over a fifteen-month period, mother and H.S. joked about
their prior domestic violence incidents and endorsed future physical
abuse of the children. They also joked about “fooling the
[Department] and other professionals,” and, after the termination
hearing, they “talk[ed] . . . about how good [they] were at fooling the
[c]ourt.” Mother admitted that “[her] plan [wa]s to say whatever
[she] need[ed] [to] about [H.S.] to get the children back in [her]
care.” The Department again moved to terminate parental rights.
¶7 Following a four-day hearing in late October and November
2023, the juvenile court granted the motion.
3 II. Termination 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 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.
¶9 Whether a juvenile court properly terminated parental rights
presents a mixed question of fact and law 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. A determination of the
proper legal standard to be applied in a case and the application of
that standard to the particular facts of the case are questions of law
that we review de novo. M.A.W. v. People in Interest of A.L.W., 2020
CO 11, ¶ 31.
¶ 10 However, we will not disturb the court’s factual findings and
conclusions when they are supported by the record. Id. at ¶ 32; see
also A.M., ¶ 15. The credibility of the witnesses as well as the
sufficiency, probative value, and weight of the evidence, and the
4 inferences and conclusions to be drawn from it are within the
court’s discretion. A.M., ¶ 15.
III. Reasonable Efforts
¶ 11 The parents assert that the juvenile court erred by finding the
Department made reasonable efforts to rehabilitate them and
reunite them with the children.
A. Preservation
¶ 12 The parents and the Department assert this issue was
preserved. The guardian ad litem argues H.S. did not preserve this
claim for appeal. We need not decide this issue because, even if we
assume H.S. preserved his claim, we discern no reversible error.
B. Relevant Law
¶ 13 A department of human services must make reasonable efforts
to rehabilitate parents and reunite families before a court may
terminate parental rights pursuant to section 19-3-604(1)(c). See
§§ 19-3-100.5(1), 19-3-604(2)(h), C.R.S. 2024. Reasonable efforts
means the “exercise of diligence and care” for children who are in
out-of-home placement. § 19-1-103(114), C.R.S. 2024. Services
provided in accordance with section 19-3-208, C.R.S. 2024, satisfy
the reasonable efforts standard. § 19-1-103(114).
5 ¶ 14 Among those services required under section 19-3-208 are
screening, 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).
¶ 15 In deciding whether a department has satisfied its reasonable
efforts obligation, the juvenile court should consider whether the
provided services were appropriate to support the parent’s
treatment plan. People in Interest of S.N-V., 300 P.3d 911, 915
(Colo. App. 2011). The parent is ultimately responsible for using
those 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). And the court may consider a parent’s
unwillingness to participate in treatment when determining whether
a department made reasonable efforts. See People in Interest of
A.V., 2012 COA 210, ¶ 12.
¶ 16 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
6 court’s factual findings for clear error but review de novo its legal
determination based on those findings as to whether the
department satisfied its reasonable efforts obligation. Id.
C. Discussion
1. Mother’s Therapy
¶ 17 After the first termination hearing, mother’s treatment plan
was amended to add two requirements — participation in individual
trauma therapy and participation in either parent-child interaction
therapy (PCIT) or family therapy. Mother asserts that the
Department failed to make reasonable efforts in this regard because
the caseworker merely provided her with information about a
website and did nothing to assist her in obtaining a therapist.
¶ 18 The juvenile court found the Department made reasonable
efforts, that “[e]very possible service was made available,” and that
it was mother’s delays and failure to engage with and internalize
those services that caused her treatment plan to fail.
¶ 19 The record shows that the Department repeatedly attempted to
provide mother with therapeutic services that she either delayed or
failed to engage with. A.V., ¶ 12.
7 ¶ 20 With respect to the trauma therapy requirement, mother
testified that in June 2023, her primary therapist gave her a list of
trauma specialists. Mother did not immediately contact any of
them. Instead, according to the caseworker, mother reported in
August and September that she was receiving trauma therapy at
“Mile High,” but in November mother admitted that she was not in
trauma therapy because Mile High did not provide that service. At
that point, the caseworker sent a link to the website, Psychology
Today, and “specifically outlined how to look for a trauma
therapist.” The caseworker testified that the website has
photographs and biographies of the therapists, and she wanted to
give mother an opportunity to “take some time and explore who she
might identify with and would be comfortable starting to process
her trauma with.” Mother did not contact any of the therapists
from the website. She said she was waiting to hear if she could
participate in trauma therapy with the same provider who was
scheduled to conduct her mental health evaluation. In November
2023, after the second termination hearing had started, she asked
her primary therapist to re-send the referral list from June.
8 ¶ 21 On appeal, mother faults the Department for not “vet[ting] any
of the therapists” from the website or checking to see if they had
availability and would be willing to work with mother. The
caseworker testified, however, that she “offer[ed] to assist [mother]
in th[e] process” of finding a suitable therapist, but mother did not
“take [her] up on that offer.” And the reason mother had not
enrolled in individual trauma therapy by the time of the second
termination hearing was not because of the caseworker’s
supposedly inadequate efforts. Mother testified that she was not
engaged in therapy because she had “just a lot of different things
[she] was trying to . . . manage,” and “it was hard to fit it into [her]
schedule,” between work and trying to find daycare.
¶ 22 As for the PCIT or family therapy component, there did not
seem to be any dispute that the Department coordinated those
services as soon as the treatment plan was amended. The
caseworker testified that the Department initiated a referral in April
2023, and the provider agreed to begin services in mid-May.
Mother’s schedule did not permit family therapy at that time,
though, so the services began in June. In August, at mother’s
request, the Department initiated a new referral to a second
9 provider. But the intake process dragged on for a couple of months
due to mother’s lack of engagement. In the meantime, the court
suspended mother’s visits with the twins and X.J.S. based on
concerns regarding the physical and emotional safety of those
children during visits. By the time of the second termination
hearing, mother was only engaged in family therapy with one of the
older children.
¶ 23 At the termination hearing, mother acknowledged that she had
not taken full advantage “of the opportunity . . . to engage in the
treatment over the” two years the case was open.
¶ 24 Given all this, we conclude that the court did not err in
determining that the Department made reasonable efforts to help
mother comply with her treatment plan.
2. D.A.’s Services
¶ 25 D.A. was incarcerated throughout the two years the case was
open. He asserts that the Department failed to provide him with, or
determine if he was eligible for, any services or referrals in support
of his treatment plan.
¶ 26 The juvenile court found that the Department made
reasonable efforts and that D.A. was not engaged in any treatment.
10 ¶ 27 The record shows D.A.’s incarceration and failure to
communicate with the caseworker prevented him from engaging in
services. Id. The caseworker testified that the Department was not
able to provide services to D.A. where he was incarcerated due to
facility rules. The caseworker said that she made repeated efforts to
contact D.A. and staff at the facility to see what services may be
available but received no information concerning what services D.A.
may have already completed or would have been available to him.
The caseworker also testified the facility would not allow family time
to occur between D.A. and his child, X.J.S.
¶ 28 When the caseworker was able to obtain a face-to-face meeting
with D.A., D.A. intimidated the caseworker, and the caseworker did
not feel safe during the meeting. Face-to-face contact was
discontinued by the Department.
¶ 29 Still, the caseworker testified that she sent letters to D.A. and
included stamped envelopes for him to use to contact the
Department. The letters went unanswered. D.A. alleged that he
never received the letters; however, he was an active participant in
hearings throughout the case, and he never reported any difficulty
in contacting the caseworker until the second termination hearing.
11 ¶ 30 Because the record supports the court’s findings, we discern
no error in the court’s conclusion that the Department made
reasonable efforts with respect to D.A.
3. H.S.’s Services
¶ 31 During the pendency of the case, H.S. pleaded guilty to child
abuse charges and to drug charges filed in a separate case. He was
sentenced to an aggregate term of ten years in custody. H.S.
asserts that while he was in custody, the Department failed to
provide screening assessments, counseling, and information and
referrals as well as family time services as required under section
19-3-208(2)(b).
¶ 32 The juvenile court found that the Department made
reasonable efforts and that H.S. had “never taken advantage of any
treatment that might have been available to him and has not
addressed the issues on his part that opened this case.”
¶ 33 The record shows that H.S. failed to engage or participate
regularly in family time while he was not incarcerated and failed to
engage in voluntary services while incarcerated. A.V., ¶ 12.
¶ 34 At the beginning of the case, when H.S. was not incarcerated,
he attended only two family time visits. The caseworker testified
12 that she maintained regular face-to-face meetings with H.S. while
he was incarcerated and would routinely inquire what services were
available at his facility. H.S. denied any services were available, but
the caseworker testified she confirmed with Creative Treatment
Options, which provides services in that facility, that there were
voluntary services available. The caseworker also testified that she
identified a variety of services H.S. could take advantage of while
incarcerated, including substance use treatment, individual
therapy, and a fatherhood program. To access those services H.S.
needed only to “willingly ask” for them, but he never did so.2
¶ 35 In light of this evidence, we cannot say that the court erred by
determining that the Department made reasonable efforts to assist
H.S. with his treatment plan.
IV. Fitness Within a Reasonable Time
¶ 36 Mother argues that the juvenile court erred when it found she
could not become a fit parent within a reasonable amount of time.
2 At the second termination hearing, H.S. implied that he was
precluded from participating in services at the jail, but he did not introduce any evidence to support the implication.
13 A. Relevant Law
¶ 37 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 S.K., 2019 COA 36, ¶ 74. “Reasonable parental
care requires, at a minimum, that the parent provide nurturing and
safe parenting sufficiently adequate to meet the child’s physical,
emotional, and mental health needs.” Id.
¶ 38 In determining whether a parent’s conduct or condition is
likely to change in a reasonable time, the 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. Id. at ¶ 75. Where a parent has
made little to no progress on a treatment plan, the juvenile court
need not give the parent additional time to comply. See People in
Interest of A.N-B., 2019 COA 46, ¶ 34; see also People in Interest of
V.W., 958 P.2d 1132, 1134-35 (Colo. App. 1998) (noting that even
“increased compliance” over the course of a case may not justify
additional time).
¶ 39 A “reasonable time” is not an indefinite time, and it must be
determined by considering the child’s physical, mental, and
14 emotional conditions and needs. A.N-B., ¶ 29. What constitutes a
reasonable time is fact-specific and varies from case to case. Id. at
¶ 40. However, where, as is the case here, the child is under the
age of six years old, the court must also consider the expedited
permanency planning (EPP) provisions, which require the court to
place the child in a permanent home as expeditiously as possible.
§§ 19-1-102(1.6), 19-1-123, C.R.S. 2024.
B. Discussion
¶ 40 The juvenile court found the same issues that caused the
Department to open the case had not been sufficiently addressed
and there were still significant concerns about mother’s ability to
parent the children. The court additionally found “[t]here [were] no
amendments to the treatment plans that would allow [the parents]
to be successful within a reasonable period of time.”
¶ 41 True, at the first termination hearing, the court and the
Department acknowledged that mother had substantially complied
with her treatment plan. But later, the court and professionals
learned of mother’s substantial deceit and ongoing threats of
violence against the children.
15 ¶ 42 Specifically, the Department was concerned that H.S. and
mother were still in contact despite a protection order preventing
contact. The caseworker testified that mother made almost daily
phone calls to H.S. while he was incarcerated, and that she had lied
to professionals and under oath when she denied being in contact
with or in a relationship with H.S. Mother admitted that during the
calls, she expressed that she “was going to” use violence against the
children. Although mother claimed that she was just “venting,” the
juvenile court concluded that it had to take mother’s statements at
face value.
¶ 43 Additionally, mother admitted she allowed two of the children
to be in contact with H.S., in violation of a criminal protection order
against H.S. which named the children as the victims. She further
testified that she was unsure if she would resume a relationship
with H.S. in the future and could not say the relationship had ever
actually ended.
¶ 44 Even aside from the jail calls, concerns about mother’s fitness
and the children’s safety remained. Mother admitted she had
driven an older child not involved in this case to another residence
to allow the child to fight with a peer. Mother’s family time sessions
16 required extra supervision to ensure the children did not run away
or injure themselves. The family time supervisor described the
visits as chaotic, rough, and “unsafe.” Shortly before the second
termination hearing, mother’s family time with the three youngest
children was discontinued due to concerns of the children’s extreme
dysregulation before, during, and after visits, as well as mother’s
failure to show up for and cancellation of family time. The
caseworker testified there were concerns that mother and H.S. were
encouraging the children to lie to the Department.
¶ 45 Mother’s therapist could not put a fixed date on the amount of
time mother would need to be able to complete her treatment.
Mother herself admitted that the testimony from professionals
suggested “that it could take a very long time” for her to address the
issues that led to the Department’s involvement and that she could
not “put a number on” how long it would take. When pressed, she
said that an additional six months might be sufficient.
¶ 46 Mother ultimately had two years between the time the petition
was filed to the second termination hearing to become fit and
comply with her treatment plan, and she failed to do so. People in
Interest of A.J., 143 P.3d 1143, 1152 (Colo. App. 2006) (“[P]eriods as
17 short as five to nine months have been held to be sufficient time to
comply with a treatment plan.”).
¶ 47 We conclude there is record support for the court’s finding
that mother could not become fit within a reasonable time.
V. Less Drastic Alternatives
¶ 48 D.A. and H.S. assert that the juvenile court erred by finding
there were no less drastic alternatives to termination.
A. Relevant Law
¶ 49 The juvenile court must consider and eliminate less drastic
alternatives before terminating parental rights. People in Interest of
M.M., 726 P.2d 1108, 1122-23 (Colo. 1986). When making this
determination, the court must give primary consideration to the
child’s physical, mental, and emotional conditions and needs. See
§ 19-3-604(3); People in Interest of K.B., 2016 COA 21, ¶ 35.
¶ 50 For a less drastic alternative to be viable, it must do more than
“adequately” meet a child’s needs. A.M., ¶ 27. Rather, the
proposed alternative must be the “best” option for the child. Id.
Therefore, if the court considers a less drastic alternative but finds
that termination is in the child’s best interests, it must reject the
proposed alternative and order termination. Id. at ¶ 32. Permanent
18 placement is not a viable less drastic alternative if the child needs a
stable, permanent home that can only be assured by adoption. S.N-
V., 300 P.3d at 920.
¶ 51 When the juvenile court considers a less drastic alternative
and still determines that the termination of parental rights is in the
child’s best interests, we are bound to affirm that decision if the
court’s findings are supported by the record. People in Interest of
B.H., 2021 CO 39, ¶ 80.
¶ 52 H.S. says that the juvenile court misapplied the law when it
explained that the less drastic alternatives analysis was separate
from the issue of whether a relative was available to care for the
children under an allocation of parental responsibilities (APR). We
think the juvenile court was exactly right.
¶ 53 Whether a less drastic alternative to termination exists
depends on whether the parent-child relationship is beneficial to
the child and should remain intact or whether it is in the child’s
best interests to sever the relationship so that the child can achieve
stability and permanence through adoption. See J.C.R., 259 P.3d at
1285; B.H., ¶ 62. Thus, the mere availability of a relative to act as a
19 long-term caretaker does not change the less-drastic-alternatives
analysis.
¶ 54 The evidence supports the court’s determination that an
ongoing relationship with the parents was not in the children’s best
interests. The younger children — X.J.S. and the twins — would
cry and cling to the foster parent to try to avoid visits with mother.
The visits, which often required up to four professionals to
supervise, became so detrimental to X.J.S. and the twins’ emotional
well-being that the court stopped the visits a couple of months
before the second termination hearing. When X.J.S. attended
visits, for example, he would scream uncontrollably or “run out of
the room and cower” in a separate part of the facility, saying to
himself, “I am a bad boy. I am mean to people.” T.S. also
internalized the parents’ abuse: when he was first removed from his
home and placed in foster care, the six-year-old told the caseworker
that he needed to be “placed in a home where the family hates me
so that they will beat me . . . because that is what I deserve.”
¶ 55 At least as early as the summer of 2023, X.J.S. repeatedly told
professionals that he was scared to go home and wanted to stay
with the foster parent. T.S. likewise told the caseworker that he
20 wanted to be adopted. According to the family time supervisor, T.S.
could not be safely returned home, as he and an older child had
vowed to “never report [abuse] again because [the Department’s
involvement] [wa]s their fault” — a message conveyed to them by
mother and H.S.
¶ 56 The caseworker opined that an ongoing relationship with the
parents was not in the children’s best interests. She testified that
mother and H.S. did not “understand the impact of the abuse that
the children endured,” and, as a result, they could not meet the
children’s emotional and physical needs. Indeed, the caseworker
said that “the parents pose[d] a protective risk to the[] children,”
and that if the relationship were preserved, “there [was] a concern
that the children would be consistently re-triggered” and that a
“culture of violence” would persist.
¶ 57 Based on all this evidence, the court found that because the
“protective concerns” in the case were so serious, an APR was not
appropriate. It found that T.S., X.J.S., and the twins needed the
stability, permanency, and safety of an adoptive home. Those
findings are not clearly erroneous.
21 ¶ 58 By finding that an APR was not in the children’s best interests,
the court necessarily determined that it could not allocate parental
responsibilities to H.S.’s sister or D.A.’s mother. And because
mother could not parent the children and an ongoing relationship
was detrimental to the children, an APR to her was not a less
drastic alternative.
¶ 59 Even so, the record supports a finding that neither placement
was a viable alternative to termination. H.S.’s sister had had
previous dependency and neglect referrals involving her own child a
few years earlier. There was also evidence that the sister was
facilitating communication between mother and H.S. concerning
their plan to support placement with a grandmother so that they
could later retrieve the children from that placement. As for D.A.’s
mother (X.J.S.’s grandmother), the caseworker testified that she
contacted the grandmother to inquire about placement and notify
her of the interstate compact on the placement of children (ICPC)
requirements, but grandmother stopped responding to the
caseworker’s inquiries. Grandmother eventually resumed
communication with the Department, and at the time of the second
termination hearing, the ICPC process was pending. Still, the
22 caseworker had concerns about placing the children with
grandmother, as she had never met any of the children; initially,
she was not willing to care for the twins; she had never requested
visits with the children; and mother and H.S. had discussed
supporting placement of the children with grandmother so that
once the case was concluded, they could take the children back.
¶ 60 Because we conclude that the record supports the juvenile
court’s less drastic alternatives findings, we will not disturb them
on appeal. See B.H., ¶ 82.
VI. Denial of Motion to Continue
¶ 61 On the final day of the termination hearing, after all parties
had rested, H.S.’s counsel asked the court to continue the hearing
so that she could present evidence disputing the Department’s
assertions about H.S.’s sister’s criminal history. The juvenile court
denied the request. On appeal, H.S. says the court’s denial
constitutes an abuse of discretion.
¶ 62 We will not disturb a court’s ruling on a motion to continue
unless the ruling is manifestly arbitrary, unfair, or unreasonable, or
represents a misapplication of the law. People in Interest of E.B.,
2022 CO 55, ¶ 14.
23 ¶ 63 In ruling on a motion for a continuance, the juvenile court
should balance the need for orderly and expeditious administration
of justice against the facts underlying the motion while considering
the child’s needs for permanency. People in Interest of T.M.S., 2019
COA 136, ¶ 44. When, as here, the EPP provisions apply, the
juvenile court cannot delay or continue the termination hearing
absent good cause and a finding that the delay would serve the
child’s best interests. §§ 19-3-104, 19-1-123, C.R.S. 2024.
¶ 64 The purpose of the continuance was to provide additional
information in support of H.S.’s request that the court order an APR
to his sister. But because the court determined that an APR was
not in the children’s best interests, the denial of the motion to
continue was neither an abuse of discretion nor prejudicial to H.S.
See Interest of Spohr, 2019 COA 171, ¶ 32.
VII. Disposition
¶ 65 The judgment is affirmed.
JUDGE YUN and JUDGE KUHN concur.