People In Interest of A.S.L., a Child

• Court: Colorado Court of Appeals
• Decided: December 22, 2022
• Docket: 22CA0723
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY December 22, 2022

2022COA146

No. 22CA0723, People in Interest of A.S.L. — Juvenile Court — Dependency and Neglect — Allocation of Parental Responsibilities — Out-of-Home Placement Options — Reasonable Efforts; Appeals — Standard of Review — Mixed Question of Law and Fact

In this dependency and neglect case, a division of the court of

appeals holds for the first time that whether the government

satisfied its obligation to make reasonable efforts to reunify the

family and avoid out-of-home placement is a question of law we

review de novo. COLORADO COURT OF APPEALS 2022COA146

Court of Appeals No. 22CA0723 Weld County District Court No. 19JV704 Honorable Meghan Saleebey, Judge

The People of the State of Colorado,

Appellee,

In the Interest of A.S.L., a Child,

and Concerning A.S.V., a/k/a A.S.V.B.,

Appellant,

and

M.B. and J.B.,

Intervenors.

JUDGMENT AFFIRMED

Division III Opinion by JUDGE TOW Fox and Yun, JJ., concur

Announced December 22, 2022

Bruce T. Barker, County Attorney, David S. Anderson, Assistant County Attorney, Windsor, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem

Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant

Weibel, Zacheis, & Greenfield, LLC, Dallas D. Greenfield, Greeley, Colorado, for Intervenors ¶1 In this dependency and neglect proceeding, A.S.V. (mother)

appeals the juvenile court’s judgment allocating parental

responsibilities for A.S.L. (the child) to foster parents. We affirm. In

doing so, we conclude for the first time that an appellate court

reviews de novo the court’s ultimate conclusion whether a child

protection agency’s actions in a dependency and neglect case satisfy

its obligations to make reasonable efforts to reunify the family and

avoid out-of-home placement of the child.

I. Background

¶2 After the Weld County Department of Human Services received

a report of domestic violence and drug paraphernalia in the home,

and that mother had had a “major overdose,” a juvenile court

magistrate ordered the child and a younger half-sibling (who is not

part of this appeal) into the Department’s emergency temporary

custody. The Department then filed a petition in dependency and

neglect, alleging that the child’s environment was injurious to his

welfare and that he lacked proper parental care through mother’s

actions or omissions. Mother admitted the allegations, and the

1 court adjudicated the child dependent and neglected. The

Department placed the then-fourteen-year-old child in foster care.1

¶3 The court adopted a treatment plan for mother, which, among

other things, required her to engage in parenting time with the

child. Initially, the court ordered mother to participate in

supervised parenting time a minimum of two times per week. A few

weeks later, however, a caseworker testified that mother had been

“inappropriate” and “erratic” at her parenting time visits, causing

the child to become “dysregulated” and to “shut down.” The court

suspended mother’s visits pending her (1) completion of “detox”; or

(2) scheduling and participating in mental health and substance

abuse evaluations; or (3) providing two weeks of clean urinalysis

tests. Later, the Department informed the court that a provider had

indicated that mother could not complete a substance abuse

evaluation until her mental health concerns were addressed. The

Department then referred mother for a psychological evaluation.

1 Several months later, after an adjudicatory hearing at which father, B.L., failed to appear, a treatment plan was adopted for father, as well. Father is not a party to this appeal.

2 ¶4 At one point, mother asserted that she had provided two

weeks of negative urinalysis tests, and she requested to resume

parenting time visits. The Department responded that mother just

needed to contact her caseworker to reinstate visits. Later,

however, the Department reported that mother had not done so and

had not visited the child. Throughout the case, the child

consistently expressed that he did not want to visit with mother.

¶5 Several months after the child was placed in foster care, the

foster parents intervened in the case. The Department and the

child’s parents entered into a stipulation allocating parental

responsibilities (APR) to the foster parents. However, the court

continued the APR hearing because the intervenors had not signed

the stipulation.2 At the beginning of the continued hearing, mother

withdrew her agreement to the stipulation, and the court proceeded

to a contested APR hearing. After that hearing, the court entered

an order consistent with the terms of the original stipulation,

granting APR for the child, who was then almost seventeen years

old, to the foster parents.

2The child’s maternal grandmother had also intervened in the case and participated throughout. She is not a party to this appeal.

3 ¶6 Mother appeals, contending that the juvenile court failed to

make sufficient findings and failed to hold the Department to its

burden of providing reasonable efforts to reunify the family and

avoid out-of-home placement of the child. In particular, mother

contends that the Department did not make reasonable efforts

because her visitation with the child was suspended and never

reinstated.

II. Standard of Review

¶7 As two divisions of this court have recently recognized, it is not

clear whether we are to review the juvenile court’s determination of

reasonable efforts de novo or for clear error. See People in Interest

of E.S., 2021 COA 79, ¶ 16; People in Interest of A.A., 2020 COA

154, ¶¶ 9-13. Even more recently, however, our supreme court

held that whether the government satisfied active efforts in an

Indian Child Welfare Act (ICWA) case is a mixed question of fact and

law, meaning that the court’s factual findings are reviewed for clear

error but “whether those findings satisfy ICWA’s active efforts

requirement is a question of law that we review de novo.” People in

Interest of My.K.M. v. V.K.L., 2022 CO 35, ¶ 20.

4 ¶8 We see no logical distinction between the appellate review of

an active efforts finding under ICWA and a reasonable efforts

finding under the Children’s Code. Accordingly, we conclude that

whether the Department satisfied its obligation to make reasonable

efforts to reunify the family and avoid out-of-home placement of the

child is a mixed question of fact and law. Therefore, we review the

juvenile court’s factual findings on the issue for clear error but

review de novo the court’s legal determination, based on those

findings, as to whether the Department satisfied its reasonable

efforts obligation.

III. Legal Framework

A. Reasonable Efforts

¶9 The Children’s Code recognizes the obligation that federal law

imposes on states to make “‘reasonable efforts’ to prevent the

placement of abused and neglected children out of the home and to

reunify the family whenever appropriate.” § 19-3-100.5(1), C.R.S.

2022 (citing the “‘Adoption Assistance and Child Welfare Act of

1980,’ federal Public Law 96-272 [codified at 42 U.S.C. § 1397b]”).

The Children’s Code further recognizes that federal law “encourages

expediting permanency planning for children in out-of-home

5 placement by removing barriers to permanency and streamlining

entitlement services.” § 19-3-100.5(2) (citing the “‘Adoption and

Safe Families Act of 1997,’ federal Public Law 108-89 [codified at 42

U.S.C. § 671(a)(15)(A), (B)]”).

¶ 10 To that end, the General Assembly defines reasonable efforts

as “the exercise of diligence and care . . . for children and youth

who are in foster care or out-of-home placement or are at imminent

risk of foster care or out-of-home placement.” § 19-1-103(114),

C.R.S. 2022.3 This definitional section further provides that

“[s]ervices provided . . . in accordance with section

19-3-208[, C.R.S. 2022] are deemed to meet the reasonable effort

standard described in this subsection (114).” Id.; see also

§ 19-3-100.5(5).

¶ 11 Section 19-3-208, in turn, says that the Department “shall

provide a set of services” as set forth in that section. § 19-3-208(1).

These services are designed to accomplish certain goals, including,

3 Mother cites a previous codification of the statute, section 19-1-103(89), without denoting a year. However, the General Assembly repealed and reenacted the entire definitional section of the Children’s Code in 2021. Ch. 136, sec. 144, § 19-1-103, 2021 Colo. Sess. Laws 753.

6 among other things, “[a]void[ing] the unnecessary placement of

children into foster care,” and “[f]acilitat[ing], if appropriate, the

speedy reunification of parents with any of their children who have

been placed in out-of-home placement.” § 19-3-208(2)(a)(III), (IV).

Among the services the Department must provide are visitation

services for parents whose children have been placed outside of the

home. § 19-3-208(2)(b)(IV).

B. Best Interests of the Child

¶ 12 In proceedings under the Children’s Code, a juvenile court

must allocate parental responsibilities in accordance with the

child’s best interests. People in Interest of L.B., 254 P.3d 1203,

1208 (Colo. App. 2011). Specifically, the court must consider the

legislative purposes of the Children’s Code under section 19-1-102,

C.R.S. 2022. People in Interest of J.G., 2021 COA 47, ¶ 18. These

purposes include securing for each child in the case the care and

guidance, preferably in his or her own home, that will best serve the

child’s welfare and society’s interests. See § 19-1-102(1)(a).

¶ 13 The child’s health and safety are the paramount concerns in

determining whether services, including parenting time, are

necessary and appropriate. A.A., ¶ 17; People in Interest of B.C.,

7 122 P.3d 1067, 1070 (Colo. App. 2005). Visitation services must be

designed to promote the health, safety, and well-being of the child;

facilitate the speedy reunification of parents and children; and

promote the best interests of the child. § 19-3-208(2)(a); A.A., ¶ 17.

IV. Analysis

A. The Lack of Explicit Findings

¶ 14 Mother correctly asserts that the court made no specific

written or oral findings regarding reasonable efforts at the

continued APR hearing. She contends that the lack of findings

alone warrants reversal. We disagree.

¶ 15 Failure of the court to make express findings, on its own, does

not establish a failure by the court to ensure that the Department

made reasonable efforts. See L.B., 254 P.3d at 1207; see also People

in Interest of M.D., 2014 COA 121, ¶ 37 (finding no reversible error

despite the absence of specific findings regarding reasonable

efforts). Here, reviewing de novo the ultimate question of whether

the Department’s efforts satisfied its obligation, we conclude that

the record amply demonstrates the Department’s reasonable efforts

to ensure mother had adequate visitation.

8 B. The Department’s Reasonable Efforts

¶ 16 First, we reject the Department’s contention that reasonable

efforts are only required when parental rights are being terminated.

¶ 17 The Department argues that the reasonable efforts

requirement arises in the context of a determination of unfitness as

a prerequisite for termination. See § 19-3-604(2)(h), C.R.S. 2022.

But while reasonable efforts are relevant to a fitness inquiry,

mother does not rely on — or even cite — section 19-3-604. Rather,

mother cites sections 19-3-100.5 and 19-3-208.

¶ 18 The Department also relies on L.B., but this reliance is

misplaced because the Department misreads the case. The issue in

L.B. was whether the juvenile court’s lack of specific findings

regarding reasonable efforts required reversal. 254 P.3d at 1207.

The division held that reversal was not required, not because the

Department had no duty to provide reasonable efforts, but rather,

because “despite the absence of specific findings regarding

reasonable efforts, the Department made the necessary efforts”

under the relevant statute. Id. (emphasis added).

¶ 19 We also note that L.B. involved a permanency planning

hearing conducted pursuant to section 19-3-702, C.R.S. 2022.

9 Under that section, a juvenile court determining a permanent

placement for a child must consider “[w]hether reasonable efforts

have been made to finalize the permanency goal.” § 19-3-702(3)(b).

¶ 20 Here, it is unclear whether the APR hearing was considered a

permanency hearing. If it was, then the court was obviously

required to consider reasonable efforts under section 19-3-702.

But, as we have noted, even if the hearing was not a permanency

hearing, the Department has a statutory obligation to provide

reasonable efforts to reunify the family and avoid out-of-home

placement of the child. § 19-3-100.5. This obligation exists even

when the juvenile court, in lieu of terminating a parent’s rights,

enters an APR to a nonparent. See People in Interest of E.C., 259

P.3d 1272, 1276 (Colo. App. 2010).

¶ 21 We also reject mother’s contention that the present case is

similar to A.A., ¶¶ 25-29, in which a division of this court held that

a magistrate erred by suspending a parent’s visitation and refusing

to reinstate it until the parent could demonstrate sobriety. In this

case — unlike in A.A. — mother had been erratic and possibly

under the influence of drugs at earlier visits with the child.

Furthermore, when the court put its restrictions in place in this

10 case, it did so for the child’s well-being, finding that “it is

appropriate for the protection of the child[] that there be an

immediate order of protection” and that mother’s visits with the

child be suspended. Given these differences, the division’s

reasoning in A.A. is not applicable here.

¶ 22 Instead, as the record amply demonstrates, the Department

made reasonable efforts to ensure adequate visitation for mother.

Specifically, the Department referred mother to

 services she needed to complete in order to meet the

court’s requirements for reinstating her visitation;

 urinalysis testing, substance abuse and mental health

evaluations, and an inpatient substance abuse (“detox”)

program; and

 two therapeutic visitation facilities and at least one

supervised visitation provider.

Nevertheless, and despite mother’s assertions on appeal, the record

shows that mother did not engage in these services.

¶ 23 For example, mother asserts that, by January 2020, she had

successfully completed “detox” through the Wings program, but she

testified to the contrary in January 2021, saying that she was

11 “kicked out of the . . . program.” Mother also asserts that she

completed substance abuse and mental health evaluations. But the

record shows that she completed a substance abuse assessment

that was inconclusive because she did “not admit[] to recent use.”

¶ 24 Even when mother completed the prerequisites to reinstate her

visits with the child, she did not sufficiently follow through to

resume visitation. For example, after mother asserted that she had

met the court’s prerequisite of sobriety tests, mother was told she

merely needed to contact her caseworker to reinstate visits. But

she failed to do so.

¶ 25 Moreover, the record supports that mother’s visits were not in

the child’s best interests. The caseworker, who testified as an

expert in child protection casework, opined that contact between

the child and mother would negatively impact the child. The

caseworker testified at the APR hearing that the child was “almost

[seventeen] years old. He’s very stable. He’s . . . got . . . a good

head on his shoulders.” The caseworker continued, “[c]ontact at

this time [with mother] would cause confusion and disrupt[] the

stability of [the child’s] home.” Therefore, the caseworker opined

that the APR to foster parents was in the child’s best interests.

12 ¶ 26 The court found that the child’s best interests would be served

by allocating primary residential custody to the foster parents and

providing for some parenting time for mother. That finding has

record support, and we will not disturb it.4

V. Disposition

¶ 27 The judgment is affirmed.

JUDGE FOX and JUDGE YUN concur.

4 Mother does not challenge the juvenile court’s finding regarding the child’s best interests or the specific terms of the APR.