Peo In Interest of JKP

23CA1817 Peo in Interest of JKP 07-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1817

Weld County District Court No. 19JV765

Honorable W. Troy Hause, Judge

The People of the State of Colorado,

Appellee,

In the Interest of Jay. P., Jae. P., and J.S., Children,

and Concerning K.P.,

Appellant.

JUDGMENT AFFIRMED

Division II

Opinion by JUDGE SULLIVAN

Fox and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 3, 2024

Bruce T. Barker, County Attorney, David S. Anderson, Assistant County

Attorney, Greeley, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem

Ainsley Bochniak, Office of Respondent Parents’ Counsel, Denver, Colorado, for

Appellant

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¶ 1 In this dependency and neglect action, K.P. (mother) appeals

the juvenile court’s judgment terminating her parent-child legal

relationships with Jay. P., Jae. P., and J.S. (the children). We

affirm.

I. Background

¶ 2 The Weld County Department of Social Services (the

Department) filed a petition in dependency and neglect regarding

Jay. P. in 2019.

¶ 3 The juvenile court granted temporary custody of Jay. P. to the

Department and issued a protective order requiring mother to (1)

attend supervised family time a minimum of three times per week

and (2) comply with monitored sobriety, a substance abuse

evaluation, and any recommended treatment. Soon after, the

Department also took temporary custody of mother’s other two

children, Jae. P. and J.S., adding them to this case.

¶ 4 The juvenile court adjudicated the children dependent and

neglected and adopted a treatment plan for mother.

¶ 5 Over three years later, the Department moved to terminate the

parental rights of mother and the children’s fathers. At the

termination hearing, the court heard testimony from a clinical

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psychologist who was qualified as an expert witness; a Weld County

permanency caseworker; and mother.

¶ 6 After hearing the testimony, the juvenile court terminated the

parental rights for all fathers and mother, specifically finding that

there were no less drastic alternatives. Mother appeals.

II. Analysis

¶ 7 Mother argues that the juvenile court erred by rejecting the

less drastic alternative of an allocation of parental responsibilities

(APR) judgment in favor of the foster parents, or, in the alternative,

denying termination as to mother. We perceive no error.

A. Standard of Review and Applicable Law

¶ 8 Whether a juvenile court properly terminated a parent’s

parental rights presents a mixed question of fact and law because it

involves application of the termination statute to evidentiary facts.

People in Interest of A.M. v. T.M., 2021 CO 14, ¶ 15. “We review the

juvenile court’s findings of evidentiary fact . . . for clear error and

accept them if they have record support.” People in Interest of

S.R.N.J-S., 2020 COA 12, ¶ 10. But we review de novo the juvenile

court’s legal conclusions based on those facts. See id. at ¶ 8. The

juvenile court, as the trier of fact, determines the sufficiency,

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probative effect, and weight of the evidence, and assesses witness

credibility. People in Interest of A.J.L., 243 P.3d 244, 249–50 (Colo.

2010).

¶ 9 As relevant here, terminating parental rights under section 19-

3-604(1)(c), C.R.S. 2023, requires that the juvenile court find, by

clear and convincing evidence, that (1) the children are 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 is

unlikely to become fit within a reasonable period of time. S.R.N.J-

S., ¶ 8. A “reasonable time” is not indefinite. People in Interest of

S.Z.S., 2022 COA 133, ¶ 25.

¶ 10 The juvenile court must consider less drastic alternatives to

termination and base its decision on the best interests of the

children, giving primary consideration to the children’s physical,

mental, and emotional conditions and needs. § 19-3-604(3); People

in Interest of Z.M., 2020 COA 3M, ¶ 29. In making this

determination, the court may consider various factors, including

whether an ongoing relationship with the parent would be beneficial

or detrimental to the child, People in Interest of A.R., 2012 COA

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195M, ¶ 38, and whether the caregiver favors adoption rather than

an APR, People in Interest of S.N-V., 300 P.3d 911, 920 (Colo. App.

2011). This determination is “influenced by a parent’s fitness to

care for [the] child’s needs.” A.R., ¶ 38.

¶ 11 The consideration and elimination of less drastic alternatives

is implicit in the statutory criteria for termination. A.M., ¶ 40. “As

long as the trial court’s findings conform to the statutory criteria for

termination and are adequately supported by evidence in the

record, a reviewing court may reasonably presume that, in the

absence of any indication in the record to the contrary, the trial

court considered and eliminated less drastic alternatives.” Id. at

¶ 41.

B. Application of Statutory Factors

1. Previously Adjudicated Dependent and Neglected

¶ 12 Mother does not dispute that the children were previously

adjudicated dependent and neglected.

2. Compliance With Treatment Plan

¶ 13 We conclude that the record supports the juvenile court’s

finding that mother was not compliant with her treatment plan.

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¶ 14 The court adopted a treatment plan that required mother to (1)

cooperate with and maintain contact with the Department; (2) learn

additional parenting skills to provide the children with appropriate

care and discipline, including attending all family time; (3) address

substance abuse issues; (4) cooperate in any ongoing criminal case,

including following court orders; and (5) address mental health

issues.

¶ 15 We acknowledge that mother made great strides in addressing

what she needed to do to become a fit parent. However, testimony

from the permanency caseworker showed that mother ultimately

did not successfully comply with her treatment plan. See § 19-3-

604(1).

¶ 16 The caseworker testified, for example, that mother failed to

maintain month-to-month contact with the Department. The

caseworker also testified that while mother demonstrated good

parenting skills, she attended family time visitation inconsistently.

The caseworker further explained that mother had made extensive

efforts to address her substance use, even checking herself into

inpatient treatment facilities, but she was ultimately unsuccessful

and noncompliant at the time of the termination hearing. The

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caseworker noted that mother’s three most recent test results were

all positive for fentanyl. The caseworker also testified that mother

was noncompliant with criminal matters because she had an active

warrant out for her arrest. Finally, the caseworker testified that

mother had not adequately addressed her mental health issues, in

part, because she had not completed individual trauma therapy as

recommended in her evaluations.

¶ 17 Given all of this, the record supports the juvenile court’s

finding that mother was not compliant in multiple areas of her

treatment plan, satisfying the second statutory factor. § 19-3-

604(1)(c).

3. Unfitness

¶ 18 We also conclude that the record supports the juvenile court’s

finding that mother was not fit to meet her children’s physical,

mental, and emotional needs and conditions.

¶ 19 Mother admitted that in her current state she was not fit

enough to be a part of her children’s lives. She acknowledged that

to participate in the children’s lives in the future, such as attending

school events, she would first need to prove that she was fully sober

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and stable while consistently showing awareness of her children’s

needs.

¶ 20 The caseworker’s testimony further supports the court’s

finding regarding mother’s unfitness. The caseworker testified to

the negative impact on the children when mother failed to

consistently attend family time. And as discussed above, the

caseworker testified that mother had not complied with monitored

sobriety. The caseworker also testified that, although mother

successfully graduated from one inpatient treatment program, she

was unsuccessfully discharged from two others and was later

discharged from a sober living program for noncompliance. As to

mental health issues, the caseworker testified that although mother

underwent several mental health evaluations, the caseworker was

unable to confirm the current nature of mother’s treatment. The

caseworker further testified that mother’s active warrant was

especially concerning because, once arrested, mother would be

removed as a caregiver.

¶ 21 This testimony supports the court’s finding that mother was

an unfit parent at the time of the hearing, satisfying the third

statutory factor. § 19-3-604(1)(c).

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4. Reasonable Period of Time to Achieve Fitness

¶ 22 The record also supports the juvenile court’s finding that

mother was unlikely to become fit within a reasonable time.

¶ 23 The caseworker testified that the goal in an expedited

permanent placement case, such as here, is to find the children a

permanent placement within one year of the case being filed. See

generally § 19-1-102(1.6), C.R.S. 2023 (stating children under the

age of six who have been removed from their homes should be

“placed in permanent homes as expeditiously as possible”). Despite

that goal, this case was nearly four years old when the termination

hearing took place. Mother testified that, over that period, she at

times did well in complying with her treatment plan but at other

times relapsed; she was only thirty-seven days sober at the time of

the hearing.

¶ 24 The caseworker testified that, even if mother complied with the

treatment plan perfectly, it would take eight to eighteen months for

her to become fit — an inappropriate amount of time for the

children to continue waiting. The children were ten, eight and four

at the time of the hearing. The clinical psychologist testified that

the children had become bonded to their foster parents; the

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children had been living with them for approximately four years at

that point, almost Jay. P.’s entire life. The two oldest children, Jae.

P. and J.S., both expressed that they wished to be adopted by their

foster parents.

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¶ 25 Accordingly, the record supports the juvenile court’s finding

that mother was unlikely to become fit within a reasonable time,

satisfying the final statutory factor. § 19-3-604(1)(c).

C. Less Drastic Alternatives

¶ 26 Because the juvenile court’s findings under each of the

statutory termination factors have record support, we may

presume, absent any indication in the record to the contrary, that

the court considered and eliminated the less drastic alternatives

urged by mother on appeal — denial of the Department’s motion to

terminate or an APR to the children’s foster parents. A.M., ¶ 41.

¶ 27 In fact, the record confirms that the court expressly

considered and rejected the latter. The court found that an APR to

the foster parents was not possible because (1) the foster parents

“have indicated that they are not open [to] or interested” in an APR,

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Due to her age, the Department did not ask the youngest child,

Jay. P., about her placement preference.

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and (2) even if they were, an APR was not in the children’s best

interests given “the lack [of] permanency that they have

encountered, and the fact that [m]other has at times done well and

then relapsed.” See id. at ¶ 27 (a viable less drastic alternative

“must be in the child’s best interests,” not merely “adequate”). The

court explained that the “absolutely worst option” for the children

would be “for a parent to come in and out of their lives periodically,

which would not ever allow them to settle into a permanent home.”

¶ 28 The testimony elicited at the termination hearing, summarized

above, supports the court’s second reason. The record also

supports the court’s first reason. The caseworker testified that she

had discussed the difference between adoption and an APR

“[e]xtensively” with the children’s foster parents. The foster parents

stated that they wanted to adopt the children. See S.N-V., 300 P.3d

at 920 (considering caregiver’s preference for adoption over an APR

when evaluating less drastic alternatives). Based on the foster

parents’ unwillingness to consider an APR, and after exhausting

other potential options, the caseworker testified that she knew of no

less drastic alternative to termination.

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¶ 29 Accordingly, the record supports that the court considered and

eliminated the less drastic alternatives urged by mother.

D. Department Policy

¶ 30 Finally, mother argues that the Department has a policy of

refusing to continue a case regarding one parent if it is

simultaneously seeking to terminate parental rights as to the other

parent or parents. She argues that this policy fails to consider her

individual parental rights and results in the Department failing to

consider available less drastic alternatives to termination.

¶ 31 We need not address the existence or propriety of this alleged

policy. Even if such a policy exists, the record supports the juvenile

court’s findings on each of the statutory criteria for termination of

mother’s rights, including that mother was unlikely to become fit

within a reasonable time. And as discussed, the record supports

that the court considered and eliminated less drastic alternatives as

to mother.

III. Disposition

¶ 32 We affirm the judgment.

JUDGE FOX and JUDGE GROVE concur.