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24CA0255 Peo in Interest of OB 09-12-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0255

Arapahoe County District Court No. 22JV75

Honorable Bonnie H. McLean, Judge

The People of the State of Colorado,

Appellee,

In the Interest of O.B., a Child,

and Concerning R.B. and A.L.,

Appellants.

JUDGMENT AFFIRMED

Division A

Opinion by JUDGE RICHMAN

ROMÁN, C.J., and Martinez*, J., concur

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

Announced September 12, 2024

Ronald Carl, County Attorney, Kiley Schaumleffel, Assistant County Attorney,

Aurora, Colorado, for Appellee

Sheena Knight, Guardian Ad Litem

Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for

Appellant R.B.

Robin Tieman, Office of Respondent Parents’ Counsel, Boulder, Colorado, for

Appellant A.L.

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2024.

¶ 1 A.L. (mother) and R.B. (father) appeal the judgment

terminating their parent-child legal relationships with O.B. (the

child). We affirm.

I. Background

¶ 2 The Arapahoe County Department of Human Services

(Department) filed a petition in dependency and neglect after

concerns arose that mother was abusing substances when she

appeared under the influence while picking up the child from the

maternal grandmother’s house. The Department also had concerns

around father’s substance use, domestic violence incidents between

the parents, and allegations of sexual abuse involving the child.

The Department placed the child with the maternal grandparents

where she remained throughout the case.

¶ 3 Father and mother admitted the allegations in the petition and

the juvenile court adjudicated the child dependent and neglected as

to each parent.

¶ 4 Each of the parents’ separate treatment plans required them

to (1) maintain consistent communication and cooperate with the

Department and their treatment providers; (2) establish legal,

consistent income; (3) obtain and maintain safe housing large

enough for the parent and the child; (4) address their substance

abuse issues and any mental health concerns; (5) improve

parenting skills and participate in consistent family time with the

child; and (6) participate in a domestic violence intake and follow

through with any recommendations. Father’s treatment plan had

an additional component that required him to refrain from any

further criminal activity.

¶ 5 The Department later moved to terminate the parents’ parental

rights. Following a hearing in January 2023, the court denied the

motion, finding mother was reasonably complying with her

treatment plan and could become fit with additional time. The

court also denied the motion with regard to father because of

concerns about the legality of a criminal protection order that

prevented father from having family time with the child and

because the court did not believe termination at that time was fair.

¶ 6 Six months later, the Department again moved to terminate

the parents’ parental rights. Following a two-day evidentiary

hearing, the court granted the motion.

II. Termination Criteria and Standard of Review

¶ 7 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 in a reasonable time.

§ 19-3-604(1)(c), C.R.S. 2024.

¶ 8 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.

¶ 9 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

inferences and conclusions to be drawn from it, are within the

court’s discretion. A.M., ¶ 15.

III. Fitness within a Reasonable Time

¶ 10 The parents contend that the juvenile court erred by

concluding that their conduct or condition was unlikely to change

within a reasonable time. We discern no error. Mother specifically

contends that she did not need an indefinite amount of time, but

“that she could have become fit in a reasonable period of time ― six

months.” Father contends he had demonstrated recent progress

toward his treatment plan objectives.

¶ 11 We address each argument in turn and disagree with both

assertions.

A. Applicable Law

¶ 12 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 needs and conditions. Id.

¶ 13 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).

¶ 14 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. 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. Analysis

¶ 15 When the juvenile court denied the motion to terminate after

the first termination hearing, the court specifically found that

mother needed “to step it up big time, and there’s a whole lot more

that needs to be done,” and that its expectation was that the

parents were “engaging 100 percent in their treatment.” Following

the second termination hearing, the court found it was

“concerning . . . that both parents had a second chance to really

work on their treatment plan, engage with parenting time, and . . .

get custody of [the child] back. And neither one of them did the

work that they needed to do.”

1. Mother

¶ 16 As to mother, the juvenile court also found that it took her an

additional six months after the first termination hearing to begin to

comply with most of her treatment, and “[t]here’s still a lot of issues

to be addressed and very little progress has been made.” Finally,

the court found “that [the] child desperately needs permanency, and

given her young age, that additional time is not in [the] child’s best

interest.” We conclude the record supports the court’s findings.

¶ 17 At the first termination hearing, mother asked for more time to

comply with her treatment plan and show she was a stable parent.

The court granted this request.

¶ 18 Yet, at the second termination hearing, the caseworker

testified that mother had only just begun to engage with services.

The caseworker testified that even when mother did engage, there

were concerns that she was not reporting truthfully to providers

about her substance abuse and domestic violence experiences.

¶ 19 The caseworker additionally testified she believed mother

would need at least another six to twelve months of consistent

engagement in treatment. As mother asserts, that is not an

indefinite amount of time. But the caseworker also testified that

mother had not been able to demonstrate consistent engagement at

any point throughout the case. The caseworker further testified

that she did not believe additional time was in the child’s best

interests and that the child had health needs that required

consistency the parents had not been able to demonstrate. The

juvenile court found the caseworker’s testimony to be credible and

recited the testimony as part of its findings.

¶ 20 Mother further asserts that although her urinalyses (UA) were

positive for marijuana, there was “no evidence presented that she

could not parent and use marijuana.” This discounts the multitude

of missed UAs, which led the juvenile court to note it was difficult to

determine mother’s sobriety. This also contradicts caseworker

testimony from both termination hearings that indicated the child

needed a sober caregiver and that the Department was concerned

the child would “not be in the care of a sober caretaker at any

point” because mother had reported her use was consistent and

daily.

¶ 21 The caseworker also testified that mother provided no evidence

of stable safe housing or legal, consistent income as required by the

treatment plan. The juvenile court expressly found that the parents

had failed to demonstrate stable housing and employment.

2. Father

¶ 22 With respect to father, the juvenile court specifically noted

there was limited evidence that he had complied with the terms and

conditions of his treatment plan. The court additionally described

its concerns that father did not engage in treatment after the first

motion to terminate was denied, and even after being released from

custody, father waited another month before re-engaging in

treatment.

¶ 23 Finally, the court found, “[f]ather was not in compliance with

his treatment plan during his period of incarceration and that

period of incarceration certainly does not inure to his benefit.

His . . . poor choices led to his incarceration which negatively affect

his ability to safely parent the child as well as work on his

treatment plan.” We conclude the record supports the court’s

findings.

¶ 24 Father testified at the second termination hearing that he was

complying with the conditions of his probation and abiding by a

protection order prohibiting contact between him and mother. But

he admitted he was facing probation revocation, and evidence was

introduced suggesting that he and mother were living together in

violation of the order. Father further asserted he had stable

housing and employment, but he provided no evidence of those

claims, and the court did not find father’s testimony to be credible.

See A.M., ¶ 15.

¶ 25 The record also shows that father was never able to provide a

clean UA and had only begun engaging in mental health and

domestic violence treatment shortly before the second termination

hearing despite being released from custody almost two months

prior. The caseworker testified she believed father would need at

least another eight to twelve months of consistent and full

engagement in treatment services to become a fit parent, which he

had never demonstrated an ability to do.

¶ 26 Because the record supports the juvenile court’s findings, we

will not disturb its legal conclusion.

IV. Less Drastic Alternative

¶ 27 Father contends that the juvenile court erred by determining

there was no less drastic alternative to termination and claims that

the Department failed to investigate paternal relatives for

placement. We disagree.

A. Applicable Law

¶ 28 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.

¶ 29 In deciding whether long-term or permanent placement with a

relative or other person is a viable less drastic alternative to

termination, the court may consider various factors including

whether a permanent placement prefers adoption rather than an

allocation of parental responsibilities (APR). People in Interest of

Z.M., 2020 COA 3M, ¶ 31.

¶ 30 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

placement is not a viable less drastic alternative if the child needs a

stable, permanent home that can only be assured by adoption.

People in Interest of S.N-V., 300 P.3d 911, 920 (Colo. App. 2011).

¶ 31 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.

B. Analysis

¶ 32 The juvenile court found that less drastic alternatives had

been considered and ruled out, that the child was in a safe and

appropriate home, and that an APR was not appropriate. The court

further found the child needed “a safe and stable permanent home.”

¶ 33 Immediately upon removal, the child was placed with a

kinship placement where she remained throughout the case.

Father provided a relative affidavit listing, primarily, a paternal aunt

and uncle whom the Department did not investigate.

¶ 34 However, the caseworker testified that father’s paternal

relatives never reached out to inquire about placement, that it was

Department policy to not disrupt the child’s placement if there were

no safety concerns, and that she believed it would not be in the

child’s best interests to remove the child given her bond with the

kinship caregivers.

¶ 35 The record additionally shows both motions to terminate

parental rights had the required language pursuant to section

19-3-602(1.5), C.R.S. 2024, advising relatives that they must file a

request for guardianship within a timely manner after the motions

were filed. § 19-3-602(1.5)(a)(I.5). Yet the record is devoid of any

paternal relatives reaching out to the Department to request

guardianship.

¶ 36 Further, the caseworker at the first termination hearing

testified she had concerns about father’s ability to follow a court

order should an APR be entered given father’s lack of compliance

with court orders in the past.

¶ 37 Father lastly asserts the Department should have reached out

to his paternal relatives given the concerns of abuse father and

mother reported with regards to the kinship placement. However,

these claims were repeatedly investigated and found not to be

credible.

¶ 38 The caseworkers at both termination hearings testified they

had no concerns about any abuse occurring at the kinship

placement after investigating the reports made by the parents. Law

enforcement additionally responded to numerous reports made by

mother concerning the kinship placement, and all investigations

were concluded as unfounded. Testimony instead revealed that the

child was happy, well-cared for, and had a strong bond with the

kinship placement.

¶ 39 Because the record supports the juvenile court’s findings, we

will not disturb its legal conclusion.

V. Disposition

¶ 40 The judgment is affirmed.

CHIEF JUDGE ROMÁN and JUSTICE MARTINEZ concur.

24CA0255 Peo in Interest of OB 09-12-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0255
Arapahoe County District Court No. 22JV75
Honorable Bonnie H. McLean, Judge

The People of the State of Colorado,

Appellee,

In the Interest of O.B., a Child,

and Concerning R.B. and A.L.,

Appellants.

JUDGMENT AFFIRMED

Division A
Opinion by JUDGE RICHMAN
ROMÁN, C.J., and Martinez*, J., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 12, 2024

Ronald Carl, County Attorney, Kiley Schaumleffel, Assistant County Attorney,
Aurora, Colorado, for Appellee

Sheena Knight, Guardian Ad Litem

Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for
Appellant R.B.

Robin Tieman, Office of Respondent Parents’ Counsel, Boulder, Colorado, for
Appellant A.L.

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 A.L. (mother) and R.B. (father) appeal the judgment

terminating their parent-child legal relationships with O.B. (the

child). We affirm.

I. Background

¶2 The Arapahoe County Department of Human Services

(Department) filed a petition in dependency and neglect after

concerns arose that mother was abusing substances when she

appeared under the influence while picking up the child from the

maternal grandmother’s house. The Department also had concerns

around father’s substance use, domestic violence incidents between

the parents, and allegations of sexual abuse involving the child.

The Department placed the child with the maternal grandparents

where she remained throughout the case.

¶3 Father and mother admitted the allegations in the petition and

the juvenile court adjudicated the child dependent and neglected as

to each parent.

¶4 Each of the parents’ separate treatment plans required them

to (1) maintain consistent communication and cooperate with the

Department and their treatment providers; (2) establish legal,

consistent income; (3) obtain and maintain safe housing large

1
enough for the parent and the child; (4) address their substance

abuse issues and any mental health concerns; (5) improve

parenting skills and participate in consistent family time with the

child; and (6) participate in a domestic violence intake and follow

through with any recommendations. Father’s treatment plan had

an additional component that required him to refrain from any

further criminal activity.

¶5 The Department later moved to terminate the parents’ parental

rights. Following a hearing in January 2023, the court denied the

motion, finding mother was reasonably complying with her

treatment plan and could become fit with additional time. The

court also denied the motion with regard to father because of

concerns about the legality of a criminal protection order that

prevented father from having family time with the child and

because the court did not believe termination at that time was fair.

¶6 Six months later, the Department again moved to terminate

the parents’ parental rights. Following a two-day evidentiary

hearing, the court granted the motion.

2
II. Termination Criteria and Standard of Review

¶7 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 in a reasonable time.

§ 19-3-604(1)(c), C.R.S. 2024.

¶8 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.

¶9 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

3
inferences and conclusions to be drawn from it, are within the

court’s discretion. A.M., ¶ 15.

III. Fitness within a Reasonable Time

¶ 10 The parents contend that the juvenile court erred by

concluding that their conduct or condition was unlikely to change

within a reasonable time. We discern no error. Mother specifically

contends that she did not need an indefinite amount of time, but

“that she could have become fit in a reasonable period of time ― six

months.” Father contends he had demonstrated recent progress

toward his treatment plan objectives.

¶ 11 We address each argument in turn and disagree with both

assertions.

A. Applicable Law

¶ 12 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 needs and conditions. Id.

4
¶ 13 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).

¶ 14 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. 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.

5
B. Analysis

¶ 15 When the juvenile court denied the motion to terminate after

the first termination hearing, the court specifically found that

mother needed “to step it up big time, and there’s a whole lot more

that needs to be done,” and that its expectation was that the

parents were “engaging 100 percent in their treatment.” Following

the second termination hearing, the court found it was

“concerning . . . that both parents had a second chance to really

work on their treatment plan, engage with parenting time, and . . .

get custody of [the child] back. And neither one of them did the

work that they needed to do.”

1. Mother

¶ 16 As to mother, the juvenile court also found that it took her an

additional six months after the first termination hearing to begin to

comply with most of her treatment, and “[t]here’s still a lot of issues

to be addressed and very little progress has been made.” Finally,

the court found “that [the] child desperately needs permanency, and

given her young age, that additional time is not in [the] child’s best

interest.” We conclude the record supports the court’s findings.

6
¶ 17 At the first termination hearing, mother asked for more time to

comply with her treatment plan and show she was a stable parent.

The court granted this request.

¶ 18 Yet, at the second termination hearing, the caseworker

testified that mother had only just begun to engage with services.

The caseworker testified that even when mother did engage, there

were concerns that she was not reporting truthfully to providers

about her substance abuse and domestic violence experiences.

¶ 19 The caseworker additionally testified she believed mother

would need at least another six to twelve months of consistent

engagement in treatment. As mother asserts, that is not an

indefinite amount of time. But the caseworker also testified that

mother had not been able to demonstrate consistent engagement at

any point throughout the case. The caseworker further testified

that she did not believe additional time was in the child’s best

interests and that the child had health needs that required

consistency the parents had not been able to demonstrate. The

juvenile court found the caseworker’s testimony to be credible and

recited the testimony as part of its findings.

7
¶ 20 Mother further asserts that although her urinalyses (UA) were