CourtListener 10145621•Peo in Interest AF
Gesamter Gesetzestext
24CA0656 Peo in Interest AF 10-17-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0656
Costilla County District Court No. 23JV30000
Honorable Kimberly D. Cortez, Judge
The People of the State of Colorado,
Appellee,
In the Interest of A.F., III, A.F. and Z.F., Children,
and Concerning B.J.L.,
Appellant.
JUDGMENT AFFIRMED
Division VI
Opinion by JUDGE BROWN
Welling and Hawthorne*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 17, 2024
Rebecca N. Rian, Special County Attorney, Alamosa, Colorado, for Appellee
Jenna L. Mazzucca, Guardian Ad Litem
Harald Van Gaasbeek, Office of Respondent Parents’ Counsel, Ft. Collins,
Colorado, for Appellant
*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 In this dependency and neglect action, B.J.L. (mother) appeals
the judgment terminating her parent-child legal relationships with
A.F. III, A.F., and Z.F. (the children). We affirm.
I. Background
¶2 The Costilla County Department of Social Services (the
Department) filed a petition in dependency and neglect, alleging
concerns about substance use and educational neglect. The
juvenile court adjudicated the children dependent and neglected
and adopted a treatment plan for mother. The court later amended
the treatment plan to address additional concerns about domestic
violence. The Department then moved to terminate mother’s
parental rights. More than a year after the petition was filed, the
court granted the motion following a contested hearing.
II. Motion to Continue
¶3 Mother first contends that the juvenile court erred by denying
her motion to continue the termination hearing. We disagree.
A. Standard of Review and Applicable Law
¶4 When ruling on a motion to continue, the juvenile court must
balance the reasons provided in the motion, the need to promptly
resolve the proceeding, and the children’s best interests. People in
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Interest of T.E.M., 124 P.3d 905, 909 (Colo. App. 2005). When, as
here, a child is under six years old at the time the petition is filed,
the case is subject to the expedited permanency planning provisions
(EPP), §§ 19-1-102(1.6), 19-1-123, C.R.S. 2024, and the court
“shall not grant a delay unless good cause is shown and unless the
court finds that the best interests of the child will be served by
granting a delay,” § 19-3-602(1), C.R.S. 2024.
¶5 A motion to continue is left to the juvenile court’s sound
discretion, and its ruling will not be disturbed on appeal absent a
clear abuse of that discretion. People in Interest of A.J., 143 P.3d
1143, 1150 (Colo. App. 2006). A court abuses its discretion when
its decision is manifestly arbitrary, unreasonable, or unfair or when
it is based on an erroneous understanding or application of the law.
People in Interest of M.V., 2018 COA 163, ¶ 52.
B. Additional Background
¶6 Mother did not appear at the termination hearing. Mother’s
counsel moved to continue the hearing, stating that mother had left
New Mexico the night before with the intention of appearing for the
hearing in person, but she had issues with her vehicle on the way.
The court recessed to give counsel more time to try to reach mother.
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When those efforts were unsuccessful, counsel again moved to
continue the hearing, arguing that mother “should be able to
provide what evidence she has, especially related to the recent
treatment and the progress she has made on the treatment plan.”
¶7 The juvenile court denied the motion, finding there was not
good cause for a continuance “given the pattern and history in the
case.” In particular, the court noted that it could not recall or find
in the court file any instance where mother had appeared for court
in person and that there “seem[s] to be a history of failing to
appear.”
¶8 Under the case management order, before the hearing, mother
had disclosed a supervisor at a residential treatment program as an
expert witness. Because mother had intended to appear and testify
herself, her counsel told the other parties that he would probably
not call the program supervisor. When the court denied the motion
to continue, counsel requested leave to call the program supervisor
“as a lay witness just to provide some information without
respondent mother being here.” Counsel did not offer or request to
offer the program supervisor as an expert witness. The court
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granted the request, and counsel called the supervisor out of order
to accommodate the witness’ schedule.
C. Analysis
¶9 Mother contends that the juvenile court erred by denying her
motion to continue because the denial “fundamentally altered [her]
defense.” As we understand it, she argues that she was prejudiced
because (1) if not for the denial, she would have testified; and
(2) she did not present expert testimony from the program
supervisor because she planned to testify. But mother did not
make this argument to the court and does not explain on appeal
how the children’s best interests would have been served by
granting a delay. See § 19-3-602(1). Absent such a showing, the
court was required to deny the motion to continue. Id. Because the
court was so constrained, we discern no abuse of discretion in its
denial of mother’s motion to continue the termination hearing.
III. Fit within a Reasonable Time
¶ 10 Mother next contends that the juvenile court erred by finding
that she could not become fit within a reasonable time. We discern
no basis for reversal.
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A. Applicable Law
¶ 11 An unfit parent is one whose conduct or condition renders
them “unable or unwilling to give the child reasonable parental care
to include, at a minimum, nurturing and safe parenting sufficiently
adequate to meet the child’s physical, emotional, and mental health
needs and conditions.” § 19-3-604(2), C.R.S. 2024. In determining
whether a parent’s conduct or condition is likely to change within 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.”
People in Interest of S.Z.S., 2022 COA 133, ¶ 24. The court need not
give a parent additional time, even when there has been recent
progress on the treatment plan. Id. at ¶¶ 24, 28-29.
¶ 12 What constitutes a reasonable time is fact specific and must
be determined by considering each child’s physical, mental, and
emotional conditions and needs. Id. at ¶ 25. When the EPP
provisions apply, the court must consider the child’s need to be
placed in a permanent home as expeditiously as possible.
§§ 19-1-102(1.6), 19-1-123.
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B. Additional Background
¶ 13 Six weeks before the termination hearing, mother reached out
to the caseworker and expressed a desire to go to a residential
treatment program. This was not the first time mother expressed a
desire to go to withdrawal management or residential treatment.
The caseworker called multiple programs over the weekend to locate
an opening and personally drove to Albuquerque, New Mexico to
bring mother to a residential treatment program in Pueblo,
Colorado.
¶ 14 Mother successfully completed a three-day withdrawal
management program and began a residential treatment program at
the same facility just over a month before the termination hearing.
Although the program was designed to last thirty to sixty days,
mother left against clinical advice after only two weeks. The
program supervisor testified that mother “made minimal
measurable progress in the two weeks she was there.”
¶ 15 The program supervisor testified that mother expressed
wanting to get into outpatient services, but did not accept the
program’s offer to connect her with another program when she left.
The caseworker testified that mother did not reach out to her for
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assistance in setting up services — or for any other purpose — after
she left the residential treatment program.
C. Analysis
¶ 16 The juvenile court determined that mother was unfit based on
her unaddressed and significant substance abuse issues. The court
found that she had not complied with her treatment plan because
she had (1) failed, without cause, to attend family time with the
children and (2) demonstrated the same issues with substance
abuse and inability to provide a stable environment for the children
that were present at the start of the dependency and neglect action.
¶ 17 Unrebutted testimony at the termination hearing supports the
court’s findings regarding family time. The caseworker testified that
mother confirmed eleven family time opportunities in the first three
months of the case but attended only three of them. By the time of
the termination hearing, the caseworker testified that the children
did not have a relationship with mother; they had not seen her for
ten months.
¶ 18 As to mother’s substance abuse, mother asserts that her
intentions to engage in treatment were sincere and that “with more
time and more resources, [she] could become fit.” But the juvenile
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court specifically considered mother’s recent stay at the residential
treatment program. It found that “in starting and then leaving
inpatient treatment after two weeks, [mother] was following the
same pattern as she has in the last year with no sign something will
change in the future or soon.” It also found that mother’s
“substance abuse issues are significant and long term — entering
an inpatient treatment program and then abandoning it after two
weeks is not enough to show that [mother] has made changes
necessary to ensure sustained sobriety and stability to care for the
children.”
¶ 19 The record supports these findings. The program supervisor
testified that mother reported struggling with substance abuse for
nearly ten years and disclosed a number of untreated mental health
issues. The caseworker testified that mother indicated that she was
reaching out to residential treatment programs throughout the
case, but until the month before termination mother did not follow
through. The caseworker also testified that she attempted to take
mother to withdrawal management many times, even driving her to
multiple locations before mother would back out. According to the
caseworker, at other times mother would say she wanted to engage
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and then disappear without contacting the caseworker for months
at a time.
¶ 20 The juvenile court found that allowing mother additional time
to become fit was not reasonable for the children. The court found
that it was “clear that uncertainty does affect them and that
continuing for additional time would not be reasonable.” It also
found that “uncertainty over these proceedings and whether
[mother] will once again appear and disappear from their lives has
created significant anxiety for the children.” In particular, the court
found that it was “critical for [A.F. III] to know as a child that his
well-being will not be linked to [mother’s] highs and lows.”
¶ 21 The record supports these findings. The day before mother left
the residential treatment program, she asked the caseworker to set
up phone calls with the children. The caseworker did so, but by the
time family time was arranged to begin four days later, mother had
already left treatment. The children’s placement provider testified
that all three children regressed in their behaviors when they were
told phone calls might be happening again with mother, and A.F.
III, in particular, experienced high stress around the termination
hearing.
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¶ 22 Because the record supports the juvenile court’s findings that
mother was unlikely to become fit within a reasonable period of
time for these children, we perceive no error in the court’s legal
conclusions.
IV. Disposition
¶ 23 The judgment is affirmed.
JUDGE WELLING and JUDGE HAWTHORNE concur.
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