Peo in Interest of AAQ

24CA0639 Peo in Interest of AAQ 11-27-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0639
Jefferson County District Court No. 22JV30212
Honorable Ann Gail Meinster, Judge

The People of the State of Colorado,

Appellee,

In the Interest of A.A.Q., L.L.Q., L.J.Q., and J.T.Q., Jr., Children,

and Concerning C.L.P. and J.T.Q.,

Appellants.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE GROVE
Freyre and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 27, 2024

Kimberly S. Sorrells, County Attorney, Claire M. Czajkowski, Assistant County
Attorney, Golden, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem for A.A.Q., L.L.Q., and L.J.Q.

Josi McCauley, Counsel for Youth, Superior, Colorado, for J.T.Q., Jr.

Padilla Law, P.C., Beth Padilla, Durango, Colorado, for Appellant C.L.P.

The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for
Appellant J.T.Q.
¶1 In this dependency and neglect proceeding, C.L.P. (mother)

and J.T.Q. (father) appeal the juvenile court’s judgment terminating

their parent-child legal relationships with A.A.Q., J.T.Q. Jr., L.L.Q.,

and L.J.Q. (the children). We affirm in part and reverse in part, and

we remand the case for further proceedings consistent with this

opinion.

I. Background

¶2 In September 2022, the Jefferson County Division of Children,

Youth, and Families (Department) received a report that the

children were not being brought to school on a regular basis. The

Department later received additional reports concerning mother’s

alleged substance abuse and father’s incarceration. Based upon

the concerns, the Department filed a petition in dependency and

neglect.

¶3 In the meantime, the children were removed and placed with

paternal aunt where they remained for the entirety of the case.

¶4 The parents admitted the allegations in the petition and the

juvenile court adjudicated the children dependent and neglected.

The court then adopted treatment plans for the parents.

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¶5 Later, the Department filed a motion to terminate parental

rights. After an evidentiary hearing, the court granted the motion.

II. Termination Criteria and Standard of Review

¶6 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.

¶7 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.

¶8 However, we will not disturb the court’s factual findings and

conclusions when they are supported by the record. Id. at ¶ 32; see

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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. Father’s Arguments

¶9 Father asserts the juvenile court erred when it found he had

been provided an appropriate treatment plan. We agree.

A. Relevant Law

¶ 10 The purpose of a treatment plan is to preserve the parent-child

legal relationship by assisting the parent in overcoming the

problems that required intervention into the family. People in

Interest of L.M., 2018 COA 57M, ¶ 25. Therefore, an appropriate

treatment plan is one that is approved by the court, relates to the

child’s needs based on a risk assessment, and provides treatment

objectives that are reasonably calculated to render the parent fit to

provide adequate parenting to the child within a reasonable time.

§ 19-1-103(12), C.R.S. 2024; People in Interest of K.B., 2016 COA

21, ¶ 13.

¶ 11 We measure the appropriateness of a treatment plan by its

likelihood of success in reuniting the family, which we assess in

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light of the facts existing at the time the juvenile court approved the

plan. People in Interest of B.C., 122 P.3d 1067, 1071 (Colo. App.

2005). The fact that a treatment plan is ultimately unsuccessful,

however, does not mean that it was inappropriate when approved.

People in Interest of M.M., 726 P.2d 1108, 1121 (Colo. 1986).

¶ 12 A parent’s incarceration at the time of the adoption or

amendment of a treatment plan does not necessarily make it

impossible to devise an appropriate treatment plan, but it makes it

more difficult to craft “a meaningful and workable [treatment] plan.”

People in Interest of M.C.C., 641 P.2d 306, 309 (Colo. App. 1982).

When devising an appropriate plan in this context, the court should

consider “the age of the child, the length of the parent’s

incarceration, the nature of the parent’s criminal conduct, and all

the circumstances of the prior parent-child relationship.” Id.

¶ 13 The parent is responsible for securing compliance with and the

success of a treatment plan. People in Interest of J.M.B., 60 P.3d

790, 792 (Colo. App. 2002).

B. Additional Background

¶ 14 Father was incarcerated throughout the entire case. Because

of this, the Department developed a treatment plan that had two

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goals. The first goal required the children to be cared for by safe

and substance-free adults who could meet their needs. To meet

that goal, the plan required father to, among other things, abstain

from using illicit substances, complete a substance use evaluation

and follow the recommendations, and submit to random urinalysis

(UA) tests. The second goal required that the children be cared for

by caregivers who could “meet their individual needs for safety,

well-being, and permanency.” That required father to maintain

contact with the caseworker, ensure that the children’s medical and

developmental needs were met, participate in family time, attend a

parenting class, and maintain employment.

¶ 15 At the dispositional hearing, the juvenile court recognized

father was incarcerated and that, as a result, he would be unable to

satisfy certain provisions of his treatment plan. The court stated,

however, that “[t]hat will not be held against [him],” and “[t]hose

elements that are impossible for him to comply with while he is in

custody are to be held in abeyance until he is released.” The court

never clarified which provisions would be held in abeyance. The

court then adopted the treatment plan; its provisions were never

amended.

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¶ 16 Despite the court’s acknowledgment of the obstacles caused

by father’s incarceration, no provisions of the treatment plan were

held in abeyance at any point in the case. The Department’s court

reports routinely indicated father was failing to engage in substance

abuse treatment or consistently attend family time, both of which

were provisions that were impossible, or at least difficult at times,

for father to comply with while incarcerated.

¶ 17 At the termination hearing, the juvenile court found the

treatment plan was “reasonable and appropriate, [and] capable of

success,” but that father had not reasonably complied with it. In

doing so, the court also found that father had, “to the best of his

ability,” done “what he could. He took advantage of what [services]

there [were].” Notably, as part of its findings regarding father’s

unfitness, the court considered father’s untreated substance use

concerns, domestic violence concerns, outstanding warrants, and

criminal history.

C. Analysis

¶ 18 We conclude the juvenile court erred. Father’s treatment plan

was implemented by the court in an inappropriate manner because,

when the court failed to hold provisions of his treatment plan in

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abeyance as expressly agreed, his noncompliance was essentially

assured. See People in Interest of B.J.D., 626 P.2d 727 (Colo. App.

1981) (holding that the trial court erred in ruling the treatment plan

was appropriate when the treatment plan failed to take into

consideration mother’s pregnancy, lack of transportation, and lack

of income). The court failed to clarify which parts of father’s

treatment plan would be held in abeyance given father’s

incarceration, and later used against father his noncompliance with

aspects of his treatment plan that were impossible to comply with

while incarcerated. Given this, the likelihood of successful

completion with his treatment plan was made virtually impossible.

See B.C., 122 P.3d at 1071.

¶ 19 The record reveals, and the Department and guardian ad litem

concede, that father engaged in the treatment plan to the best of his

ability. Father reported taking the classes available to him while

incarcerated and had completed several classes during the case.

He reported that he inquired with the facility as to the availability of

substance abuse treatment but was unable to take the class

because there was a waiting period. Further, he was unable to

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complete UAs while in the facility. The caseworker acknowledged

he was complying with the services available to him.

¶ 20 In support of father’s goal to regularly participate in family

time, the court eventually ordered the Department to set up visits

for father while he was incarcerated. Unknown to the court and the

professionals at that time, a criminal protection order prevented

father from contacting the children. That protection order was

modified to allow contact in November 2023. Following the

modification, it appears the Department placed most of the

responsibility on father and paternal relatives to set up, pay for,

and coordinate family time. While the Department did not

supervise or regularly inquire as to how family time went, paternal

relatives reported the children enjoyed being able to speak to father.

The caseworker testified father spoke to the children approximately

weekly; however, lockdowns at the facility occasionally prevented

contact.

¶ 21 Regarding concerns about domestic violence, outstanding

warrants, and criminal history, there were no provisions in the

treatment plan that required father to address these issues. While

father’s criminal history was related to domestic violence charges,

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domestic violence treatment was not a component of his treatment

plan nor did the Department offer domestic violence services. The

record is also devoid of any mention of any outstanding warrants

related to father.

¶ 22 Given this record and under these circumstances, it appears it

was impossible for father to participate in substance use evaluation

and treatment, UAs, and consistent family time while he was

incarcerated. In other words, unless these components of the

treatment plan were held in abeyance, father’s noncompliance was

essentially assured. Moreover, father could not have failed to

comply with his treatment plan by not engaging in a service that

was not ordered nor by having outstanding warrants when the

record reveals he had none.

¶ 23 Accordingly, the judgment terminating the parent-child

relationship as to father is reversed, and the case is remanded for

further proceedings consistent with this opinion.1

1 Because we are reversing the termination judgment as to father,

we need not address his other contentions.

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IV. Mother’s Arguments

A. Reasonable Efforts

¶ 24 Mother asserts that the juvenile court erred by finding the

Department made reasonable efforts to rehabilitate her and reunite

her with the children. We discern no basis for reversal.

B. Preservation

¶ 25 The Department argues that mother failed to preserve her

argument about reasonable efforts because she did not raise it

before the termination hearing. We need not decide if mother

needed to raise a reasonable efforts argument before the

termination hearing because, regardless of preservation, the

outcome is the same. See L & R Expl. Venture v. Grynberg, 271 P.3d

530, 536 (Colo. App. 2011) (declining to resolve an issue where the

outcome would not change); People in Interest of R.R., 607 P.2d

1013, 1015 n.2 (Colo. 1979). Compare People in Interest of S.N-V.,

300 P.3d 911, 916 (Colo. App. 2011) (parties don’t need to raise

reasonable efforts argument before a termination hearing), with

People in Interest of D.P., 160 P.3d 351, 355-56 (Colo. App. 2007)

(reasonable efforts argument is waived if not raised before the

termination hearing).

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C. Relevant Law

¶ 26 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). Services provided in

accordance with section 19-3-208, C.R.S. 2024, satisfy the

reasonable efforts standard. § 19-1-103(114).

¶ 27 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).

¶ 28 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. S.N-V., 300 P.3d at 915. The parent is ultimately

responsible for using those services to obtain the assistance needed

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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.

¶ 29 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

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.

D. Analysis

¶ 30 Mother asserts the Department did not engage in reasonable

efforts to reunify her and the children because it failed to (1)

investigate mother’s relatives as a potential placement; (2) provide

her with adequate parenting time; and (3) provide her with domestic

violence treatment.

¶ 31 We address each argument in turn.

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1. Relatives as Placement

¶ 32 Mother argues the juvenile court erred by finding the

Department made reasonable efforts because it “did not evaluate

any relatives as placement.”

¶ 33 Contrarily, the record shows maternal aunt was investigated

for placement when raised as an option by mother, but the

Department had concerns about moving the children from the

bonded kinship home they had lived in for most of the case.

¶ 34 When the case opened, the children had already been living

with paternal aunt for about one month. Paternal aunt testified she

had also cared for the children on and off throughout their lives

when mother was unavailable, so the children were familiar with

her. The children reportedly wanted to remain in the home with

paternal aunt. And while mother identified maternal relatives early

on as supports, throughout most of the case the record indicates

she believed paternal aunt was the best placement option for the

children.

¶ 35 Mother did request that placement with maternal relatives be

investigated nearly a year after the case began. In support of this,

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the caseworker testified she completed a background and

fingerprint check and spoke to maternal aunt.

¶ 36 However, the caseworker testified she would not have

supported moving the children to another placement that late in the

case, as she believed it would be detrimental to them. The children

were doing well in the home, paternal aunt was caring for their

needs, and they were making progress catching up developmentally

and in school. And while the children had sustained injuries while

in paternal aunt’s care, the Department was aware of the injuries

and the caseworker testified she had spoken to paternal aunt and

the children about them and had no safety concerns.

¶ 37 The caseworker additionally testified she encouraged maternal

relatives to participate in family time even when mother failed to

appear for visits and encouraged a relationship between the

children and maternal relatives. Notably, maternal relatives never

filed to request placement.

¶ 38 We conclude there is record support for the court’s findings.

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2. Parenting Time

¶ 39 Mother argues the Department failed in its duty to provide

reasonable efforts because there was a delay in getting family time

started and because paternal aunt canceled visits.

¶ 40 While the record shows there were difficulties scheduling the

first visit and paternal aunt did have cancellations, the record also

shows that most of the missed family time stemmed from mother’s

failure or refusal to communicate with professionals or attend

family time.

¶ 41 As mother correctly points out, there was an almost three-

month delay between the case opening and the beginning of family

time visits. Some of the missed family time visits were due to the

weather or cancellations by paternal aunt. However, the initial

delay was also attributable to mother’s failure to communicate with

the caseworker, her need to run errands, and mother’s illnesses.

¶ 42 True, six to seven family time visits were canceled by paternal

aunt due to her own illnesses, the children’s illnesses, or

scheduling conflicts. However, mother additionally cancelled or

failed to appear for seven family time visits. Mother refused to move

family time to the community, which resulted in the closing of one

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family time referral. At one point, she also demanded a new

caseworker and refused to engage or communicate with the current

caseworker until her next court date, which resulted in some

missed family time. At another point, she demanded new legal

counsel and reported she would not participate in family time until

she received new representation, which resulted in a family time

referral closure for lack of engagement. And at times throughout

the case, mother was unreachable or delayed responding, which

prevented family time from occurring or resuming for periods of up

to six months.

¶ 43 The juvenile court found it was mother who prevented much of

the family time from occurring. The record supports the court’s

conclusion that it was mother’s unwillingness to participate, rather

than the Department’s efforts, that prevented her from engaging in

family time. A.V., ¶ 12.

3. Domestic Violence Treatment

¶ 44 Lastly, mother argues the Department failed in its duty to

provide reasonable efforts because it did not include domestic

violence services in her treatment plan. We conclude this error was

harmless.

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¶ 45 The juvenile court found that mother was unfit, that she had

not reasonably complied with her treatment plan, and that the

concerns that had opened the case remained unaddressed at the

time of termination. Notably, the court found mother did not

comply with her treatment plan due to ongoing domestic violence

concerns. However, domestic violence treatment was never a

component of mother’s treatment plan and domestic violence

services were never offered to her.

¶ 46 While it was error for the juvenile court to fault mother for her

failure to engage in domestic violence services, we are not

persuaded that this would have made a difference in the outcome of

the case, considering mother’s noncompliance with the other

aspects of her treatment plan. See C.A.R. 35(c) (noting that an

“appellate court may disregard any error or defect not affecting the

substantial rights of the parties”); see also People in Interest of E.S.,

2021 COA 79, ¶ 27 (noting that a lack of reasonable efforts in one

area may be harmless “in light of [the parent’s] noncompliance with

other parts of [their] treatment plan”). In addition to the above

findings, the court also found mother had failed to engage in

17
substance abuse treatment, had outstanding warrants, and was

responsible for the lack of family time.

¶ 47 The record supports the court’s additional findings. Though

mother was not referred to domestic violence services, she was

referred to dialectical behavioral therapy — a therapy that

addresses trauma —- following her intake with a therapeutic

provider early in the case, but she failed to participate or further

engage in the service.

¶ 48 Mother also failed to engage in any substance abuse treatment

or take routine UAs, which her treatment plan required. The

caseworker testified mother only completed five UAs, four of which

were positive for opiates. While mother completed an intake

assessment for substance abuse treatment, the caseworker testified

she failed to follow through or engage further.

¶ 49 Testimony further revealed mother had two open warrants at

the time of the termination hearing, her communication with the

caseworker was often sporadic, and she had never confirmed stable

housing or employment with the Department, all of which were tied

to her treatment plan components.

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V. Less Drastic Alternatives

¶ 50 Mother asserts the court erred by finding there were no less

drastic alternatives to termination. We disagree.

A. Relevant Law

¶ 51 The juvenile court must consider and eliminate less drastic

alternatives before terminating parental rights. M.M., 726 P.2d at

1122-23. 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); K.B., ¶ 35.

¶ 52 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.

¶ 53 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

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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. S.N-

V., 300 P.3d at 920.

¶ 54 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. Discussion

¶ 55 Mother asserts the juvenile court erred when it determined

there were no less drastic alternatives to termination because the

court failed to consider maternal aunt as a less drastic alternative.

¶ 56 The court found there were no less drastic alternatives to

termination and termination was in the children’s best interests.

¶ 57 The record indicates, as described above, that maternal aunt

was investigated as a placement, but the children were ultimately

not moved to her home due to concerns about how removing them

from a bonded and familiar home would affect their well-being.

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¶ 58 Additionally, the caseworker and paternal aunt testified that

paternal aunt preferred adoption over an APR. The caseworker

further testified she believed termination was in the children’s best

interests, and that the children would have stability, structure, and

permanency with their paternal aunt.

¶ 59 Further, the juvenile court found that an APR would not be

appropriate and that the children needed the permanency of an

adoptive home. Because there is record support for the court’s

findings, we must affirm. Id. at ¶ 80.

VI. Disposition

¶ 60 The judgment is affirmed in part and reversed in part, and the

case is remanded for further proceedings consistent with this

opinion.

JUDGE FREYRE and JUDGE LUM concur.

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