CourtListener 10292408•Peo in Interest of SMMC
Gesamter Gesetzestext
24CA0975 Peo in Interest of SMMC 12-12-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0975
El Paso County District Court No. 23JV30318
Honorable Lara Yoder Nafziger, Judge
The People of the State of Colorado,
Appellee,
In the Interest of S.M.M.C., a Child,
and Concerning A.C. and D.C.,
Appellants.
JUDGMENT AFFIRMED
Division VI
Opinion by JUDGE WELLING
Brown and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 12, 2024
Kenneth R. Hodges, County Attorney, Jessica M. Brungardt, Assistant County
Attorney, Colorado Springs, Colorado, for Appellee
Jenna L. Mazzucca, Guardian Ad Litem.
Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for
Appellant A.C.
Patrick R. Henson, Office of Respondent Parents’ Counsel, Justin Twardowski,
Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant D.C.
¶1 In this dependency and neglect action, A.C. (mother) and D.C.
(father) appeal the judgment terminating their parent-child legal
relationships with S.M.M.C. (the child). We affirm.
I. Background
¶2 The El Paso County Department of Human Services (the
Department) filed a petition in dependency and neglect, alleging
that the child was born positive for substances and showed signs of
withdrawal. The Department also alleged that mother and father
were respondents in four earlier dependency and neglect actions, all
ending in termination of their parental rights.
¶3 The juvenile court adjudicated the then-newborn child
dependent and neglected and adopted treatment plans for mother
and father. Both treatment plans required participation in family
time, life skills, and mental health services, and the provision of a
safe and sober environment for the child.
¶4 Nine months after the petition was filed and after a contested
hearing, the juvenile court authorized placement of the child out of
state with the paternal uncle and aunt “given the lack of
engagement of her parents in this case.” The Department later
moved to terminate both parents’ parental rights. More than a year
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after the petition was filed, the juvenile court granted the motion
following a contested hearing.
II. Reasonable Efforts
¶5 Mother and father both contend that the juvenile court erred
by finding that the Department provided reasonable efforts to
rehabilitate them. We aren’t persuaded.
A. Applicable Law
¶6 Before a court may terminate parental rights under section
19-3-604(1)(c), C.R.S. 2024, it must consider if the county
department of human services made reasonable efforts to
rehabilitate parents and reunite families. §§ 19-1-103(114), 19-3-
100.5(1), 19-3-208, 19-3-604(2)(h), C.R.S. 2024. Reasonable efforts
means the “exercise of diligence and care . . . for children and youth
who are in foster care or out-of-home placement.” § 19-1-103(114).
¶7 Services provided in accordance with section 19-3-208 satisfy
the reasonable efforts standard. § 19-1-103(114). Among the
services required under section 19-3-208 are screenings,
assessments, and individual case plans for the provision of services;
home-based family and crisis counseling; information and referral
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services to available public and private assistance resources; family
time services; and placement services. § 19-3-208(2)(b).
¶8 When evaluating a department’s efforts, the juvenile court
should consider whether the provided services were appropriate to
support the parent’s treatment plan. People in Interest of S.N-V.,
300 P.3d 911, 915 (Colo. App. 2011). The parent is ultimately
responsible for using those services to obtain the assistance needed
to comply with the treatment plan. People in Interest of J.C.R., 259
P.3d 1279, 1285 (Colo. App. 2011).
B. Standard of Review
¶9 Whether a juvenile court properly terminated 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 — the raw, historical data
underlying the controversy — 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. In particular, the ultimate
determination of whether the Department provided reasonable
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efforts is a legal conclusion we review de novo. People in Interest of
A.S.L., 2022 COA 146, ¶ 8.
¶ 10 It is for the juvenile court, as the trier of fact, to determine the
sufficiency, probative effect, and weight of the evidence and to
assess witness credibility. People in Interest of A.J.L., 243 P.3d 244,
249-50 (Colo. 2010).
C. Reasonable Efforts to Rehabilitate Mother
¶ 11 The juvenile court found that the Department made
reasonable efforts as to mother, including making family time,
substance dependence and mental health treatment, and life skills
services available to her. The court found that there were “multiple
referrals to various providers and [mother] still did not comply” and
that there had “simply been an utter lack of engagement for the
duration of the case.” The court acknowledged that there were
periods of time where referrals weren’t active for mother’s services
but found that such gaps were “not a lack of reasonable efforts.
You can’t put in a referral for somebody who is not engaged in the
case.”
¶ 12 The record supports these findings. The caseworker testified
that the Department made two referrals for substance abuse
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evaluations, two referrals for mental health evaluations, and two
referrals for life skills services. Mother didn’t engage in any of these
services. The Department made at least four referrals for family
time and authorized the child’s placement to supervise virtual
family time after the child had moved out of state. Mother attended
only one in person and two virtual family time sessions.
¶ 13 The caseworker testified that mother didn’t respond to
providers or the Department for long stretches of time. The
Department couldn’t reach mother at all between when the child
was three months and nine months old. The caseworker testified
that caseworkers from the Department called and went to mother’s
home twice a month to try to initiate contact, but they were
unsuccessful in engaging mother. See People in Interest of A.V.,
2012 COA 210, ¶ 12 (holding that the court may consider a parent’s
unwillingness to engage when determining whether a department
made reasonable efforts).
¶ 14 The caseworker located mother in custody ten months after
the petition was filed. At that time the caseworker arranged virtual
family time for mother and made new referrals to providers who
could enter the facility to conduct the requisite evaluation. Despite
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family time being available, mother participated in only one virtual
family time session after she was in custody.
¶ 15 Mother contends that the juvenile “court agreed the
Department did not do enough to get visits accomplished for
[mother] while the child was in the hospital.” The court found that
mother “did not abandon [the child] at the hospital. [The
Department] did not put in good faith efforts to make sure the
parents visited the child while she was in the hospital.” But mother
doesn’t explain why, and the record doesn’t suggest, that the court’s
finding about family time during the child’s hospitalization should
eclipse the other findings it made, including that mother failed to
participate in family time without good cause. The child was held
at the hospital for three of the fifty-eight weeks between the child’s
birth and the termination hearing. Mother’s only in-person contact
with the child occurred at the hospital, when the child was nine
days old.
¶ 16 Mother also contends that the Department failed to provide
her with bus passes and a cell phone. The juvenile court ordered
the Department to provide mother with a bus pass shortly after the
petition was filed. The caseworker testified she wasn’t sure the bus
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pass was given to mother but said that the Department “usually”
provided bus passes when requested. The caseworker also testified
she wasn’t aware that mother might need a cell phone until mother
told her during a visit while mother was in custody at the end of the
case. Notes made by earlier caseworkers indicated that mother had
communicated with them using her own cell phone at the beginning
of the case. The caseworker testified that if mother had expressed a
need for a cellphone before she was in custody, the Department
would have provided her with one. In any event, providing a cell
phone to a parent isn’t a service required for reasonable efforts
under the Children’s Code. § 19-3-208.
¶ 17 Mother further contends that the Department “didn’t provide
several services identified in section 19-3-208(2)(b).” But mother
doesn’t identify what further services she believes should have been
made available to her. The Department need not provide services
that aren’t relevant to supporting a parent’s treatment plan, and the
Department has “discretion to prioritize certain services or
resources to address a family’s most pressing needs in a way that
will assist the family’s overall completion of the treatment plan.”
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People in Interest of My.K.M. v. V.K.L., 2022 CO 35, ¶ 33; see also
S.N-V., 300 P.3d at 915.
¶ 18 Given this evidence, we can’t conclude that the Division failed
to provide reasonable efforts for mother. Therefore, we won’t
disturb the juvenile court’s findings and legal conclusions in this
regard.
D. Reasonable Efforts to Rehabilitate Father
¶ 19 Father’s employment required frequent travel, and the juvenile
court recognized that virtual services were necessary to
accommodate father’s work schedule. The court also found that the
Department “should have put in virtual services earlier,”
particularly for life skills, which father started to engage in two
months before the termination hearing. Despite this issue, the
court found that overall the Department made reasonable efforts to
rehabilitate father, including providing life skills, metal health, and
family time supervision services. Importantly, the juvenile court
found that even though the Department made virtual family time
available to father at the beginning of the case, father participated
only three times, and last saw the child ten months before the
termination hearing. The court found that ten months was “too
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long a gap” for this child, in part because she had never been
parented by father. The court “specifically d[id] not find good cause
for [father] failing to visit” the child.
¶ 20 These findings are supported by the record. The caseworker
testified that the Department made four referrals for family time
services beginning when the child was released from the hospital.
Father testified that virtual family time was available to him from
the beginning of the case at his request. Father attended three
virtual family time sessions in the first few months of the action and
then stopped engaging with family time providers. Father’s third
and final virtual family time session with the child occurred when
the child was only three months old. Father never attended in-
person family time with the child, which was also offered to him by
the Department. Although father testified that he didn’t know
about providers assigned to supervise his family time, the juvenile
court found his testimony to be not credible.
¶ 21 The record makes clear that father failed to engage in the
services that were available to him. The caseworker testified that
referrals outside of family time were somewhat delayed by father’s
objection to services in the treatment plan. Once the treatment
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plan was adopted by the court, the Department made multiple
referrals for life skills and mental health services. Father didn’t
complete a mental health evaluation as required by his treatment
plan, even though the caseworker kept referrals open and reminded
father of the services available to him when she spoke to him.
Father did engage with the virtual life skills provider but completed
only two sessions in the two months that the referral was active
before the termination hearing.
¶ 22 There is no evidence that father would have participated in
virtual mental health or life skills services if they were available
earlier in the action. And, as the juvenile court noted, “a lot of
mental health treatment is being done virtually now,” and the
Department’s failure to specify virtual services in its referral didn’t
necessarily mean that those services wouldn’t have been available
to father virtually if he had followed through on the many referrals
made by the Department.
¶ 23 We therefore discern no error in the juvenile court’s finding
that, overall, the Department made reasonable efforts to rehabilitate
father. Nor will we disturb the court’s conclusions that those efforts
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were unsuccessful, and that father remained unfit to parent the
child.
III. Less Drastic Alternatives to Termination
¶ 24 Father and mother contend that the juvenile court erred by
finding that there were no less drastic alternatives to termination.
¶ 25 Specifically, father contends that the juvenile court could have
given him more time with reasonable efforts in place. Father’s
contention in this regard rests entirely on his claim that the
Department failed to make reasonable efforts — a contention we
considered and rejected in Part II.D above. Accordingly, because we
rejected father’s reasonable efforts claim, we likewise must reject
his less drastic alternative claim. Even if this were not the case, the
juvenile court found, with record support, that the child could not
wait any longer for father to become a fit parent.
¶ 26 Mother asserts that there may have been a less drastic
alternative available, but the Department failed to investigate
possible placement with her relatives.
¶ 27 The juvenile court must consider and eliminate less drastic
alternatives before it terminates the parent-child legal relationship.
People in Interest of L.M., 2018 COA 57M, ¶ 24. In considering less
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drastic alternatives, the court bases its decision on the best
interests of the child, giving primary consideration to the child’s
physical, mental, and emotional conditions and needs. § 19-3-
604(3). Permanency is a separate inquiry from placement. See
A.M., ¶ 37. Ultimately, for a less drastic alternative to be viable, it
must do more than “adequately” meet a child’s needs; rather, the
less drastic alternative must be the “best” option for the child. Id.
at ¶ 27. Therefore, if the court considers a less drastic alternative
but finds instead that termination is in the child’s best interests, it
must reject the less drastic alternative and order termination. Id. at
¶ 32. And under those circumstances, we must affirm the court’s
decision if its findings are supported by the record. People in
Interest of B.H., 2021 CO 39, ¶ 80.
¶ 28 Here, the juvenile court found that the child “cannot wait any
longer for permanency.” The court noted that the child had never
been cared for by her parents, had only “minimal contact” virtually
with them, and “simply doesn’t know who her biological parents
are.” The court found that there were no less drastic alternatives to
termination available to the child because the child’s best interests,
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“physical, mental, and emotional needs require termination and
adoption.”
¶ 29 The record supports these findings. The child was placed with
paternal relatives who were also placement providers for her
siblings. The caseworker, an expert in child protection and child
welfare, opined that she wouldn’t recommend an allocation of
parental responsibilities because the child was very young and
didn’t have any kind of relationship with either parent. The
caseworker considered giving either parent more time to engage but
opined that the child couldn’t wait and had “waited a long time
already to have permanency.” The caseworker opined that
termination and adoption was the only permanency option that
would meet the child’s needs. See A.M., ¶ 32.
¶ 30 Mother argues that, had the Department explored her
relatives, it may have identified a placement that was willing to
accept an allocation of parental responsibilities. But the
Department isn’t required to “make special inquiry and
independently identify and evaluate other possible placements
within or outside the family.” People in Interest of D.B-J., 89 P.3d
530, 532 (Colo. App. 2004). And in any event, the juvenile court
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found, with record support, that — regardless of the child’s
placement provider — the child’s permanency required the
termination of both parents’ parental rights.
¶ 31 Given this record, we discern no error in the juvenile court’s
determination that there was no less drastic alternative to
termination.
IV. Disposition
¶ 32 The judgment is affirmed.
JUDGE BROWN and JUDGE MOULTRIE concur.
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