Peo in Interest of VF-MA

24CA0569 Peo in Interest of VF-MA 10-24-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0569
City and County of Denver Juvenile Court No. 22JV30583
Honorable Michael Spear, Judge

The People of the State of Colorado,

Appellee,

In the Interest of V.F-M.A., a Child,

and Concerning J.R.A. and A.M.P.,

Appellants.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE NAVARRO
Dunn and Taubman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 24, 2024

Kerry Tipper, City Attorney, Christina R. Kinsella, Assistant City Attorney,
Denver, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem

Andrew A. Gargano, Office of Respondent Parents’ Counsel, Denver, Colorado,
for Appellant J.R.A.

Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant A.M.P.

*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 J.R.A. (father) and A.M.P. (mother) appeal the judgment

terminating their parent-child legal relationships with their child,

V.F-M.A. We affirm.

I. Background

¶2 In September 2022, the Denver Department of Human

Services filed a petition in dependency and neglect after the child

tested positive for controlled substances at birth. The Department

alleged that the parents had an ongoing dependency and neglect

case and father was incarcerated in the Department of Corrections

(DOC). The Department placed the child with R.E. and N.E.

(placement providers). The Department considered the placement

providers a kinship placement because mother’s cousin was R.E.’s

adopted brother’s birth mother.

¶3 The parents ultimately admitted the petition’s allegations, and

the juvenile court adjudicated the child dependent and neglected.

The court then adopted treatment plans for the parents that

required them to (1) address their substance abuse issues;

(2) provide the child with a safe and stable home; (3) meet the

child’s needs; and (4) cooperate with the Department and treatment

providers. Father’s treatment plan also required him to abstain

1
from further criminal activity and comply with the provisions of his

parole. Almost a year later, the Department moved to terminate the

parents’ parental rights.

¶4 The juvenile court set an evidentiary hearing for March 2024.

Before the hearing, the court granted requests from the placement

providers and Ja.P and Jo.P. (maternal relatives) to intervene in the

case. At the hearing, the court heard testimony from several

witnesses, including a caseworker from the parents’ previous case

who was also the caseworker at the beginning of this case (first

caseworker), as well as the current caseworker (second caseworker).

The parents asserted, among other things, that the Department

improperly placed the child with the placement providers, who were

not kin, instead of properly investigating relatives, including

maternal relatives or paternal grandmother (who had custody of the

parents’ older child via an allocation of parental responsibilities

(APR) in the previous case). After hearing the evidence, the court

rejected the parents’ arguments and terminated their parental

rights.

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II. Motion to Intervene

¶5 Father asserts that the juvenile court erred by granting the

placement providers’ motion to intervene. We disagree.

A. Standard of Review and Principles of Statutory Interpretation

¶6 A juvenile court’s decision to grant or deny a motion to

intervene as a matter of right is a question of law that we review de

novo. Feigin v. Alexa Grp., Ltd., 19 P.3d 23, 28 (Colo. 2001).

Statutory interpretation also presents questions of law that we

review de novo. People in Interest of C.L.S., 313 P.3d 662, 665-66

(Colo. App. 2011).

¶7 We must liberally construe provisions of the Colorado

Children’s Code to serve the welfare of children and the best

interests of society, People in Interest of S.X.M., 271 P.3d 1124,

1130 (Colo. App. 2011), and to avoid “any technical reading” that

“would disregard [a child’s] best interests,” C.S. v. People in Interest

of I.S., 83 P.3d 627, 635 (Colo. 2004). We favor interpretations that

produce a harmonious reading of the statutory scheme, People in

Interest of J.G., 2016 CO 39, ¶ 13, and we presume that the General

Assembly intended a just and reasonable result by avoiding an

3
interpretation that would lead to an absurdity, People in Interest of

H., 74 P.3d 494, 495 (Colo. App. 2003).

¶8 In construing statutes, appellate courts must ascertain and

give effect to the General Assembly’s intent by implementing the

plain and ordinary meanings of the General Assembly’s words.

J.G., ¶ 13; People in Interest of B.C.B., 2024 COA 88, ¶ 15. To

discern the plain and ordinary meanings of words not defined by

statute, we may consider dictionary definitions. See People v.

Grosko, 2021 COA 28, ¶ 18. If the language in a statute is clear

and unambiguous, we apply it as written. See State v. Nieto, 993

P.2d 493, 500 (Colo. 2000).

B. Preservation

¶9 As a preliminary matter, the Department and guardian ad

litem (GAL) assert that father did not adequately preserve this issue

for appeal because he did not raise it until his closing argument.

We disagree.

¶ 10 Because dependency and neglect cases are civil in nature,

appellate courts will not address issues that were not raised and

resolved in the juvenile court. See People in Interest of M.B., 2020

COA 13, ¶ 14. An issue is properly preserved if the court had “an

4
adequate opportunity to make findings of fact and legal

conclusions” on the precise issue raised on appeal. See People in

Interest of S.Z.S., 2022 COA 133, ¶ 18.

¶ 11 Shortly before the termination hearing, the placement

providers moved to intervene under section 19-3-507(5)(a), C.R.S.

2024, asserting that they could intervene as a matter of right

because they were a “kinship placement” and had had the child in

their care for about seventeen months. On the first day of the

hearing, mother objected to the placement providers’ motion to

intervene because she did not “recognize [them] as kin to her.”

Counsel for the placement providers then argued that, even if the

juvenile court determined that they were not kin, they could

intervene as foster parents under section 19-3-507(5)(d) because

the child had “been with them over 12 months.” The court granted

the placement providers’ motion “under the grounds as stated by

their counsel.”

¶ 12 To be sure, father did not object to the motion to intervene

before the termination hearing. In closing argument, however,

father’s counsel asserted that, because the placement providers

could not be considered kin or foster parents based on the

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definitions in section 19-1-103, C.R.S. 2024, the juvenile court had

improperly allowed them to intervene and therefore denied him a

fundamentally fair proceeding. In its written order, the court found

that the placement providers were kin based on the “definition of

kin provided in [section] 19-1-103(91)” and “the testimony regarding

the [Department’s] decision to place the child with” the placement

providers.

¶ 13 On appeal, father asserts that the juvenile court erred because

the placement providers were neither kin nor foster parents and

therefore could not intervene under section 19-3-507(5). His

appellate argument tracks his closing argument at the hearing, and

the court addressed that argument in its written order. Therefore,

we agree with father that he preserved this issue for appeal.

¶ 14 Finally, we are not otherwise convinced by the Department

and GAL’s assertion that father needed to raise the issue before the

closing argument to preserve it because (1) they do not provide any

legal authority in support of this position and (2) the juvenile court

ruled on the issue before the hearing, based on the placement

providers’ argument and mother’s objection. See People v. Cooley,

2020 COA 101, ¶ 23 (Although a defendant “could have — and

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perhaps should have — raised” an issue earlier, “[b]ecause the issue

was raised when the district court had an opportunity to decide the

issue, [the defendant] preserved it for appellate review.”).

C. Analysis

¶ 15 Section 19-3-507(5) allows certain parties to intervene as a

matter of right in a dependency and case following an adjudication.

For example, the statute allows a “kin caregiver who has the child

in the caregiver’s care for more than three months” to intervene.

§ 19-3-507(5)(a). Likewise, the statute provides that “[f]oster

parents who have the child . . . in their care for twelve months or

more may intervene.” § 19-3-507(5)(d).

¶ 16 As relevant here, the Colorado Children’s Code defines “kin” as

including “a person ascribed by the family as having a family-like

relationship with the child.” § 19-1-103(91). In the present case,

R.E. testified that she was “very close” with mother’s cousin,

“consider[ed] them family,” referred to mother’s cousin as

“Momma,” and “spen[t] holidays together.” She further testified

that mother’s family reached out to her to see if she could be a

placement for the child and mother’s cousin gave the Department

her information. Therefore, the record shows that the placement

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providers were ascribed by mother’s family (e.g., mother’s cousin) as

having a family-like relationship with the child.

¶ 17 Father asserts that the placement providers could not have a

family-like relationship with the child because they had never met

the child before they became her caregivers. But such a technical

reading of the statute would prevent a nonrelative from ever

qualifying as kin to a newborn child. Considering that the

legislature intended to expand the traditional understanding of kin,

we are not convinced that the legislature intended to limit the

application of the definition in this way. Cf. Black’s Law Dictionary

1039 (12th ed. 2024) (defining “kin” as “[a] relative by blood,

marriage, or adoption, though usu. by blood only”). Rather, we

conclude that the legislature intended that a person who has a

family-like relationship with a child’s family necessarily has a

family-like relationship with the child.

¶ 18 Father also contends that the definition should not apply

because the placement providers were never ascribed by the family

— i.e., mother and father — given that neither he nor mother had

any relationship with the placement providers. In support, father

cites a dictionary definition for “family,” which defines the term as

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“the basic unit in society traditionally consisting of two parents

rearing their children.” Merriam-Webster Dictionary,

https://perma.cc/TQN4-X9B7. We are not convinced that the

legislature intended to limit kin to only people who have a family-

like relationship with the parents; rather, we conclude that, when

the legislature used the term “family” in this definition, it intended

to refer to the broader meaning of family. See id. (providing an

alternate definition of family that includes “a group of persons of

common ancestry”); see also Black’s Law Dictionary at 744 (defining

family as “persons connected by blood, by affinity, or by law, esp.

within two or three generations”). We therefore reject father’s

argument.

¶ 19 Because we have concluded that the placement providers

qualified as kin under the definition discussed above, we need not

consider whether they could also be considered kin under the other

definitions in section 19-1-103(91). Likewise, we need not consider

whether the placement providers met the definition of “foster

parent” so as to permit intervention under section 19-3-507(5)(d).

¶ 20 In sum, because the placement providers were ascribed by the

family as having a family-like relationship with the child, they met

9
the definition of kin and could intervene in the case under section

19-3-507(5)(a). As a result, the juvenile court did not err in

granting the placement providers’ motion to intervene and allowing

them to participate in the case. Finally, because the court properly

granted the motion to intervene, father’s assertion that the

placement providers’ participation in the case rendered the

proceeding fundamentally unfair necessarily fails.

¶ 21 At any rate, even if the juvenile court erred, we discern no

basis to reverse the judgment because father has not shown any

prejudice resulting from the putative error. See C.A.R. 35(c) (An

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

substantial rights of the parties.”); People in Interest of J.A.S., 160

P.3d 257, 262 (Colo. App. 2007) (a parent may not obtain relief on a

procedural due process claim absent a showing of harm or

prejudice); see also Moody v. Corsentino, 843 P.2d 1355, 1375

(Colo. 1993) (the party asserting the error has the burden to

establish that “the error had a prejudicial effect”).

¶ 22 At the termination hearing, the placement providers were

represented by counsel, who cross-examined witnesses and made a

closing argument. But the placement providers did not call any

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independent witnesses or introduce any documentary evidence.

And although the placement providers testified, they were called as

witnesses by the GAL. Father has not directed us to any specific

evidence presented by the placement providers that would not have

been before the juvenile court had it denied their motion to

intervene. Indeed, father argues that the placement providers’

participation resulted in nothing more than a “needless cumulation

of evidence and argument.” In other words, father effectively agrees

that their participation added nothing significant to the case. See

Johnson v. Nat’l R.R. Passenger Corp., 989 P.2d 245, 250 (Colo.

App. 1999) (“The admission of cumulative evidence, in and of itself,

is not reversible error.”).

III. Criminal History

¶ 23 Father next contends that the juvenile court erred by

admitting evidence of his criminal history without considering

whether the evidence was admissible under CRE 404(b) and People

v. Spoto, 795 P.2d 1314 (Colo. 1990). We conclude that father did

not preserve this claim for our review.

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A. Relevant Law

¶ 24 Evidence of other crimes, wrongs, or acts is not admissible “to

prove a person’s character in order to show that on a particular

occasion the person acted in conformity with the character.” CRE

404(b)(1). But Rule 404(b)(2) allows a court to admit the other acts

evidence “for another purpose, such as proving motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake,

or lack of accident.”

¶ 25 Generally, when a party presents evidence of other acts under

Rule 404(b), the trial court should apply the four-part test

developed in Spoto, 795 P.2d at 1318. The Spoto test provides that

such evidence is admissible only if (1) the evidence relates to a

material fact; (2) the evidence has logical relevance; (3) the logical

relevance of the evidence does not depend on an intermediate

inference that the party has a bad character; and (4) the probative

value of the evidence is not substantially outweighed by the

evidence’s unfairly prejudicial impact. Id.

¶ 26 Rule 404(b) and the Spoto test typically arise in criminal cases.

While Colorado courts have sporadically applied the Spoto test in

civil cases, see, e.g., Boettcher & Co. v. Munson, 854 P.2d 199, 210

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(Colo. 1993), a division of this court had rejected the application of

Rule 404(b) and Spoto in the context of a dependency and neglect

case, see People in Interest of A.W., 2015 COA 144M, ¶¶ 19-23

(concluding that CRE 404(b) and Spoto did not apply to evidence of

a parent’s treatment of her other children when offered to establish

“prospective harm” at the adjudicatory stage of the case).

B. Preservation

¶ 27 We agree with the Department and the GAL that father failed

to preserve this issue because he did not ask the juvenile court to

apply Rule 404(b) and Spoto to the evidence at issue.

¶ 28 At the close of its case-in-chief, the Department asked the

juvenile court to admit father’s criminal history records produced

by the Colorado Bureau of Investigation and the Denver Police

Department. Father objected because the Department did not

endorse a witness who “could appropriately enter these exhibits

into evidence.” Father further stated that, if the court was still

inclined to admit the exhibits, then he objected to “anything that

occurred prior to the dispositional hearing as the criminal matters

were not a part of his treatment plan until that point so anything

before would be irrelevant or improper character evidence.” The

13
court admitted the exhibits, but it did not specifically address their

relevance or whether anything in them constituted improper

character evidence.

¶ 29 We conclude that father’s fleeting reference to “improper

character evidence” did not sufficiently alert the juvenile court that

he was objecting under Rule 404(b) and asking the court to apply

the Spoto test. This is especially true given that father points to no

decision holding that Rule 404(b) and Spoto apply in the

dependency and neglect context. On the contrary, the only

appellate decision to consider the issue rejected the application of

Rule 404(b) and Spoto to this context. See A.W., ¶¶ 19-23. So we

cannot conclude that the juvenile court was put on notice of a

request to apply Rule 404(b) and Spoto.

¶ 30 For the same reason, we conclude that father did not

sufficiently bring the analysis of Rojas v. People, 2022 CO 8, to the

juvenile court’s attention. In Rojas, the supreme court abolished

the res gestae doctrine in criminal cases and replaced it with “an

intrinsic-extrinsic distinction,” in which (1) extrinsic acts fall under

Rule 404(b) and (2) intrinsic acts fall outside the rule’s scope. Id. at

¶¶ 4, 44. Intrinsic acts are those that directly prove the charged

14
crime or that occurred contemporaneously with the charged crime

and facilitated its commission. Id. at ¶ 52. But nothing in father’s

objection referenced this “intrinsic-extrinsic distinction” or

explained how it could apply outside of a criminal case.

¶ 31 In sum, because father did not adequately present to the

juvenile court his new arguments based on Rule 404(b), Spoto, and

Rojas, we will not consider those arguments. See M.B., ¶ 14.

IV. Fitness

¶ 32 Father argues that the juvenile court erred by finding that he

was unfit based solely on his incarceration. Mother asserts that,

because the record shows that she was fit (or alternatively, could

become fit within a reasonable time), the court erred by terminating

her parental rights. We disagree with these contentions.

A. Applicable Law and Standard of Review

¶ 33 As relevant here, before the juvenile court terminates parental

rights under section 19-3-604(1)(c), it must find, by clear and

convincing evidence, that (1) the parent is unfit and (2) the parent’s

conduct or condition is unlikely to change in a reasonable time.

¶ 34 An unfit parent is one whose conduct or condition renders the

parent unable or unwilling to give a child reasonable parental care.

15
People in Interest of D.P., 160 P.3d 351, 353 (Colo. App. 2007).

Reasonable parental care requires, at a minimum, that the parent

provide nurturing and safe parenting sufficient to meet the child’s

physical, emotional, and mental needs and conditions. People in

Interest of A.J., 143 P.3d 1143, 1152 (Colo. App. 2006). A parent’s

noncompliance with a treatment plan generally “demonstrates a

lack of commitment to meeting the child’s needs and, therefore,

may also be considered in determining unfitness.” People in Interest

of D.P., 181 P.3d 403, 408 (Colo. App. 2008).

¶ 35 As noted, when determining whether a parent’s conduct or

condition is likely to change in a reasonable time, the juvenile 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. D.L.C., 70 P.3d at

588-89. Where a parent has made little to no progress on a

treatment plan, the court need not give the parent additional time

to comply. See People in Interest of R.B.S., 717 P.2d 1004, 1006

(Colo. App. 1986).

¶ 36 The determination of a reasonable period is fact-specific and

so varies from case to case. People in Interest of D.Y., 176 P.3d 874,

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876 (Colo. App. 2007); see also S.Z.S., ¶ 24. 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.

S.Z.S., ¶ 24. When a child is under six years old, as in this case,

the juvenile court must also consider the expedited permanency

planning provisions, which require that the child be placed in a

permanent home as expeditiously as possible. See

§§ 19-1-102(1.6), 19-1-123, 19-3-702(5)(c), C.R.S. 2024.

¶ 37 Whether the juvenile court properly terminated parental rights

is a mixed question of fact and law. People in Interest of A.M. v.

T.M., 2021 CO 14, ¶ 15. We review the court’s factual findings for

clear error, and we review de novo its legal conclusions based on

those facts. People in Interest of S.R.N.J-S., 2020 COA 12, ¶ 10.

B. Father

¶ 38 Father asserts that the juvenile court erred by relying solely on

his incarcerated status when it terminated his parental rights. We

disagree.

¶ 39 When the juvenile court adopted father’s treatment plan in

February 2023, he was incarcerated at the Crowley County

Correctional Facility, where he remained until April 2023. Father

17
was then released to a halfway house, but he left in June 2023 and

his whereabouts remained unknown until he was arrested on a

warrant in November 2023. Father then spent time in the county

jail, Denver Reception and Diagnostic Center (DRDC), the Colorado

Territorial Prison, and Fremont Correctional Facility (where he

remained during the termination hearing). In sum, father was

incarcerated in the DOC or county jail for about ten of the

seventeen months of the case.

¶ 40 We first consider father’s assertion that K.D. v. People, 139

P.3d 695 (Colo. 2006) is no longer controlling precedent based on

the passage of Senate Bill 23-039 (S.B. 23-039). In K.D., our

supreme court determined that a juvenile court may consider

parental incarceration as a factor when deciding whether to

terminate parental rights. In doing so, the supreme court relied, in

part, on one of the fitness factors in section 19-3-604(2) that

allowed the juvenile court to consider a parent’s incarceration.

K.D., 139 P.3d at 701 (considering former section 19-3-604(1)(b)(III),

C.R.S. 2005); see also § 19-3-604(2)(a) (allowing the court to

consider the bases for a finding of parental unfitness in section 19-

3-604(1)(b)). Ultimately, the supreme court determined that,

18
although a court may consider parental incarceration, it could not

rely on “[p]arental incarceration alone” as a “basis on which to

terminate parental rights.” K.D., 139 P.3d at 700.

¶ 41 As father notes, however, the legislature in S.B. 23-039

recently repealed the subsection in 19-3-604(1)(b) on which the

supreme court in K.D. partially relied. See Ch. 191, sec. 7, § 19-3-

604, 2023 Colo. Sess. Laws 957 (repealing former section 19-3-

604(1)(b)(III)). But we are not convinced that S.B. 23-039 has

significantly impacted the holding of K.D. because it conforms with

S.B. 23-039’s legislative declaration, which states, in relevant part,

that “decisions to terminate parental rights should be based on the

needs of the child, and not solely on the status of the parent as

incarcerated or the length of the sentence.” 2023 Colo. Sess. Laws

at 953 (emphasis added). In other words, the General Assembly

confirmed that, while a parent’s incarceration cannot be the sole

reason for termination, it may still be considered as one of the

factors in a juvenile court’s decision.

¶ 42 Moreover, the supreme court’s decision in K.D. recognized that

a juvenile court can consider a parent’s incarceration outside of the

context of the provision that was recently repealed. See K.D., 139

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P.3d at 701 (“The requirement that a court consider section 19-3-

604(1)(b)(III) in determining parental fitness under section 19-3-

604(2) does not preclude the court from considering periods of

incarceration not specified therein.”).1

¶ 43 Having concluded that a juvenile court may still consider

parental incarceration as long as it is not the sole reason for

termination, we reject father’s contention because nothing in the

court’s ruling suggests that it relied solely on his incarceration

when finding him unfit and terminating his parental rights.

¶ 44 The juvenile court found, with record support, that father did

not comply with any component of his treatment plan. See D.P.,

181 P.3d at 408. For example, the record shows that, even when

father was not incarcerated during the case, he did not consistently

visit the child or participate in substance abuse treatment or

monitoring. The record also shows that father had new criminal

charges, which resulted in his return to prison, in violation of his

1 The supreme court explained that “[w]e see nothing in the Code

precluding the trial court from considering even a relatively short
period of parental incarceration as a significant factor in
determining fitness.” K.D. v. People, 139 P.3d 695, 701 (Colo.
2006).

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treatment plan. With this information, the court determined that

father was unfit because he was unable or unwilling to give the

child reasonable parental care and could not meet the child’s needs.

¶ 45 Therefore, although the record shows that father’s

incarceration during the case informed the juvenile court’s decision,

it was not the sole reason that the court found him unfit. See K.D.,

139 P.3d at 703 (The court did not err when it “carefully considered

how [the parent’s] continued incarceration affected his fitness and

his corresponding ability to meet [the child’s] needs within a

reasonable time.”). We therefore reject father’s assertion.

C. Mother

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

she was unfit and unlikely to become fit in a reasonable time. We

disagree.

¶ 47 The juvenile court found that mother had not successfully

complied with her treatment plan to become a fit parent. See D.P.,

181 P.3d at 408. For example, the court found that mother had

continued “using drugs throughout the pendency” of the case and

that mother’s “recent period of sobriety” was not “sufficient to

consider her successful in the substance abuse aspect of her

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treatment plan.” See § 19-3-604(2)(e) (stating that a parent may be

unfit based on “[e]xcessive use of . . . controlled substances . . .

which affects the ability to care and provide for the child”).

¶ 48 The juvenile court also found that mother’s conduct or

condition was unlikely to change in a reasonable time. The court

noted that mother had begun to show “any initiative to meet the

plan requirements” only within the previous “180 days” but “even

those efforts [were] with great struggle and led to minimal success.”

See 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). The court further found that

mother was “struggling with substance use disorder” and, “based

upon her history over the course of the last three years,” it was

unlikely that she would “meet her own rehabilitation much less a

rehabilitation of her ability to safely and appropriately parent.” See

D.L.C., 70 P.3d at 588-89.

¶ 49 The record supports the juvenile court’s findings. Both the

first and second caseworkers testified that mother had reported

struggling with substance abuse for many years. The first

caseworker testified that one of mother’s younger children had

22
tested positive for controlled substances, which led to the filing of

the first case, and that mother had a similar treatment plan in that

case but did not adequately comply with it. The first caseworker

said that the previous case, which remained pending at the time

that the Department filed the present case, resulted in APRs for two

of mother’s children and termination of her parental rights for the

third child. See § 19-3-604(2)(m) (a court may consider whether

parental rights were terminated in a previous case in deciding

whether a parent is fit).

¶ 50 The second caseworker testified that, between this case and

the previous case, mother had about thirty-one months to address

her substance abuse but, during that time, she had demonstrated

about sixty days of sobriety at best. The record shows that mother

completed an inpatient treatment program in August 2023 but she

relapsed shortly after returning to the community and continued to

test positive (or miss tests) over the next several months. In

December 2023, mother completed another inpatient program

before transitioning to a sober living facility in January 2024.

Based on this evidence, the caseworker opined that mother was

unlikely to meet the child’s needs in a reasonable time.

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¶ 51 In sum, the record shows that, although mother participated

in treatment during this case, she had a significant history of

substance abuse and had not demonstrated consistent sobriety,

especially outside of a structured environment. See People in

Interest of K.T., 129 P.3d 1080, 1082 (Colo. App. 2005) (unfitness

may be premised on a parent’s failure to document sobriety).

¶ 52 Mother asserts that the juvenile court erred because the

evidence shows that she achieved sobriety, resolved some child

protection concerns, and had a strong bond with the child. But the

court considered this evidence and still concluded that mother was

unfit and unlikely to become fit in a reasonable time. Because the

record supports the court’s findings, we may not reweigh the

evidence or substitute our judgment for the juvenile court’s. See

S.Z.S., ¶ 29. We therefore reject mother’s assertion.

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V. Reasonable Efforts

¶ 53 The parents also contend that the juvenile court erred by

finding that the Department made reasonable efforts to rehabilitate

them and reunify them with the child. We disagree.2

A. Applicable Law and Standard of Review

¶ 54 Before a juvenile court may find a parent unfit, the court must

consider whether the county department of human services made

reasonable efforts to rehabilitate parents and reunite families.

§§ 19-1-103(114), 19-3-208, 19-3-604(2)(h), C.R.S. 2024.

“Reasonable efforts” means the “exercise of diligence and care” to

reunify parents with their children. § 19-1-103(114).

¶ 55 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

2 Citing 42 U.S.C. § 671(a)(15)(D)(iii) and section 19-1-115(7)(b),

C.R.S. 2024, the Department and the GAL argue that mother “was
not entitled to reasonable efforts” because her parental rights to the
child’s sibling had been previously terminated. In light of our
conclusion that the Department made reasonable efforts here, we
need not address this argument or the cited statutes.

25
services to available public and private assistance resources; family

time; and placement services. § 19-3-208(2)(b). If funding is

available, a department must also provide substance abuse

treatment services. § 19-3-208(2)(d)(V).

¶ 56 The juvenile court should consider whether the services

provided were appropriate to support the parent’s treatment plan,

People in Interest of S.N-V., 300 P.3d 911, 915 (Colo. App. 2011), by

“considering the totality of the circumstances and accounting for all

services and resources provided to a parent to ensure the

completion of the entire treatment plan,” People in Interest of

My.K.M. v. V.K.L., 2022 CO 35, ¶ 33. The parent is ultimately

responsible for using the services to comply with the 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 in determining whether the department made reasonable

efforts, see People in Interest of A.V., 2012 COA 210, ¶ 12.

¶ 57 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

juvenile court’s factual findings for clear error and review de novo

26
its legal determination, based on those findings, as to whether the

department satisfied its reasonable efforts obligation. Id.

B. Analysis

¶ 58 The juvenile court found that the Department made “extensive

efforts” to rehabilitate mother and demonstrated a “willingness to

engage” father but that those efforts did not result in either parent

becoming fit. The court also found that the Department’s efforts in

the case, along with those in the previous case, were reasonable

and the parents “simply failed to take advantage of [the

Department’s] efforts.”

¶ 59 The record supports the juvenile court’s findings. The

Department offered mother substance abuse treatment during the

previous case, but she did not engage. During this case, the

Department again offered both inpatient and outpatient treatment

services and, as noted above, mother made some progress but

ultimately relapsed in the fall of 2023 before re-entering inpatient

treatment a few months before the termination hearing. As for

father, the record shows that the Department asked him to

complete a substance abuse evaluation but he declined because “he

believed that he would become incarcerated in the near future.”

27
During the time that father was in the community, he did not

cooperate or communicate with the caseworker. The record also

shows that the Department arranged for the parents to have

supervised family time, which mother mostly attended, but father

did not.

¶ 60 In sum, the record supports the juvenile court’s finding that

the Department provided the parents with the necessary resources

to engage with their treatment plans, but they did not take

advantage of those resources or were unsuccessful in becoming fit.

See A.V., ¶ 12; J.C.R., 259 P.3d at 1285. Nevertheless, the parents

assert, for the reasons described below, that the court erred by

concluding that the Department had made reasonable efforts. We

address and reject each of their contentions.

1. Father

¶ 61 Father asserts that the Department failed to (1) provide him

with adequate family time; (2) arrange for services while he was

incarcerated; and (3) investigate relatives for placement. We

disagree.

¶ 62 First, we reject father’s assertion that the Department failed to

make reasonable efforts to provide him with family time services.

28
Recall that father was incarcerated from the beginning of the case

until about April 2023 and again from November 2023 until the end

of the case.

¶ 63 The record establishes the following:

• During father’s initial time in prison, the first caseworker

“contacted the prison multiple times to arrange” family

time for father, but the prison did not cooperate with the

caseworker to set up any visits.

• The Department set up family time services for father

shortly after he was released from prison, and he

participated in visits for about a month. The second

caseworker then allowed father to attend one of mother’s

visits in October 2023, but he did not appear for the visit.

The caseworker also asked father to meet with her to

make a new referral, but he never contacted her again.

• After father was reincarcerated, the second caseworker

attempted to contact father at DRDC and Colorado

Territorial Prison, but she could not reach him before he

was moved to a different facility. The caseworker also

29
attempted to contact father’s DOC case manager but

received no response.

¶ 64 In sum, we reject father’s assertion because the record

indicates that the Department attempted to provide him with family

time services throughout the case and that any lack of services was

attributable to either father’s or DOC’s noncooperation. See A.V.,

¶ 12. Under those circumstances, we cannot say that the

Department failed to make reasonable efforts to provide father with

family time services. See My.K.M., ¶ 33.

¶ 65 We are not persuaded to reach a different conclusion based on

provisions in the recently enacted S.B. 23-039. For example,

section 19-3-507(1)(f)(I)(B) now requires a department to provide

“[o]pportunities for meaningful family time between” children and

incarcerated parents. The statute also requires the department to

communicate with a facility to ascertain its ability to facilitate

family time “through audio-visual communication technology and

arrange for available virtual family time.” Id. As described above,

the record shows that the caseworkers attempted to contact DOC

but received no response.

30
¶ 66 Next, father asserts that the Department did not comply with

other provisions of S.B. 23-039 that required reasonable efforts to

provide him with services while he was incarcerated. Section 19-3-

508(1)(e)(III), C.R.S. 2024, provides that, “[i]f, after the dispositional

hearing, the child’s parent becomes continuously incarcerated in a

department of corrections facility,” the caseworker “shall provide

information that details the services and treatment available to a

parent at the facility . . . where the parent is incarcerated or the

caseworker’s efforts to obtain the information.” As already noted,

the record shows that the caseworker attempted to contact the DOC

without success. Therefore, we discern no error.

¶ 67 Last, father argues that the Department did not adequately

investigate paternal grandmother or maternal relatives as

placement options. We disagree.

¶ 68 We are not convinced that the Department had a duty to

investigate relatives to satisfy its reasonable efforts obligations

because nothing in section 19-3-208 requires it. See Abu-

Nantambu-El v. State, 2018 COA 30, ¶ 17 (“[W]e may not add words

to a statute that do not exist.”). Indeed, our supreme court declined

to address a similar argument in People in Interest of B.H., because

31
“section 19-3-604(2)(h) doesn’t ask the trial court to assess whether

the Department mailed family finding letters or explored enough

placement options.” 2021 CO 39, ¶ 79. Instead, the supreme court

construed the argument as “a challenge to the trial court’s finding

that there weren’t less drastic alternatives to termination.” Id. We

address that argument in Part VI. below.

¶ 69 Even assuming, without deciding, that the Department needed

to investigate relatives to satisfy its reasonable efforts obligation, we

still discern no error.

¶ 70 The record shows that, at the beginning of the case, the

Department considered paternal grandmother for placement but

ultimately rejected her based on her initial hesitancy about being a

placement and then because of concerns that she could not provide

for the child’s special needs. A few months later, the Department

asked the juvenile court to grant the placement providers legal

custody of the child because they chose “not to become certified”

and it could not “maintain temporary legal custody when a kinship

provider [was] not working toward certification.” The parents

objected and asked the court to place the child with paternal

grandmother. The court rejected the parents’ request and granted

32
the Department’s motion to award the placement providers legal

custody. See § 19-3-508(1)(b) (“The court may place the child or

youth in the legal custody of . . . kin . . . with or without protective

supervision, under such conditions as the court deems necessary

and appropriate.”). Father does not appeal this decision.

¶ 71 Following the dispositional hearing and because the

Department no longer had legal custody of the child, only the

juvenile court could change the placement. Therefore, if the

parents wanted to change placement to the paternal grandmother,

either the parents or paternal grandmother needed to file a motion

and ask for a hearing. See § 19-3-507(1)(b.7) (noting that, when a

child is placed with kin, the court shall hold a hearing to decide

whether to change placement); see also § 19-3-702(6) (listing the

factors that the court must consider in deciding whether to change

placement). But no one made a formal request to change placement

to paternal grandmother.

¶ 72 As for the maternal relatives, the record shows that they asked

for placement only after the dispositional hearing. As noted,

because the Department no longer had legal custody, it could not

change placements without a court order and therefore nothing

33
required the Department to investigate them as placement options.

Nevertheless, the Department conducted a background check and

determined that it could not place the child with maternal relatives

because maternal uncle had a criminal conviction for child abuse.

See Dep’t of Human Servs. Reg. 7.304.21(E)(2)(f)(8)(a), 12 Code

Colo. Regs. 2509-4 (stating that a department may not place a child

with a relative who has been convicted of child abuse as defined in

section 18-6-401, C.R.S. 2024).

¶ 73 Father asserts that the Department should have given

maternal uncle a “remediation plan,” but father provides no

authority to suggest that the Department was required to take this

action to satisfy reasonable efforts. Additionally, the second

caseworker said that the Department would do a remediation plan

only if someone asked for a change of placement. But neither the

parents nor the maternal relatives ever asked the juvenile court to

change placement. See § 19-3-702(6); see also § 19-3-507(1)(e)

(allowing the court to place a child with a relative or kin who has

34
been disqualified as a placement because of a criminal conviction).

We therefore discern no error.3

2. Mother

¶ 74 Mother contends that the Department did not make

reasonable efforts to (1) provide her with housing resources and

(2) educate her on the child’s special needs. We disagree.

¶ 75 First, the record shows that mother had housing for most of

the case. For example, mother had an apartment through a

voucher from the Denver Housing Authority. Near the end of

October 2023, however, she told the second caseworker that she

might lose her apartment and “she needed a letter” from the

Department to keep it. The caseworker said that she tried to get

more information from mother about what she needed, but she

3 Father asserts that the Department was required to place the

child with the child’s grandmother based on statutes that create
either a preference for placement with a grandparent or a rebuttable
presumption that siblings should be placed together. See, e.g.,
§§ 19-1-115(1)(a), 19-3-507(1)(b), C.R.S. 2024. But the grandparent
preference applies when placement with a grandparent is in the
child’s best interests. Likewise, the sibling group presumption can
be “rebutted by a preponderance of the evidence that placement of
the entire sibling group in the joint placement is not in the best
interest of a child or of the children.” § 19-3-507(1)(b). The record
indicates that placement with grandmother was not in the child’s
best interests.

35
never received an answer. Mother said that, when she lost her

housing, she was in jail and, when she was released, she stayed

with her grandparents for a short time until there was an “open

bed” at her treatment facility. At the time of the termination

hearing, mother remained at the sober living house, where she

could stay for at least a few more weeks.

¶ 76 Second, the second caseworker said that the Department

provided mother with information on housing resources near the

end of the case in anticipation of her departure from the sober living

facility. Specifically, the caseworker said that she submitted a

referral for “community outreach,” which was a “resource

navigation” service for housing.

¶ 77 We are not persuaded by mother’s assertion that the

Department failed to make reasonable efforts because it “largely”

left mother “to address [the housing] issue on her own.” Section

19-3-208 does not explicitly require the Department to provide

housing resources. Rather, at most, section 19-3-208(2)(b)(III)

requires the Department to provide “[i]nformation and referral

services to available public and private assistance resources.” And

because the record shows that the Department provided mother

36
with information about housing resources as required by section

19-3-208(2)(b)(III) when it referred her to the community outreach

program, we discern no error. See J.C.R., 259 P.3d at 1285

(concluding that the juvenile court did not err where the evidence

showed that the department provided the parent with information

that she could have used to find housing).

¶ 78 Finally, mother asserts that the Department failed to educate

her on the child’s special needs, which included feeding issues.

Mother’s treatment plan required her to understand the child’s

special needs, but she has not directed us to any specific services in

section 19-3-208 that the Department failed to provide in this area.

And the record otherwise shows that the Department provided

mother with contact information for the child’s therapists and

arranged for one of the therapists to work with her during visits. In

addition, the placement providers arranged for mother to attend

therapy sessions virtually, and the placement providers attended

visits to discuss with mother techniques they had learned in

therapy.

¶ 79 Consequently, nothing in the record establishes that the

Department fell short of its duty to provide services. And the record

37
otherwise shows that mother had access to the resources that she

needed to understand the child’s needs. We therefore discern no

error.

VI. Less Drastic Alternatives

¶ 80 Finally, the parents argue that the juvenile court erred by

finding that there was no viable less drastic alternative to

termination. We disagree.4

A. Applicable Law and Standard of Review

¶ 81 Before terminating parental rights under section 19-3-

604(1)(c), the juvenile court must consider and eliminate less

drastic alternatives. People in Interest of M.M., 726 P.2d 1108,

1122-23 (Colo. 1986). In considering less drastic alternatives, a

court must give primary consideration to the child’s physical,

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

in Interest of Z.P., 167 P.3d 211, 214 (Colo. App. 2007). Long-term

placement may not be a viable alternative to termination if the child

4 Father asserts that the juvenile court considered less drastic

alternatives only with respect to mother, but we understand the
court’s decision as applying equally to both parents even though the
court did not mention father in this discussion. At any rate, a
juvenile court need not make express findings regarding less drastic
alternatives. People in Interest of A.M. v. T.M., 2021 CO 14, ¶ 42.

38
needs a stable, permanent home that can be assured only by

adoption. Z.P., 167 P.3d at 214.

¶ 82 To aid the juvenile court in determining whether there is a less

drastic alternative to termination, the department must evaluate a

reasonable number of people the parent identify as placement

options. People in Interest of D.B-J., 89 P.3d 530, 532 (Colo. App.

2004). But the department is not obligated to “independently

identify and evaluate other possible placement alternatives.” Z.P.,

167 P.3d at 215.

¶ 83 For a less drastic alternative to be viable, it must do more than

“adequate[ly]” meet a child’s needs; rather, it must be the “best”

option for the child. A.M., ¶ 27. Therefore, if the juvenile 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. B.H., ¶ 80.

39
B. Analysis

¶ 84 The parents assert that the juvenile court erred by rejecting an

APR to either the maternal relatives or paternal grandmother. We

disagree.

¶ 85 As an initial matter, we reject the parents’ assertion that the

juvenile court erred because the Department did not make

reasonable efforts to investigate relatives. As noted above, the

record shows that the Department evaluated paternal grandmother

and maternal relatives for placement but ultimately rejected them

as placement options. See D.B-J., 89 P.3d at 532. And because we

have concluded in Part II.C. that the placement providers qualified

as “kin” under section 19-1-103(91), we reject the parents’

assertions that the Department improperly placed the child with the

placement providers to avoid investigating relatives.

¶ 86 Next, the juvenile court specifically rejected an APR to

maternal relatives as a less drastic alternative to termination, and

the record supports the court’s findings. The record shows that

maternal aunt and uncle did not have a good relationship with the

parents. See People in Interest of J.M.B., 60 P.3d 790, 793 (Colo.

App. 2002) (a court may consider the quality of the relationship

40
between the parent and the placement option). And the maternal

uncle had a conviction for child abuse as well as two convictions for

driving under the influence. See People in Interest of T.E.M., 124

P.3d 905, 910 (Colo. App. 2005) (a court can consider the

placement option’s ability to care for the child).

¶ 87 And although the juvenile court did not specifically reject an

APR to paternal grandmother, we cannot say that the court erred by

not entering an APR to her. As noted, the record shows that

paternal grandmother was hesitant about being a placement for the

child and did not demonstrate that she could meet the child’s

special needs. In any event, even if paternal grandmother was an

appropriate placement option, we still discern no error because the

court found that an APR, regardless of the placement, was not in

the child’s best interests because it would not “provide any level of

stability and consistency that the child needs.” In other words, the

record supports the court’s decision that the child needed

permanency that could be achieved only through adoption, see Z.P.,

167 P.3d at 214, and thus the court was required to reject less

drastic alternatives and enter termination, see A.M., ¶ 32.

41
¶ 88 Finally, we reject father’s assertion that adoption by the

maternal relatives or paternal grandmother was a less drastic

alternative to termination because a child cannot be available for

adoption until parental rights have been terminated. See § 19-5-

203(1)(a), C.R.S. 2024 (noting that a child may be available for

adoption following an “[o]rder of the court terminating the parent-

child legal relationship in a proceeding brought under article 3 or 5

of this title”); cf. People in Interest of A.R., 2012 COA 195M, ¶ 44

(noting that the less drastic analysis requires a court to determine

whether there is an option, “short of termination,” that would be in

the child’s best interests).

VII. Conclusion

¶ 89 The judgment is affirmed.

JUDGE DUNN and JUDGE TAUBMAN concur.

42