Peo in Interest of EW

24CA0535 Peo in Interest of EW 11-14-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0535
El Paso County District Court No. 22JV30413
Honorable Lin Billings Vela, Judge

The People of the State of Colorado,

Appellee,

In the Interest of E.W., a Child,

And Concerning R.A.,

Appellant.

JUDGMENT AFFIRMED

Division A
Opinion by JUDGE GRAHAM*
Román, C.J., and Bernard*, J., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 14, 2024

Kenneth Hodges, County Attorney, Shannon Boydstun, Assistant County
Attorney, Colorado Springs, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem

The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for
Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 In this dependency and neglect proceeding, R.A. (mother)

appeals the juvenile court’s judgment terminating her parent-child

legal relationship with E.W. (the child). Mother’s sole contention on

appeal is that the court erred by finding that no less drastic

alternative to termination existed. We affirm.

I. Background

¶2 In December 2022, the El Paso County Department of Human

Services (Department) received reports of concern that the child had

been born with substance exposure and exhibited severe

withdrawal symptoms, as well as concerns that the parents were

abusing substances. Based on these reports, the Department

initiated a dependency and neglect proceeding.

¶3 The juvenile court placed the child with a maternal cousin as a

kinship placement and the child remained with her for the

remainder of the proceeding.

¶4 Meanwhile, the parents admitted the allegations in the petition

and the child was adjudicated dependent and neglected. Due to the

Department requesting additional time to amend the proposed

treatment plans, and counsel requesting additional time to review

the amendments, the court adopted treatment plans for the parents

1
six months after adjudication. Referrals for treatment services,

however, were available to the parents before adjudication occurred.

¶5 Later, the Department moved to terminate parental rights. A

termination hearing was held over two days, and, at the conclusion

of the hearing, the court granted the motion and terminated

parental rights.

II. Less Drastic Alternative to Termination

¶6 Mother contends that the juvenile court erred by not finding

that there was a less drastic alternative to termination of parental

rights when the child was placed with a maternal relative who could

have provided permanency through APR or guardianship. We

disagree.

A. Standard of Review

¶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

2
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

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.

B. Applicable Law and Standard of Review

¶9 The juvenile court may terminate parental rights if it finds, by

clear and convincing evidence, that (1) the child has been

adjudicated dependent or 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.

¶ 10 The juvenile court must consider and eliminate less drastic

alternatives before terminating parental rights. People in Interest of

M.M., 726 P.2d 1108, 1122-23 (Colo. 1986). When making this

determination, the court must give primary consideration to the

3
child’s physical, mental, and emotional conditions and needs. See

§ 19-3-604(3); People in Interest of K.B., 2016 COA 21, ¶ 35.

¶ 11 When 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.

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

“adequately” meet a child’s needs. A.M., ¶ 27. Rather, the

proposed alternative must be the “best” option for the child. Id.

Therefore, if the court considers a less drastic alternative but finds

that termination is in the child’s best interests, it must reject the

proposed alternative and order termination. Id. at ¶ 32. Permanent

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

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

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

¶ 13 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

4
court’s findings are supported by the record. People in Interest of

B.H., 2021 CO 39, ¶ 80.

C. Analysis

¶ 14 Here, giving primary consideration of the child’s physical,

mental, and emotional conditions and needs, the juvenile court

found that there were no less drastic alternatives to termination. It

also found there was “no evidence before the [c]ourt to find that an

APR or [relative guardian assistance program (RGAP)] would be an

appropriate less-drastic alternative to meet [the child’s] best

interests.”

¶ 15 The court further found mother was unfit, that the problems

which led to initiation of the case still existed at the time of the

termination and mother had not reasonably complied with her

treatment plan. There is record support for the court’s findings.

Notably, mother also does not challenge these findings.

¶ 16 Mother asserts the kinship placement’s testimony revealed she

did not understand the differences between the permanency options

typically available in a dependency and neglect case. Because of

this, she argues it is “clear that there were less drastic alternatives”

5
available and the court could have ensured permanency for the

child through APR or RGAP.

¶ 17 True, the kinship placement’s testimony revealed she was

unsure in the different permanency options available. Nevertheless,

she testified she would like the court to terminate parental rights

“so we can move forward with where [the child] is going

permanently as she’s over a year old and kind of not much has

changed.”

¶ 18 And, while the court may consider whether a potential

permanent placement prefers adoption over an APR, the primary

consideration in eliminating less drastic alternatives is the child’s

physical, mental, and emotional conditions and needs. See § 19-3-

604(3); Z.M., ¶ 31; K.B., ¶ 35. Here, taking those primary

considerations into account, the court explicitly found there were

no less drastic alternatives available and termination was in the

child’s best interests.

¶ 19 In addition, the caseworker testified, and the court found

credible, that she believed it was in the child’s best interests to

terminate parental rights given that mother had essentially not

engaged in any component of her treatment plan. Mother’s

6
communication with the Department was sporadic and at times

nonresponsive. She was referred to multiple providers to complete

a substance abuse evaluation, even before her treatment plan was

entered, but never completed an evaluation or treatment. She also

had four referrals to family time providers but missed most of her

visits with the child, causing her to be discharged from at least

three providers for noncompliance.

¶ 20 Finally, Mother was not employed at the time of the

termination hearing and reportedly homeless. And despite referrals

being in place for nearly the entirety of the case, she never engaged

with life skills or family preservation services.

¶ 21 There is record support for the court’s findings, and the record

shows that the court considered and eliminated less drastic

alternatives. B.H., ¶ 80.

III. Disposition

¶ 22 The judgment is affirmed.

7