Peo in Interest of SB

24CA0260 People in Interest of SB 07-18-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0260

Jefferson County District Court No. 22JV30192

Honorable Ann Gail Meinster, Judge

The People of the State of Colorado,

Appellee,

In the Interest of S.B., a Child,

and Concerning J.B.,

Appellant.

JUDGMENT AFFIRMED

Division II

Opinion by JUDGE SULLIVAN

Fox and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 18, 2024

Kimberly Sorrells, County Attorney, Sarah Oviatt, Assistant County Attorney,

Golden, Colorado, for Appellee

Robert G. Tweedell, Guardian Ad Litem

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

Appellant

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¶ 1 In this dependency and neglect proceeding, J.B. (father)

appeals the judgment terminating his parent-child legal

relationship with S.B. (the child). We affirm.

I. Background

¶ 2 The Jefferson County Division of Children, Youth and Families

(the Division) received a report that the then-six-year-old child was

found with father, who was “passed out” in his car. Father was

arrested after law enforcement found methamphetamine residue

and fentanyl in the car, and a family friend picked up the child.

When the caseworker met with father, he admitted that he’d been

driving under the influence with the child in the car and that he

used fentanyl and methamphetamine on a daily basis.

¶ 3 The Division filed a petition in dependency and neglect based

on concerns regarding both parents’ substance abuse. The juvenile

court ordered that the child be placed in the temporary legal

custody of the Division, and the child remained in the family

friend’s care. Approximately three months later, the child was

placed with her maternal aunt.

¶ 4 The juvenile court adjudicated the child dependent and

neglected. The court adopted a treatment plan that required father

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to abstain from using alcohol, marijuana, and all other drugs;

engage in substance abuse treatment; communicate with the

caseworker and other professionals; comply with his criminal

matters; and meet the child’s developmental, physical, and

emotional needs. The court also ordered that father be given four

hours of supervised family time with the child every week.

¶ 5 The Division later moved to terminate father’s parental rights.

Following a hearing, the juvenile court granted the motion.

II. Discussion

¶ 6 Father’s sole contention on appeal is that the juvenile court

erred by failing to provide him with a reasonable amount of time to

comply with his treatment plan before terminating his parental

rights. Father argues that he had made consistent, significant

progress in substance abuse treatment and maintained a loving,

bonded relationship with the child throughout the course of the

proceeding. Thus, he argues that the court’s finding that he

couldn’t become fit within a reasonable amount of time was

unsupported by the record. We disagree.

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A. Standard of Review and Preservation

¶ 7 Whether a juvenile court properly terminated parental rights

presents a mixed question of law and fact because it involves

application of the termination statute to evidentiary facts. People in

Interest of S.R.N.J-S., 2020 COA 12, ¶ 10. We review the court’s

factual findings for clear error, but we review de novo the court’s

legal conclusions based on those facts. Id.

¶ 8 The credibility of the witnesses, as well as the sufficiency,

probative effect and weight of the evidence, and the inferences and

conclusions to be drawn from the evidence, are within the province

of the juvenile court. People in Interest of A.J.L., 243 P.3d 244, 249–

50 (Colo. 2010). We don’t reweigh the evidence or substitute our

judgment for that of the court. People in Interest of K.L.W., 2021

COA 56, ¶ 62.

¶ 9 The Division asserts that father failed to preserve the issue on

appeal because, while he argued that it was in the child’s best

interest to keep the case open for father to work on his treatment

plan, he didn’t argue that the conduct or conditions that rendered

him unfit were likely to change within a reasonable time. To

properly preserve an argument for appeal, a party must present

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“the sum and substance of the argument” to the trial court. Gebert

v. Sears, Roebuck & Co., 2023 COA 107, ¶ 25 (citation omitted).

Here, however, we need not determine whether father’s arguments

to the juvenile court were sufficient to preserve his claim because

even if we assume that the claim was preserved, we discern no

basis for reversal.

B. Applicable Law

¶ 10 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 hasn’t complied with an

appropriate, court-approved treatment plan or the plan hasn’t 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. 2023.

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

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

People in Interest of S.Z.S., 2022 COA 133, ¶ 23. “Reasonable

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

nurturing and protection adequate to meet the child’s physical,

emotional, and mental health needs.” S.R.N.J-S., ¶ 9. A parent’s

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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).

¶ 12 A parent must have a reasonable amount of time to work on a

treatment plan before the juvenile court terminates their parental

rights. People in Interest of D.Y., 176 P.3d 874, 876 (Colo. App.

2007). Periods as short as five to nine months have been held to be

sufficient to comply with a treatment plan.   People in Interest of

A.J., 143 P.3d 1143, 1152 (Colo. App. 2006).

¶ 13 In determining whether a parent’s conduct or condition is

likely to change and whether the parent can become fit in a

reasonable time, the juvenile court may consider several factors,

including (1) whether any change occurred during the dependency

and neglect proceeding; (2) the parent’s social history; and (3) the

chronic or long-term nature of the parent’s conduct or condition.

K.D. v. People, 139 P.3d 695, 700 (Colo. 2006).

¶ 14 The determination of a reasonable period is necessarily fact-

specific, and thus, what constitutes a reasonable time to comply

with a treatment plan may vary from case to case. D.Y., 176 P.3d at

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876. But a reasonable time is not an indefinite time, and it must be

determined by considering the physical, mental, and emotional

conditions and needs of the child. S.Z.S., ¶ 24.

C. Analysis

¶ 15 The juvenile court found that father had been given a

reasonable amount of time to comply with his treatment plan, but

the court wasn’t satisfied that father had sufficiently addressed the

issues that triggered the Division’s involvement. The court stated

that given father’s “lengthy history” with substance abuse problems,

it would’ve wanted to see at least six months of documented

sobriety before moving toward reunification. It found that father

never reached that point. The court acknowledged that father

“deserve[d] credit” for testing negative for fentanyl in the months

leading up to the termination hearing. But the court also found

that throughout the case, father missed urinalysis (UA) tests, never

tested negative for all substances, and lacked engagement in

treatment. Thus, the court found that father’s recent progress

didn’t outweigh the lack of consistent progress and demonstrated

sobriety throughout the rest of the case. And, crediting the family

time supervisor’s testimony, the court found that father hadn’t

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sufficiently addressed the basic protective concerns that were

present at the beginning of the case. The court concluded that the

same problems outlined in father’s treatment plan still existed

without adequate improvement and that the conduct or condition

that rendered father unable to care for the child was unlikely to

change in a reasonable time.

¶ 16 Additionally, the juvenile court determined that the expedited

permanency planning (EPP) provisions didn’t apply but nevertheless

found that it was “very close” and that “this child’s need for

permanency [wasn’t] any less because she missed a close deadline.”

The court noted that the case had been open for fifteen months and

that the child was showing the “stress of the situation.” The court

found that the child had been in out-of-home placement for the

entirety of the case and needed the stability and permanency of an

adoptive home.

¶ 17 The record supports these findings.

¶ 18 The Division had received reports concerning father’s

substance use dating back to 2019. Approximately fifteen months

had passed between the time the caseworker initially referred father

to substance abuse treatment and the termination hearing. And

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about a year had passed between the adoption of father’s treatment

plan and the hearing. But the record shows that by the time of

termination, father hadn’t successfully resolved the concerns about

his substance use.

¶ 19 The caseworker testified that while father hadn’t tested

positive for fentanyl in the three months leading up to the hearing,

father had also missed at least one UA within that timeframe.

Throughout the case, father missed fifty-nine UAs, tested positive

for controlled substances fifty-six times, and never provided a UA

that was negative for all substances. Father consistently tested

positive for methadone and marijuana at all times leading up to the

hearing.

¶ 20 We acknowledge that at some point before the termination

hearing father told the caseworker he had been prescribed a

medical marijuana card. But father’s treatment plan required him

to immediately notify the Division of any new prescriptions for

medications and provide verification for those prescriptions. And

father didn’t provide a signed release to allow the caseworker to

contact the prescribing doctor until the morning of the termination

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hearing. Also, father never told his probation officer that he had a

medical card.

¶ 21 The caseworker testified that father didn’t complete an intake

or start any substance abuse treatment until eight months into the

case. After father started treatment, he missed thirty-five out of

sixty-one required treatment groups. There were only two weeks in

which father attended all required groups, and one of those was the

week before the termination hearing.

¶ 22 The family time supervisor testified that about two weeks

before the termination hearing, when father arrived at his family

time, he opened his van door and a very strong odor of marijuana

was present. The supervisor testified that this incident raised

safety concerns about father’s ability to safely transport the child

anywhere. And after approximately nine months of feedback and

coaching, the supervisor stated that father still struggled to

implement the structure the child needed, plan ahead to provide a

meal during family time, or consistently ensure that the child was

completing her reading.

¶ 23 The caseworker opined that based on the child’s needs and

father’s ongoing substance use, she didn’t believe father could be a

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safe and appropriate caregiver in the near future. The caseworker

also opined that termination was in the child’s best interests

because, throughout the case, father didn’t successfully address his

substance use, nor was he able to meet the child’s needs despite

receiving the same feedback and redirection for approximately nine

months.

¶ 24 Last, as father points out, the EPP provisions didn’t apply

because the child was over the age of six when the Division filed the

petition in dependency and neglect. See §§ 19-1-102(1.6), 19-1-

123, C.R.S. 2023. However, the case commenced only seventeen

days after the child’s sixth birthday. While the juvenile court didn’t

apply the EPP provisions, it properly considered the child’s young

age, time in out-of-home placement, and need for permanency in

determining that father had been given a reasonable amount of time

to address the issues in his treatment plan. See S.Z.S., ¶ 24 (a

reasonable amount of time must be determined by considering the

physical, mental, and emotional conditions and needs of the child).

¶ 25 In sum, the juvenile court determined that father couldn’t

become fit within a reasonable time by considering the evidence

showing father’s partial compliance and weighing it against the

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contrary evidence and the child’s needs. Because the record

supports the court’s determination, we decline to disturb the

judgment.

III. Disposition

¶ 26 We affirm the judgment.

JUDGE FOX and JUDGE GROVE concur.