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24CA0376 Peo in Interest of AR-B 09-12-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0376

Mesa County District Court No. 22JV131

Honorable Valerie J. Robison, Judge

The People of the State of Colorado,

Appellee,

In the Interest of A.S.R-B. and E.L.R-B., Children,

and Concerning B.R.F.,

Appellant.

JUDGMENT AFFIRMED

Division I

Opinion by JUDGE LIPINSKY

J. Jones and Sullivan, JJ., concur

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

Announced September 12, 2024

Todd M. Starr, County Attorney, Brad Junge, Assistant County Attorney,

Grand Junction, Colorado, for Appellee

Josie Burt, Guardian Ad Litem

Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for

Appellant

¶ 1 B.R.F. (mother) appeals the judgment terminating her parent-

child legal relationships with A.S.R-B. and E.L.R-B. (the children).

We affirm.

I. Background

¶ 2 In November 2022, the Mesa County Department of Human

Services filed a petition in dependency or neglect concerning the

children, who were three and seven years old at the time. The

Department was concerned that the children lacked supervision,

that their conditions were unsafe, and that the parents were

abusing substances. The juvenile court granted temporary legal

custody to the Department, and the children were placed with kin.

¶ 3 The juvenile court adjudicated the children dependent or

neglected. The court subsequently adopted a treatment plan that

required mother to complete a capacity to parent evaluation;

address substance abuse, mental health, and domestic violence

issues; attend supervised family time and take parenting classes;

participate in life skills training; maintain a safe and stable

household; and cooperate with the Department. The Department

later moved to terminate mother’s parental rights. Following a

hearing in January 2024, the juvenile court granted the motion.

II. Reasonable Efforts

¶ 4 Mother contends that the juvenile court erred by finding that

the Department made reasonable efforts to rehabilitate her and

reunite the family. She argues that the caseworker’s service

authorizations were inadequate because the caseworker did not

have the expertise to determine whether the agencies she

authorized were qualified to assist mother. Mother also argues that

she was unable to engage in the services because the Department

failed to provide her with transportation and a cell phone. We

discern no error.

A. Standard of Review and Preservation

¶ 5 Whether the Department 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, 527 P.3d 404, 407.

Therefore, we review the juvenile court’s factual findings for clear

error but review de novo its legal determination that the

Department made reasonable efforts to rehabilitate the parent. Id.

¶ 6 The Department and guardian ad litem (GAL) dispute

preservation and argue that mother failed to challenge the

reasonableness of the Department’s efforts before the termination

hearing. See People in Interest of D.P., 160 P.3d 351, 355-56 (Colo.

App. 2007) (declining to review a reasonable efforts finding because

the parent failed to object to services provided before the

termination hearing). But see People in Interest of S.N-V., 300 P.3d

911, 916 (Colo. App. 2011) (holding that a parent’s failure to object

to services does not bar appellate review of a reasonable efforts

findings). We need not resolve this dispute because, even assuming

the issue is preserved, we discern no basis for reversal.

B. Applicable Law

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

clear and convincing evidence, that (1) the child was 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 within a reasonable time.

§ 19-3-604(1)(c), C.R.S. 2024.

¶ 8 To determine whether a parent is unfit, the juvenile court

must consider whether the department of human services made

reasonable efforts to rehabilitate the parent and reunite the family.

See §§ 19-3-100.5(1), 19-3-604(2)(h), C.R.S. 2024; S.N-V., 300 P.3d

at 915. “Reasonable efforts” means the “exercise of diligence and

care” for children who are in out-of-home placement.

§ 19-1-103(114), C.R.S. 2024. Services provided in accordance with

section 19-3-208, C.R.S. 2024, satisfy the reasonable efforts

standard. § 19-1-103(114).

¶ 9 Under section 19-3-208, a department of social services must

provide screenings, assessments, and individual case plans for the

provision of services; home-based family and crisis counseling;

information and referral services to available public and private

assistance resources; family time services; and placement services.

§ 19-3-208(2)(b). If funding is available, section 19-3-208 requires

the department to provide services such as transportation,

diagnostic and mental health services, and drug and alcohol

services. § 19-3-208(2)(d). However, services must be provided only

if they are determined to be necessary and appropriate based on the

individual case plan. § 19-3-208(2)(b), (d).

¶ 10 The parent is responsible for using such services to obtain the

assistance the parent needs to comply with her treatment plan.

People in Interest of J.C.R., 259 P.3d 1279, 1285 (Colo. App. 2011).

When a parent voluntarily absents herself from a proceeding and

cannot be located, the department of social services need not

persist with futile efforts. See People in Interest of A.V., 2012 COA

210, ¶ 12, 297 P.3d 1019, 1022. Moreover, a juvenile court may

consider a parent’s unwillingness to participate in treatment as a

factor in determining whether the department made reasonable

efforts. See id.

C. Analysis

¶ 11 The juvenile court determined that the Department made

reasonable efforts to rehabilitate mother by authorizing the services

required by statute and trying to assist with her treatment plan.

The court found the Department could not authorize services for

“quite some time” because mother had not signed the required

release of information, but ultimately, the Department authorized

supervised family time, a capacity to parent assessment, a co-

occurring substance abuse and mental health assessment, a

domestic violence evaluation, and sobriety monitoring. The court

found that the caseworker provided mother with bus passes and

gas coupons. The court also noted that, because mother

“distrust[ed] . . . the Department,” the caseworker “went out of [her]

way” to meet with mother at neutral locations and used different

methods of communication, such as phone and email, to try to

contact mother. Even so, the court found that mother did not avail

herself of any of the services provided by the Department or comply

with any of the requirements of her treatment plan. The record

supports these findings.

¶ 12 The caseworker testified that it was “hard to get [mother] to

sign any releases of information.” The caseworker’s reports, which

were admitted as evidence during the termination hearing,

indicated that the caseworker met with mother and asked her to

sign the releases shortly after the treatment plan was adopted, but

mother did not sign the releases for about two months.

Nonetheless, when mother signed the releases, the caseworker

authorized numerous services, including those listed by the juvenile

court and required by section 19-3-208(2)(b). The caseworker

emailed mother to notify her about the services, and the providers

also reached out to mother to schedule initial appointments. But

by the time of the termination hearing, mother had not completed

any of the evaluations or engaged in any of the authorized services

except for family time.

¶ 13 Although mother implies that the service authorizations were

inadequate because the caseworker admitted she did not know each

service provider’s qualifications, mother does not point us to any

authority requiring a caseworker to know a provider’s qualifications

before offering the provider’s services to a parent. Rather, the

caseworker testified that the Department has a list of authorized

providers that includes the services they offer. The caseworker

found all of the providers and services she authorized for mother on

that list.

¶ 14 Next, contrary to mother’s argument, the record indicates that

the Department tried to provide her with transportation assistance.

The caseworker testified that, when mother reported that

transportation was a problem, the caseworker provided mother with

a bus pass. Then, when mother told the caseworker that the bus

pass was not helpful, she authorized a gas card to give to mother

when they met. The caseworker testified that she authorized

several gas cards throughout the case, but mother repeatedly failed

to pick them up.

¶ 15 We reject mother’s argument that the Department’s efforts

were unreasonable because it did not provide her with a phone.

The caseworker testified that, throughout the case, mother gave her

several different phone numbers. The caseworker said she was able

to send messages to, and leave voicemails for, mother using those

numbers and that mother would respond — infrequently — via text

or a call. Although the caseworker talked to mother about her lack

of communication, mother did not say she needed a phone or help

getting reliable phone service. And during her testimony, mother

never said that the lack of a reliable phone or service was a barrier

to contacting the caseworker. See § 19-3-208(2)(b), (d) (providing

that services must only be provided if they are determined to be

“necessary and appropriate”).

¶ 16 We also reject mother’s argument that the caseworker failed to

make efforts to communicate with mother. As mother points out,

the caseworker admittedly only emailed mother once, and when

that email was undeliverable, the caseworker did not try to email

mother again. But the caseworker testified, and her reports

indicate, that throughout the case, mother’s communication with

the caseworker was inconsistent. The caseworker testified that

there were “months where [she was] not able to locate [mother] . . .

or communicate with her at all.” Even so, the record shows that

the caseworker consistently attempted to communicate with mother

in other ways — she scheduled numerous in-person meetings at

neutral locations, called and texted, sent messages through

Facebook, sent letters, and went to the visitation center to try to

talk to mother after her family time sessions.

¶ 17 In sum, the record supports the juvenile court’s determination

that the Department’s efforts were reasonable, particularly when

viewed in conjunction with mother’s failure to communicate with

the caseworker or engage in the services that the Department

offered to her. See A.V., ¶ 12, 297 P.3d at 1022. Accordingly, we

discern no error in the juvenile court’s reasonable efforts

determination.

III. Less Drastic Alternatives

¶ 18 Mother contends that the juvenile court erred by finding that

there were no less drastic alternatives to termination of her rights.

She argues that the kin placement’s testimony, which indicated a

lack of understanding about an allocation of parental

responsibilities (APR) or a guardianship, showed that the

Department did not properly explore less drastic alternatives. We

disagree.

A. Standard of Review and Preservation

¶ 19 “We review a juvenile court’s less drastic alternatives findings

for clear error.” People in Interest of E.W., 2022 COA 12, ¶ 34, 508

P.3d 256, 262. Accordingly, when a juvenile court considers a less

drastic alternative but instead finds that termination is in the

child’s best interests, we must affirm the court’s decision so long as

the record supports its findings. People in Interest of B.H., 2021 CO

39, ¶ 80, 488 P.3d 1026, 1042.

¶ 20 The Department and GAL dispute preservation and argue that

mother failed to raise her less drastic alternatives argument before

termination or argue it at the hearing. See Gebert v. Sears, Roebuck

& Co., 2023 COA 107, ¶ 25, 543 P.3d 409, 415 (holding that, to

properly preserve an argument for appeal, the party asserting it

must present the “sum and substance of the argument” to the trial

court) (quoting Madalena v. Zurich Am. Ins. Co., 2023 COA 32, ¶ 50,

532 P.3d 776, 788). Again, we need not resolve this dispute

because, even assuming the issue is preserved, we discern no basis

for reversal.

B. Applicable Law

¶ 21 A juvenile court’s consideration and elimination of less drastic

alternatives is implicit in the statutory criteria for termination.

People in Interest of A.M. v. T.M., 2021 CO 14, ¶ 40, 480 P.3d 682,

690. In considering less drastic alternatives, a juvenile court must

give primary consideration to the child’s physical, mental, and

emotional conditions and needs. People in Interest of Z.M., 2020

COA 3M, ¶ 29, 463 P.3d 330, 335.

¶ 22 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 in the child’s best interests. A.M., ¶ 27, 480 P.3d at 688.

Long-term or permanent placement with a family member or foster

family, short of termination, may not be a viable less drastic

alternative if it does not provide adequate permanence that

adoption would provide or otherwise meet a child’s needs. People in

Interest of A.R., 2012 COA 195M, ¶ 41, 310 P.3d 1007, 1017. If a

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. A.M., ¶ 32, 480 P.3d

at 689.

C. Analysis

¶ 23 The juvenile court “considered providing additional time to

complete the treatment plan, ordering an [APR], or ordering a

guardianship” but concluded that none of those less drastic

alternatives would be in the children’s best interests. The court

found that, throughout the case, mother had been inconsistent with

attending family time, which would “throw the [children] off” and

that “various concerns” were expressed about mother’s “ability to

care for and meet the needs of the children.” The court found that

the children “need[ed] a permanent stable home that can be

assured only through adoption.” The court concluded that “the

benefit of termination outweigh[ed] the detriment” and was in the

children’s best interests. The record supports these findings.

¶ 24 The caseworker opined that allowing more time for mother to

work on the treatment plan was not a viable less drastic alternative

because mother had not engaged in any services other than family

time, and that such engagement was inconsistent. In addition, she

opined that an APR was not in the children’s best interests because

it would create the potential for future contact with mother. This

was a concern because mother had not been “appropriate with

visits” or “provided what the [children] need[ed] during those times.”

According to the caseworker, at the time of the hearing, mother was

unable to provide for the children’s basic needs and her ability to

meet their needs was “exactly where it was” when the Department

opened the case, which was “not safe for the [children] at all.” See

A.R., ¶ 38, 310 P.3d at 1016 (stating that, in determining whether a

less drastic alternative is viable, “[a] court . . . may consider

whether an ongoing relationship with the parent would be

beneficial” to the child, which is “influenced by a parent’s fitness to

care for [the] child’s needs”).

¶ 25 The caseworker also testified that the children needed

“consistent[,] . . . stable, and predictive” caregivers. Specifically,

she said that the older child needed permanency because he was

becoming more anxious as time passed and asking “questions that

[the caseworker couldn’t] answer.” Further, the caseworker opined

that permanency was important for the younger child based on his

age and because “it could predict a lot of things in the future.” See

§ 19-1-102(1.6), C.R.S. 2024 (“[S]tudies . . . disclose that a child

who has not bonded with a primary adult during [the] critical stage

[before six years of age] will suffer significant emotional damage

which frequently leads to chronic psychological problems and

antisocial behavior when the child reaches adolescence and

adulthood.”). She testified that termination would provide the

permanency the children needed.

¶ 26 We recognize that the kin placement did not seem to fully

understand how an APR or guardianship would work. But while

the juvenile court could have properly considered the placement’s

preference for adoption over other permanency options, see Z.M.,

¶ 31, 463 P.3d at 335, its rejection of less drastic alternatives was

not based on the placement’s preference for adoption. Instead, the

court based its decision on the children’s best interests, as it was

required to do. See A.M., ¶¶ 27, 32, 480 P.3d at 688-89. Because

the record supports the court’s finding that less drastic alternatives

were not in the children’s best interests, we must affirm the

decision. See B.H., ¶ 80, 488 P.3d at 1042.

IV. Disposition

¶ 27 The judgment is affirmed.

JUDGE J. JONES and JUDGE SULLIVAN concur.