Peo in Interest AMB-Y

24CA0316 Peo in Interest of AMB-Y 10-10-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0316
Boulder County District Court No. 22JV30011
Honorable J. Keith Collins, Judge

The People of the State of Colorado,

Appellee,

In the Interest of A.M.B-Y., a Child,

and Concerning C.B.C.,

Appellant,

and

K.Y.,

Appellee.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE MOULTRIE
Welling and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 10, 2024

Benjamin Pearlman, County Attorney, Debra W. Dodd, Special Assistant
County Attorney, Boulder, Colorado, for Appellee The People of the State of
Colorado

Robert Tweedell, Guardian Ad Litem

Patrick R. Henson, Office of Respondent Parents’ Counsel, Justin Twardowski,
Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant
John F. Poor, Office of Respondent Parents’ Counsel, Denver, Colorado, for
Appellee K.Y.
¶1 In this dependency and neglect action, C.B.C. (mother)

appeals the judgment allocating parental responsibilities for

A.M.B-Y. (the child) to K.Y. (father). We affirm the judgment.

I. Background

¶2 When the child was six months old, the Boulder County

Department of Housing and Human Services (the Department)

began working with mother and the child’s older sibling. At that

time, the sibling had been out of mother’s care as part of a

dependency and neglect action in another county for more than

three years.

¶3 The child was added to the sibling’s case as a non-court

involved “participating child” in 2020. In 2022, the juvenile court

overseeing the sibling’s case ordered the Department to investigate

pursuant to section 19-3-501(1), C.R.S. 2024, which authorizes a

court to order a department to “make a preliminary investigation to

determine whether the interests of the child or of the community

require that further action be taken.”

¶4 The Department then filed a petition in dependency and

neglect concerning the then-three-year-old child. The petition

alleged concerns that mother was not following court orders entered

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in the older sibling’s cases to ensure the child’s safety. The petition

also alleged that mother was unable to provide a safe environment

for the child.

¶5 For about a month, the child resided with mother under

protective supervision from the Department. Then the child was

moved into father’s care, where she resided throughout the rest of

the dependency and neglect case.

¶6 The juvenile court adjudicated the child dependent and

neglected and adopted a treatment plan for mother. Father later

moved for primary custody and sole decision-making under an

allocation of parental responsibilities (APR). Mother objected and

moved for primary custody and sole decision-making in her own

proposed APR.

¶7 In February 2024, nearly two years after the petition was filed

and following a three-day contested hearing, the juvenile court

entered an APR allocating sole custody and decision-making to

father.

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II. Reasonable Efforts

¶8 Mother first argues that the juvenile court erred by entering

the APR judgment because the Department failed to make

reasonable efforts to reunify her with the child. We disagree.

¶9 A department must make reasonable efforts to rehabilitate

parents and reunite families when a child is placed — or is at

imminent risk of placement — out of the home. §§ 19-1-103(114),

19-3-100.5, 19-3-208(1), 19-3-604(2)(h), C.R.S. 2024.

¶ 10 But the child was not in an out-of-home placement when the

APR judgment entered — she had been with father for all but the

first month of the dependency case. § 19-1-103(107) (“Placement

out of the home” means placement in a home or center operated or

licensed by a department of human services.). And the court

allocated parental responsibilities between parents, not to a

nonparent. See People in Interest of A.S.L., 2022 COA 146, ¶ 20

(holding that the court is required to consider reasonable efforts

when it enters an APR to a nonparent). Accordingly, the juvenile

court was not required to find that the Department made

reasonable efforts as part of the APR judgment. See

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§§ 19-1-103(114), 19-3-100.5(1), 19-3-208(1), 19-3-604(2)(h); cf.

A.S.L., ¶ 20.

¶ 11 Mother claims that reasonable-efforts findings were required

in her case because the child was at “imminent risk” of out-of-home

placement. Mother asserts that father had “very extensive

responsibilities with regard to [his] other children.”

¶ 12 We aren’t persuaded. Nothing in the record suggests that the

child was at any risk of out-of-home placement. To the contrary,

the juvenile court found that father and his wife were “fit and

appropriate parents.” The court acknowledged that other children

in father’s home required “extra effort and care” but found that

father was “able to successfully manage.” The court found that

“extensive” home studies in two counties found “no issues at all”

with father’s home and that father had “really demonstrated the

ability to put [the child]’s needs at the forefront.”

¶ 13 The record supports these findings. The caseworker testified

that father had been “consistent and proactive in getting the

services” that the child needed. The caseworker routinely observed

the child in father’s home and “never had concerns about [the

child’s] needs not being met.” Father was a certified foster parent

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before the child was placed with him, and the Department

determined that father was “an appropriate and fit parent” at the

beginning of the case.

¶ 14 Additionally, when it entered the APR judgment, the court

found that “the Department ha[d] no protective concerns” and it

ordered the Department to be dismissed from protective

supervision. The court record and its judgment granting an APR to

father and dismissing the dependency and neglect action therefore

belie mother’s claim that the child was at “imminent risk” for

out-of-home placement.

¶ 15 In any case, the juvenile court found that “the [Department’s]

efforts in this case were extraordinary” and were “way above and

beyond what is reasonable or expected.” The record supports the

court’s reasonable-efforts findings. The Department devised a

treatment plan for mother and assisted with transportation . The

caseworker testified that the Department established “a significant

amount of services” for mother, including many in her home. The

Department also provided therapeutic family time because of the

“high level of need for clinical support”. The Department modified

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therapeutic family time at mother’s request to include recordings of

sessions, written feedback, and multiple supervisors.

III. Reasonable Accommodations

¶ 16 Mother next contends that the juvenile court failed to provide

reasonable accommodations under the Americans with Disabilities

Act (ADA) because it denied her motion for in-home family time,

more than a year before the APR hearing.

¶ 17 But mother does not explain why any prior error in the court’s

order denying her requested accommodation warrants a reversal of

the APR judgment now.

¶ 18 Recall that mother filed a competing APR motion. The juvenile

court noted that the “issues that were at play as part of the

dependency and neglect case” were not necessarily the same “issues

[that] impact the [court’s] analysis” in deciding competing APR

motions. The court found that mother consistently asked for her

own APR to enter, despite newly asserting during the APR hearing

that the case should be kept open to provide additional services.

Accordingly, the court found that evidence about whether the

Department complied with the ADA during the dependency and

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neglect action wasn’t relevant to its determination of which of the

proposed APRs should enter.

¶ 19 We agree with the juvenile court’s analysis.

¶ 20 To be sure, under the ADA, both the Department and the

juvenile court must provide reasonable accommodations to a parent

with a qualifying disability when providing services to that parent.

42 U.S.C. § 12132 (“no qualified individual with a disability shall,

by reason of such disability, be excluded from participation in or be

denied the benefits of the services . . . of a public entity, or be

subjected to discrimination”); see also 42 U.S.C. § 12102 (defining

“disability” under the ADA); 42 U.S.C. § 12131(2) (defining “public

entity” and “qualified individual” under the ADA).

¶ 21 Additionally, “[a] parent’s disability alone must not serve as a

basis for denial or restriction of parenting time or parental

responsibilities” in APR judgments issued through dependency and

neglect actions, except where the health and welfare of the child are

impacted. § 24-34-805(2)(a)(III), C.R.S. 2024.

¶ 22 While a juvenile court must consider whether a department

provided reasonable accommodations when determining if a

department provided reasonable efforts to a parent, a

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reasonable-efforts finding was not required here because, as

discussed above, the child remained with father throughout the

case, she was not at imminent risk of removal, and the court

allocated responsibilities between mother and father, rather than to

a nonparent. See People in Interest of S.K., 2019 COA 36, ¶ 34; see

also §§ 19-1-103(114), 19-3-100.5(1), 19-3-208(1), 19-3-604(2)(h);

cf. A.S.L., ¶ 20. Thus, we agree with the juvenile court that whether

the Department provided reasonable accommodations wasn’t

relevant to its analysis related to entering an APR to a parent.

¶ 23 More importantly, mother doesn’t claim that the APR

judgment unduly restricted her parenting time or parental

responsibilities, runs afoul of other state or federal directives

concerning the ADA, or is in any way deficient. Absent such a

showing, mother’s request to vacate the APR judgment because of

any error in denying a request for ADA accommodations during the

dependency and neglect must fail. See C.R.C.P. 61; see also People

in Interest of C.C., 2022 COA 81, ¶ 20 (alleged errors not affecting

the substantial rights of a party are harmless).

IV. Disposition

¶ 24 The judgment is affirmed.

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JUDGE WELLING and JUDGE BROWN concur.

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