Peo in Interest of ZRM

24CA0053 Peo in Interest of ZRM 07-25-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0053

Mesa County District Court No. 22JV31

Honorable Valerie J. Robison, Judge

The People of the State of Colorado,

Appellee,

In the Interest of Z.R.M., a Child,

and Concerning E.J.B. and D.W.M.,

Appellants.

JUDGMENT AFFIRMED

Division II

Opinion by JUDGE GROVE

Fox and Sullivan, JJ., concur

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

Announced July 25, 2024

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

Grand Junction, Colorado, for Appellee

Jenna L. Mazzucca, Guardian Ad Litem

Joel M. Pratt, Office of Respondent Parents’ Counsel, Colorado Springs,

Colorado, for Appellant E.J.B.

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

Appellant D.W.M.

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¶ 1 In this dependency and neglect action, E.J.B. (mother) and

D.W.M. (father) appeal the judgment terminating their parent-child

legal relationships with Z.R.M. (the child). We affirm.

I. Background

¶ 2 The Mesa County Department of Human Services (the

Department) filed a petition in dependency and neglect, alleging

concerns about neglect and substance abuse. The Department also

alleged that both parents were arrested on warrants for criminal

child abuse, leaving the child without a legal caregiver.

¶ 3 The juvenile court granted temporary custody of the child to

the Department for placement with the paternal grandfather. Less

than a month later, the court granted the Department’s motion to

move the child to a foster care placement provider based on

concerns that the paternal grandfather was leaving the child in the

care of the paternal aunt, who it claimed was “an unapproved and

inappropriate” family member. The child was moved to a kinship

placement provider about a year after the petition was filed, and

remained there at the time of the termination hearing.

¶ 4 The juvenile court adjudicated the child dependent and

neglected and adopted treatment plans for both parents.

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¶ 5 The Department later moved to terminate both parents’

parental rights. Twenty-one months after the petition was filed, the

juvenile court terminated mother’s and father’s parental rights

following a contested hearing.

II. Reasonable Efforts

¶ 6 Mother first contends that the juvenile court erred by finding

the Department made reasonable efforts to rehabilitate her.

Specifically, she argues that the Department did not provide

reasonable accommodations under the Americans with Disabilities

Act (ADA) and failed to help her secure income or housing

independent from father. We address each claim in turn.

A. Standard of Review and Applicable Law

¶ 7 Whether a juvenile court properly terminated parental rights

presents a mixed question of fact and law because it involves

application of the termination statute to evidentiary facts. People in

Interest of A.M. v. T.M., 2021 CO 14, ¶ 15. “We review the juvenile

court’s findings of evidentiary fact — the raw, historical data

underlying the controversy — for clear error and accept them if they

have record support.” People in Interest of S.R.N.J-S., 2020 COA 12,

¶ 10. But we review de novo the court’s legal conclusions based on

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those facts. See id. In particular, the ultimate determination of

whether a department provided reasonable efforts is a legal

conclusion we review de novo. People in Interest of A.S.L., 2022

COA 146, ¶ 8.

¶ 8 It is for the juvenile court, as the trier of fact, to determine the

sufficiency, probative effect, and weight of the evidence and to

assess witness credibility. People in Interest of A.J.L., 243 P.3d 244,

249-50 (Colo. 2010).

¶ 9 Before the juvenile court may terminate parental rights under

section 19-3-604(1)(c), C.R.S. 2023, a department of human

services must make reasonable efforts to rehabilitate the parent and

reunite the family. §§ 19-1-103(114), 19-3-100.5(1), 19-3-208,

19-3-604(2)(h), C.R.S. 2023. Reasonable efforts means the

“exercise of diligence and care” for a child who is in out-of-home

placement, and the reasonable efforts standard is satisfied when

services are provided in accordance with section 19-3-208.

§ 19-1-103(114).

¶ 10 When a department knows or should know that a parent has a

qualifying disability, it has an affirmative duty to make reasonable

accommodations for that parent when providing rehabilitative

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services. People in Interest of S.K., 2019 COA 36, ¶¶ 22, 25, 34; see

42 U.S.C. § 12102(1) (defining “disability” under the ADA); see also

42 U.S.C. § 12131(2) (defining “qualified individual” under the

ADA). When a parent is found to be a qualified individual, the

juvenile court must consider whether a department made

reasonable accommodations for a parent’s disability when

determining whether it made reasonable efforts. S.K., ¶ 34.

¶ 11 For a parent to benefit from a reasonable accommodation, the

parent must raise the ADA’s applicability as early in the

proceedings as possible. See People in Interest of S.Z.S., 2022 COA

133, ¶ 16. “The Department can accommodate, and the juvenile

court can address, only disabilities that are known to them.” S.K.,

¶ 22.

¶ 12 The parent is ultimately responsible for using the provided

services to obtain the assistance needed to comply with the

treatment plan. People in Interest of J.C.R., 259 P.3d 1279, 1285

(Colo. App. 2011). The juvenile court may therefore consider a

parent’s unwillingness to participate in treatment when determining

whether a department made reasonable efforts. See People in

Interest of A.V., 2012 COA 210, ¶ 12.

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B. Analysis

¶ 13 The juvenile court found that the Department made

reasonable efforts but, despite those efforts, mother did not become

fit to parent the child. The court found that those efforts included

providing structured family time with three different providers, life

skills services, substance testing, substance abuse and mental

health assessments and services, capacity to parent evaluations,

bus passes, and assistance in applying for a Housing Authority

voucher.

1. Accommodations Related to Mother’s Disabilities

¶ 14 Mother contends that the Department knew that she had

diagnosed mental health concerns, a seizure disorder, and was

severely injured when she was hit by a drunk driver. She claims

that the juvenile court erred by finding the Department made

reasonable efforts because the record does not clearly demonstrate

that the services offered to her accommodated her medical and

mental health conditions.

¶ 15 Mother correctly argues that when a parent’s disability is

obvious, the Department is required under the ADA to provide

reasonable accommodations. S.K., ¶ 22.

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¶ 16 But here, no ADA-cognizable disability was obvious. When the

Department asked mother about possibly needing accommodations,

she told the Department she did not need any. Mother stipulated to

the appropriateness of her treatment plan. At no point during the

nearly two years that the action was open did mother ask the

juvenile court to recognize or provide a reasonable accommodation

for any disability that might have been connected to her medical or

mental health diagnoses.

¶ 17 Mother did not provide any evidence at the termination

hearing regarding either her possible status as a qualified

individual under the ADA or reasonable accommodations that

might have been made by the Department. In her closing argument

at the termination hearing, mother referred to case law regarding

the Department’s obligation to provide reasonable accommodations.

But even then, she did not argue that the ADA applied to her or

that the Department should have made any accommodations when

delivering services to her.

¶ 18 Thus, it is unclear whether the juvenile court knew it needed

to make specific factual findings or legal conclusions about the

applicability of the ADA related to mother’s medical or mental

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health concerns, including whether she was a “qualified individual”

under the ADA, or what accommodations would have been

warranted to further assist her. See S.Z.S., ¶ 18.

¶ 19 Even on appeal, it is unclear what impacts mother is claiming

and what accommodations she thinks should have been made.

Mother argues, without providing any support, that “shifting that

burden to [her] to identify accommodations would be improper.”

However, a parent is responsible for disclosing to the Department

and the juvenile court information regarding a disability and any

reasonable accommodations that are needed to address the

disability. See S.Z.S., ¶ 16; see also S.K., ¶ 22.

¶ 20 Nonetheless, the record reveals that the Department made

reasonable efforts to address mother’s mental health and medical

diagnoses. See S.K., ¶ 22. The treatment plan proposed by the

Department and adopted by the juvenile court included objectives

to address mother’s untreated physical and mental health

concerns. The caseworker maintained regular contact with mother

and reminded her of appointments. The Department provided bus

passes and offered to reimburse mother for transportation to family

time. And the caseworker made referrals for a wide range of

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services, including for life skills, which could have provided

additional support for any issues that mother disclosed needing

help with.

¶ 21 The Department attempted to provide mother with necessary

services to address her medical and mental health concerns, but

she did not consistently participate in those services. Under these

circumstances, the Department met its reasonable efforts

obligation. See J.C.R., 259 P.3d at 1285 (the parent is ultimately

responsible for using the provided services to obtain the assistance

needed to comply with the treatment plan); see also A.V., ¶ 12 (the

court may consider a parent’s unwillingness to participate in

treatment when determining whether a department made

reasonable efforts).

2. Mother’s Basic Needs

¶ 22 Mother next argues that the Department failed to make

reasonable efforts because it made “minimal effort” to help her

obtain housing or stabilize her income. She asserts that she could

not benefit from any services offered by the Department “when she

could not even meet her basic needs,” and that the Department’s

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failure to “help [her] meet her basic needs for food and shelter

fatally infected its other efforts to rehabilitate her.”

¶ 23 The juvenile court specifically considered mother’s argument

that the Department should have been required to assist mother

with housing. The court found that “it is not within the purview of

this case or within the reasonable requirements of a treatment plan

to require a housing authority to authorize a housing voucher, or

that [the Department] provide housing for respondent parents.

There is no legal authority provided to indicate such a condition

should have been” required.

¶ 24 We are not aware of, nor does mother provide, any authority to

suggest that a department is required to provide housing or direct

financial assistance as part of its reasonable efforts obligation.

Instead, if deemed necessary and appropriate by a parent’s

individual case plan, a department must provide “information and

referral services to available public and private assistance

resources,” § 19-3-208(2)(b)(III).

¶ 25 The record supports the juvenile court’s findings that the

Department met this obligation. The Department referred mother

for a housing voucher through the Housing Authority and helped

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her fill out the required application. When mother was denied a

housing voucher because of her criminal history, the Department

offered to reimburse mother for application fees or rent. The

Department also referred mother to life skills services, which could

have helped her connect with other community services. While

mother now urges us to consider whether she was unwilling to

engage in life skills services because her disability prevented her

from understanding its value, we decline to do so. People in Interest

of T.E.R., 2013 COA 73, ¶ 30 (generally, issues not raised in the

trial court will not be considered on appeal)

3. Effect on Mother’s Fitness

¶ 26 Mother argues that, because the Department did not provide

reasonable efforts, it failed to demonstrate that she could not

become fit within a reasonable time if provided with appropriate

services. Because we discern no error in the juvenile court’s

reasonable efforts findings, we decline to further consider mother’s

fitness argument.

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III. Fit in a Reasonable Period of Time

¶ 27 Father contends that the juvenile court erred by finding that

he was unlikely to become fit within a reasonable time. We discern

no error.

A. Applicable Law

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

parent “unable or unwilling to give the child reasonable parental

care to include, at a minimum, nurturing and safe parenting

sufficiently adequate to meet the child’s physical, emotional, and

mental health needs and conditions.” § 19-3-604(2). A parent need

not comply absolutely with every provision of a treatment plan, but

partial or even substantial compliance may not result in a

successful plan that renders a parent fit. People in Interest of

D.L.C., 70 P.3d 584, 588 (Colo. App. 2003).

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

likely to change within a reasonable time, “the 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.” S.Z.S., ¶ 24.

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¶ 30 What constitutes a reasonable time is fact specific and must

be determined by considering the child’s physical, mental, and

emotional conditions and needs. Id. at ¶ 25. A “reasonable time” is

not an indefinite time. Id. And even when a parent has made

recent progress on a treatment plan, the court is not required to

give the parent additional time to comply. See id. at ¶¶ 24-25.

B. Analysis

¶ 31 Father asserts that he could become fit within a reasonable

time because he completed a co-occurring assessment, participated

in some substance abuse treatment, engaged in court hearings and

Department meetings, and attended family time.

¶ 32 The juvenile court found that father was not likely to become

fit within a reasonable time. In doing so, the court found that

father attempted to “deflect any accountability,” continued to have

legal issues, and had not addressed his substance abuse. The

court specifically considered, and rejected, giving father more time

to become fit as a less drastic alternative to termination, finding

that doing so would not be in the child’s best interests.

¶ 33 The record supports these findings. Father testified that he

did not complete inpatient or outpatient programs for substance

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abuse. The caseworker acknowledged that father completed a co-

occurring assessment, but testified that he did not follow any of the

recommendations for treatment. Although the treatment plan was

adopted more than a year before termination, father was not

compliant with any of the treatment plan objectives. The

caseworker testified that father wanted to become fit within a

reasonable time but “he lacks a lot of accountability and the ability

to make those changes in a reasonable amount of time.”

¶ 34 And because the child was under the age of six when the

petition was filed, the expedited permanency planning provisions

applied. §§ 19-1-102(1.6), 19-1-123, C.R.S. 2023. The provisions

required the juvenile court to place the child in a permanent home

as expeditiously as possible. § 19-3-702(5)(c), C.R.S. 2023. As the

court noted, the child had been in out of home placement for all

twenty-one months of the case.

¶ 35 Given this evidence, we conclude that the record supports the

juvenile court’s findings, and we perceive no error in the court’s

legal conclusion that father was unlikely to become fit within a

reasonable time.

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¶ 36 Father further claims that that he should have been given

extra time to complete his treatment plan because (1) the objectives

of his treatment plan required significant time to make progress; (2)

he was hampered by transportation and housing barriers; and (3)

“his significant commitment and progress” implicated a due process

right to continue working on his treatment plan. However, because

he did not present these arguments to the juvenile court, we will

not consider them here. T.E.R., ¶ 30 (generally, issues not raised in

the trial court will not be considered on appeal).

IV. Less Drastic Alternative

¶ 37 Both parents assert that the juvenile court erred by finding

there was no less drastic alternative to termination. Specifically,

they argue that (1) the child would have benefited from a continued

relationship with them; (2) paternal relatives were available to

accept an allocation of parental responsibilities (APR); and (3) the

kinship placement provider was not “fully apprised” of the APR

option and did not refuse to accept an APR. We discern no basis for

reversal.

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A. Applicable Law and Standard of Review

¶ 38 Consideration of less drastic alternatives is implicit in the

statutory criteria for termination. A.M., ¶ 19. When considering

less drastic alternatives, the juvenile court bases its decision on the

best interests of the child, giving primary consideration to the

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

§ 19-3-604(3). A court may consider and weigh various factors in

determining the viability of a less drastic alternative, including

whether (1) a less drastic alternative is available, People in Interest

of D.P., 160 P.3d 351, 356 (Colo. App. 2007); (2) an ongoing

relationship with the parent would be beneficial or detrimental to

the child, People in Interest of B.H., 2021 CO 39, ¶ 81; and (3) the

alternative option provides the child with adequate permanency or

meets the child’s needs, People in Interest of T.E.M., 124 P.3d 905,

910 (Colo. App. 2005).

¶ 39 To aid the court in making this determination, the Department

must evaluate a reasonable number of persons the parent identifies

as placement options. People in Interest of D.B

-

J., 89 P.3d 530, 532

(Colo. App. 2004). Even when a placement provider is willing to

enter into a permanent custody agreement with a parent, the court

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may properly determine that such an arrangement does not

adequately meet the needs of the child. See T.E.M., 124 P.3d at 910

(permanent placement with a relative may not be a viable

alternative if it does not provide adequate permanence or otherwise

meet the child’s needs); D.B-J., 89 P.3d at 532 (a proposed

placement is not a less drastic alternative to termination if the

placement provider lacks appreciation of a parent’s problems or a

child’s needs and conditions).

¶ 40 A primary consideration of a child’s conditions and needs

“requires more than a mere assessment of adequacy.” A.M., ¶ 31.

If a juvenile court considers a less drastic alternative and finds that

termination and not the proposed less drastic alternative is in the

child’s best interests, it must reject the alternative and order

termination. Id. at ¶¶ 32, 37.

¶ 41 When the juvenile court considers the availability of a less

drastic alternative and still determines that the termination of a

parent’s rights would be in the child’s best interests, we are bound

to affirm the court’s decision if its findings have record support.

B.H., ¶ 80.

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B. Analysis

¶ 42 The juvenile court took “a careful look at whether a less

drastic alternative would be in the best interest of the child.” The

court considered a potential APR and a guardianship and giving

additional time for the parents to become fit. The court noted that

it was especially “cognizant of the relationship the child has with

her parents.”

¶ 43 The juvenile court nonetheless found that there was no less

drastic alternative to termination that would meet the child’s needs.

The court found that the child worried about her parents, and not

“knowing where she stands [was] impacting her significantly.”

Although the court considered placement with a different relative

who might accept an APR, it ultimately determined that a different

placement would not be appropriate or meet the child’s needs. The

child needed permanency which, for her, could only be assured

through adoption. Allowing the parents to retain some parental

responsibilities would not provide the child with the stability that

she needed.

¶ 44 The record supports these findings. The child’s therapist

testified that the child’s high level of worry for and enmeshment

18

with her parents was concerning. Although the therapist agreed

that repairing the ruptures in the relationship between the child

and the parents was important “if it can happen,” the therapist

testified that the child was uncomfortable with the therapist’s

attempts to integrate the parents into therapeutic work and asked

that her parents not come back to therapeutic sessions. The

therapist opined that, for any repair to be successful, the parents

would need to do their own “therapeutic work fully,” which they had

not done. The child’s therapist testified that it was not helpful for

children to stay in a “stressful, distressing, overwhelming situation

waiting for something to happen” or to stay in foster care “for years

and years and years.” The child’s therapist opined that the child’s

anxiety increased as the case went on and that “feeling very

powerless about what’s going to happen, and being in the unknown

and not knowing, . . . has had a lot of toll on [the child]

psychologically.”

¶ 45 Mother and father contend that the record also demonstrated

that the child wanted contact with them and would have benefited

from an ongoing relationship with them. While there is some record

support for these contentions, we cannot reweigh evidence or

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substitute our own judgment for that of the juvenile court. See

People in Interest of K.L.W., 2021 COA 56, ¶ 62.

¶ 46 We are not persuaded by father’s contention that the

Department “did not properly investigate or explore the paternal

aunt as a less drastic alternative” because “no home study was ever

performed by the Department.” We are not aware of any

requirement that a department complete a home study as part of its

evaluation of either placement providers or less drastic alternatives,

and father provides no support for this proposition. Instead, the

record makes clear that the Department knew about the paternal

aunt’s availability and decided not to pursue placement of the child

with her because of (1) the paternal aunt’s participation in events

that led to the child’s removal from the paternal grandfather’s

home; (2) department regulations that precluded placement with

the paternal aunt because of her criminal history that included

child abuse; and (3) mother and father’s requests early in the case

that the child not be placed with the paternal aunt. Regardless of

any placement decision, the less drastic alternative of permanent

custody was considered and rejected by the juvenile court, with

record support as discussed above.

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¶ 47 Similarly, we reject the parents’ arguments about the kinship

placement provider’s knowledge about an APR. Father argues that

a less drastic alternative was not properly explored because the

kinship placement providers “did not have an accurate or

meaningful understanding” of what an APR would involve because

they did not consult with an attorney. In a similar argument,

mother contends that the juvenile court erred by rejecting less

drastic alternatives because the kinship placement provider testified

they preferred adoption but did not specifically testify that they

would not accept an APR. But we are not aware of, and neither

parent provides support for, any requirement that these steps be

followed before a placement provider develops a preference for

adoption or permanent custody. Furthermore, a placement

provider’s preference is only one of many factors that may be

considered by the juvenile court. See People in Interest of S.N-V.,

300 P.3d 911, 920 (Colo. App. 2011). And, although the kinship

placement provider testified their preference was for adoption, the

court did not mention this preference in either its oral or written

judgment.

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

the child “would be subject to instability with an APR rather than a

termination or adoption” because, if true, “the entire domestic

relations system under Title 14 provides instability to children.”

Mother does not provide, and we are not aware of, any support for

her contention.

¶ 49 While an APR can provide adequate permanency for some

children, a juvenile court must make an individual determination

for each child, giving primary consideration to that child’s physical,

mental, and emotional needs. § 19-3-604(3); see People in Interest

of J.L.M., 143 P.3d 1125, 1126 (Colo. App. 2006); see also T.E.M.,

124 P.3d at 910 (permanent placement with a relative may not be a

viable alternative if it does not provide adequate permanence or

otherwise meet the child’s needs); A.M., ¶ 31 (“Primary

consideration of the child’s physical, mental, and emotional

condition and needs requires more than a mere assessment of

adequacy in order to satisfy the overall intent of the Children’s

Code.”).

¶ 50 Here, the juvenile court found “the child needs a permanent

stable home that can be assured only through adoption. To place

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the child with a family member or to allow [mother and father] some

parental responsibilities doesn’t provide the child the stability she

needs.” These findings are appropriately specific to this child and

her family members and, as described above, are supported by the

record.

¶ 51 Because the record supports the juvenile court’s findings, we

conclude the court did not err in finding that clear and convincing

evidence showed no less drastic alternative to termination existed

for this specific child. See B.H., ¶ 80.

V. Disposition

¶ 52 The judgment is affirmed.

JUDGE FOX and JUDGE SULLIVAN concur.