Peo in Interest of MWC

24CA0130 Peo in Interest of MWC 08-29-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0130

El Paso County District Court No. 22JV30080

Honorable Robin Chittum, Judge

The People of the State of Colorado,

Appellee,

In the Interest of M.W.C., a Child,

and Concerning C.C.,

Appellant.

JUDGMENT AFFIRMED

Division IV

Opinion by JUDGE JOHNSON

Navarro and Hawthorne*, JJ., concur

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

Announced August 29, 2024

Kenneth R. Hodges, County Attorney, Amy C. Fitch, Assistant County Attorney,

Colorado Springs, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem

Patrick R. Henson, Office of Respondent Parents’ Counsel, Denver, 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.

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¶ 1 In this dependency and neglect proceeding, C.C. (mother)

appeals the judgment terminating her parent-child legal

relationship with M.W.C. (the child). We affirm.

I. Background

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

Services (the Department) filed a petition in dependency and neglect

concerning the then-three-year-old child. The Department alleged

concerns about physical and verbal abuse. The Department also

alleged that the child’s welfare was at risk due to mother’s ongoing

mental health and substance use issues. And the Department

alleged that mother was unable to adequately supervise the child or

control the child’s aggressive behaviors.

¶ 3 The juvenile court initially granted temporary legal custody of

the child to his great-grandparents under the Department’s

supervision. About four months later, the Department became

concerned about the safety of the great-grandparents’ home and

placed the child in foster care for a brief time. The court then

granted legal custody of the child to his maternal grandmother

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under the Department’s supervision, which is where the child was

placed for the remainder of the case.

¶ 4 Mother agreed to a deferred adjudication, and the juvenile

court adopted a treatment plan for her. The Department later

moved to revoke the deferred adjudication and terminate mother’s

parental rights.

¶ 5 The juvenile court set a revocation hearing, but the

Department requested that the hearing be continued and combined

with the termination hearing. Mother did not object. When the

parties appeared for the continued hearing, the Department

requested another continuance based on unresolved Indian Child

Welfare Act inquiries. Again, mother did not object, and the court

reset the hearing.

¶ 6 On the morning of the combined hearing, mother did not

appear, and her counsel requested a continuance. Both the

Department and the guardian ad litem (GAL) objected. The juvenile

court denied the request.

¶ 7 After hearing evidence, the juvenile court found that mother

had failed to reasonably comply with her treatment plan, which was

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a condition of the deferred adjudication, and entered an order

adjudicating the child dependent and neglected. The court also

found that the statutory termination requirements had been met

and that there were no less drastic alternatives to termination. The

court granted the Department’s motion for termination and issued a

written order.

II. Less Drastic Alternatives

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

there were no less drastic alternatives to termination. Specifically,

she argues that the court failed to give preference to placement with

kin, that the caseworker failed to follow administrative regulations

to conduct a family search every six months, and that the

Department failed to investigate the child’s paternal relatives as

potential placement options who might have been willing to accept

an allocation of parental responsibilities (APR). We discern no

error.

A. Standard of Review and Applicable Law

¶ 9 A 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

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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. 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.

¶ 10 In considering less drastic alternatives, the juvenile court

must primarily consider the child’s physical, mental, and emotional

conditions and needs. People in Interest of Z.M., 2020 COA 3M,

¶ 29. The court may also consider other factors, including whether

an ongoing relationship with a parent would be beneficial to the

child, which is influenced by a parent’s fitness to care for the child.

People in Interest of A.R., 2012 COA 195M, ¶ 38. And the court may

consider whether the placement favors adoption over an APR. Z.M.,

¶ 31.

¶ 11 To aid the court in determining whether there is a viable less

drastic alternative to termination, 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.

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2004). But the department is not obligated to “independently

identify and evaluate other possible placement alternatives.” People

in Interest of Z.P., 167 P.3d 211, 215 (Colo. App. 2007).

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

“adequate[ly]” meet a child’s needs; rather, the less drastic

alternative must be the “best” option for the child. A.M., ¶ 27.

Long-term or permanent placement with a family member, short of

terminating the parent’s parental rights, may not be in the child’s

best interests if it does not provide the permanence assured by

adoption or otherwise meet a child’s needs. A.R., ¶ 41.

¶ 13 If the 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. In those circumstances, we are bound to affirm the court’s

decision unless its findings are unsupported by the record. People

in Interest of B.H., 2021 CO 39, ¶ 80.

B. Analysis

1. Preference to Kin

¶ 14 We are not persuaded by mother’s argument that the juvenile

court failed to give preference to the child’s “relative or kin” when

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placing the child as required by section 19-3-403(3.6)(a)(V), C.R.S.

2024. The child was initially placed with his great-grandparents.

Then, after a brief time in foster care, the child was placed with his

maternal grandmother. Mother does not explain how placement

with the child’s great-grandparents and then with maternal

grandmother did not give relative or kin preference when placing

the child. See § 19-1-103(91), C.R.S. 2024 (defining “kin” to include

a “relative of the child”).

2. Compliance with Regulations for Search of Relatives

¶ 15 Mother contends that the Department erred because it did not

conduct a family search every six months and thus the Department

failed to identify additional relatives for possible placement. We

reject both arguments.

¶ 16 Under a regulation issued by the state department of human

services, a caseworker must conduct a family search and

engagement every six months throughout the entirety of the case.

See Dep’t of Hum. Servs. Reg. 7.304.52(C), 12 Code Colo. Regs.

2509-4. It is true that the caseworker admitted that she had not

personally conducted a new family search and engagement even

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though she had been assigned to the case for longer than six

months and was aware of the regulation.

¶ 17 But under that regulation, a search for an additional relative

or kin placement may be discontinued when (1) a placement is

stable with a relative or kin a minimum of six months; (2) the

relative or kin has committed to the legal permanence of the child;

and (3) there is agreement among the parties that the relative or kin

is the appropriate permanent option, the court finds it an

appropriate permanency option, and it is in the best interests of the

child that the family search be discontinued. See id. at Reg.

7.304.52(C)(1)–(3). As mentioned before, the child lived

continuously with maternal grandmother, except for a few months

early on in the case when he was placed with maternal great-

grandparents and then briefly in foster care. Significantly, maternal

grandmother was pursuing permanency.

¶ 18 Although mother initially objected to the child being placed

with maternal grandmother, she did not identify any other possible

placement except for her mother and great-grandparents. There is

no affidavit in the record completed by mother identifying other

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potential family placement options before the termination hearing,

and the caseworker testified that mother had “never presented any

other alternative placement options to [her].” The child did not have

a pre-existing relationship with relatives on the paternal side. And

maternal grandmother supported a relationship between the child

and mother so long as mother could be safe and appropriate with

the child.

¶ 19 Thus, under this record, even if the regulation’s requirements

were not fully satisfied (i.e., agreement with mother and a judicial

finding that the search may be discontinued), we discern no basis

for reversal, as any error was harmless. Specifically, mother did not

identify any other relative that the Department’s search should have

discovered as a possible placement. And given maternal

grandmother’s commitment to permanency, we see no basis for

concluding that the Department’s continued search efforts would

have yielded a different result. See C.R.C.P. 61 (“The court at every

stage of the proceeding must disregard any error or defect in the

proceeding which does not affect the substantial rights of the

parties.”).

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¶ 20 Here, the caseworker testified that before she was assigned to

the case, the previous caseworker would have conducted a family

search to look for a new placement for the child. It was the

caseworker’s understanding that the previous caseworker reached

out to the child’s paternal relatives as part of that process. The

caseworker also testified that she had tried, but was unable, to find

contact information for the paternal relatives. Additionally, the

Department investigated maternal great-grandfather as a potential

placement option but had safety concerns about his home. And the

Department investigated maternal grandmother as a placement

option before placing the child with her. The caseworker testified

that she was unaware of any other kin-like options for placement.

¶ 21 While a Department must evaluate a reasonable number of

persons identified by the parents as possible placement

alternatives, it has no obligation to independently identify and

evaluate other possible placement alternatives. Z.P., 167 P.3d at

215.

¶ 22 Therefore, we disagree with the assertion that the Department

failed to adequately investigate other relatives, especially

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considering that mother did not bring any to the Department’s

attention in a timely manner. See D.B-J., 89 P.3d at 532 (rejecting

a less drastic alternative argument based on relatives who were first

mentioned during the termination hearing).

¶ 23 And even assuming, as mother asserts, that one of the child’s

paternal relatives would have been deemed appropriate and willing

to accept an APR, we discern no error because the juvenile court

found that moving the child to another home “in order to get an

APR” would not be in his best interests. The court also found that

the child needed the level of permanency that termination and

adoption would provide based on his history of trauma, behavioral

issues, and high emotional needs. And the court found that the

benefits of adoption outweighed the loss of the child’s relationship

with mother because, at least in part, family time with mother was

inconsistent and “emotional” for the child. In other words, the

court determined that an APR, regardless of the placement option,

was not a viable less drastic alternative to termination.

¶ 24 The record supports these findings. The caseworker opined

that at the time of the termination hearing, it would have been

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harmful to remove the child from maternal grandmother’s care and

place him with “potential strangers.” The caseworker also testified

that the child had emotional and behavioral issues including

throwing things, biting people, hitting people, and frequently trying

to escape into unsafe places. The caseworker opined that

termination and adoption were in the child’s best interests because

he had “high emotional behavioral needs” and deserved “stable

consistency” and permanency.

¶ 25 Maternal grandmother testified that mother missed about 47

of 105 family-time sessions. Grandmother stated that the child

would sometimes hit and kick her before family time, telling her

that she could not make him go. Grandmother also testified that

the child was sometimes “stressed and agitated” or “pretty anxious”

after family time with mother. And grandmother confirmed that she

preferred adoption over an APR because she believed adoption

would give the child the closure he needed.

¶ 26 Accordingly, because the record supports the juvenile court’s

finding that termination, not an APR, was in the child’s best

interests, we discern no error. See B.H., ¶ 80.

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III. Motion for Continuance

¶ 27 Next, mother contends that the juvenile court abused its

discretion by denying her motion to continue the termination

hearing. We disagree.

A. Standard of Review and Applicable Law

¶ 28 Whether to grant or deny a motion for a continuance is within

the sound discretion of the juvenile court, and its ruling will not be

disturbed on appeal absent a clear abuse of that discretion. People

in Interest of T.E.M., 124 P.3d 905, 908 (Colo. App. 2005). A court

abuses its discretion when its ruling is manifestly arbitrary, unfair,

or unreasonable or when it misapplies or misconstrues the law.

People in Interest of E.B., 2022 CO 55, ¶ 14.

¶ 29 In ruling on a motion for a continuance, the juvenile court

should balance the need for orderly and expeditious administration

of justice against the facts underlying the motion, while considering

the child’s need for permanency. People in Interest of T.M.S., 2019

COA 136, ¶ 44. When, as here, a child is under six years old when

the petition in dependency and neglect is filed, the expedited

permanency planning (EPP) provisions apply, and the juvenile court

cannot delay or continue the termination hearing absent good

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cause and a finding that the delay would serve the child’s best

interests. §§ 19-3-104, 19-1-123, C.R.S. 2024.

B. Analysis

¶ 30 On the morning of the termination hearing, mother did not

appear in court. Mother’s counsel stated that mother wanted to

testify and requested a continuance. But mother had not informed

her counsel of any reason for her nonappearance. Regardless,

counsel asserted that it was “a problem” that the juvenile court

granted continuances for the Department when it had “issues on

[its] end” but likely would not do the same for mother. Counsel

argued that because the child was in a stable home with maternal

grandmother, a continuance was not “going to be detrimental to any

party.” Both the Department and the GAL objected, arguing, in

sum, that a continuance would not be in the child’s best interests,

particularly because the case had already been open for seventeen

months and the child needed permanency.

¶ 31 After considering the arguments, the juvenile court denied

mother’s motion for continuance. The court noted that although

mother had notice of the hearing, she had not provided any reason

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for her nonappearance. The court found that a continuance would

not be in the child’s best interests because the EPP provisions

applied and the hearing had already been continued before.

Essentially, the court considered the reason for mother’s motion

and weighed it against the need for resolving the case and the

child’s best interests.

¶ 32 Although mother asserts that the juvenile court abused its

discretion by granting the Department’s motions for continuances

while subsequently denying hers, we reject that assertion because

mother did not object to the Department’s motions. And while

mother’s counsel argued on the day of the hearing that a

continuance would not be detrimental to any party, counsel did not

assert that a continuance would be in the child’s best interests.

Mother also does not explain on appeal how a continuance would

have served the child’s best interests. See T.M.S., ¶¶ 47, 49

(affirming the denial of a motion to continue when the parent

“provided no basis to find that a delay would serve the child’s best

interests”). And although mother asserts that the denial violated

her due process right to be heard, she does not challenge the

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juvenile court’s determination that the termination criteria were met

or explain how her testimony would have changed that

determination. See E.B., ¶¶ 20-22 (affirming the denial of a motion

to continue because the parent failed to explain how their presence

would have changed the court’s ultimate determination that the

termination criteria had been met).

¶ 33 Because the juvenile court’s ruling reflects that it properly

balanced the reasons proffered for the continuance, the need to

promptly resolve the proceeding, and the child’s best interests, we

perceive no abuse of discretion in the court’s denying the

motion. See T.E.M., 124 P.3d at 909 (affirming the denial of a

continuance when the parent did not provide any reason for failing

to appear and, considering the EPP provisions, a continuance was

not in the children’s best interests).

IV. Conclusion

¶ 34 The judgment is affirmed.

JUDGE NAVARRO and JUDGE HAWTHORNE concur.