Peo in Interest of BH

23CA2126 Peo in Interest of BH 08-29-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2126

El Paso County District Court No. 22JV30200

Honorable Robin Chittum, Judge

The People of the State of Colorado,

Appellee,

In the Interest of B.H. and R.H., Children,

and Concerning T.H. and T.L.L.,

Appellants.

JUDGMENT AFFIRMED

Division I

Opinion by JUDGE WELLING

J. Jones and Schock, JJ., concur

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

Announced August 29, 2024

Kenneth R. Hodges, County Attorney, Shannon Boydstun, Assistant County

Attorney, Colorado Springs, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem

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

Appellant T.H.

Robin Tieman, Office of Respondent Parents’ Counsel, Boulder, Colorado, for

Appellant T.L.L.

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¶ 1 In this dependency and neglect proceeding, T.H. (father) and

T.L. (mother) appeal the judgment terminating their parent-child

legal relationships with B.H. and R.H. (the children). We affirm.

I. Background

¶ 2 The El Paso County Department of Human Services filed a

petition in dependency and neglect regarding the then-eleven-

month-old and one-month-old children. The Department alleged

concerns about mother’s mental health, father’s aggressive behavior

toward one of the children, and both parents’ substance use. The

juvenile court granted temporary legal custody to the Department,

and the Department placed the children in foster care.

¶ 3 The juvenile court adjudicated the children dependent or

neglected. The court adopted substantially similar treatment plans

for both parents requiring them to regularly attend family time,

address substance abuse issues, develop parental protective

capacities, become self-sufficient, participate in life skills training,

and engage in mental health treatment. Father’s treatment plan

also required him to cooperate and communicate with the

Department. And, although mother’s treatment plan didn’t require

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her to cooperate with the Department, the court ordered her to do

so.

¶ 4 The Department later moved to terminate both parents’ legal

relationships with the children. About three months later, following

an evidentiary hearing, the juvenile court granted the motion.

II. Reasonable Efforts

¶ 5 Both parents contend that the juvenile court erred by finding

that the Department made reasonable efforts to rehabilitate them

and reunite their family. We disagree.

A. Applicable Law and Standard of Review

¶ 6 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 within a reasonable time. § 19-3-

604(1)(c), C.R.S. 2024.

¶ 7 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.

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See §§ 19-3-100.5(1), 19-3-604(2)(h), C.R.S. 2024; People in Interest

of S.N-V., 300 P.3d 911, 915 (Colo. App. 2011). “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).

¶ 8 Under section 19-3-208, a department 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). And if funding is available, section 19-3-208

requires a 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).

¶ 9 In deciding whether a department satisfied its reasonable

efforts obligation, the juvenile court should consider whether the

provided services were appropriate to support the parent’s

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treatment plan. S.N-V., 300 P.3d at 915. However, the parent is

ultimately responsible for using those 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). And

when a parent voluntarily absents themself from a proceeding, a

department need not persist with futile efforts. See People in

Interest of A.V., 2012 COA 210, ¶ 12. Moreover, a juvenile court

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

a factor in determining whether a department made reasonable

efforts. See id.

¶ 10 Whether a department of human services 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. Therefore, we

review the juvenile court’s factual findings for clear error but review

de novo the court’s legal determination as to whether the

department satisfied its reasonable efforts obligation. Id.

B. Analysis

¶ 11 The parents argue that the caseworker never referred them to

mental health or substance abuse treatment and that the

Department didn’t provide transportation to family time or

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treatment. Additionally, father argues that the Department failed to

provide him with a phone or set up virtual visits when he requested

them. We discern no basis for reversal.

¶ 12 In its ruling, the juvenile court said that it had heard “quite a

bit about reasonable efforts” and considered that testimony

“critically.” The court found that the Department made reasonable

efforts because it had done what it could to help the parents “have

access to resources, to succeed to get through the treatment plan,

[and] to try to support and engage [them].” The court noted that the

caseworker had tried to coordinate with the other caseworker

assigned to mother’s open case in Pueblo to “make sure that things

were provided to th[e] family.” The court found that the caseworker

regularly emailed the parents “to get them involved” and to “let

them know about staffings and services.” The court also found that

the Department provided a phone to the parents, referred them to

life skills training, provided them information about veteran’s

housing, offered them substance abuse and mental health

treatment, organized their transportation to life skills training and

treatment, and set up family time by making several referrals to

different visitation providers.

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¶ 13 The record supports these findings.

¶ 14 In general, the record shows that the Department worked with

the parents’ teams and the caseworker assigned to mother’s Pueblo

case to coordinate services, but the parents didn’t engage. In

particular, the caseworker testified that the Department had

biweekly meetings at which the team, including the Pueblo

caseworker, would discuss the parents’ treatment plans and

determine which services needed to be set up. The caseworker

testified that she regularly and repeatedly sent email reminders

about the meetings to the email addresses provided by the parents,

but they didn’t attend those meetings. And the caseworker said

that during those meetings, she asked the professionals on the

parents’ teams what else she could do to support the parents, and

then she followed up on everything the parents’ teams asked her to

do.

¶ 15 It’s true, as the parents point out, that the caseworker didn’t

make referrals to mental health or substance abuse treatment for

either parent except for one referral for mother at the beginning of

the case. The caseworker testified that at the beginning of the case,

she made a referral for mother to get a mental health evaluation at

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Bright Space Counseling. But after that was closed due to Medicaid

issues, the caseworker, along with mother’s team, determined that

the best place for mother to receive treatment would be at a facility

called Crossroads, which provided both substance abuse and

mental health services. The caseworker contacted Crossroads and

gave mother all the information she needed to begin treatment

there. As to father, the caseworker testified that after he told her he

wanted to attend treatment at Health Solutions, she called the

provider to determine what would be necessary for him to do so and

then emailed that information to him on the same day.

¶ 16 Even though the caseworker didn’t make any additional

referrals for mental health or substance abuse treatment, she

contacted both providers and they told her that referrals were

unnecessary because the parents could simply make an

appointment or walk in to receive treatment using their Medicaid

benefits. And yet, after she provided this information to the

parents, they never went to Crossroads or Health Solutions, and

instead, started going to a methadone clinic called Behavioral

Health Group (BHG). At that point, the caseworker requested that

both parents sign releases so that she could speak to the providers

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at BHG. Mother never signed a release but father did, and the

caseworker was able to confirm that he was regularly receiving

methadone and attending individual therapy at BHG. Thus, the

caseworker testified, in sum, that because the parents told her that

they were receiving treatment at BHG, and because BHG provided

both substance abuse and mental health treatment, she determined

that additional referrals weren’t necessary. See § 19-3-208(2)(b), (d)

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

“necessary and appropriate”); see also A.V., ¶ 12 (noting that a

department is not required to make futile efforts).

¶ 17 Next, the record indicates that the Department facilitated

transportation for the parents to attend family time and life skills

training. Father testified that the Department “put [him] in contact

with Medride.” The caseworker testified that by the time the

parents needed transportation to family time, Medride was already

set up. Notably, the caseworker, along with the parents’ teams,

decided that it would be best to refer the parents to life skills

training at the same facility as family time so that Medride could

provide transportation to both. The caseworker said that the

parents agreed to utilize Medride to get to family time. And the

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caseworker testified that while the Department was ordered to

provide bus tickets to the parents to make sure they could attend

family time, the bus “was not an issue” because the parents had

transportation through Medride.

¶ 18 We also reject father’s arguments that the Department failed

to make reasonable efforts because the caseworker didn’t provide

him with a phone or set up virtual visits when he requested them.

First, the caseworker testified that when the Department provided a

phone to mother, father didn’t need a phone because he already

had one. The caseworker also testified that father gave her several

different phone numbers throughout the case and never asked her

to provide him with a phone. Second, the caseworker testified that

when father requested virtual visits, she made a referral to set them

up. However, the visitation provider attempted to contact father at

least six times, and he didn’t respond, so the provider closed the

referral. Thereafter, father asked the caseworker to make another

referral, which she did, and then the virtual visits were set up

within the same month father requested the second referral.

¶ 19 Lastly, although the juvenile court found that the

Department’s efforts were reasonable, it also found that the

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Department’s “ability to provide reasonable efforts was tempered by

the parents’ willingness to engage” and that when the caseworker

“tried to set [services] up,” the parents “would refuse treatment.”

The record supports these findings as well. The caseworker

testified that mother didn’t regularly communicate with her

throughout the case despite the caseworker’s attempts to call,

email, and meet with her. The caseworker said that she never had

any contact with mother “outside of speaking to [father] as well”

and that she had never been able to meet with mother in person.

As to father, the caseworker testified that he communicated with

her more than mother but that his communication was “sporadic,”

and when she would speak with him about setting up services, he

would “blame” mother and state that he didn’t need services or

want any referrals. The caseworker testified that their

conversations never “got past” father objecting to services and

directing her to speak with his attorney. And the caseworker

testified that she was unable to fully evaluate the parents’ needs

because of their lack of communication with her. During a review

hearing about three months after the juvenile court adopted the

parents’ treatment plans, mother’s counsel said on record that the

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caseworker was “doing everything she [could] . . . to look at

engagement with the parents” and that the “resources” and “tools”

were available, but they were missing the “last piece,” which was

action on mother’s part. And father’s counsel said that although

father had expressed interest in attending inpatient rehabilitation,

the team was waiting on “more contact” from father.

¶ 20 Accordingly, because the juvenile court’s findings are

supported by the record, we won’t disturb its determination that the

Department satisfied its reasonable efforts obligation.

III. Less Drastic Alternatives

¶ 21 Father contends that the juvenile court erred by concluding

that there were no less drastic alternatives to termination. He

argues that the Department failed to sufficiently investigate whether

a family friend, M.C., was an appropriate placement for one of the

children. We discern no error.

A. Applicable Law and Standard of Review

¶ 22 The consideration and elimination of less drastic alternatives

are implicit in the statutory criteria for termination. People in

Interest of A.M. v. T.M., 2021 CO 14, ¶ 40. In considering less

drastic alternatives, a juvenile court must give primary

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

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

¶ 29. A juvenile 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’s needs. People in Interest of A.R., 2012 COA 195M, ¶ 38.

And a juvenile court may consider whether the placement provider

favors adoption over an allocation of parental responsibilities (APR).

S.N-V., 300 P.3d at 920.

¶ 23 To aid the court in determining whether there is a less drastic

alternative to termination, a 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). But a department isn’t obligated to “independently identify

and evaluate other possible placement alternatives.” People in

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

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

adequately meet the child’s needs; it must be in the child’s best

interests. A.M., ¶ 27. “[L]ong-term or permanent placement with a

family member or foster family, short of termination, may not be a

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viable less drastic alternative if it does not provide adequate

permanence that adoption would provide or otherwise meet a child’s

needs.” A.R., ¶ 41. 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 alternative and order termination. A.M.,

¶ 32.

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

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

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 if the record supports

its findings and legal conclusions. People in Interest of B.H., 2021

CO 39.

B. Analysis

¶ 26 The juvenile court considered whether there were any less

drastic alternatives to termination that would be in the children’s

best interests but ultimately determined there weren’t. The court

found that the Department made reasonable efforts to locate kin

placements, including M.C. However, the court found that M.C.

wasn’t a viable less drastic alternative because M.C. couldn’t take

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both children and it “would not be in the best interest[s] of these

[children] to split them up.” And the court found that while the

Department looked into “a lot of other family members,” including

family on both the paternal and maternal sides, none of them were

willing and able to take the children.

¶ 27 The juvenile court also found that although the children knew

their parents as “fun people that they can talk to on the virtual

visits,” these were not “real parental relationship[s] where [the

children] would turn to their parents to meet [their] needs.” The

court found that the parents weren’t fit and couldn’t take “care of

the two little girls.” Relatedly, the court determined that adoption,

not an APR, was in the children’s best interests based on “their age

and their mental, physical, and emotional needs.” The court found

that an APR could “set them up” for “potential trauma” if the case

were reopened for modification in the future. Thus, the court found

that termination of parental rights was in the children’s best

interests.

¶ 28 The record supports these findings. The caseworker testified

that when the case was opened, the Department conducted a family

search and engagement, but no placement options were discovered

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from that search. The caseworker said that she received M.C.’s

contact information about two months before the termination

hearing. Contrary to father’s argument, the caseworker testified

that she called M.C. twice and texted her multiple times before she

responded that she could only take one of the children. Thus, the

caseworker opined that M.C. wasn’t appropriate as a less drastic

alternative because the children have “a significant bond to each

other” and splitting them up wouldn’t be in their best interests.

The caseworker also testified that she reached out to both of

father’s adult children, but one of them had six children of his own,

so he couldn’t be a placement option. The other told the

caseworker that she would think about whether she could be a

placement option but then never followed up. Additionally, the

caseworker spoke to the children’s maternal grandmother who said

that she was unable to take the children because of her living

situation. The caseworker also reached out to another maternal

family member and his wife to explore them as a placement option,

but they didn’t respond. The caseworker said that she “explored”

all names that were given to her and that none of those people had

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expressed a desire or willingness to be a placement for both

children.

¶ 29 Next, the caseworker testified that the children had specific

ongoing mental health and medical needs; specifically, one child

needed ongoing speech therapy, and both needed occupational

therapy. The caseworker opined that neither parent was capable of

meeting the children’s needs because neither parent had

demonstrated sobriety and because mother wasn’t mentally stable.

The caseworker opined that an APR would put the children’s safety

at risk. Further, although the court didn’t make any findings about

the foster parents’ preference, the caseworker testified that when

she had discussed permanency with them, they said that they

wanted to adopt the children.

¶ 30 Lastly, the expedited permanency planning provisions apply

when, as here, a child is less than six years old at the time of the

filing of the petition in dependency or neglect.  § 19-1-123(1)(a),

C.R.S. 2024. Thus, the juvenile court was required to place the

children in a permanent home as expeditiously as possible. § 19-3-

702(5)(c), C.R.S. 2024.

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¶ 31 By the time of the termination hearing, the children had been

out of the home for approximately fifteen months. The caseworker

didn’t specifically refer to the children’s young ages as a reason that

termination was in their best interests, but she opined that they

needed a stable and permanent home which could only be assured

through termination and adoption. Section 19-1-102(1.6), C.R.S.

2024, supports the caseworker’s opinion, as it provides that

“children undergo a critical bonding and attachment process prior

to the time they reach six years of age” and recognizes that “a child

who has not bonded with a primary adult during this critical stage

will suffer significant emotional damage which frequently leads to

chronic psychological problems and antisocial behavior when the

child reaches adolescence and adulthood.” § 19-1-102(1.6).

¶ 32 Therefore, because the record supports the juvenile court’s

finding that no less drastic alternative to termination was in the

children’s best interests, we discern no basis for reversal.

IV. Disposition

¶ 33 The judgment is affirmed.

JUDGE J. JONES and JUDGE SCHOCK concur.