Peo in Interest of XW

24CA0290 Peo in Interest of XW 09-05-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0290

El Paso County District Court No. 22JV30034

Honorable Robin Chittum, Judge

The People of the State of Colorado,

Appellee,

In the Interest of X.W., a Child,

and Concerning T.W.,

Appellant.

JUDGMENT AFFIRMED

Division VII

Opinion by JUDGE KUHN

Tow and Gomez, JJ., concur

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

Announced September 5, 2024

Kenneth R. Hodges, County Attorney, Nicole S. Burton, Assistant County

Attorney, Colorado Springs, Colorado, for Appellee

Debra W. Dodd, Guardian Ad Litem

Andrew A. Gargano, Office of Respondent Parents’ Counsel, Denver, Colorado,

for Appellant

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¶ 1 In this dependency and neglect action, T.W. (mother) appeals

the judgment allocating parental responsibilities for X.W. (the child)

to J.T.F. (father). We affirm the judgment.

I. Background

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

petition in dependency and neglect alleging that mother subjected

the child and his older siblings to physical abuse. The petition also

alleged that mother had a history of substance abuse, which was

putting the child at risk. Finally, the petition alleged that mother

had prior involvement with the Department. When the petition was

filed, the child was just under two years old. The child’s siblings

are not part of this appeal.

¶ 3 Mother admitted that the child’s environment was injurious,

and the juvenile court adjudicated the child dependent and

neglected before adopting a treatment plan for both parents.

Sixteen months after the petition was filed, father moved for an

allocation of parental responsibilities (APR). Mother did not object,

but she requested mediation to “work out visitation.”

¶ 4 Almost two years after the Department filed the petition, the

juvenile court held an APR hearing. Based on mother’s agreement

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to renegotiated terms, the court entered judgment without a

contested hearing, awarding physical custody and sole

decision-making responsibility to father.

II. Reasonable Efforts

¶ 5 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.

¶ 6 A department must make reasonable efforts to rehabilitate

parents and reunite families following the placement of abused or

neglected children 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. Reasonable efforts

“means the exercise of diligence and care . . . for children . . . who

are in[, or at imminent risk of being placed in,] foster care or

out-of-home placement.” § 19-1-103(114).

¶ 7 But the child was not in out-of-home placement when the APR

judgment entered — father had custody. § 19-1-103(107)

(“Placement out of the home” means placement in a home or center

operated or licensed by the 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

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(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 make reasonable efforts findings as part

of the APR judgment. See §§ 19-1-103(114), 19-3-100.5(1),

19-3-208(1), 19-3-604(2)(h); cf. A.S.L., ¶ 20.

¶ 8 Mother claims that the Department was required to make

reasonable efforts for the time periods during the case when the

child was in out-of-home placement. But she does not explain how

the court’s findings at earlier permanency planning hearings would

create an additional requirement for the APR judgment, which was

entered when the child was no longer placed out of the home. And

contrary to mother’s assertion, the permanency planning statute

does not apply to a child who is placed at home with a parent.

§§ 19-1-103(107), 19-3-702(1), C.R.S. 2024.

¶ 9 Mother next argues that reasonable efforts findings were

required in her case because the child was at “imminent risk” of

out-of-home placement because of father’s past failures to comply

with his treatment and safety plans. As mother states, the

Children’s Code requires reasonable efforts for children and youth

who are in “out-of-home placement or are at imminent risk of foster

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care or out-of-home placement.” § 19-1-103(114). It is true the

child was removed from father’s custody for a short time during the

case. But nothing in the record suggests that father was not in

compliance with his treatment or safety plans when the court

entered the APR judgment. To the contrary, the caseworker’s report

to the court indicated that the Department had no concerns about

the child’s safety and that all his needs were being met in his

father’s home. Additionally, the court found when entering the APR

judgment that permanency had been achieved for the child in his

father’s custody. The court’s judgment granting an APR to father

and dismissing the child from the dependency and neglect action

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

out-of-home placement.

¶ 10 To the extent that mother includes a separate due process

argument as part of her reasonable efforts claim, we decline to

address it. At no point during the proceedings did mother give the

juvenile court an opportunity to address any due process concerns

she may have had. See 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); see also People v. Salas, 2017 COA 63, ¶ 29

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(“We do not require that parties use ‘talismanic language’ to

preserve particular arguments for appeal, but the trial court must

be presented with an adequate opportunity to make findings of fact

and conclusions of law on any issue before we will review it.”)

(citations omitted).

III. Best Interest of the Child and Waiver

¶ 11 Mother next contends that the juvenile court erred by

allocating sole decision-making responsibility to father and only

granting mother two hours of family time each week, which she

argues was not in the child’s best interests. Specifically, mother

now argues that “only equally shared custody could assure

consistent and guaranteed contact between mother and [the child].”

¶ 12 We conclude that mother waived this argument by agreeing to

allocate physical custody and sole decision-making responsibility to

father.

A. Legal Principles

¶ 13 Waiver is the intentional relinquishment of known right. See

People v. Rediger, 2018 CO 32, ¶ 39. When a party waives an issue

below, we do not review it on appeal. Id. at ¶ 40. A parent may

expressly or impliedly waive a statutory right, but the waiver must

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be voluntary. See People in Interest of J.R.M., 2023 COA 81, ¶ 9. A

statutory right may be waived by the party’s statements or that of

their counsel. See People v. Baird, 66 P.3d 183, 190 (Colo. App.

2002).

B. Additional Background

¶ 14 Mother appeared in person at the APR hearing. She agreed to

father “having legal decision-making” responsibility and to her

having two hours of family time per week. Mother requested, and

received, an additional requirement that father inform her of major

decisions for the child. After the agreements were entered on the

record, the juvenile court advised mother regarding her right to a

contested hearing on the APR. The court asked if mother had any

questions about the rights she would be giving up. Mother’s

response was not captured by the recording but caused the court to

ask if mother wanted to have a hearing, and mother responded that

she did. Mother then had the following exchange with the court:

THE COURT: Well, then you want to have a

hearing with regard --

[Mother]: Yeah.

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THE COURT: Oh, okay. So you do want to

have a formal hearing regarding the allocation

of parental responsibilities.

[Mother]: I don’t get to see him right now. I

haven’t got to see my son in months.

THE COURT: Well, we’re hoping that --

[Mother]: (talking over the court) three hours.

THE COURT: Two is what I think they said.

[Mother]: Exactly, how is that fair?

THE COURT: Understood.

[Mother]: Are we almost done? Can I go?

THE COURT: Not yet, because we got to talk.

If you want to have a hearing, it’s going to take

a while and we’ve got to set a hearing.

¶ 15 The court then stated, “I’m not adopting the APR at this point.

I’ll make a reasonable efforts finding with regards to [the child] and

we need to set this for --.” However, the court did neither, because

the parties pointed out that they were already set for a contested

hearing that day and would prefer to proceed without setting an

additional date.

¶ 16 The juvenile court recessed so mother could confer with her

attorney before beginning the contested part of the hearing. Mother

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asked why she had to stay to talk to her attorney and why the

hearing had to be held that day but agreed to talk to counsel.

¶ 17 The juvenile court recalled the case twenty minutes later. At

that time, mother’s counsel reported that she spoke to mother and

mother “did give . . . authority to enter into an agreement on her

behalf.” Counsel further informed the court that mother “did leave”

and was “not intending on coming back.” Mother’s counsel

reported that mother was upset about the status of her visits with

the child but she nonetheless “underst[ood] the nature of what this

hearing would be for in terms of the custody orders.”

¶ 18 Based on mother’s agreement, the juvenile court approved the

APR, including the modifications made on the record regarding

increased parenting time for mother and father’s duty to inform

mother of major decisions.

C. Analysis

¶ 19 The Department and guardian ad litem argue that mother

waived this issue when she agreed that father should have legal

decision-making responsibility and gave her counsel authority to

enter into an agreement for an APR after receiving an advisement.

We agree.

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¶ 20 Mother argues that she did not waive the issue. In support,

she first points to an exchange between the juvenile court and her

counsel informing the court that she did not agree with the initial

amount of proposed visitation. But mother’s disagreement with the

initial offer is not relevant. Our review of the record reveals that the

initial amount proposed was one hour of family time per week, not

the two hours ultimately ordered. Father proposed increasing the

initial amount offered to two hours per week, and mother confirmed

directly with the court that she agreed with the new offer.

Furthermore, she later authorized her counsel to confirm her

agreement. In any case, mother’s dissatisfaction with the hours of

family time allotted to her does not change her explicit agreement to

allocate father sole decision-making responsibility.

¶ 21 Mother next contends that even if she agreed to father having

sole decision-making responsibility, “the lower court was required

to base its APR ruling on the best interests of the child,” and so

“mother’s waiver of a hearing did not constitute a waiver of her right

to appeal the ruling.”

¶ 22 We reject such a distinction. If mother believed that the

statutory criteria for an APR would not be met, she could have

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requested a hearing on that issue. By entering into an agreement

to allocate rights to father and waiving her right to a hearing,

mother waived her right to challenge the APR ruling. See Rediger,

¶ 39. And mother invited any error in the juvenile court’s adoption

of the proposed judgment that was based on her decision to waive a

hearing to challenge those statutory criteria. See People in Interest

of S.N-V., 300 P.3d 911, 916 (Colo. App. 2011) (the invited error

doctrine applies when a party invites or injects an error in the

proceedings and later claims that the error should be a basis for

reversal on appeal).

¶ 23 Finally, mother contends that she did not waive her right to

appeal the APR judgment as a whole because she “only left and

acquiesced to the ruling after the court ruled the [D]epartment had

made reasonable efforts, which she had already tied to the best

interests of her child.”

¶ 24 But mother did not mention the child’s best interests during

her exchanges with the juvenile court during the APR hearing. And

her counsel, who reported that mother was frustrated with the

status of her family time, did not mention the child’s best interests

at any point during the hearing.

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¶ 25 In any case, it is clear from the record made by mother’s

counsel that while mother disagreed with the Department about

family time, she still asked her counsel to enter an agreement on

her behalf. And as discussed above, reasonable efforts made by the

Department are not a factor that the juvenile court needs to

consider when determining whether an APR to a parent is in a

child’s best interests.

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¶ 26 Thus, the record makes clear that by the end of the APR

hearing, mother intentionally relinquished her right to challenge the

court’s entry of an APR to father. She attempts to avoid this

problem on appeal by asking us to vacate the APR judgment

because of the juvenile court’s alleged failure to consider the child’s

best interests. We conclude that mother’s challenge to the APR

judgment is waived and therefore do not address its merits.

IV. Miscarriage of Justice

¶ 27 Finally, mother urges us to consider the merits of her claim

under a miscarriage of justice exception. See People in Interest of

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Notably, mother does not argue that her waiver was based on a

faulty advisement, involuntary, or otherwise ineffective. See People

in Interest of K.J.B., 2014 COA 168, ¶ 29 (“Statutory rights may be

waived if the waiver is voluntary.”).

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M.B., 2020 COA 13, ¶ 21 (“[G]iven the constitutional nature of

parental rights, we will recognize a miscarriage of justice exception

for review of unpreserved errors.”). We decline to do so, both

because the APR judgment did not sever mother’s parental rights,

and because mother did not merely fail to preserve her claim, she

waived the issue.

V. Disposition

¶ 28 The judgment is affirmed.

JUDGE TOW and JUDGE GOMEZ concur.