Peo in Interest of SMMC

24CA0975 Peo in Interest of SMMC 12-12-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0975
El Paso County District Court No. 23JV30318
Honorable Lara Yoder Nafziger, Judge

The People of the State of Colorado,

Appellee,

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

and Concerning A.C. and D.C.,

Appellants.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE WELLING
Brown and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 12, 2024

Kenneth R. Hodges, County Attorney, Jessica M. Brungardt, Assistant County
Attorney, Colorado Springs, Colorado, for Appellee

Jenna L. Mazzucca, Guardian Ad Litem.

Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for
Appellant A.C.

Patrick R. Henson, Office of Respondent Parents’ Counsel, Justin Twardowski,
Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant D.C.
¶1 In this dependency and neglect action, A.C. (mother) and D.C.

(father) appeal the judgment terminating their parent-child legal

relationships with S.M.M.C. (the child). We affirm.

I. Background

¶2 The El Paso County Department of Human Services (the

Department) filed a petition in dependency and neglect, alleging

that the child was born positive for substances and showed signs of

withdrawal. The Department also alleged that mother and father

were respondents in four earlier dependency and neglect actions, all

ending in termination of their parental rights.

¶3 The juvenile court adjudicated the then-newborn child

dependent and neglected and adopted treatment plans for mother

and father. Both treatment plans required participation in family

time, life skills, and mental health services, and the provision of a

safe and sober environment for the child.

¶4 Nine months after the petition was filed and after a contested

hearing, the juvenile court authorized placement of the child out of

state with the paternal uncle and aunt “given the lack of

engagement of her parents in this case.” The Department later

moved to terminate both parents’ parental rights. More than a year

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after the petition was filed, the juvenile court granted the motion

following a contested hearing.

II. Reasonable Efforts

¶5 Mother and father both contend that the juvenile court erred

by finding that the Department provided reasonable efforts to

rehabilitate them. We aren’t persuaded.

A. Applicable Law

¶6 Before a court may terminate parental rights under section

19-3-604(1)(c), C.R.S. 2024, it must consider if the county

department of human services made reasonable efforts to

rehabilitate parents and reunite families. §§ 19-1-103(114), 19-3-

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

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

who are in foster care or out-of-home placement.” § 19-1-103(114).

¶7 Services provided in accordance with section 19-3-208 satisfy

the reasonable efforts standard. § 19-1-103(114). Among the

services required under section 19-3-208 are screenings,

assessments, and individual case plans for the provision of services;

home-based family and crisis counseling; information and referral

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services to available public and private assistance resources; family

time services; and placement services. § 19-3-208(2)(b).

¶8 When evaluating a department’s efforts, the juvenile court

should consider whether the provided services were appropriate to

support the parent’s treatment plan. People in Interest of S.N-V.,

300 P.3d 911, 915 (Colo. App. 2011). 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).

B. Standard of Review

¶9 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 juvenile court’s legal conclusions

based on those facts. See id. In particular, the ultimate

determination of whether the Department provided reasonable

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efforts is a legal conclusion we review de novo. People in Interest of

A.S.L., 2022 COA 146, ¶ 8.

¶ 10 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).

C. Reasonable Efforts to Rehabilitate Mother

¶ 11 The juvenile court found that the Department made

reasonable efforts as to mother, including making family time,

substance dependence and mental health treatment, and life skills

services available to her. The court found that there were “multiple

referrals to various providers and [mother] still did not comply” and

that there had “simply been an utter lack of engagement for the

duration of the case.” The court acknowledged that there were

periods of time where referrals weren’t active for mother’s services

but found that such gaps were “not a lack of reasonable efforts.

You can’t put in a referral for somebody who is not engaged in the

case.”

¶ 12 The record supports these findings. The caseworker testified

that the Department made two referrals for substance abuse

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evaluations, two referrals for mental health evaluations, and two

referrals for life skills services. Mother didn’t engage in any of these

services. The Department made at least four referrals for family

time and authorized the child’s placement to supervise virtual

family time after the child had moved out of state. Mother attended

only one in person and two virtual family time sessions.

¶ 13 The caseworker testified that mother didn’t respond to

providers or the Department for long stretches of time. The

Department couldn’t reach mother at all between when the child

was three months and nine months old. The caseworker testified

that caseworkers from the Department called and went to mother’s

home twice a month to try to initiate contact, but they were

unsuccessful in engaging mother. See People in Interest of A.V.,

2012 COA 210, ¶ 12 (holding that the court may consider a parent’s

unwillingness to engage when determining whether a department

made reasonable efforts).

¶ 14 The caseworker located mother in custody ten months after

the petition was filed. At that time the caseworker arranged virtual

family time for mother and made new referrals to providers who

could enter the facility to conduct the requisite evaluation. Despite

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family time being available, mother participated in only one virtual

family time session after she was in custody.

¶ 15 Mother contends that the juvenile “court agreed the

Department did not do enough to get visits accomplished for

[mother] while the child was in the hospital.” The court found that

mother “did not abandon [the child] at the hospital. [The

Department] did not put in good faith efforts to make sure the

parents visited the child while she was in the hospital.” But mother

doesn’t explain why, and the record doesn’t suggest, that the court’s

finding about family time during the child’s hospitalization should

eclipse the other findings it made, including that mother failed to

participate in family time without good cause. The child was held

at the hospital for three of the fifty-eight weeks between the child’s

birth and the termination hearing. Mother’s only in-person contact

with the child occurred at the hospital, when the child was nine

days old.

¶ 16 Mother also contends that the Department failed to provide

her with bus passes and a cell phone. The juvenile court ordered

the Department to provide mother with a bus pass shortly after the

petition was filed. The caseworker testified she wasn’t sure the bus

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pass was given to mother but said that the Department “usually”

provided bus passes when requested. The caseworker also testified

she wasn’t aware that mother might need a cell phone until mother

told her during a visit while mother was in custody at the end of the

case. Notes made by earlier caseworkers indicated that mother had

communicated with them using her own cell phone at the beginning

of the case. The caseworker testified that if mother had expressed a

need for a cellphone before she was in custody, the Department

would have provided her with one. In any event, providing a cell

phone to a parent isn’t a service required for reasonable efforts

under the Children’s Code. § 19-3-208.

¶ 17 Mother further contends that the Department “didn’t provide

several services identified in section 19-3-208(2)(b).” But mother

doesn’t identify what further services she believes should have been

made available to her. The Department need not provide services

that aren’t relevant to supporting a parent’s treatment plan, and the

Department has “discretion to prioritize certain services or

resources to address a family’s most pressing needs in a way that

will assist the family’s overall completion of the treatment plan.”

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People in Interest of My.K.M. v. V.K.L., 2022 CO 35, ¶ 33; see also

S.N-V., 300 P.3d at 915.

¶ 18 Given this evidence, we can’t conclude that the Division failed

to provide reasonable efforts for mother. Therefore, we won’t

disturb the juvenile court’s findings and legal conclusions in this

regard.

D. Reasonable Efforts to Rehabilitate Father

¶ 19 Father’s employment required frequent travel, and the juvenile

court recognized that virtual services were necessary to

accommodate father’s work schedule. The court also found that the

Department “should have put in virtual services earlier,”

particularly for life skills, which father started to engage in two

months before the termination hearing. Despite this issue, the

court found that overall the Department made reasonable efforts to

rehabilitate father, including providing life skills, metal health, and

family time supervision services. Importantly, the juvenile court

found that even though the Department made virtual family time

available to father at the beginning of the case, father participated

only three times, and last saw the child ten months before the

termination hearing. The court found that ten months was “too

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long a gap” for this child, in part because she had never been

parented by father. The court “specifically d[id] not find good cause

for [father] failing to visit” the child.

¶ 20 These findings are supported by the record. The caseworker

testified that the Department made four referrals for family time

services beginning when the child was released from the hospital.

Father testified that virtual family time was available to him from

the beginning of the case at his request. Father attended three

virtual family time sessions in the first few months of the action and

then stopped engaging with family time providers. Father’s third

and final virtual family time session with the child occurred when

the child was only three months old. Father never attended in-

person family time with the child, which was also offered to him by

the Department. Although father testified that he didn’t know

about providers assigned to supervise his family time, the juvenile

court found his testimony to be not credible.

¶ 21 The record makes clear that father failed to engage in the

services that were available to him. The caseworker testified that

referrals outside of family time were somewhat delayed by father’s

objection to services in the treatment plan. Once the treatment

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plan was adopted by the court, the Department made multiple

referrals for life skills and mental health services. Father didn’t

complete a mental health evaluation as required by his treatment

plan, even though the caseworker kept referrals open and reminded

father of the services available to him when she spoke to him.

Father did engage with the virtual life skills provider but completed

only two sessions in the two months that the referral was active

before the termination hearing.

¶ 22 There is no evidence that father would have participated in

virtual mental health or life skills services if they were available

earlier in the action. And, as the juvenile court noted, “a lot of

mental health treatment is being done virtually now,” and the

Department’s failure to specify virtual services in its referral didn’t

necessarily mean that those services wouldn’t have been available

to father virtually if he had followed through on the many referrals

made by the Department.

¶ 23 We therefore discern no error in the juvenile court’s finding

that, overall, the Department made reasonable efforts to rehabilitate

father. Nor will we disturb the court’s conclusions that those efforts

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were unsuccessful, and that father remained unfit to parent the

child.

III. Less Drastic Alternatives to Termination

¶ 24 Father and mother contend that the juvenile court erred by

finding that there were no less drastic alternatives to termination.

¶ 25 Specifically, father contends that the juvenile court could have

given him more time with reasonable efforts in place. Father’s

contention in this regard rests entirely on his claim that the

Department failed to make reasonable efforts — a contention we

considered and rejected in Part II.D above. Accordingly, because we

rejected father’s reasonable efforts claim, we likewise must reject

his less drastic alternative claim. Even if this were not the case, the

juvenile court found, with record support, that the child could not

wait any longer for father to become a fit parent.

¶ 26 Mother asserts that there may have been a less drastic

alternative available, but the Department failed to investigate

possible placement with her relatives.

¶ 27 The juvenile court must consider and eliminate less drastic

alternatives before it terminates the parent-child legal relationship.

People in Interest of L.M., 2018 COA 57M, ¶ 24. In considering less

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drastic alternatives, the 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). Permanency is a separate inquiry from placement. See

A.M., ¶ 37. Ultimately, for a less drastic alternative to be viable, it

must do more than “adequately” meet a child’s needs; rather, the

less drastic alternative must be the “best” option for the child. Id.

at ¶ 27. Therefore, if the 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. Id. at

¶ 32. And under those circumstances, we must affirm the court’s

decision if its findings are supported by the record. People in

Interest of B.H., 2021 CO 39, ¶ 80.

¶ 28 Here, the juvenile court found that the child “cannot wait any

longer for permanency.” The court noted that the child had never

been cared for by her parents, had only “minimal contact” virtually

with them, and “simply doesn’t know who her biological parents

are.” The court found that there were no less drastic alternatives to

termination available to the child because the child’s best interests,

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“physical, mental, and emotional needs require termination and

adoption.”

¶ 29 The record supports these findings. The child was placed with

paternal relatives who were also placement providers for her

siblings. The caseworker, an expert in child protection and child

welfare, opined that she wouldn’t recommend an allocation of

parental responsibilities because the child was very young and

didn’t have any kind of relationship with either parent. The

caseworker considered giving either parent more time to engage but

opined that the child couldn’t wait and had “waited a long time

already to have permanency.” The caseworker opined that

termination and adoption was the only permanency option that

would meet the child’s needs. See A.M., ¶ 32.

¶ 30 Mother argues that, had the Department explored her

relatives, it may have identified a placement that was willing to

accept an allocation of parental responsibilities. But the

Department isn’t required to “make special inquiry and

independently identify and evaluate other possible placements

within or outside the family.” People in Interest of D.B-J., 89 P.3d

530, 532 (Colo. App. 2004). And in any event, the juvenile court

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found, with record support, that — regardless of the child’s

placement provider — the child’s permanency required the

termination of both parents’ parental rights.

¶ 31 Given this record, we discern no error in the juvenile court’s

determination that there was no less drastic alternative to

termination.

IV. Disposition

¶ 32 The judgment is affirmed.

JUDGE BROWN and JUDGE MOULTRIE concur.

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