Peo in Interest of BE

24CA0568 Peo in Interest of BE 12-12-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0568
Adams County District Court No. 22JV30092
Honorable Emily Leiberman, Judge

The People of the State of Colorado,

Appellee,

In the Interest of S.E., B.E., and K.E., Children,

and Concerning J.E.,

Appellant,

and

A.S.,

Appellee.

JUDGEMENT AFFIRMED

Division V
Opinion by JUDGE FREYRE
Grove and Lum, JJ., concur

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

Heidi Miller, County Attorney, Conor Hagerty, Assistant County Attorney,
Westminster, Colorado, for Appellee The People

Josi McCauley, Guardian Ad Litem, for S.E.

Josi McCauley, Counsel for Youth, Superior, Colorado, for B.E. and K.E.

Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant
Patrick R. Henson, Office of Respondent Parents’ Counsel, Justin Twardowski,
Office of Respondent Parents’ Counsel, Denver, Colorado for Appellee A.S.
¶1 In this dependency and neglect proceeding, J.E. (father)

appeals the juvenile court’s judgment allocating parental

responsibilities to A.S. (mother). We affirm the judgment.

I. Background

¶2 The Adams County Human Services Department filed a

petition in dependency and neglect regarding then-twelve-year-old

B.E., then-eleven-year-old K.E., and then-seven-year-old S.E. (the

children). The petition alleged that the Department originally had

concerns about S.E.’s inconsistent attendance at school. During

the course of the Department’s investigation, K.E. disclosed that

father had sexually assaulted her. The petition further alleged that

the children’s stepfather, with whom the children had been living,

had a pending dependency and neglect proceeding related to alleged

physical and sexual abuse of his child.

¶3 The Department removed the children, but it returned them to

mother’s care about a month later with the understanding that they

would not have contact with father or stepfather. However, the

children later disclosed that stepfather had been living with them

and the Department placed them in foster care. About five months

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later, the Department again returned the children to mother’s care,

where they stayed for the remainder of the proceeding.

¶4 In the meantime, criminal charges related to the allegations

involving K.E. were filed against father. A criminal protection order

prevented all contact between father and K.E. Initially, the juvenile

court also prohibited contact between father and B.E. and S.E.

Eventually, the court approved therapeutic supervised family time

between father and B.E. and S.E., which occurred regularly for

several months. However, both B.E. and S.E. expressed an

unwillingness to visit father in the months before the allocation of

parental responsibilities (APR) hearing.

¶5 Mother moved for an APR asking for primary custody of all

three children and sole decision-making responsibility. Mother

requested that father have no contact with K.E. and continue

having only therapeutic supervised family time with B.E. and S.E.

at his own expense. After holding a hearing and taking evidence,

the juvenile court granted mother’s motion for an APR.

II. Allocation of Parental Responsibilities

¶6 Father contends that the juvenile court erred when it ordered

an APR that allowed only therapeutic supervised contact with B.E.

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and S.E. because he “had complied with his treatment plan to the

extent possible without compromising his criminal case;” “he did

not pose a risk to the children;” and “placement with Mother

involved significant child protection concerns that Mother had not

sufficiently resolved.” We disagree.

A. Standard of Review and Applicable Law

¶7 We will not disturb a juvenile court’s factual findings when

they are supported by the record. People in Interest of A.J.L., 243

P.3d 244, 250 (Colo. 2010). However, whether the court applied the

correct legal standard when making its findings is a question of law

that we review de novo. In re Parental Responsibilities Concerning

B.R.D., 2012 COA 63, ¶ 15.

¶8 The juvenile court has exclusive authority to determine the

legal custody of a child who comes within its jurisdiction. See

§ 19-1-104(1)(c), C.R.S. 2024; L.A.G. v. People in Interest of A.A.G.,

912 P.2d 1385, 1389 (Colo. 1996). When determining custody or

allocating parental responsibilities, the court must consider the

legislative purpose of the Children’s Code under section 19-1-102,

C.R.S. 2024. People in Interest of C.M., 116 P.3d 1278, 1281 (Colo.

App. 2005). These purposes include the following:

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• securing for each child the care and guidance, preferably

in their home, that will best serve the child’s welfare and

the interests of society;

• preserving and strengthening family ties whenever

possible, including improving the home environment;

• removing a child from the custody of their parents only

when the child’s welfare and safety or the protection of

the public would otherwise be endangered, and for the

court to proceed with all possible speed to a legal

determination that will serve the child’s best interests;

and

• securing for any child removed from the custody of their

parents the necessary care, guidance, and discipline to

assist the child in becoming a responsible and productive

member of society.

§ 19-1-102(1)(a)-(d).

¶9 The purpose of the Children’s Code is to protect a child’s

welfare and safety by providing procedures through which the

child’s best interests can be served. L.G. v. People, 890 P.2d 647,

654 (Colo. 1995); People in Interest of L.B., 254 P.3d 1203, 1208

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(Colo. App. 2011); see also L.A.G., 912 P.2d at 1391. As a result,

the court must allocate parental responsibilities in accordance with

the child’s best interests. People in Interest of N.G.G., 2020 COA 6,

¶ 12; see L.A.G., 912 P.2d at 1391.

B. Psychosexual Evaluation

¶ 10 Father argues that when the juvenile court limited his

parenting time with B.E. and S.E. to therapeutic supervised family

time, it erroneously relied on the fact that he had not completed a

psychosexual evaluation, as required by his treatment plan. He

asserts that it was not appropriate for the court to require him to

undergo a psychosexual evaluation over his objection in the

absence of a criminal conviction and cites to People in Interest of

M.W., 2022 COA 72. We are not persuaded.

¶ 11 First, M.W. concerned the appeal of an adjudication, not an

APR. Father provides no authority, nor are we aware of any,

requiring the juvenile court to find that a parent had, and complied

with, an appropriate treatment plan when deciding the terms of an

APR between parents. Rather, the primary focus is on the child’s

best interests. N.G.G., ¶ 12, L.A.G., 912 P.2d at 1391.

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¶ 12 Additionally, M.W. held that “a parent may not be required,

over their objection, to complete an [Sex Offender Management

Board (SOMB)] psychosexual evaluation or SOMB therapy as a

condition of their treatment plan if the parent has not been

convicted of a qualifying sexual offense.” M.W., ¶ 56. It noted that

“the very structure of SOMB treatment is inconsistent with the core

purposes of the Children’s Code” which is to “safely reunify children

with their parents.” Id. at ¶ 55. However, M.W. went on to explain

that “an appropriate treatment plan can — indeed, often should —

include psychological counseling focused on the problematic

behavior of a parent” and that such treatment “can include

evaluation of a parent’s sexual proclivities if they interfere with the

parent’s ability to safely parent their children.” Id. at ¶ 59.

¶ 13 Aware of these provisions of M.W., the juvenile court crafted

father’s treatment plan so that it did not require an SOMB

offense-specific evaluation, but instead required that he complete a

mental health assessment which “will evaluate . . . sexual

proclivities” for the safety of the children. It also ordered father to

follow through with any recommended treatment from that

evaluation.

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¶ 14 Moreover, father did not object to the requirement that he

complete a psychosexual evaluation. Contrary to his assertions on

appeal, father refused to complete the evaluation, not because he

believed the court exceeded its authority to order it, but because he

did not trust that the results would remain confidential. At two

hearings occurring after the adoption of his treatment plan, father’s

counsel advised that father was reluctant to complete the

evaluation because he did not want it “leaked” to the prosecution

handling his criminal case and that he “did not trust” the parties in

the dependency and neglect proceeding to keep the evaluation

confidential. Accordingly, and as the juvenile court acknowledged,

father’s refusal to complete the evaluation was a strategic decision

based on the criminal charges he faced, not an objection to the

court’s authority to order it.

¶ 15 Lastly, when addressing father’s failure to complete the

evaluation at the APR hearing the court did not “penalize” father, as

he suggests in his opening brief. Rather it acknowledged the reality

that it had no information about whether father was or was not safe

to parent his other children without supervision. It noted that the

family time father had with B.E. and S.E. during the proceeding

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had been safe because a therapeutic supervisor was present and

that those orders would continue to ensure the ongoing safety of

the children.

¶ 16 Moreover, the court’s determination that mother should have

sole decision-making responsibility stemmed from the parties’

long-standing inability to cooperate, not because of father’s failure

to engage in the evaluation. The record supports this finding, and

father does not dispute it.

¶ 17 Based on the foregoing, we cannot conclude that the juvenile

court erred when it allocated primary custody of the children to

mother and gave her sole decision-making responsibility.

C. Mother’s Fitness

¶ 18 Father also argues that the juvenile court erred when it

ordered the APR because mother had not adequately addressed the

domestic violence issues that led to the Department’s involvement

with the family. We disagree.

¶ 19 The juvenile court acknowledged the risk of allocating full

custody and sole decision-making responsibility to mother given her

decision earlier in the proceeding to allow stepfather to be around

the children despite a court order prohibiting contact. However, it

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credited the caseworker’s testimony and opinion that mother had

since cut ties with stepfather and that the children had not had

contact with him since they moved back with mother in July 2023.

The court also found that mother had completed “a number” of

treatments as required by her treatment plan. The record supports

the court’s findings.

¶ 20 The caseworker, who testified as an expert in social work with

an emphasis on child protection, testified that mother completed all

of the components of her treatment plan including therapy, a

mental health evaluation, a psychological evaluation, supervised

parenting time, and working with a life skills professional. She

testified that mother’s home was appropriate and comfortable and

that the children were performing well in school since their return

to mother’s care. With respect to stepfather, the caseworker

testified that she was not aware of any contact between him and the

children since the children were returned and explained that she

did unannounced visits, drove by mother’s home, and talked with

the children without mother present. The caseworker further

testified that law enforcement had conducted a welfare check in

January 2024, but stepfather was not present, and mother and the

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children reported that he had not been there. The caseworker

acknowledged that stepfather was an unregistered sex offender and

was a threat to the children if he was around, but testified that she

had no concerns that he was having contact with the children.

¶ 21 Mother also testified that stepfather was “no longer in [her]

life.” She agreed that she might not have had concerns about

stepfather in the past, but she “took accountability,” had made

changes, and had done everything she needed to do to keep the

children safe.

¶ 22 Father argues that mother had a history of exposing the

children to harm by way of stepfather and had violated court orders

prohibiting contact. And he asserts that although mother testified

that she had distanced herself from stepfather, her history revealed

a “tendency to remain in harmful relationships and a longstanding

pattern of dissembling to cover them up.” But father’s arguments

ask us to reweigh mother’s credibility and find in father’s favor,

which we cannot do. A.J.L., 243 P.3d at 256 (court of appeals may

not substitute its opinion for that of the fact finder regarding

credibility of witnesses, and the weight, sufficiency, and probative

value of the evidence).

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¶ 23 Accordingly, the juvenile court did not err when it granted an

APR to mother.

III. Disposition

¶ 24 The judgment is affirmed.

JUDGE GROVE and JUDGE LUM concur.

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