Peo in Interest of TS

24CA0242 Peo in Interest of TS 12-26-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0242
Jefferson County District Court No. 21JV493
Honorable Ann Gail Meinster, Judge

The People of the State of Colorado,

Appellee,

In the Interest of T.S., X.J.S., Al. S., and An. S., Children,

and Concerning D.A., S.M.S., and H.S.,

Appellants.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE HARRIS
Yun and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 26, 2024

Kimberly Sorrells, County Attorney, Melanie Douglas, Special County Attorney,
Golden, Colorado, for Appellee

Jeffrey C. Koy, Jordan Oates, and Lauren Dingboom, Guardians Ad Litem

Robin Tieman, Office of Respondent Parents’ Counsel, Boulder, Colorado, for
Appellant D.A.

Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for
Appellant S.M.S.

Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr,
Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant H.S.
¶1 In this dependency and neglect proceeding, S.S. (mother),

H.S., and D.A. appeal the juvenile court’s judgment terminating

their parent-child legal relationships with Al.S., An.S., T.S., and

X.J.S. (the children).1 We affirm.

I. Background

¶2 In October 2021, the Jefferson County Division of Children,

Youth, and Families (Department) received reports of domestic

violence between mother and H.S. and of the parents’ physical

abuse of the children. When caseworkers went to the house to

investigate, six-year-old T.S. and almost-four-year-old X.J.S. told

the caseworker that H.S. often punched them, and that mother beat

them with a belt, a hanger, or “whatever [she] c[ould] find.” Those

children also recounted incidents of domestic violence between

mother and H.S., including the incident that prompted the

investigation. According to the children, H.S. pushed mother

against the wall and punched her, so mother pepper sprayed him.

This altercation occurred near Al.S. and An.S., the three-month-old

twins. When questioned, H.S. acknowledged that he regularly

1 H.S. is the father of Al.S., An.S., and T.S.; D.A. is X.J.S.’s father.

1
punched T.S. and X.J.S. in the arms, thighs, and chest and

expressed displeasure that the children “flinch[ed] when he [wa]s

around.” Mother insisted that she had not hit T.S. and X.J.S. with

a belt for a few months. And she denied that she and H.S. had had

any physical altercations since 2019, when she hit him with her

car. The car incident resulted in mother’s conviction for assault

and the issuance of a protection order, which mother and H.S. had

apparently routinely violated.

¶3 Based on the referrals and the investigation, the Department

initiated a dependency and neglect proceeding. The parents

admitted the allegations in the petition, and the children were

adjudicated dependent and neglected. The court then adopted

treatment plans for the parents.

¶4 In August 2022, the Department moved to terminate parental

rights. A seven-day termination hearing was held over a period of

three months. In the interim, H.S. pleaded guilty to child abuse

charges pertaining to T.S. and X.J.S.

¶5 At the conclusion of the termination hearing, the juvenile

court denied the motion. It found that while the evidence

supported termination of H.S.’s and D.A.’s parental rights, mother

2
had made progress in her treatment plan and might be able to

become fit within a reasonable time.

¶6 A few months after the termination hearing, the Department

obtained hundreds of recorded telephone calls between mother and

H.S. that showed mother had lied under oath and deceived the

court, the caseworkers, and service providers by continuing a

relationship with H.S. and allowing H.S. to have contact with the

children in violation of court orders. In the conversations, which

occurred over a fifteen-month period, mother and H.S. joked about

their prior domestic violence incidents and endorsed future physical

abuse of the children. They also joked about “fooling the

[Department] and other professionals,” and, after the termination

hearing, they “talk[ed] . . . about how good [they] were at fooling the

[c]ourt.” Mother admitted that “[her] plan [wa]s to say whatever

[she] need[ed] [to] about [H.S.] to get the children back in [her]

care.” The Department again moved to terminate parental rights.

¶7 Following a four-day hearing in late October and November

2023, the juvenile court granted the motion.

3
II. Termination Criteria and Standard of Review

¶8 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 has not complied with an

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 within a reasonable time. § 19-3-

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

¶9 Whether a juvenile court properly terminated parental rights

presents a mixed question of fact and law because it involves the

application of the termination statute to evidentiary facts. People in

Interest of A.M. v. T.M., 2021 CO 14, ¶ 15. A determination of the

proper legal standard to be applied in a case and the application of

that standard to the particular facts of the case are questions of law

that we review de novo. M.A.W. v. People in Interest of A.L.W., 2020

CO 11, ¶ 31.

¶ 10 However, we will not disturb the court’s factual findings and

conclusions when they are supported by the record. Id. at ¶ 32; see

also A.M., ¶ 15. The credibility of the witnesses as well as the

sufficiency, probative value, and weight of the evidence, and the

4
inferences and conclusions to be drawn from it are within the

court’s discretion. A.M., ¶ 15.

III. Reasonable Efforts

¶ 11 The parents assert that the juvenile court erred by finding the

Department made reasonable efforts to rehabilitate them and

reunite them with the children.

A. Preservation

¶ 12 The parents and the Department assert this issue was

preserved. The guardian ad litem argues H.S. did not preserve this

claim for appeal. We need not decide this issue because, even if we

assume H.S. preserved his claim, we discern no reversible error.

B. Relevant Law

¶ 13 A department of human services must make reasonable efforts

to rehabilitate parents and reunite families before a court may

terminate parental rights pursuant to section 19-3-604(1)(c). See

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

5
¶ 14 Among those services required under section 19-3-208 are

screening, 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).

¶ 15 In deciding whether a department has satisfied its reasonable

efforts obligation, 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). And the court may consider a parent’s

unwillingness to participate in treatment when determining whether

a department made reasonable efforts. See People in Interest of

A.V., 2012 COA 210, ¶ 12.

¶ 16 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. We review the

6
court’s factual findings for clear error but review de novo its legal

determination based on those findings as to whether the

department satisfied its reasonable efforts obligation. Id.

C. Discussion

1. Mother’s Therapy

¶ 17 After the first termination hearing, mother’s treatment plan

was amended to add two requirements — participation in individual

trauma therapy and participation in either parent-child interaction

therapy (PCIT) or family therapy. Mother asserts that the

Department failed to make reasonable efforts in this regard because

the caseworker merely provided her with information about a

website and did nothing to assist her in obtaining a therapist.

¶ 18 The juvenile court found the Department made reasonable

efforts, that “[e]very possible service was made available,” and that

it was mother’s delays and failure to engage with and internalize

those services that caused her treatment plan to fail.

¶ 19 The record shows that the Department repeatedly attempted to

provide mother with therapeutic services that she either delayed or

failed to engage with. A.V., ¶ 12.

7
¶ 20 With respect to the trauma therapy requirement, mother

testified that in June 2023, her primary therapist gave her a list of

trauma specialists. Mother did not immediately contact any of

them. Instead, according to the caseworker, mother reported in

August and September that she was receiving trauma therapy at

“Mile High,” but in November mother admitted that she was not in

trauma therapy because Mile High did not provide that service. At

that point, the caseworker sent a link to the website, Psychology

Today, and “specifically outlined how to look for a trauma

therapist.” The caseworker testified that the website has

photographs and biographies of the therapists, and she wanted to

give mother an opportunity to “take some time and explore who she

might identify with and would be comfortable starting to process

her trauma with.” Mother did not contact any of the therapists

from the website. She said she was waiting to hear if she could

participate in trauma therapy with the same provider who was

scheduled to conduct her mental health evaluation. In November

2023, after the second termination hearing had started, she asked

her primary therapist to re-send the referral list from June.

8
¶ 21 On appeal, mother faults the Department for not “vet[ting] any

of the therapists” from the website or checking to see if they had

availability and would be willing to work with mother. The

caseworker testified, however, that she “offer[ed] to assist [mother]

in th[e] process” of finding a suitable therapist, but mother did not

“take [her] up on that offer.” And the reason mother had not

enrolled in individual trauma therapy by the time of the second

termination hearing was not because of the caseworker’s

supposedly inadequate efforts. Mother testified that she was not

engaged in therapy because she had “just a lot of different things

[she] was trying to . . . manage,” and “it was hard to fit it into [her]

schedule,” between work and trying to find daycare.

¶ 22 As for the PCIT or family therapy component, there did not

seem to be any dispute that the Department coordinated those

services as soon as the treatment plan was amended. The

caseworker testified that the Department initiated a referral in April

2023, and the provider agreed to begin services in mid-May.

Mother’s schedule did not permit family therapy at that time,

though, so the services began in June. In August, at mother’s

request, the Department initiated a new referral to a second

9
provider. But the intake process dragged on for a couple of months

due to mother’s lack of engagement. In the meantime, the court

suspended mother’s visits with the twins and X.J.S. based on

concerns regarding the physical and emotional safety of those

children during visits. By the time of the second termination

hearing, mother was only engaged in family therapy with one of the

older children.

¶ 23 At the termination hearing, mother acknowledged that she had

not taken full advantage “of the opportunity . . . to engage in the

treatment over the” two years the case was open.

¶ 24 Given all this, we conclude that the court did not err in

determining that the Department made reasonable efforts to help

mother comply with her treatment plan.

2. D.A.’s Services

¶ 25 D.A. was incarcerated throughout the two years the case was

open. He asserts that the Department failed to provide him with, or

determine if he was eligible for, any services or referrals in support

of his treatment plan.

¶ 26 The juvenile court found that the Department made

reasonable efforts and that D.A. was not engaged in any treatment.

10
¶ 27 The record shows D.A.’s incarceration and failure to

communicate with the caseworker prevented him from engaging in

services. Id. The caseworker testified that the Department was not

able to provide services to D.A. where he was incarcerated due to

facility rules. The caseworker said that she made repeated efforts to

contact D.A. and staff at the facility to see what services may be

available but received no information concerning what services D.A.

may have already completed or would have been available to him.

The caseworker also testified the facility would not allow family time

to occur between D.A. and his child, X.J.S.

¶ 28 When the caseworker was able to obtain a face-to-face meeting

with D.A., D.A. intimidated the caseworker, and the caseworker did

not feel safe during the meeting. Face-to-face contact was

discontinued by the Department.

¶ 29 Still, the caseworker testified that she sent letters to D.A. and

included stamped envelopes for him to use to contact the

Department. The letters went unanswered. D.A. alleged that he

never received the letters; however, he was an active participant in

hearings throughout the case, and he never reported any difficulty

in contacting the caseworker until the second termination hearing.

11
¶ 30 Because the record supports the court’s findings, we discern

no error in the court’s conclusion that the Department made

reasonable efforts with respect to D.A.

3. H.S.’s Services

¶ 31 During the pendency of the case, H.S. pleaded guilty to child

abuse charges and to drug charges filed in a separate case. He was

sentenced to an aggregate term of ten years in custody. H.S.

asserts that while he was in custody, the Department failed to

provide screening assessments, counseling, and information and

referrals as well as family time services as required under section

19-3-208(2)(b).

¶ 32 The juvenile court found that the Department made

reasonable efforts and that H.S. had “never taken advantage of any

treatment that might have been available to him and has not

addressed the issues on his part that opened this case.”

¶ 33 The record shows that H.S. failed to engage or participate

regularly in family time while he was not incarcerated and failed to

engage in voluntary services while incarcerated. A.V., ¶ 12.

¶ 34 At the beginning of the case, when H.S. was not incarcerated,

he attended only two family time visits. The caseworker testified

12
that she maintained regular face-to-face meetings with H.S. while

he was incarcerated and would routinely inquire what services were

available at his facility. H.S. denied any services were available, but

the caseworker testified she confirmed with Creative Treatment

Options, which provides services in that facility, that there were

voluntary services available. The caseworker also testified that she

identified a variety of services H.S. could take advantage of while

incarcerated, including substance use treatment, individual

therapy, and a fatherhood program. To access those services H.S.

needed only to “willingly ask” for them, but he never did so.2

¶ 35 In light of this evidence, we cannot say that the court erred by

determining that the Department made reasonable efforts to assist

H.S. with his treatment plan.

IV. Fitness Within a Reasonable Time

¶ 36 Mother argues that the juvenile court erred when it found she

could not become a fit parent within a reasonable amount of time.

2 At the second termination hearing, H.S. implied that he was

precluded from participating in services at the jail, but he did not
introduce any evidence to support the implication.

13
A. Relevant Law

¶ 37 An unfit parent is one whose conduct or condition renders the

parent unable or unwilling to give a child reasonable parental care.

People in Interest of S.K., 2019 COA 36, ¶ 74. “Reasonable parental

care requires, at a minimum, that the parent provide nurturing and

safe parenting sufficiently adequate to meet the child’s physical,

emotional, and mental health needs.” Id.

¶ 38 In determining whether a parent’s conduct or condition is

likely to change in a reasonable time, the court may consider

whether any change has occurred during the proceeding, the

parent’s social history, and the chronic or long-term nature of the

parent’s conduct or condition. Id. at ¶ 75. Where a parent has

made little to no progress on a treatment plan, the juvenile court

need not give the parent additional time to comply. See People in

Interest of A.N-B., 2019 COA 46, ¶ 34; see also People in Interest of

V.W., 958 P.2d 1132, 1134-35 (Colo. App. 1998) (noting that even

“increased compliance” over the course of a case may not justify

additional time).

¶ 39 A “reasonable time” is not an indefinite time, and it must be

determined by considering the child’s physical, mental, and

14
emotional conditions and needs. A.N-B., ¶ 29. What constitutes a

reasonable time is fact-specific and varies from case to case. Id. at

¶ 40. However, where, as is the case here, the child is under the

age of six years old, the court must also consider the expedited

permanency planning (EPP) provisions, which require the court to

place the child in a permanent home as expeditiously as possible.

§§ 19-1-102(1.6), 19-1-123, C.R.S. 2024.

B. Discussion

¶ 40 The juvenile court found the same issues that caused the

Department to open the case had not been sufficiently addressed

and there were still significant concerns about mother’s ability to

parent the children. The court additionally found “[t]here [were] no

amendments to the treatment plans that would allow [the parents]

to be successful within a reasonable period of time.”

¶ 41 True, at the first termination hearing, the court and the

Department acknowledged that mother had substantially complied

with her treatment plan. But later, the court and professionals

learned of mother’s substantial deceit and ongoing threats of

violence against the children.

15
¶ 42 Specifically, the Department was concerned that H.S. and

mother were still in contact despite a protection order preventing

contact. The caseworker testified that mother made almost daily

phone calls to H.S. while he was incarcerated, and that she had lied

to professionals and under oath when she denied being in contact

with or in a relationship with H.S. Mother admitted that during the

calls, she expressed that she “was going to” use violence against the

children. Although mother claimed that she was just “venting,” the

juvenile court concluded that it had to take mother’s statements at

face value.

¶ 43 Additionally, mother admitted she allowed two of the children

to be in contact with H.S., in violation of a criminal protection order

against H.S. which named the children as the victims. She further

testified that she was unsure if she would resume a relationship

with H.S. in the future and could not say the relationship had ever

actually ended.

¶ 44 Even aside from the jail calls, concerns about mother’s fitness

and the children’s safety remained. Mother admitted she had

driven an older child not involved in this case to another residence

to allow the child to fight with a peer. Mother’s family time sessions

16
required extra supervision to ensure the children did not run away

or injure themselves. The family time supervisor described the

visits as chaotic, rough, and “unsafe.” Shortly before the second

termination hearing, mother’s family time with the three youngest

children was discontinued due to concerns of the children’s extreme

dysregulation before, during, and after visits, as well as mother’s

failure to show up for and cancellation of family time. The

caseworker testified there were concerns that mother and H.S. were

encouraging the children to lie to the Department.

¶ 45 Mother’s therapist could not put a fixed date on the amount of

time mother would need to be able to complete her treatment.

Mother herself admitted that the testimony from professionals

suggested “that it could take a very long time” for her to address the

issues that led to the Department’s involvement and that she could

not “put a number on” how long it would take. When pressed, she

said that an additional six months might be sufficient.

¶ 46 Mother ultimately had two years between the time the petition

was filed to the second termination hearing to become fit and

comply with her treatment plan, and she failed to do so. People in

Interest of A.J., 143 P.3d 1143, 1152 (Colo. App. 2006) (“[P]eriods as

17
short as five to nine months have been held to be sufficient time to

comply with a treatment plan.”).

¶ 47 We conclude there is record support for the court’s finding

that mother could not become fit within a reasonable time.

V. Less Drastic Alternatives

¶ 48 D.A. and H.S. assert that the juvenile court erred by finding

there were no less drastic alternatives to termination.

A. Relevant Law

¶ 49 The juvenile court must consider and eliminate less drastic

alternatives before terminating parental rights. People in Interest of

M.M., 726 P.2d 1108, 1122-23 (Colo. 1986). When making this

determination, the court must give primary consideration to the

child’s physical, mental, and emotional conditions and needs. See

§ 19-3-604(3); People in Interest of K.B., 2016 COA 21, ¶ 35.

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

“adequately” meet a child’s needs. A.M., ¶ 27. Rather, the

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

Therefore, if the court considers a less drastic alternative but finds

that termination is in the child’s best interests, it must reject the

proposed alternative and order termination. Id. at ¶ 32. Permanent

18
placement is not a viable less drastic alternative if the child needs a

stable, permanent home that can only be assured by adoption. S.N-

V., 300 P.3d at 920.

¶ 51 When the juvenile court considers a less drastic alternative

and still determines that the termination of parental rights is in the

child’s best interests, we are bound to affirm that decision if the

court’s findings are supported by the record. People in Interest of

B.H., 2021 CO 39, ¶ 80.

B. Discussion

¶ 52 H.S. says that the juvenile court misapplied the law when it

explained that the less drastic alternatives analysis was separate

from the issue of whether a relative was available to care for the

children under an allocation of parental responsibilities (APR). We

think the juvenile court was exactly right.

¶ 53 Whether a less drastic alternative to termination exists

depends on whether the parent-child relationship is beneficial to

the child and should remain intact or whether it is in the child’s

best interests to sever the relationship so that the child can achieve

stability and permanence through adoption. See J.C.R., 259 P.3d at

1285; B.H., ¶ 62. Thus, the mere availability of a relative to act as a

19
long-term caretaker does not change the less-drastic-alternatives

analysis.

¶ 54 The evidence supports the court’s determination that an

ongoing relationship with the parents was not in the children’s best

interests. The younger children — X.J.S. and the twins — would

cry and cling to the foster parent to try to avoid visits with mother.

The visits, which often required up to four professionals to

supervise, became so detrimental to X.J.S. and the twins’ emotional

well-being that the court stopped the visits a couple of months

before the second termination hearing. When X.J.S. attended

visits, for example, he would scream uncontrollably or “run out of

the room and cower” in a separate part of the facility, saying to

himself, “I am a bad boy. I am mean to people.” T.S. also

internalized the parents’ abuse: when he was first removed from his

home and placed in foster care, the six-year-old told the caseworker

that he needed to be “placed in a home where the family hates me

so that they will beat me . . . because that is what I deserve.”

¶ 55 At least as early as the summer of 2023, X.J.S. repeatedly told

professionals that he was scared to go home and wanted to stay

with the foster parent. T.S. likewise told the caseworker that he

20
wanted to be adopted. According to the family time supervisor, T.S.

could not be safely returned home, as he and an older child had

vowed to “never report [abuse] again because [the Department’s

involvement] [wa]s their fault” — a message conveyed to them by

mother and H.S.

¶ 56 The caseworker opined that an ongoing relationship with the

parents was not in the children’s best interests. She testified that

mother and H.S. did not “understand the impact of the abuse that

the children endured,” and, as a result, they could not meet the

children’s emotional and physical needs. Indeed, the caseworker

said that “the parents pose[d] a protective risk to the[] children,”

and that if the relationship were preserved, “there [was] a concern

that the children would be consistently re-triggered” and that a

“culture of violence” would persist.

¶ 57 Based on all this evidence, the court found that because the

“protective concerns” in the case were so serious, an APR was not

appropriate. It found that T.S., X.J.S., and the twins needed the

stability, permanency, and safety of an adoptive home. Those

findings are not clearly erroneous.

21
¶ 58 By finding that an APR was not in the children’s best interests,

the court necessarily determined that it could not allocate parental

responsibilities to H.S.’s sister or D.A.’s mother. And because

mother could not parent the children and an ongoing relationship

was detrimental to the children, an APR to her was not a less

drastic alternative.

¶ 59 Even so, the record supports a finding that neither placement

was a viable alternative to termination. H.S.’s sister had had

previous dependency and neglect referrals involving her own child a

few years earlier. There was also evidence that the sister was

facilitating communication between mother and H.S. concerning

their plan to support placement with a grandmother so that they

could later retrieve the children from that placement. As for D.A.’s

mother (X.J.S.’s grandmother), the caseworker testified that she

contacted the grandmother to inquire about placement and notify

her of the interstate compact on the placement of children (ICPC)

requirements, but grandmother stopped responding to the

caseworker’s inquiries. Grandmother eventually resumed

communication with the Department, and at the time of the second

termination hearing, the ICPC process was pending. Still, the

22
caseworker had concerns about placing the children with

grandmother, as she had never met any of the children; initially,

she was not willing to care for the twins; she had never requested

visits with the children; and mother and H.S. had discussed

supporting placement of the children with grandmother so that

once the case was concluded, they could take the children back.

¶ 60 Because we conclude that the record supports the juvenile

court’s less drastic alternatives findings, we will not disturb them

on appeal. See B.H., ¶ 82.

VI. Denial of Motion to Continue

¶ 61 On the final day of the termination hearing, after all parties

had rested, H.S.’s counsel asked the court to continue the hearing

so that she could present evidence disputing the Department’s

assertions about H.S.’s sister’s criminal history. The juvenile court

denied the request. On appeal, H.S. says the court’s denial

constitutes an abuse of discretion.

¶ 62 We will not disturb a court’s ruling on a motion to continue

unless the ruling is manifestly arbitrary, unfair, or unreasonable, or

represents a misapplication of the law. People in Interest of E.B.,

2022 CO 55, ¶ 14.

23
¶ 63 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 needs for permanency. People in Interest of T.M.S., 2019

COA 136, ¶ 44. When, as here, the EPP provisions apply, the

juvenile court cannot delay or continue the termination hearing

absent good cause and a finding that the delay would serve the

child’s best interests. §§ 19-3-104, 19-1-123, C.R.S. 2024.

¶ 64 The purpose of the continuance was to provide additional

information in support of H.S.’s request that the court order an APR

to his sister. But because the court determined that an APR was

not in the children’s best interests, the denial of the motion to

continue was neither an abuse of discretion nor prejudicial to H.S.

See Interest of Spohr, 2019 COA 171, ¶ 32.

VII. Disposition

¶ 65 The judgment is affirmed.

JUDGE YUN and JUDGE KUHN concur.

24