Peo in Interest of NR

24CA0167 Peo in Interest of NR 07-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0167

Otero County District Court No. 23JV30007

Honorable Samuel S. Vigil, Judge

The People of the State of Colorado,

Appellee,

In the Interest of N.R. and E.A.R., Children,

and Concerning V.V.,

Appellant.

JUDGMENT AFFIRMED

Division A

Opinion by JUDGE RICHMAN*

Román, C.J., and Graham*, J., concur

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

Announced July 3, 2024

Kim R. Verhoeff, Lamar, Colorado, for Appellee

Jenna L. Mazzucca, Guardian Ad Litem

Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr,

Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant.

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2023.

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¶ 1 In this dependency and neglect proceeding, V.V. (mother)

appeals the juvenile court’s judgment terminating her parent-child

legal relationship with N.R. and E.A.R. (the children). We affirm.

I. Background

¶ 2 In March 2023, the Otero County Department of Human

Services filed a petition alleging that the children were dependent or

neglected after it received reports that the children’s parents were

smoking fentanyl in the children’s presence. The children, who

were four and one year old at the time, both tested positive for

methamphetamine after they were removed from the home. As

relevant here, mother admitted the petition, and the children were

adjudicated dependent or neglected. The juvenile court then

adopted a treatment plan for mother.

¶ 3 Two months later, L.R., a paternal relative living in Florida,

requested that the Department consider her as a kinship placement

provider for the children. In September 2023, the Department

moved to terminate mother’s parental rights due to her lack of

compliance with her treatment plan. After a hearing, the juvenile

court granted the motion.

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II. Termination Framework and Standard of Review

¶ 4 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 in a reasonable time. 19-3-

604(1)(c), C.R.S. 2023. Implicit in the statutory scheme for

termination is the requirement that the juvenile court consider and

eliminate less drastic alternatives before entering an order

terminating the parent-child legal relationship. People in Interest of

M.M., 726 P.2d 1108, 1122 (Colo. 1986).

¶ 5 When, as in this case, a child was less than six years old when

they were removed from the home, the expedited permanency

planning (EPP) provisions apply and require the juvenile court to

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

§§ 19-1-102(1.6), 19-1-123, 19-3-702(5)(c), C.R.S. 2023; People in

Interest of M.T., 121 P.3d 309, 313 (Colo. App. 2005).

¶ 6 Whether a juvenile court properly terminated parental rights

presents a mixed question of law and fact because it involves

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application of the termination statute to evidentiary facts. People in

Interest of A.M. v. T.M., 2021 CO 14, ¶ 15. We review the court’s

factual findings for clear error. Id. But we review de novo the

court’s legal conclusions. People in Interest of S.R.N.J-S., 2020 COA

12, ¶ 10.

III. No Less Drastic Alternative

¶ 7 Mother contends that the juvenile court erred when it

concluded that no less drastic alternatives to termination existed.

Specifically, she asserts that sections 19-3-403(3.6)(a)(V), C.R.S.

2023, and 19-3-702(5)(e), as amended by House Bill 23-1024,

required the court to consider L.R. as a placement provider for the

children. Relatedly, mother asserts that the Department should

have completed an Interstate Compact for the Placement of

Children (ICPC) home study for L.R., and that without the home

study, there was insufficient evidence for the court to conclude that

no less drastic alternatives to termination existed. We are not

convinced.

A. Additional Facts

¶ 8 L.R. had previously taken custody of one of the children’s

older siblings. In June 2023, L.R. contacted the caseworker to tell

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her that the sibling, who was fourteen or fifteen years old at the

time, had actually left L.R.’s home. Indeed, the sibling left about

one year earlier, and no one knew where she had gone or where she

currently lived. The caseworker, whom the court qualified as an

expert in child protection, testified that she was concerned about

the sibling’s safety and reported the situation to the Florida

department of human services. The Florida department did not

investigate the matter.

¶ 9 The record does not indicate that L.R. made any further

contact with the Department. Nor did the Department proceed with

an ICPC home study to facilitate the children’s placement with L.R.

in Florida

B. Relevant Law

¶ 10 On August 6, 2023, House Bill 23-1024 took effect. The new

law requires the juvenile court to give placement preference to a

“relative or kin who is capable, willing, and available for care [of

children in a dependency proceeding]” at various stages of the case.

See e.g., § 19-3-403(3.6)(a)(V) (at the temporary custody hearing); §

19-3-508(1)(b), C.R.S. 2023 (at the dispositional hearing); § 19-3-

702(5)(e) (at permanency hearings). In making this determination,

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the court must give “primary consideration to the [children’s]

mental, physical, and emotional needs.” § 19-3-403(3.6)(a)(V) (at

the temporary custody hearing); § 19-3-508(1)(b), C.R.S. 2023 (at

the dispositional hearing); § 19-3-702(5)(e) (at permanency

hearings).

¶ 11 The juvenile court is not required to place the children with

relatives or kin at these stages. For instance, at a temporary

custody hearing, a “court may place or continue custody with the

county department of human or social services if the court is

satisfied from the information presented at the hearing that such

custody is appropriate and in the child’s or youth’s best interests..”

§ 19-3-403(3.6)(a)(V). Similarly, at the dispositional hearing,

placement with a capable, willing, and available relative is

presumed to be in the child’s best interest, but that presumption

may be rebutted by a preponderance of the evidence. See § 19-3-

507(1)(b.5), C.R.S. 2023 (dispositional hearings).

¶ 12 The bill did not amend the termination statute, section 19-3-

604, and it did not discuss less drastic alternatives. When

considering less drastic alternatives, the juvenile court must base

its decision on the best interests of the child, giving primary

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

conditions and needs. See § 19-3-604(3). A court may consider

and weigh various factors in determining the viability of a less

drastic alternative, including whether the alternative option

provides the child with adequate permanency or meets the child’s

needs. People in Interest of T.E.M., 124 P.3d 905, 910 (Colo. App.

2005).

¶ 13 To be viable, a less drastic alternative must do more than

“adequately” meet a child’s needs; instead, the less drastic

alternative must be in the child’s best interests. A.M., ¶ 27. If the

court considers a less drastic alternative but nevertheless finds that

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

drastic alternative and order termination. A.M., ¶ 32.

C. Analysis

¶ 14 As an initial matter, we disagree with the parties that mother’s

contention was preserved. While mother’s counsel indicated in

closing arguments that an allocation of parental responsibilities to

L.R. was a potential less drastic alternative to termination, she did

not argue to the juvenile court that it was required, by the changes

enacted through House Bill 23-1024, to prioritize or reinstate an

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investigation of L.R. as placement alternative for the children.

Similarly, although mother’s counsel specifically relies on the joint

trial management certificate filed in this case in her closing

argument, that document does not mention the bill. Because

mother did not place the juvenile court on notice of this issue, she

did not preserve this issue for our review. See Berra v. Springer &

Steinberg, P.C., 251 P.3d 567, 570 (Colo. App. 2010) (to preserve an

issue for appeal, a party must bring the issue to the district court’s

attention so the court has an opportunity to rule on it).

¶ 15 Furthermore, even if the issue had been preserved, mother

does not explain on appeal how the bill’s amendments apply to a

juvenile court’s less drastic alternative determination at

termination. As noted above, the bill does not amend or discuss the

termination statute and it does not include reference to less drastic

alternatives. Insofar as mother relies on section 19-3-702(5)(e),

which applies to permanency hearings, she points to no evidence,

nor could we locate any, that the court considered this termination

hearing to be a permanency hearing. See People in Interest of M.B.,

70 P.3d 618, 623 (Colo. App. 2003) (permanency hearings and

termination hearings are separate proceedings that may overlap).

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However, even assuming section 19-3-702(5)(e) applied, the

caseworker’s expert testimony that the children were unlikely to be

safe in L.R.’s home indicates that the court applied the required

statutory criteria. Similarly, written notice of the Department’s

rationale for rejecting L.R. for placement, as required by 19-3-

702(5)(e), was provided to all parties at the permanency hearing

several months earlier. See § 19-3-702(5)(e) (“The department shall

also report any decision regarding placing the child or youth with a

relative or kin.”).

¶ 16 Finally, while an ICPC home study would have provided more

information about L.R.’s home, the Department would not have

been bound by the resulting ICPC assessment to place the child

with L.R. Instead, the Department would have had fourteen days to

determine whether the placement was appropriate. See Dep’t of

Human Servs. Rule 7.307.51, 12 Code Colo. Regs. 2509-4.

¶ 17 The record shows that the juvenile court explicitly gave

“primary consideration to the physical, mental and emotional

conditions and needs of the children” when considering less drastic

alternatives. The court concluded that the Department, after

exploring family members, had not “found a safe relative placement

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for the child[ren].” Moreover, the court found that the children

“require permanency due to their young age.”

¶ 18 The record supports these findings. The caseworker testified

that she had investigated at least three kinship placements — F.V.,

J.M., and D.A. F.V. was ruled out because the caseworker opined

that the children would not be safe in her home because she had

“multiple children” removed from her home “as a result [of] no

protective action from the adults.” She disqualified J.M. for safety

concerns; he had convictions for domestic violence and protection

order violations. And D.A. declined to be considered for placement.

¶ 19 As for placement with L.R., the caseworker repeatedly testified

that she was concerned that the sibling had left the home at such a

young age and that L.R. did not know how to locate her. Thus, as

we mentioned above, the caseworker opined that L.R.’s home was

likely not safe for the children. Moreover, the caseworker opined

that adoption by the children’s foster parents was in their best

interests because “it meets their permanency needs and mental,

physical, [and] emotional well-being.” See T.E.M., 124 P.3d at 910.

¶ 20 Given this record support, and the fact that the young

children in this EPP case had been out of home for nine months at

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the time of termination, the juvenile court did not err by concluding

that were no viable less drastic alternatives rather than ordering the

Department to wait for an ICPC study of L.R.’s home as a potential

placement.

IV. Judicial Notice

¶ 21 Mother also contends that the juvenile court erred when it

took judicial notice of the entire case, including Exhibits CC

through GG (the exhibits), and relied on unspecified hearsay within

those exhibits. We perceive no basis for reversal.

A. Relevant Law and Standard of Review

¶ 22 A court may take judicial notice of an adjudicative fact that is

not subject to reasonable dispute if the fact is either (1) “generally

known within the territorial jurisdiction of the trial court” or (2)

“capable of accurate and ready determination by resort to sources

whose accuracy cannot reasonably be questioned.” CRE 201(a)-(b).

Because court records are recognized as sources whose accuracy

cannot be reasonably questioned, a court may take judicial notice of

them. People v. Sena, 2016 COA 161, ¶ 23. For example, “[a] court

may take judicial notice of its own file, its findings of fact, and its

conclusions of law.” See People in Interest of O.J.S., 844 P.2d 1230,

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1233 (Colo. App. 1992), aff’d sub nom. D.A.S. v. People, 863 P.2d

291 (Colo. 1993). We note however that in O.J.S., only the juvenile

court’s previous findings of fact were at issue. See id. (father argues

that “it is error for the court to take judicial notice of findings of fact

made with regard to other phases of the proceedings”).

¶ 23 The court’s decision to take judicial notice of a fact is reviewed

for an abuse of discretion. Vento v. Colo. Nat’l Bank, 985 P.2d 48,

52 (Colo. App. 1999). A court abuses its discretion when its ruling

is manifestly arbitrary, unreasonable, or unfair, or when it

misapplies the law. People in Interest of E.R., 2018 COA 58, ¶ 6.

Nevertheless, an error in the admission of evidence is harmless if it

does not affect a substantial right of a party. CRE 103(a); C.R.C.P.

61. An error affects a substantial right if it can be said with fair

assurance that it substantially influenced the outcome of the case

or impaired the basic fairness of the proceeding itself. People in

Interest of R.J., 2019 COA 109, ¶ 22.

¶ 24 When the juvenile court is the trier of fact, we presume that it

disregarded any immaterial or incompetent evidence that may have

been introduced. People in Interest of J.A.S., 160 P.3d 257, 261

(Colo. App. 2007). Under these circumstances, we will not disturb

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the judgment unless the court could not have reached the result

but for the incompetent evidence. People in Interest of M.M., 215

P.3d 1237, 1249-50 (Colo. App. 2009).

B. Analysis

¶ 25 We acknowledge mother’s argument that the record contains

an oral ruling by the juvenile court that it would take judicial notice

of “the full file” in this case. Such a ruling is inconsistent with case

law interpreting the allowable scope of judicial notice. See O.J.S.,

844 P.2d at 1233. Nevertheless, the court’s final written order

indicates that it considered only the adjudicative facts of the file.

See Thyssenkrupp Safway, Inc. v. Hyland Hills Parks & Recreation

Dist., 271 P.3d 587, 589 (Colo. App. 2011) (if ambiguity arises from

a conflict between oral and written findings, it is the written order

that controls).

¶ 26 True, as mother points out, the juvenile court took judicial

notice of the exhibits in the final written order; these exhibits did

not contain solely adjudicative facts. However, the court also took

notice of these exhibits only “pursuant to CRE 201.” We assume

that the court was guided by the limits provided in CRE 201 and

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that it disregarded incompetent evidence within those exhibits. See

J.A.S., 160 P.3d at 261.

¶ 27 Finally, even if we were to agree that the juvenile court

improperly relied on the parts of the court file and the exhibits, the

testimony of the caseworker supports the court’s decision.

¶ 28 The caseworker testified that she made referrals for the

services required in mother’s treatment plan. Nevertheless, mother

was not successful with any of the plan’s objectives. Mother never

signed releases of information for her treatment providers, and she

did not provide verifiable certificates of completion for any classes to

the caseworker. Mother missed many required urinalysis tests, and

the caseworker had no knowledge that mother had ever appeared at

the testing center. Mother attended only ten of the seventy-seven

visits arranged for her since the case began. She had not visited

the children, without explanation, within the last six months of the

case. The caseworker opined that, under these circumstances,

mother was not fit and would not become fit within a reasonable

time. The caseworker opined that terminating mother’s parental

rights was in the children’s best interest.

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¶ 29 In sum, the record supports the juvenile court’s findings that

mother had not complied with her treatment plan, was unfit and

unlikely to become fit in a reasonable time, and that the

Department provided reasonable efforts — conclusions mother does

not appear to challenge on appeal. Thus, even if the court erred in

taking judicial notice, the error did not affect mother’s substantial

rights.

V. Disposition

¶ 30 The judgment is affirmed.

CHIEF JUDGE ROMÁN and JUDGE GRAHAM concur.