Peo in Interest of LW

24CA0012 Peo in Interest of LW 09-19-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0012
El Paso County District Court No. 21JV701
Honorable Diana K. May, Judge

The People of the State of Colorado,

Appellee,

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

and Concerning N.W.,

Appellant.

JUDGMENT AFFIRMED

Division A
Opinion by CHIEF JUDGE ROMÁN
Martinez* and Richman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 19, 2024

Kenneth R. Hodges, County Attorney, Melanie Douglas, Contract Attorney,
Colorado Springs, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem

The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, 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. 2024.
¶1 In this dependency and neglect proceeding, N.W. (mother)

appeals the juvenile court’s judgment allocating parental

responsibilities for her child, L.W., to L.W.’s paternal grandparents.

We affirm.

I. Background

¶2 The El Paso County Department of Human Services

(Department) filed a petition in dependency and neglect after the

child’s older half-sibling reported inappropriate sexual contact by

J.W. (father). Father was ordered to not have any contact with

minors.

¶3 The child initially remained with mother but was placed into

foster care when the child disclosed that her father continued to be

in the home in violation of court orders. The child was placed in

multiple foster homes over a period of around six months, then

briefly with paternal grandparents, before being returned to mother.

¶4 Mother initially entered into a deferred adjudication, but the

child was later adjudicated dependent and neglected. The juvenile

court adopted a treatment plan that required, in relevant part,

mother to provide (1) protective parenting and (2) a safe and stable

living environment.

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¶5 The guardian ad litem later moved for an allocation of parental

responsibilities (APR) in favor of paternal grandparents. After a

hearing, the court determined it was in the child’s best interests to

be placed with paternal grandparents. The court granted paternal

grandparents permanent custody and sole decision-making

responsibility, but also ordered regular parenting time with mother.

Mother appeals.

II. Discussion

¶6 Mother argues the juvenile court erred when it entered an APR

in favor of paternal grandparents. Mother also contends the

juvenile court erred by finding she had not substantially complied

with all components of her treatment plan and was unfit. We

disagree.

A. Standard of Review and Applicable Law

¶7 When allocating parental responsibilities in a dependency and

neglect proceeding, the juvenile court must consider the legislative

purposes of the Children’s Code. People in Interest of J.G., 2021

COA 47, ¶ 18. Those purposes include:

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• securing for each child the care and guidance, preferably

in their own 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

courts 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), C.R.S. 2024.

¶8 The overriding 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. J.G., ¶ 19. Thus, the court

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must allocate parental responsibilities in accordance with the

child’s best interests. Id.; see § 19-3-507(1)(a), C.R.S. 2024.

¶9 Still, parents maintain a fundamental liberty interest in the

care, custody, and control of their children. Troxel v. Granville, 530

U.S. 57, 68 (2000). The Supreme Court recognized that a fit parent

who is adequately caring for his or her child is presumed to act in

the child’s best interests. Id. at 68-69.

¶ 10 The Children’s Code does not prescribe any specific factors the

juvenile court must consider in making its decision. People in

Interest of C.M., 116 P.3d 1278, 1281 (Colo. App. 2005).

¶ 11 Allocating parental responsibilities is a matter within the

juvenile court’s sound discretion. See In re Parental Responsibilities

Concerning B.R.D., 2012 COA 63, ¶ 15. When there is record

support for the juvenile court’s findings, its resolution of conflicting

evidence is binding on review. Id. However, whether the court

applied the correct legal standard is a question of law we review de

novo. People in Interest of N.G.G., 2020 COA 6, ¶ 10.

¶ 12 The credibility of the witnesses and the sufficiency, probative

effect, and weight of the evidence, as well as the inferences and

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conclusions to be drawn from it, are matters within the court’s

discretion. People in Interest of A.M. v. T.M., 2021 CO 14, ¶ 15.

B. Analysis

¶ 13 Mother argues the juvenile court reversibly erred when it

entered an APR removing the child from mother’s custody and

placing the child with paternal grandparents. Mother further

asserts that she substantially complied with all components of her

treatment plan and argues that the evidence did not support the

juvenile court’s finding that she was unfit. We disagree.

¶ 14 The juvenile court found an APR to paternal grandparents was

“in the overall best interest of [the child] to reside with her

[paternal] grandparents at this point in time.” Specifically, the

court found paternal grandparents were supportive of mother’s

relationship with the child, while the court did not believe mother

had encouraged the relationship between the child and paternal

grandparents. See § 19-1-102(1)(b). And the court found paternal

grandparents had “demonstrated a loving affection, putting [the

child’s] needs first” and were attendant to her medical and

emotional needs. Notably, mother does not challenge these

findings.

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¶ 15 The record supports the court’s findings.

¶ 16 The caseworker testified that the paternal grandparents were

ready and willing to meet the child’s medical needs, while the record

alternatively reveals that mother either delayed getting or did not

seek necessary dental and medical care for the child. The paternal

grandparents and caseworker testified that the child needed

extensive dental work when the Department became involved in the

family and appeared to be in pain from the dental issues, and that

mother delayed getting treatment for the child’s dental needs for

about a year after the case was open. Paternal grandfather also

testified that the child had an infected ingrown toenail for which he

requested mother make the child an appointment at least three

times, but mother never did.

¶ 17 The caseworker additionally testified paternal grandparents

had shown they would be able to meet the child’s emotional and

educational needs, while concerns remained about mother’s ability

to meet those needs. The caseworker testified the child has a

learning disability and neurological delays that placed her in the

vulnerable category. The caseworker and paternal grandparents

testified they had concerns about mother’s ability to meet the

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child’s emotional and mental health needs, especially given that the

child’s recommended Applied Behavior Analysis (ABA) therapy was

not yet in place at the time of the APR hearing. The caseworker

testified it appeared the child spent a lot of her time at mother’s

home alone in her room while mother met with father outside of the

home, which caused the child’s inappropriate behaviors at school to

escalate. The caseworker alternatively testified that when paternal

grandparents were more involved with the child, the concerning

behaviors in school decreased.

¶ 18 Additionally, the caseworker testified there were no safety

concerns with paternal grandparents, while the record reveals that

mother had not successfully addressed protective parenting

concerns. The caseworker testified she had concerns about

mother’s ability to be protective given that mother adamantly did

not believe the allegations made by the child’s half-sibling, nor did

mother believe that a prior sexual offense, which father had

admitted to and been adjudicated for, had occurred. The

caseworker further testified mother was not willing to consider the

mere possibility that something inappropriate had occurred. True,

paternal grandparents testified they did not wholly believe the

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allegations made by the child’s half-sibling. Yet they further

testified, despite that, they were willing to maintain supervision and

protective oversight during the child’s visits with father. The

caseworker testified that there were no safety concerns about

paternal grandparents because they were open to the “what if.”

Alternatively, the caseworker maintained she had concerns mother

would allow father to return to the home if the case was dismissed

and it was only Department oversight in the case that was

preventing that from occurring.

¶ 19 Mother argues her treatment plan did not require her to agree

with the sexual contact allegations and we agree. However, the

treatment plan was designed for mother to become a protective

parent, and the court found being a protective parent required her

to consider the possibility that inappropriate conduct had occurred

and act in a protective capacity with regard to the child and father’s

contact.

¶ 20 Mother additionally argues there was insufficient evidence

supporting the court’s finding that she was unfit and, therefore,

under Troxel she was entitled to the presumption that she acted in

her child’s best interests. Troxel, 530 U.S. at 68. However, the

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parental presumption may be rebutted when there is clear and

convincing evidence that justifies alternative actions. In Interest of

Baby A, 2015 CO 72, ¶ 24. An order adjudicating a child

dependent and neglected overcomes the presumption. People in

Interest of N.G., 2012 COA 131, ¶ 33. A parent’s liberty interest in

the care, custody, and control of their child can also be overcome if

evidence shows that it would be in the child’s best interests to be

placed with a third party. Baby A, ¶ 25; see also In re Custody of

C.C.R.S., 892 P.2d 246, 256 (Colo. 1995).

¶ 21 Based upon the evidence presented to the juvenile court

regarding the unaddressed medical and mental health needs of the

child, the juvenile court found that mother had not complied with

her treatment plan objectives and was unfit. The court also found

that based on the child’s vulnerability, she needed to have someone

who is protective of her at all times, and that mother was “unwilling

to acknowledge the need for that protective capacity over [the

child].” Considering these findings, the court granted the APR to

paternal grandparents.

¶ 22 We conclude that the juvenile court’s findings have sufficient

record support, and we will not disturb its legal conclusion.

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III. Disposition

¶ 23 The judgment is affirmed.

JUSTICE MARTINEZ and JUDGE RICHMAN concur.

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