Peo in Interest AF

24CA0656 Peo in Interest AF 10-17-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0656
Costilla County District Court No. 23JV30000
Honorable Kimberly D. Cortez, Judge

The People of the State of Colorado,

Appellee,

In the Interest of A.F., III, A.F. and Z.F., Children,

and Concerning B.J.L.,

Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE BROWN
Welling and Hawthorne*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 17, 2024

Rebecca N. Rian, Special County Attorney, Alamosa, Colorado, for Appellee

Jenna L. Mazzucca, Guardian Ad Litem

Harald Van Gaasbeek, Office of Respondent Parents’ Counsel, Ft. Collins,
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 action, B.J.L. (mother) appeals

the judgment terminating her parent-child legal relationships with

A.F. III, A.F., and Z.F. (the children). We affirm.

I. Background

¶2 The Costilla County Department of Social Services (the

Department) filed a petition in dependency and neglect, alleging

concerns about substance use and educational neglect. The

juvenile court adjudicated the children dependent and neglected

and adopted a treatment plan for mother. The court later amended

the treatment plan to address additional concerns about domestic

violence. The Department then moved to terminate mother’s

parental rights. More than a year after the petition was filed, the

court granted the motion following a contested hearing.

II. Motion to Continue

¶3 Mother first contends that the juvenile court erred by denying

her motion to continue the termination hearing. We disagree.

A. Standard of Review and Applicable Law

¶4 When ruling on a motion to continue, the juvenile court must

balance the reasons provided in the motion, the need to promptly

resolve the proceeding, and the children’s best interests. People in

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Interest of T.E.M., 124 P.3d 905, 909 (Colo. App. 2005). When, as

here, a child is under six years old at the time the petition is filed,

the case is subject to the expedited permanency planning provisions

(EPP), §§ 19-1-102(1.6), 19-1-123, C.R.S. 2024, and the court

“shall not grant a delay unless good cause is shown and unless the

court finds that the best interests of the child will be served by

granting a delay,” § 19-3-602(1), C.R.S. 2024.

¶5 A motion to continue is left to the juvenile court’s sound

discretion, and its ruling will not be disturbed on appeal absent a

clear abuse of that discretion. People in Interest of A.J., 143 P.3d

1143, 1150 (Colo. App. 2006). A court abuses its discretion when

its decision is manifestly arbitrary, unreasonable, or unfair or when

it is based on an erroneous understanding or application of the law.

People in Interest of M.V., 2018 COA 163, ¶ 52.

B. Additional Background

¶6 Mother did not appear at the termination hearing. Mother’s

counsel moved to continue the hearing, stating that mother had left

New Mexico the night before with the intention of appearing for the

hearing in person, but she had issues with her vehicle on the way.

The court recessed to give counsel more time to try to reach mother.

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When those efforts were unsuccessful, counsel again moved to

continue the hearing, arguing that mother “should be able to

provide what evidence she has, especially related to the recent

treatment and the progress she has made on the treatment plan.”

¶7 The juvenile court denied the motion, finding there was not

good cause for a continuance “given the pattern and history in the

case.” In particular, the court noted that it could not recall or find

in the court file any instance where mother had appeared for court

in person and that there “seem[s] to be a history of failing to

appear.”

¶8 Under the case management order, before the hearing, mother

had disclosed a supervisor at a residential treatment program as an

expert witness. Because mother had intended to appear and testify

herself, her counsel told the other parties that he would probably

not call the program supervisor. When the court denied the motion

to continue, counsel requested leave to call the program supervisor

“as a lay witness just to provide some information without

respondent mother being here.” Counsel did not offer or request to

offer the program supervisor as an expert witness. The court

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granted the request, and counsel called the supervisor out of order

to accommodate the witness’ schedule.

C. Analysis

¶9 Mother contends that the juvenile court erred by denying her

motion to continue because the denial “fundamentally altered [her]

defense.” As we understand it, she argues that she was prejudiced

because (1) if not for the denial, she would have testified; and

(2) she did not present expert testimony from the program

supervisor because she planned to testify. But mother did not

make this argument to the court and does not explain on appeal

how the children’s best interests would have been served by

granting a delay. See § 19-3-602(1). Absent such a showing, the

court was required to deny the motion to continue. Id. Because the

court was so constrained, we discern no abuse of discretion in its

denial of mother’s motion to continue the termination hearing.

III. Fit within a Reasonable Time

¶ 10 Mother next contends that the juvenile court erred by finding

that she could not become fit within a reasonable time. We discern

no basis for reversal.

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A. Applicable Law

¶ 11 An unfit parent is one whose conduct or condition renders

them “unable or unwilling to give the child reasonable parental care

to include, at a minimum, nurturing and safe parenting sufficiently

adequate to meet the child’s physical, emotional, and mental health

needs and conditions.” § 19-3-604(2), C.R.S. 2024. In determining

whether a parent’s conduct or condition is likely to change within 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.”

People in Interest of S.Z.S., 2022 COA 133, ¶ 24. The court need not

give a parent additional time, even when there has been recent

progress on the treatment plan. Id. at ¶¶ 24, 28-29.

¶ 12 What constitutes a reasonable time is fact specific and must

be determined by considering each child’s physical, mental, and

emotional conditions and needs. Id. at ¶ 25. When the EPP

provisions apply, the court must consider the child’s need to be

placed in a permanent home as expeditiously as possible.

§§ 19-1-102(1.6), 19-1-123.

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B. Additional Background

¶ 13 Six weeks before the termination hearing, mother reached out

to the caseworker and expressed a desire to go to a residential

treatment program. This was not the first time mother expressed a

desire to go to withdrawal management or residential treatment.

The caseworker called multiple programs over the weekend to locate

an opening and personally drove to Albuquerque, New Mexico to

bring mother to a residential treatment program in Pueblo,

Colorado.

¶ 14 Mother successfully completed a three-day withdrawal

management program and began a residential treatment program at

the same facility just over a month before the termination hearing.

Although the program was designed to last thirty to sixty days,

mother left against clinical advice after only two weeks. The

program supervisor testified that mother “made minimal

measurable progress in the two weeks she was there.”

¶ 15 The program supervisor testified that mother expressed

wanting to get into outpatient services, but did not accept the

program’s offer to connect her with another program when she left.

The caseworker testified that mother did not reach out to her for

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assistance in setting up services — or for any other purpose — after

she left the residential treatment program.

C. Analysis

¶ 16 The juvenile court determined that mother was unfit based on

her unaddressed and significant substance abuse issues. The court

found that she had not complied with her treatment plan because

she had (1) failed, without cause, to attend family time with the

children and (2) demonstrated the same issues with substance

abuse and inability to provide a stable environment for the children

that were present at the start of the dependency and neglect action.

¶ 17 Unrebutted testimony at the termination hearing supports the

court’s findings regarding family time. The caseworker testified that

mother confirmed eleven family time opportunities in the first three

months of the case but attended only three of them. By the time of

the termination hearing, the caseworker testified that the children

did not have a relationship with mother; they had not seen her for

ten months.

¶ 18 As to mother’s substance abuse, mother asserts that her

intentions to engage in treatment were sincere and that “with more

time and more resources, [she] could become fit.” But the juvenile

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court specifically considered mother’s recent stay at the residential

treatment program. It found that “in starting and then leaving

inpatient treatment after two weeks, [mother] was following the

same pattern as she has in the last year with no sign something will

change in the future or soon.” It also found that mother’s

“substance abuse issues are significant and long term — entering

an inpatient treatment program and then abandoning it after two

weeks is not enough to show that [mother] has made changes

necessary to ensure sustained sobriety and stability to care for the

children.”

¶ 19 The record supports these findings. The program supervisor

testified that mother reported struggling with substance abuse for

nearly ten years and disclosed a number of untreated mental health

issues. The caseworker testified that mother indicated that she was

reaching out to residential treatment programs throughout the

case, but until the month before termination mother did not follow

through. The caseworker also testified that she attempted to take

mother to withdrawal management many times, even driving her to

multiple locations before mother would back out. According to the

caseworker, at other times mother would say she wanted to engage

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and then disappear without contacting the caseworker for months

at a time.

¶ 20 The juvenile court found that allowing mother additional time

to become fit was not reasonable for the children. The court found

that it was “clear that uncertainty does affect them and that

continuing for additional time would not be reasonable.” It also

found that “uncertainty over these proceedings and whether

[mother] will once again appear and disappear from their lives has

created significant anxiety for the children.” In particular, the court

found that it was “critical for [A.F. III] to know as a child that his

well-being will not be linked to [mother’s] highs and lows.”

¶ 21 The record supports these findings. The day before mother left

the residential treatment program, she asked the caseworker to set

up phone calls with the children. The caseworker did so, but by the

time family time was arranged to begin four days later, mother had

already left treatment. The children’s placement provider testified

that all three children regressed in their behaviors when they were

told phone calls might be happening again with mother, and A.F.

III, in particular, experienced high stress around the termination

hearing.

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¶ 22 Because the record supports the juvenile court’s findings that

mother was unlikely to become fit within a reasonable period of

time for these children, we perceive no error in the court’s legal

conclusions.

IV. Disposition

¶ 23 The judgment is affirmed.

JUDGE WELLING and JUDGE HAWTHORNE concur.

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