Peo in Interest of JR

24CA0522 Peo in Interest of JR 11-21-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0522
Arapahoe County District Court No. 21JV467
Honorable Victoria Klingensmith, Judge

The People of the State of Colorado,

Appellee,

In the Interest of J.R., a Child,

And Concerning A.R. and K.P.,

Appellants.

JUDGMENT AFFIRMED

Division A
Opinion by JUDGE BERNARD*
Román, C.J., and Graham*, J., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 21, 2024

Ronald Carl, County Attorney, Kiley Schaumleffel, Assistant County Attorney,
Aurora, Colorado, for Appellee

Sheena Knight, Guardian Ad Litem

Michael Kovaka, Office of Respondent Parents’ Counsel, Littleton, Colorado, for
Appellant A.R.

Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for
Appellant K.P.

*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 A mother, K.P., and a father, A.R., appeal the juvenile court’s

judgment terminating their parent-child legal relationship with their

child, J.R. We affirm.

I. Background

¶2 In July 2021, the Arapahoe County Department of Human

Services became concerned about the child’s welfare because of

mother’s substance abuse and because of father’s incarceration.

Based on these concerns, the department filed a petition in

dependency and neglect.

¶3 The parents admitted the petition’s allegations. The court

adjudicated the child to be dependent and neglected, and it adopted

a treatment plan for the parents. The department subsequently

asked the court to terminate mother and father’s parental rights.

¶4 Father remained incarcerated until a few months before the

termination hearing. After three continuances over a six-month

period, the court held a two-day evidentiary hearing, and it then

terminated the parent’s parental rights to the child.

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II. Discussion

¶5 Mother and father both contend the juvenile court erred when

it found their conduct or condition was unlikely to improve within a

reasonable time. We discern no error.

A. Legal Framework and Standard of Review

¶6 A juvenile court may terminate parental rights if it finds, by

clear and convincing evidence, that (1) the child has been

adjudicated dependent and neglected; (2) the parent did not comply

with, or was not successfully rehabilitated by, an appropriate,

court-approved treatment plan; (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; People in Interest of

E.S., 2021 COA 79, ¶ 10.

¶7 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

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

CO 11, ¶ 31.

¶8 We will not disturb the court’s factual findings if 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, including the inferences and

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

A.M., ¶ 15.

B. Applicable Law

¶9 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 that is sufficient to meet the child’s physical,

emotional, and mental needs. Id.

¶ 10 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. Id. at ¶ 75. If a parent has made

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little to no progress on a treatment plan, the court does not have to

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).

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

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

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

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

at ¶ 40. But, as in this case, when the child is under the age of six

years old, the court must also consider the expedited permanency

planning 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.

C. Analysis

1. Father

¶ 12 Father asserts that the juvenile court committed reversible

error when it decided his conduct was unlikely to change within a

reasonable time. He submits that the evidence shows

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“overwhelming” proof of his substantial compliance with all

requirements of his treatment plan. Because father takes issue

with each requirement, we address all of them.

¶ 13 The court found that father was unfit and that his condition

was unlikely to change within a reasonable amount of time given

the continuing concerns about his ability to be a protective parent,

his capacity to provide for the child’s needs, his ongoing cases, and

his potential to abuse controlled substances. The record supports

the court’s findings.

¶ 14 Father’s treatment plan required him to do six things: (1)

maintain caseworker contact and sign necessary releases of

information; (2) demonstrate legal income; (3) demonstrate a legal

lifestyle; (4) demonstrate stability; (5) engage in mental health

treatment; and (6) demonstrate protective parenting.

a. Caseworker Contact

¶ 15 Father contends that he substantially complied with this

requirement because he stayed in contact with the department

throughout the case. The caseworker agreed.

¶ 16 But the caseworker testified that she had trouble getting the

required releases of information from father so that she could

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monitor his compliance with the treatment plan. He counters that

the department did not receive his releases of information because

it had not mailed the releases to him, along with pre-stamped

envelopes, as was required by his treatment plan.

¶ 17 While it is true that the caseworker did not mail the releases of

information to father, he does not acknowledge that he had received

the releases multiple times in person, via email, and through his

legal counsel. And it is uncontested that father never provided

releases of information to his parole officer or to the caseworker.

b. Legal Income

¶ 18 Father contends that the court inappropriately “shifted the

burden of proof” on this issue because the court did not “cite any

evidence supporting a finding that [f]ather’s income was insufficient

to support his son’s needs.” Father adds that he and mother

provided “undisputed testimony” that confirmed they were able to

meet the child’s needs.

¶ 19 The record shows father provided a paystub to the department

to confirm his employment. But the caseworker testified that she

had only received one paystub and that it was not enough for her to

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assess father’s regular finances to determine whether it was enough

to provide for his needs and for the child’s needs.

¶ 20 The court ultimately found the caseworker credible, and, as we

noted above, credibility determinations are within the court’s

discretion. A.M., ¶ 15. It is up to the court, as the trier of fact, to

weigh the evidence, including any conflicting evidence. See People

in Interest of A.J.L., 243 P.3d 244, 249-50 (Colo. 2010). In a case,

such as this one, in which the court’s factual findings are

supported by competent evidence in the record, we will not disturb

them. Id. at 256 (a reviewing court cannot substitute its opinion for

the juvenile court’s when conflicting evidence exists).

c. Maintaining a Legal Lifestyle

¶ 21 Father submits that he was compliant with this requirement

because the new criminal charges the caseworker mentioned were

later dismissed. But the criminal charges were not dismissed until

well after the termination hearing. Consequently, this was not

information available to the court at the time of the termination

hearing.

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¶ 22 Plus, because father never provided a release of information

for his parole officer, the caseworker was never able to confirm

whether he was following the terms of his parole.

d. Stability

¶ 23 Father contends that he complied with the stability

requirement because he had housing and because nothing in his

treatment plan required him to “either own or rent his own home.”

It is uncontested that, at the time of the termination hearing, father

was living with mother in a rented room in his employer’s home.

¶ 24 True, the treatment plan did not require him to own or rent

his own home. But it required him to have a safe and stable

environment for the child.

¶ 25 The caseworker testified that she had concerns about the

stability of the father’s living arrangements because he never

provided the department with a lease and because the caseworker

was unsure whether the parents had any legal right to remain in

the rented room. Additionally, father never provided information

that would have enabled the department to do a background check

on the other adults residing in the building to ensure the child’s

safety.

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e. Mental Health Treatment

¶ 26 Father asserts that he completed a mental health evaluation

while incarcerated, which recommended no further treatment. But

his treatment plan specifically required him to comply with a

mental health assessment “[u]pon discharge from the Department

of Corrections.” He did not do this. The caseworker testified that

she believed another assessment of father was necessary because

there was a big difference in life and in potential stressors between

living in custody and living in the community that could affect his

mental health.

f. Protective Parent

¶ 27 Finally, father asserts that the evidence showed he was a

protective parent. In contrast, the caseworker had concerns about

his protective capacity given that the parents intended to remain

together and that mother continued to struggle with substance

abuse. The caseworker did not think that father had demonstrated

any understanding of mother’s substance abuse and how it could

affect the child, or how he would keep the child safe from it. See

People in Interest of C.T.S., 140 P.3d 332, 334 (Colo. App. 2006)(a

parent who chooses to remain in a relationship with someone who

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poses a threat to the child’s welfare may be deemed unfit if such

conduct prevents the parent from providing adequate protection).

¶ 28 Father said that, since he had been released from custody, he

had never seen mother under the influence of controlled substances

and that he had no concerns about her drug usage. But mother

testified that she had used controlled substances as recently as two

weeks before the first termination hearing while she was living with

father; he did not know she had relapsed.

¶ 29 Finally, father appears to contend that the court’s findings are

erroneous because it relied on the caseworker’s testimony. But the

court found the caseworker’s testimony credible, which was well

within its province. See A.M., ¶ 15.

¶ 30 Even though father partially complied with his treatment plan,

such partial compliance was not enough to render him fit. See

People in Interest of D.L.C., 70 P.3d 584 (Colo. App. 2003)(partial

compliance, or even substantial compliance, may not be sufficient

to improve the parent’s conduct or condition). Because the record

supports the court’s findings, we conclude that the court did not

err.

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2. Mother

¶ 31 Mother asserts that the court erred when it concluded that she

could not become fit within a reasonable time because, she

submits, she had demonstrated she was able to remain sober. Had

the case remained open, she continues, she could have established

extended sobriety.

¶ 32 The court decided that mother was unfit because of her

lifestyle and because of her use of controlled substances, neither of

which had improved even with the treatment plan. The court also

found that her conduct was unlikely to change within a reasonable

time.

¶ 33 The record supports these findings. For example, throughout

the life of this case, mother engaged in substance abuse treatment

with at least seven different providers and, while at times she did

well, she had several relapses and there were significant gaps in her

treatment. Mother ultimately never provided the department with

proof that she had consistently maintained her sobriety. She

admitted that she had relapsed with multiple controlled substances

as recently as two weeks before the first termination hearing, and,

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at the height of her addiction, she had been using up to one

hundred fentanyl pills a day.

¶ 34 Additionally, at the time of the termination hearing, mother

had an outstanding warrant for her arrest in a criminal case that

had been open for nearly two years.

¶ 35 The caseworker testified that she did not believe it was in the

child’s best interest for the case to remain open, given how long it

had already been open and the child’s need for permanency.

¶ 36 Mother also asserts that the court erred when it decided that

she was unable to meet the child’s needs. But she neither develops

this assertion in her brief, nor points to parts of the record

supporting it. We therefore will not address it. See In re Parental

Responsibilities Concerning S.Z.S., 22 COA 105, ¶ 29.

¶ 37 We note that mother also contends that the court should not

have terminated her parental rights because the child had bonded

with her. But she neither develops this assertion in her brief, nor

points to parts of the record supporting it. We therefore will not

address it. See S.Z.S., ¶ 29.

¶ 38 Against this background, we conclude that the court did not

err.

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III. Less Drastic Alternatives

¶ 39 Mother also asserts that the court erred when it found there

was no less drastic alternative to termination because, she adds,

the foster parents never said that they were unwilling to accept an

allocation of parental responsibilities. We disagree.

A. Applicable Law and Standard of Review

¶ 40 Implicit in the statutory scheme for terminating parental

rights is a requirement that the court consider and eliminate less

drastic alternatives before entering an order of termination. People

in Interest of B.H., 2021 CO 39, ¶ 51; A.M., ¶ 19. In considering

less drastic alternatives, 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.

The court may also consider other factors, including whether the

alternative placement option favors adoption rather than an

allocation of parental responsibilities, People in Interest of Z.M.,

2020 COA 3M, ¶ 31, and whether the child needs a stable,

permanent home that can be assured only by adoption. People in

Interest of Z.P., 167 P.3d 211, 214 (Colo. App. 2007).

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¶ 41 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. As

a result, 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.

¶ 42 We must accept the court’s determination that no less drastic

alternative to termination was available unless the finding was so

clearly erroneous as to find no support in the record. People in

Interest of C.Z., 2015 COA 87, ¶ 64. In other words, when the court

considers a less drastic alternative and still decides 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. B.H., ¶ 80.

B. Analysis

¶ 43 The court found that less drastic alternatives had been

considered and ruled out, that an allocation of parental rights to

the child’s foster family was “not an option,” and that the child

needed the stability and permanency that termination would

provide.

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¶ 44 The record supports the court’s findings. Although members

of the foster family did not testify, the caseworker testified that they

were unwilling to consider an allocation of parental rights after their

relationship with the parents had broken down.

¶ 45 Mother cites no law, and we are not aware of any, that

requires the foster parents themselves to testify about their

unwillingness to support an allocation of parental rights. The

caseworker also testified that, even if the foster parents were open

to one, the caseworker would not have recommended it. As we have

previously noted, the court found the caseworker’s testimony to be

credible. See A.M., ¶ 15.

¶ 46 The judgment is affirmed.

CHIEF JUDGE ROMÁN and JUDGE GRAHAM concur.

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