Peo in Interest of TB

23CA2221 Peo in Interest of TB 07-11-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2221

Fremont County District Court No. 22JV7

Honorable Kaitlin B. Turner, Judge

The People of the State of Colorado,

Appellee,

In the Interest of T.B., a Child,

and Concerning T.B.,

Appellant.

JUDGMENT AFFIRMED

Division A

Opinion by JUDGE RICHMAN*

Román, C.J., and Bernard*, J., concur

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

Announced July 11, 2024

Eric Bellas, County Attorney, Sean Biddle, Assistant County Attorney, Cañon

City, Colorado, for Appellee

Jenna L. Mazzucca, Guardian Ad Litem

Partick R. Henson, Office of Respondent Parents’ Counsel, Justin Twardowski,

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.

1

¶ 1 T.B. (father) appeals the judgment terminating the parent-

child legal relationship between him and T.B. (the child). We affirm.

I. Background

¶ 2 In January 2022, the Fremont County Department of Human

Services filed a petition in dependency and neglect, alleging, among

other things, that the child tested positive for illegal substances at

birth and father was incarcerated. The Department placed the child

with a foster family who had adopted the child’s sibling following a

dependency and neglect proceeding in 2019. After father admitted

to the allegations in the petition, a magistrate adjudicated the child

dependent and neglected and adopted a treatment plan for father.

¶ 3 In October 2022, the Department moved to terminate father’s

parental rights. A few weeks later, paternal grandmother moved to

intervene in the case, see § 19-3-507(5)(a), C.R.S. 2023 (allowing a

grandparent to intervene “as a matter of right following

adjudication”), and she requested guardianship and legal custody of

the child, see § 19-3-602(2), C.R.S. 2023 (noting that a grandparent

must file a request for guardianship and legal custody within

twenty days of the filing of the termination motion). The magistrate

conducted an evidentiary hearing on the termination motion, and

2

after considering the evidence, the magistrate entered a written

order terminating the parent-child legal relationship between father

and the child.

¶ 4 Father petitioned the juvenile court for review of the

magistrate’s judgment terminating his parental rights. See § 19-1-

108(5.5), C.R.S. 2023 (noting that “[a] petition for review is a

prerequisite before an appeal may be filed with the Colorado court

of appeals”). The juvenile court affirmed the magistrate’s judgment.

II. Discussion

¶ 5 Father contends that the juvenile court erred by erroneously

applying the sibling group presumption in section 19-3-605(2),

C.R.S. 2023, and as a result, finding that there was no less drastic

alternative to termination. For the reasons explained below, even if

the juvenile court erroneously referred to the statute, we discern no

reversible error.

¶ 6 A magistrate 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

3

or condition is unlikely to change in a reasonable time. § 19-3-

604(1)(c), C.R.S. 2023.

¶ 7 Before terminating parental rights under section 19-3-

604(1)(c), the magistrate must consider and eliminate less drastic

alternatives. People in Interest of M.M., 726 P.2d 1108, 1122-23

(Colo. 1986). In considering less drastic alternatives, a magistrate

must give primary consideration to the child’s physical, mental, and

emotional conditions and needs. § 19-3-604(3); People in Interest of

Z.P., 167 P.3d 211, 214 (Colo. App. 2007). Permanent placement

with a relative may not be a viable alternative if the relative cannot

appropriately care for the child. See People in Interest of T.E.M., 124

P.3d 905, 910 (Colo. App. 2005).

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

“adequate[ly]” meet a child’s needs; rather, it must be the “best”

option for the child. People in Interest of A.M. v. T.M., 2021 CO 14,

¶ 27. Therefore, if the magistrate considers a less drastic

alternative but finds instead that termination is in the child’s best

interests, the magistrate must reject the less drastic alternative and

order termination. Id. at ¶ 32. And under those circumstances, we

4

must affirm the decision if the magistrate’s findings are supported

by the record. People in Interest of B.H., 2021 CO 39, ¶ 80.

¶ 9 Our review of the juvenile court’s decision affirming the

magistrate’s judgment is effectively a second layer of appellate

review. See People in Interest of N.G., 2012 COA 131, ¶ 37. Like the

juvenile court, we must accept the magistrate’s factual findings

unless they are clearly erroneous. Id. However, we may set aside a

judgment based on errors of law or findings that do not conform to

the statutory criteria. Id.

¶ 10 Section 19-3-605(1) requires the court to consider a timely

request by a grandparent for guardianship and legal custody of a

child following an order terminating parental rights. § 19-3-605(1).

In doing so, the court may give preference to a grandparent who

makes a timely request if “such placement is in the best interests of

the child.” Id. However, “when the child is part of a sibling group

and the sibling group is being placed out of the home,” there is a

rebuttable presumption that “placement of the entire sibling group

in [a] joint placement is in the best interests of the children.” § 19-

3-605(2). In making these post-termination placement decisions,

the court must consider the relevant factors in section 19-3-605(3),

5

which include, for example, whether the placement can meet the

child’s needs and the possible effects of removing a child from the

current placement.

¶ 11 In affirming the magistrate’s order, the juvenile court

concluded that the sibling group presumption applied and then

considered the factors in section 19-3-605(3) (even though father

never raised section 19-3-605 and the magistrate did not rule on

that basis) to reject father’s assertion that the magistrate had erred

by rejecting permanent placement with paternal grandmother.

¶ 12 On appeal, father asserts that the juvenile court erred because

the plain language of section 19-3-605(2) does not apply when only

one child is being placed, rather than an entire sibling group, such

as in the present case. But, as noted above, section 19-3-605

involves a court’s placement decisions after it terminates parental

rights. See § 19-3-605(1), (3). In other words, the sibling group

presumption described in section 19-3-605(2) was not relevant to

the juvenile court’s consideration of whether the magistrate

properly terminated father’s parental rights, and we therefore need

not consider whether the juvenile court erred by interpreting the

language in section 19-3-605(2).

6

¶ 13 However, we decline to reverse the judgment based on the

juvenile court’s erroneous application of section 19-3-605 because

father has not directed us to anything in the record indicating that

the magistrate also relied on the sibling group presumption in

section 19-3-605(2) when it terminated his parental rights. Rather,

the record is clear that the magistrate rejected permanent

placement with paternal grandmother as a less drastic alternative

to termination because the evidence established that she was not

an appropriate placement option. See T.E.M., 124 P.3d at 910.

Specifically, the magistrate found, with record support, that the

Department had provided paternal grandmother with the

opportunity to demonstrate that she was a suitable placement

option, but she did not comply with the Department’s requests. In

sum, because there is nothing in the record indicating that the

magistrate believed that he was required to place the child with his

sibling under the sibling group presumption, or that the magistrate

rejected a less drastic alternative on that basis, we reject father’s

contention.

¶ 14 Except for the juvenile court’s purported erroneous

interpretation of section 19-3-605(2), father has not provided us

7

with any basis to conclude that the magistrate erred by terminating

his parental rights. Indeed, father does not challenge any of the

magistrate’s factual findings underlying its decision to terminate

parental rights under section 19-3-604(1)(c) or rejecting a less

drastic alternative in the form of permanent placement with

paternal grandmother. See A.M., ¶ 48.

¶ 15 Therefore, because the magistrate properly considered less

drastic alternatives but determined that termination was in the

child’s best interest, the magistrate was required to reject

placement with grandmother and order termination. See id. at

¶ 32. And because the record supports the magistrate’s findings,

we cannot disturb the judgment. See B.H., 2021 CO 39, ¶ 80.

III. Disposition

¶ 16 The judgment is affirmed.

CHIEF JUDGE ROMÁN and JUDGE BERNARD concur.