Peo in Interest of JLS

24CA0623 Peo in Interest of JLS 09-19-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0623
Delta County District Court No. 23JV30007
Honorable Mary E. Deganhart, Judge

The People of the State of Colorado,

Appellee,

In the Interest of J.L.S., a Child,

and Concerning J.S.,

Appellant.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE GOMEZ
Dunn and Navarro, JJ., concur

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

John F. Baier, County Attorney, Jodie L. Behrmann, Assistant County
Attorney, Jason Wilson, Assistant County Attorney, Adriana Hartley, Assistant
County Attorney, Delta, Colorado, for Appellee

Alison A. Bettenberg, Guardian Ad Litem

Padilla Law, P.C., Beth Padilla, Durango, Colorado, for Appellant
¶1 In this dependency and neglect proceeding, J.S. (father)

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

legal relationship with J.S. (the child). We affirm.

I. Background

¶2 The Delta County Department of Human Services

(Department) filed a petition in dependency and neglect after

receiving reports that the child had tested positive for illicit

substances at birth, that the parents were abusing substances, and

that mother was attempting to take the child and leave in violation

of a safety plan. The child was removed from the home and placed

with maternal grandparents, where he remained for the duration of

the case.

¶3 The parents admitted the allegations in the petition, and the

child was adjudicated dependent and neglected. The court then

adopted treatment plans for the parents. Father’s treatment plan

required him to, among other things, participate in substance

abuse treatment, participate in family time, maintain employment,

maintain a safe and stable home, and cooperate with the

Department.

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¶4 Several months later, the Department moved to terminate

parental rights. After an evidentiary hearing, the court issued an

oral ruling followed by a written order terminating the parent-child

legal relationship between the parents. Father appeals.

II. Termination Criteria and Standard of Review

¶5 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. 2024.

¶6 Whether a juvenile court properly terminated parental rights

presents a mixed question of law and fact 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

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

CO 11, ¶ 31. However, we won’t disturb the court’s factual findings

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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 and the inferences to be drawn

from it, are matters within the court’s discretion. A.M., ¶ 15.

III. Discussion

¶7 Father asserts that the juvenile court abused its discretion by

taking judicial notice of his previous and pending criminal cases.

He also asserts that the court erred by finding the Department

made reasonable efforts to reunify the family. We address each

argument in turn.

A. Judicial Notice

¶8 We first consider father’s challenge to the juvenile court’s

taking of judicial notice of his criminal cases. Father asserts that

the evidence presented regarding those cases was “not relevant,

constituted improper character evidence, and included factual

allegations that are not subject to judicial notice.” We are not

persuaded.

1. Preservation

¶9 We decline to consider the arguments by the Department and

the child’s guardian ad litem (GAL) that father didn’t preserve this

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issue for appeal. We needn’t decide the arguments because, even if

we assume that father preserved this issue, we discern no error.

2. Applicable Law

¶ 10 Under CRE 201(a), a court may take judicial notice of

“adjudicative facts.” An adjudicative fact is “one not subject to

reasonable dispute” because it is “(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(b). A court may take

judicial notice of an adjudicative fact “whether requested or not,”

but it “shall take judicial notice if requested by a party and supplied

with the necessary information.” CRE 201(c), (d). “A party is

entitled upon timely request to an opportunity to be heard as to the

propriety of taking judicial notice and the tenor of the matter

noticed.” CRE 201(e).

¶ 11 A court may take judicial notice of court records, as they are

recognized as sources whose accuracy cannot be reasonably

questioned. See People v. Sena, 2016 COA 161, ¶ 23 (“The

occurrence of legal proceedings or other court actions are proper

facts for judicial notice.”); see also id. at ¶ 24; People v. Sa’ra, 117

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P.3d 51, 56 (Colo. App. 2004) (a court may take judicial notice of

the contents of court records in related proceedings). This includes

court records indicating the existence of a warrant. Sena, ¶ 27.

¶ 12 The decision to take judicial notice must be exercised

“cautiously because its purpose is to bypass the usual factfinding

process.” Quintana v. City of Westminster, 56 P.3d 1193, 1199

(Colo. App. 2002). We review a court’s decision to take judicial

notice for an abuse of discretion. Sena, ¶ 22. A court abuses its

discretion when its ruling is manifestly arbitrary, unreasonable,

unfair, or when it misapplies the law. People in Interest of E.R.,

2018 COA 58, ¶ 6.

3. Analysis

¶ 13 In its ruling, the juvenile court took judicial notice of father’s

prior criminal matters, but expressly limited its judicial notice “as

argued by [father’s counsel] on the record.”

¶ 14 We disagree with father’s assertion that the criminal records

the court took judicial notice of were not relevant. Those records

included father’s convictions for false reporting, false identification,

theft, and assault charges, as well as father’s lack of compliance

with probation and outstanding warrants stemming from some of

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those cases. Father’s criminal history was relevant insofar as it

showed his continued struggles to comply with his probation and

stay out of jail. See People in Interest of R.J.A., 994 P.2d 470, 474

(Colo. App. 1999) (the “best indicator of mother’s future success in

treatment was her past history”).

¶ 15 We also disagree with father’s assertion that the request for

judicial notice was an attempt to admit improper character

evidence. In making a termination decision, a court must consider

a parent’s conduct or condition, see § 19-3-604(1)(c)(III), and while

evidence of prior acts isn’t admissible to prove character or to show

someone acted in conformity with that character, a “parent’s past

conduct and current circumstances” are relevant to predict whether

“it is likely or expected that the parent will fail to provide proper

care for the child in the future.” People in Interest of A.W., 2015

COA 144M, ¶ 21 (comparing CRE 404(b) with People in Interest of

S.N., 2014 COA 116, ¶ 17). We cannot say that the juvenile court

acted outside its discretion in determining that the records could be

used for that proper purpose, rather than as character evidence.

¶ 16 Lastly, we reject father’s assertion that the evidence the

Department recited from his criminal cases included factual

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allegations that were not subject to judicial notice. Father asserts

that the “county attorney recited what she believed occurred in

those cases, but it was not confirmed or corroborated.” But father

fails to further describe or sufficiently argue exactly what factual

allegations the county attorney cited that were allegedly inaccurate

or not subject to judicial notice. See People v. Simpson, 93 P.3d

551, 555 (Colo. App. 2003) (“We decline to consider a bald legal

proposition presented without argument or development.”).

Further, upon father’s counsel’s request, the court specifically

limited its judicial notice regarding anything that was hearsay or

subject to dispute.

¶ 17 Finally, even if there was any error, it was harmless. See

C.R.C.P. 61; People in Interest of M.H-K., 2018 COA 178, ¶ 21.

Nothing in the record suggests that the juvenile court afforded

undue weight to evidence of father’s criminal convictions when it

terminated his parental rights. See People in Interest of M.M., Jr.,

215 P.3d 1237, 1249-50 (Colo. App. 2009) (in a bench trial, we

presume that all incompetent evidence is disregarded by the court

in reaching its decision, and we won’t disturb the judgment unless

the court couldn’t have reached the result but for the incompetent

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evidence). True, the court took judicial notice of father’s criminal

cases, but its focus in its oral and written rulings was on father’s

lack of compliance with his treatment plan and his failure to

communicate with the Department or participate in family time

with the child. In fact, the court didn’t even mention the

convictions in either its oral ruling or its written ruling.

B. Reasonable Efforts

¶ 18 We next consider father’s assertion that the juvenile court

erred by determining that the Department made reasonable efforts

to reunite the family. Specifically, he asserts that the Department

didn’t engage him in substance abuse testing and treatment, as well

as transportation to and therefrom; assist him in meeting the

child’s financial needs; or help him secure a safe and stable home.

Again, we are not persuaded.

1. Preservation

¶ 19 Contrary to the GAL’s assertion, we are satisfied that father

sufficiently preserved this argument for appeal. During closing

arguments, father’s counsel stated that father “object[ed] to

termination of parental rights based on the lack of reasonable

efforts.” See People in Interest of C.Z., 2015 COA 87, ¶ 9 (issues

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presented in closing argument are considered preserved). Given

this closing argument, we are satisfied that father’s counsel brought

the issue raised on appeal to the juvenile court’s attention.

2. Applicable Law

¶ 20 A department of human services must make reasonable efforts

to rehabilitate parents and reunite families before a court may

terminate parental rights pursuant to section 19-3-604(1)(c). See

§§ 19-3-100.5(1), 19-3-604(2)(h), C.R.S. 2024. Reasonable efforts

means the “exercise of diligence and care” for children who are in

out-of-home placement. § 19-1-103(114), C.R.S. 2024.

¶ 21 In deciding whether a department has satisfied its reasonable

efforts obligation, the juvenile court should consider whether the

services provided were appropriate to support the parent’s

treatment plan. People in Interest of S.N-V., 300 P.3d 911, 915

(Colo. App. 2011). But the parent is ultimately responsible for

using those services to obtain the assistance needed to comply with

the treatment plan. People in Interest of J.C.R., 259 P.3d 1279,

1285 (Colo. App. 2011). And the court may consider a parent’s

unwillingness to participate in treatment when determining whether

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a department made reasonable efforts. See People in Interest of

A.V., 2012 COA 210, ¶ 12.

3. Analysis

¶ 22 While the juvenile court didn’t describe the Department’s

efforts, it determined that the Department had made reasonable

efforts. Because the record supports the court’s findings, we reject

father’s arguments.

¶ 23 The record shows that the Department provided reasonable

efforts and attempted to engage father in the treatment services.

The caseworker supervisor testified that referrals were made for

services required under the treatment plan and that the

Department provided resources, such as gas cards and financial

assistance, to assist in completing those services. The Department

also provided family time services and drug testing, and it gave

father a phone to assist with communication and calling into

urinalysis testing.

¶ 24 Despite these services, the record shows that father’s

engagement in the case was minimal and that his participation and

communication with the Department ceased almost entirely once he

was released from custody eight months before the termination

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hearing. The caseworker supervisor testified that although the

caseworker attempted monthly outreach efforts, father’s last

communication with the Department was seven months before the

termination hearing. She also testified that father was reportedly

homeless at the time of the last outreach, that the Department had

never been able to verify his employment, and that he hadn’t

participated in family time with the child in the six months prior to

the termination hearing. This testimony was undisputed. Notably,

there is no indication in the record that father raised any concerns

with access to services or requested any assistance with services or

referrals during the case.

¶ 25 Thus, as the juvenile court explained, father hadn’t “really

done anything under [his] treatment plan” in the eight months

preceding the termination hearing, and “if . . . parties are not

engaged, there’s not a lot that the Department is able to do to try to

move this case forward for making sure that the parents are able to

meet the objectives and the action items in the treatment plan.”

See id. (even the more stringent standard for active efforts “does not

mean persisting with futile efforts”). In short, the record shows that

it was father’s own lack of communication and engagement in the

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case — not the Department’s lack of efforts — that prevented father

from accessing additional referrals and services. See id.

IV. Disposition

¶ 26 The judgment is affirmed.

JUDGE DUNN and JUDGE NAVARRO concur.

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