Peo in Interest of KLC

24CA0274 Peo in Interest of KLC 09-26-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0274
Larimer County District Court No. 22JV30133
Honorable Joseph D. Findley, Judge

The People of the State of Colorado,

Appellee,

In the Interest of K.L.C., a Child,

and Concerning M.A.,

Appellant.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE GOMEZ
Tow and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 26, 2024

William Ressue, County Attorney, Nicole Liley, Assistant County Attorney, Fort
Collins, Colorado, for Appellee

Josi McCauley, Counsel for Youth, Superior, Colorado, for K.L.C.

Jenna L. Mazzucca, Guardian Ad Litem

Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for
Appellant
¶1 In this dependency and neglect proceeding, M.A. (mother)

appeals the juvenile court’s judgment allocating parental

responsibilities for K.L.C. (the child) to her maternal grandparents.

We affirm in part, reverse in part, and remand the case with

instructions.

I. Background

¶2 The Larimer County Department of Human Services received

multiple referrals concerning the then-twelve-year-old child and her

older sister (who is not a subject of this appeal). At that time,

school staff reported that the child had engaged in self-harming

behaviors and had disclosed physical abuse by mother and her

husband (who is not the child’s father). The child also disclosed

that mother’s husband had sexually abused her. After meeting

with a caseworker, mother agreed to a safety plan in which she

would refrain from using any physical punishment and would

ensure that her husband didn’t have any contact with the child.

¶3 However, after receiving additional referrals and confirming

that mother continued to allow her husband to see the children, the

Department filed a petition in dependency and neglect. The court

entered a protective order that initially allowed both mother and her

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husband to have supervised visits with the children. But it later

amended the order to require that mother’s visits be therapeutic

and to prohibit mother’s husband from having any contact with the

children.

¶4 The juvenile court adjudicated the children dependent and

neglected. Thereafter, a home study under the Interstate Compact

on the Placement of Children was approved, and the children were

placed with their maternal grandparents in Texas. The court also

adopted a treatment plan for mother that required her to, among

other things, address mental health and substance abuse issues,

provide a safe home, and participate in family time. About a week

after her treatment plan was adopted, mother and her husband

moved to West Virginia. They later moved to Ohio.

¶5 The Department moved for an allocation of parental

responsibilities (APR) for both children to maternal grandparents.

Mother didn’t object to an APR as it pertained to the child’s sister

and, thus, the juvenile court granted an APR as to her. The court

then held a contested hearing regarding an APR for the child. After

considering the evidence and taking the matter under advisement,

the court granted an APR for the child to maternal grandparents.

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II. Applicable Law and Standard of Review

¶6 When a juvenile court adjudicates a child dependent or

neglected, the court is vested with “extensive and flexible

dispositional remedies.” People in Interest of A.M.D., 648 P.2d 625,

639 (Colo. 1982); see also § 19-3-508(1), C.R.S. 2024. Among these

remedies is placing the child in the legal custody of a relative

“under such conditions as the court deems necessary and

appropriate.” § 19-3-508(1)(b).

¶7 When allocating parental responsibilities in a dependency and

neglect proceeding, a juvenile court must consider the legislative

purposes of the Children’s Code. People in Interest of A.S.L., 2022

COA 146, ¶ 12. 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. People in Interest of

J.G., 2021 COA 47, ¶ 19. Thus, while the Children’s Code doesn’t

prescribe any specific factors a court must consider in making an

APR decision in a dependency and neglect proceeding, a court must

allocate parental responsibilities in accordance with the child’s best

interests. A.S.L., ¶ 12; see also People in Interest of L.B., 254 P.3d

1203, 1208 (Colo. App. 2011).

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¶8 A juvenile court must also determine that compelling reasons

exist not to return the child to their parents before entering an APR.

See People in Interest of C.M., 116 P.3d 1278, 1283 (Colo. App.

2005) (“Under the permanency statute, the department must

establish a compelling reason why it is not in the child’s best

interests to return home before a trial court may award permanent

custody of the child to a nonparent.”). And, although a court isn’t

required to find that a parent is unfit before allocating parental

responsibilities, a parent’s unfitness could be a compelling reason

not to return a child home. People in Interest of M.D., 2014 COA

121, ¶ 43.

¶9 Allocating parental responsibilities is a matter within the

sound discretion of the juvenile court, and when there is record

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

is binding on review. In re Parental Responsibilities Concerning

B.R.D., 2012 COA 63, ¶ 15. However, whether a court has applied

the correct legal standard presents a question of law that we review

de novo. Id.

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III. Analysis

A. Fit Within a Reasonable Time

¶ 10 Mother contends that the juvenile court abused its discretion

by allocating parental responsibilities to maternal grandparents

because she could’ve become fit within a reasonable time and, thus,

the APR wasn’t in the child’s best interests. We discern no error.

¶ 11 As a threshold matter, we note that during the contested APR

hearing, mother never argued that an APR was not in the child’s

best interests because she would become fit within a reasonable

time and the child could return to her. Thus, because mother

didn’t specifically make this argument, the juvenile court didn’t

have the opportunity to address it. See Berra v. Springer &

Steinberg, P.C., 251 P.3d 567, 570 (Colo. App. 2010) (to preserve an

issue for appeal, it must be “brought to the attention of the trial

court” and the court must be “given an opportunity to rule on it”).

¶ 12 In any event, even if mother had preserved this specific

argument, we would discern no error for several reasons.

¶ 13 First, although a juvenile court must find that a parent cannot

become fit within a reasonable time before it may terminate

parental rights, see § 19-3-604(1)(c)(III), C.R.S. 2024, no such

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finding is required before a court may allocate parental

responsibilities to a family member. In fact, while parental

unfitness “clearly constitutes a compelling reason not to return a

child home,” parental deficiencies less serious than unfitness may

give rise to a compelling reason not to return the child home when

considered in light of the child’s physical, mental, and emotional

conditions and needs. C.M., 116 P.3d at 1283. Thus, the fact that

a parent may become fit in a reasonable time is not dispositive of

whether an APR is in the child’s best interests, particularly if there

are other compelling reasons not to return a child to the parent.

¶ 14 Second, while not required, the juvenile court found that

mother was unfit at the time of the APR hearing because she

remained “unable to provide for the physical, emotional, and mental

needs of the child.” And, although the court didn’t make any

specific findings about mother’s compliance with her treatment

plan, there is no evidence in the record to show that she had made

significant progress on any of her treatment plan objectives with the

exception of consistently attending the virtual therapeutic visits.

The caseworker testified that mother hadn’t engaged in any therapy

or completed a mental health assessment, had been inconsistent

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with her sobriety monitoring, hadn’t secured safe and stable

housing on her own, hadn’t acknowledged the impact of her

husband’s presence on the child, and hadn’t done anything to

alleviate the Department’s concerns about her lack of

protectiveness.

¶ 15 Third, the juvenile court’s findings show that it considered the

child’s best interests in determining that there were compelling

reasons to not return the child to mother. Specifically, the court

found that the child had challenges that required “particular

attention” and was receiving the support and stability she needed

while living with maternal grandparents in Texas. The court also

found that regardless of the contested nature of the allegations

made against mother’s husband, the child had “strong reactions to

his presence indicating stress and fear.” And, although the court

acknowledged that mother had “spacious living conditions” to

accommodate the child, it was still concerned that mother was

living with her husband because of the “ongoing fears of an

extraordinary nature expressed by the child” in regard to him.

Based on these findings, the court determined that an APR to

maternal grandparents was in the child’s best interests.

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¶ 16 The record supports these findings and conclusions. The

caseworker testified that the child has a genetic disorder; is blind in

one eye; and needs a lot of support, including life skills services as

well as occupational, physical, speech, and mental health therapy.

The caseworker also testified that the child was doing much better

behaviorally while living with maternal grandparents and credited

the child’s progress to the consistency and stability provided in

their home. The caseworker further testified that when the child

initially alleged that mother’s husband had sexually abused her,

mother called her a “liar,” which caused the child to “feel that

trauma again.” The caseworker said that although the child would

become dysregulated and upset when mother’s husband appeared

on video or when mother talked about him during therapeutic

visits, mother hadn’t done any work to process the impact of or

develop an understanding about the past trauma experienced by

the child. Mother didn’t testify, and nothing in the record indicates,

that she was planning to stop living with her husband at any point

in the near or even distant future. And ultimately, the caseworker

opined that an APR to maternal grandparents was in the child’s

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best interests because the child needed the consistency and

stability that mother wasn’t able to provide.

¶ 17 Although mother points to her testimony that the child had

recently expressed a desire to return to her as evidence that the

APR was not in the child’s best interests, mother also admitted that

the child only expressed that desire after mother stated that she

wished the child could come home and the child said that she

“wished the same thing.” Conversely, the caseworker testified that

when she asked the child open-ended questions about her wishes,

the child indicated she wanted to stay with maternal grandparents.

See In re Marriage of Kann, 2017 COA 94, ¶ 36 (“[O]ur supreme

court has . . . expressed unbridled confidence in trial courts

to weigh conflicting evidence.”).

¶ 18 Accordingly, because the juvenile court’s findings and

conclusions are supported by the record, and because the court

applied the correct legal standards, we discern no error in its

determination that an APR to maternal grandparents was in the

child’s best interests.

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B. Limitation of Family Time

¶ 19 Mother also contends that the juvenile court improperly

limited her family time in its judgment granting the APR. We agree,

in part, with this contention.

¶ 20 In her brief, mother asserts that “it [would have been] in the

child’s best interests to have liberal and frequent [family] time with

[mother]” and implies that the APR judgment doesn’t allow such

family time. But she doesn’t explain how the family time orders

should’ve been different or what, in her view, would’ve constituted

“liberal and frequent” family time. And the juvenile court allocated

mother “supervised telephone and video contact” with the child,

which was substantially similar to the virtual family time mother

had exercised throughout the case. In fact, the court appears to

have lowered the level of required supervision for mother’s family

time — the APR judgment allows for family time that is supervised

by maternal grandparents instead of requiring that the visits be

therapeutic. Thus, to the extent that mother argues the court

improperly limited her family time by allowing only virtual

supervised contact, we are not persuaded.

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¶ 21 Additionally, mother points out that she was “desirous of

having a provision . . . that would have allowed [her] and maternal

grandparents to modify the custody order without returning to

court,” and she implies that the juvenile court disregarded that

request. But the court’s APR judgment plainly states that the

“parties may add, delete, or change these terms so long as they

agree in writing.” And, because the APR judgment was certified into

a domestic relations action, nothing prevents mother from moving

for a modification of family time in the district court. See C.M., 116

P.3d at 1283 (custody orders entered in a dependency or neglect

proceeding “are a plan for permanency, subject to change as

warranted by the best interests of the child”); see also § 14-10-

129(1)(a)(I), C.R.S. 2024 (allowing a district court to modify family

time “whenever such order or modification would serve the best

interests of the child”). Thus, we are not persuaded by this

argument either.

¶ 22 Nonetheless, we agree with mother’s argument that the

juvenile court erred by “providing that all [of mother’s] visits [would

be] at the discretion of [maternal] grandparents.” In general, a

court must make decisions about family time and may not delegate

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this function to others. See People in Interest of B.C., 122 P.3d

1067, 1070-71 (Colo. App. 2005); see also In re Marriage of Hatton,

160 P.3d 326, 334 (Colo. App. 2007) (the trial court “erred in

delegating to father discretion to determine whether mother could

exercise any [family] time”).

¶ 23 Here, the juvenile court ordered that mother “may” have

supervised contact with the child but that “the final decision

regarding [the] duration [of that contact] shall be with [maternal

grandparents.]” In other words, the court delegated the decision of

when and if mother could exercise family time to maternal

grandparents. And, although divisions of this court have noted that

delegation of family time decisions may be permissible in cases

where the evidence indicates that the parents are willing and able to

cooperate, see In re Marriage of Tibbetts, 2018 COA 117, ¶ 25, in

this case, the court didn’t make any findings about the parties’

ability to cooperate or otherwise justify its order delegating family

time decisions. Moreover, the record indicated that the parties

didn’t always get along.

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¶ 24 Therefore, we conclude that the court erred in delegating

maternal grandparents the discretion to determine whether and

when mother could exercise her family time.

IV. Disposition

¶ 25 The family time provision of the judgment is reversed, and the

case is remanded for the juvenile court to allocate family time

without delegating decisions regarding mother’s family time to

maternal grandparents. The judgment is affirmed in all other

respects.

JUDGE TOW and JUDGE KUHN concur.

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