Peo in Interest of AHG

24CA0425 Peo in Interest of AHG 10-17-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0425
City and County of Denver Juvenile Court No. 22JV30567
Honorable Elizabeth Beckers Strobel, Judge

The People of the State of Colorado,

Appellee,

In the Interest of A.H.G., a Child,

and Concerning S.M.H.,

Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE FOX
Johnson and Schock, JJ., concur

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

Kerry C. Tipper, City Attorney, Amy J. Packer, Assistant City Attorney, Denver,
Colorado, for Appellee

Josi McCauley, Guardian Ad Litem

Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr,
Office of Respondent Parents’ Counsel, Colorado, for Appellant
¶1 In this dependency and neglect proceeding, S.M.H. (mother)

appeals the judgment terminating her parent-child legal

relationship with A.H.G. (the child). We affirm.

I. Background

¶2 In September 2022, the Denver County Department of Human

Services filed a petition in dependency and neglect regarding the

then-six-year-old child. The Department alleged concerns about

mother’s substance use and the child’s exposure to guns and

violence. The juvenile court granted temporary legal custody to the

Department, and the child was placed with her paternal

grandmother.

¶3 After mother entered an admission to the petition, the juvenile

court adjudicated the child dependent or neglected. The court

adopted a treatment plan requiring mother to engage in substance

abuse treatment, cooperate with the Department, attend supervised

family time, and develop stability.

¶4 The Department later filed a motion to terminate mother’s

parental rights. After two continuances, the juvenile court held a

contested termination hearing and granted the Department’s

motion.

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II. Discussion

¶5 Mother’s sole contention on appeal is that the juvenile court

erred by finding that she could not become fit within a reasonable

amount of time. We discern no error.

A. Standard of Review

¶6 Whether a juvenile court properly terminated parental rights

presents a mixed question of law and fact because it involves

application of the termination statute to evidentiary facts. People in

Interest of S.R.N.J-S., 2020 COA 12, ¶ 10. We review a court’s

factual findings for clear error, but we review de novo the court’s

legal conclusions based on those facts. Id.

¶7 The credibility of the witnesses, as well as the sufficiency,

probative effect, and weight of the evidence, and the inferences and

conclusions to be drawn from it, are within a juvenile court’s

province. People in Interest of S.Z.S., 2022 COA 133, ¶ 10. We

cannot reweigh the evidence or substitute our judgment for that of

the court. Id. at ¶ 29.

B. Applicable Law

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

clear and convincing evidence, that (1) the child was adjudicated

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dependent or 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.

¶9 An unfit parent is one whose conduct or condition renders the

parent unable or unwilling to give a child reasonable parental care.

S.Z.S., ¶ 23. “Reasonable parental care requires, at a minimum,

that the parent provide nurturing and protection adequate to meet

the child’s physical, emotional, and mental health needs.”

S.R.N.J-S., ¶ 9. A parent’s noncompliance with a treatment plan

generally may also be considered in determining unfitness. People

in Interest of D.P., 181 P.3d 403, 408 (Colo. App. 2008).

¶ 10 A parent must have a reasonable amount of time to work on a

treatment plan before a juvenile court terminates her parental

rights. People in Interest of D.Y., 176 P.3d 874, 876 (Colo. App.

2007). But a reasonable time is not an indefinite time, and it must

be determined by considering the physical, mental, and emotional

conditions and needs of the child. S.Z.S., ¶ 24. Periods as short as

five to nine months have been held to be sufficient to comply with a

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treatment plan. People in Interest of A.J., 143 P.3d 1143, 1152

(Colo. App. 2006).

¶ 11 The determination of a reasonable period is necessarily fact

specific, and thus, what constitutes a reasonable time to comply

with a treatment plan may vary from case to case. D.Y., 176 P.3d at

876. In determining whether a parent’s conduct or condition is

likely to change and whether the parent can become fit in a

reasonable time, the juvenile court may consider the chronic or

long-term nature of the parent’s conduct or condition and whether

any change occurred during the dependency and neglect

proceeding. K.D. v. People, 139 P.3d 695, 700 (Colo. 2006).

C. Analysis

¶ 12 The juvenile court found that mother had “been using drugs

for years” and that she continued to use substances during her

pregnancy with the child’s younger sibling, whose umbilical cord

tested positive for methamphetamine and fentanyl in November

2023. The court found that mother “did basically nothing” to

address her substance abuse in the year leading up to termination.

The court also found that mother’s “attempt at sobriety” had

occurred “just six days” before the hearing, and until that time,

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mother had demonstrated the same “lack of sobriety that caused

[the] case to be brought to the attention of the [c]ourt.”

¶ 13 The juvenile court further found that the child had been

adjudicated “well over a year ago” and that “the bottom line” was

that the child had “been waiting for 17 months for stability.” The

court concluded that the “conduct or condition of [mother]

render[ed] her unlikely to change within a reasonable period of time

for this seven-year-old child” and that termination was in the child’s

best interests because it would provide the stability she needed.

¶ 14 The record supports these findings.

¶ 15 First, the record supports the juvenile court’s findings about

the long-term nature of mother’s substance use. The substance

abuse evaluator testified that although mother denied using

methamphetamine and fentanyl at the time of her 2022 evaluation,

she admitted that she had used these drugs before 2019. Mother

testified that she was taking oxycodone pills as far back as 2017

and that when her mother passed away, her addiction “got worse.”

The caseworker testified that mother tested positive for

methamphetamine and fentanyl in September or October 2022.

The caseworker’s report, which was admitted as evidence during the

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hearing, stated that mother gave birth to a baby whose umbilical

cord was positive for the same drugs in November 2023. And, while

mother did not provide a second urinalysis test until January 2024,

that test was positive.

¶ 16 Second, the record supports the juvenile court’s findings about

mother’s lack of progress during the proceedings. Over a year

passed between the adoption of mother’s treatment plan and the

termination hearing. The caseworker testified that although mother

completed two substance abuse evaluations, she had not engaged

in any of the recommended treatment by the first day of the

termination hearing. The caseworker also stated that throughout

the case, mother had not used the resources the Department

provided or taken steps to attain stable employment and housing.

The caseworker opined that on the date of the hearing, mother’s

parenting was not better than it was at the beginning of the case

and that mother remained unable to provide “the stability and

parental care that [the child] need[ed].”

¶ 17 It is true, as mother points out, that on the second day of the

hearing, which occurred about a week after the first, she testified

that she had entered inpatient treatment and had “six days of

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sobriety.” She also stated that her new treatment providers would

help her clear her warrants and find a sober living facility after she

completed her treatment. But the juvenile court was not required

to attribute more weight to the more recent evidence of mother’s

progress. See People in Interest of A.J.L., 243 P.3d 244, 252 (Colo.

2010) (attributing more weight to more recent evidence may be

appropriate in some instances, but doing so is within a juvenile

court’s discretion). Thus, we reject mother’s argument that the

court erred by denying her more time based on her recent

engagement in treatment and her plan for future stability,

particularly given the evidence that mother did not engage in

treatment or demonstrate stability for most of the case.

¶ 18 Mother also argues that the court should have allowed her

more time because she had a strong bond with the child. Indeed,

the visitation provider testified that family time typically went well

and that the child was bonded to mother. But mother does not

explain how the evidence of her bond with the child negates the

evidence showing that mother was not sober throughout the

proceedings and did not attempt to address her substance abuse

issues until after the termination hearing had already started.

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¶ 19 Finally, mother argues that the court should have given her

more time because the child was already in a permanent placement

and thus, would not have been negatively impacted by delaying

termination. But at the time of termination, the child had been out

of the home for seventeen months, and the caseworker testified that

paternal grandmother preferred adoption because she believed it

would provide stability for the child. The caseworker opined that

permanency via termination and adoption was in the child’s best

interests. Thus, although there may be evidence indicating that the

child would have remained in the same placement even if the court

had given mother more time, there is also evidence supporting the

court’s finding that allowing more time was not in the child’s best

interests because it would have delayed the stability the child

needed. As noted, we cannot reweigh the evidence or substitute our

judgment for that of the juvenile court. S.Z.S., ¶ 29.

¶ 20 In sum, the juvenile court found that mother could not

become fit within a reasonable time by considering the evidence

showing mother’s partial compliance and weighing it against the

contrary evidence and the child’s needs. Because the record

supports the court’s finding, we decline to disturb the judgment.

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III. Disposition

¶ 21 The judgment is affirmed.

JUDGE JOHNSON and JUDGE SCHOCK concur.

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