Peo in Interest of TN

24CA0726 Peo in Interest of TN 11-14-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0726
Adams County District Court No. 22JV30087
Honorable Caryn A. Datz, Judge

The People of the State of Colorado,

Appellee,

In the Interest of Tyl.N. and Tyr.N., Children,

and Concerning G.T.N. and S.J.P.,

Appellants.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE TOW
Pawar and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 14, 2024

Heidi Miller, County Attorney, Lisa Vigil, Assistant County Attorney,
Westminster, Colorado, for Appellee

Alison Bettenberg, Guardian Ad Litem

The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for
Appellant G.T.N.

Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for
Appellant S.J.P.
¶1 S.J.P. (mother) and G.T.N. (father) appeal the judgment

terminating their parent-child legal relationships with their

children, Tyl.N. and Tyr.N. We affirm.

I. Background

¶2 In November 2022, the Adams County Human Services

Department (Department) received a report that mother had given

birth to the children and admitted to using controlled substances

during her pregnancy. Mother had an open dependency and

neglect case at the time with an older child who had also tested

positive for methamphetamine at birth. The Department removed

the children and placed them in foster care.

¶3 Based on this information, the Department filed a petition in

dependency and neglect. After each parent entered a no-fault

admission, the juvenile court adjudicated the children dependent

and neglected. The court then adopted treatment plans for the

parents that required them to (1) address their substance

dependence and mental health concerns; (2) attend family time;

(3) provide a safe and stable home and meet the children’s needs;

and (4) cooperate with the Department and professionals.

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¶4 In August 2024, the Department moved to terminate the

parents’ parental rights. The juvenile court held an evidentiary

hearing over three days in March 2024. In a comprehensive written

order, the court granted the Department’s motion and terminated

the parents’ parental rights.

II. Reasonable Efforts

¶5 Mother asserts that the juvenile court erred by finding that the

Department made reasonable efforts to rehabilitate her and reunify

her with the children. We disagree.

A. Applicable Law and Standard of Review

¶6 In deciding whether to terminate parental rights under section

19-3-604(1)(c), C.R.S. 2024, the juvenile court must consider

whether the county department of human services made reasonable

efforts to rehabilitate the parent and reunite the parent with the

child. §§ 19-1-103(114), 19-3-208, 19-3-604(2)(h), C.R.S. 2024.

The Colorado Children’s Code defines “reasonable efforts” as the

“exercise of diligence and care” to reunify parents with their

children. § 19-1-103(114).

¶7 The reasonable efforts standard is satisfied if the department

provides appropriate services in accordance with section 19-3-208.

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§ 19-1-103(114). Section 19-3-208 requires departments to

provide, when appropriate, screenings, assessments, and individual

case plans for the provision of services; home-based family and

crisis counseling; information and referral services to available

public and private assistance resources; family time; and placement

services. § 19-3-208(2)(b). If additional funds are available, the

department must also provide “[d]rug and alcohol treatment

services.” § 19-3-208(2)(d)(V).

¶8 In assessing the department’s reasonable efforts, the juvenile

court should evaluate 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), by

“considering the totality of the circumstances and accounting for all

services and resources provided to a parent to ensure the

completion of the entire treatment plan,” People in Interest of

My.K.M. v. V.K.L., 2022 CO 35, ¶ 33. But the parent is ultimately

responsible for using the services to comply with the plan. People in

Interest of J.C.R., 259 P.3d 1279, 1285 (Colo. App. 2011). The court

may consider a parent’s unwillingness to participate in treatment in

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determining whether the department made reasonable efforts. See

People in Interest of A.V., 2012 COA 210, ¶ 12.

¶9 Whether a department of human services satisfied its

obligation to make reasonable efforts is a mixed question of fact and

law. People in Interest of A.S.L., 2022 COA 146, ¶ 8. We review the

juvenile court’s factual findings for clear error and review de novo

its legal determination, based on those findings, as to whether the

department satisfied its reasonable efforts obligation. Id.

B. Analysis

¶ 10 The juvenile court found that the Department made

reasonable efforts to rehabilitate mother and reunify her with the

children. The court found, among other things, that the

Department provided mother active case management, life skills

training, a dual diagnosis evaluation and treatment services,

monitored sobriety, housing assistance, and bus passes. The court

determined, however, that, despite these efforts, mother had not

utilized these services to successfully comply with her treatment

plan and become a fit parent.

¶ 11 The record supports the juvenile court’s findings. The

caseworker testified that the Department first referred mother to a

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dual diagnosis evaluation in April 2023, but she did not complete it

until December 2023. The evaluator recommended the “highest

level of treatment,” which required mother to attend group therapy

three times a week. The caseworker reported that mother only

attended seventeen of twenty-seven scheduled sessions, and of

those seventeen, she appeared more than fifteen minutes late on

twelve occasions. The Department also provided mother with a list

of providers to accommodate her drug screens and later switched

from urinalysis testing to mouth swabs at mother’s request. The

caseworker said that mother completed just two screens during the

case (one of which was positive for methamphetamine) and missed

197 screens. The Department provided mother with local and

regional bus passes to allow her to travel to treatment and screens.

¶ 12 The record also shows that the Department provided mother

with housing resources, a life skills worker, and family time

services. For example, the caseworker said that the Department

provided mother with a list of housing resources and utilized a life

skills worker to help her access those resources. The life skills

worker aided mother in getting an apartment, and the Department

provided funding for rent. The caseworker even spoke with the

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apartment manager and convinced him to reverse course on the

initial denial of mother’s application. Once mother had an

apartment, the Department arranged for mother to have supervised

visits in her home.

¶ 13 The record supports the juvenile court’s findings that (1) the

Department provided mother with appropriate resources to engage

with her treatment plan and (2) she did not take advantage of those

resources and was unsuccessful in becoming fit. See A.V., ¶ 12;

J.C.R., 259 P.3d at 1285. Nevertheless, mother asserts, for the

following three reasons, that the court erred. We disagree with all

three contentions.

¶ 14 First, mother argues that the caseworker should have met

with her during family time. But the caseworker explained that she

declined to meet with mother during her family time because it

would impede the visits. In fact, mother agreed with this sentiment,

testifying that she was “offended” that the caseworker wanted to

talk with her about the treatment plan during one particular visit

because “[t]hat’s the only time [she] get[s] with” her children. The

juvenile court also found, with record support, that “the caseworker

made significant efforts to contact and engage [mother],” but

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mother “did not reciprocate these efforts.” For example, the record

shows that the caseworker attempted to contact mother monthly,

but mother was often unresponsive or would cancel appointments.

We therefore discern no error.

¶ 15 Second, we are not persuaded by mother’s assertion that the

Department should have provided her with drug screens at the

same location where she was attending therapy. The caseworker

said that the Department declined to do so because they had a

contract with another provider. Still, the caseworker said that

mother could submit drugs screens with her treatment provider if

she paid for them herself. And mother testified that she did set up

those drug screens but nevertheless failed to provide evidence of

any such screens. Noting that section 19-3-208 does not require

the Department to provide a parent with the provider of her choice,

we discern no error. See § 19-3-208(2)(b)(III), (d)(V).

¶ 16 Finally, mother argues that the Department did not make

reasonable efforts because it did not allow her to attend the

children’s medical appointments. To start, we note that mother’s

treatment plan did not require her to attend the children’s medical

appointments. And the record is unclear as to whether the

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Department prohibited mother from attending these appointments,

as she suggests on appeal. At any rate, the caseworker testified

that mother had the providers’ contact information and was

“encouraged” to contact those providers to get updates, but mother

never did so. Given all this, we cannot say that the Department

failed to make reasonable efforts in this area.

III. Fit Within a Reasonable Time

¶ 17 Both parents contend that the juvenile court erred by

terminating their parental rights because the record showed that

they could become fit within a reasonable time. Again, we disagree.

A. Applicable Law and Standard of Review

¶ 18 Before the juvenile court may terminate parental rights under

section 19-3-604(1)(c), it must find, by clear and convincing

evidence, that (1) the parent did not comply with an appropriate,

court-approved treatment plan or the plan was not successful in

rendering the parent fit; (2) the parent is unfit; and (3) the parent’s

conduct or condition is unlikely to change in a reasonable time.

¶ 19 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 D.P., 160 P.3d 351, 353 (Colo. App. 2007).

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Reasonable parental care requires, at a minimum, that the parent

provide nurturing and safe parenting sufficient to meet the child’s

physical, emotional, and mental needs and conditions. People in

Interest of A.J., 143 P.3d 1143, 1152 (Colo. App. 2006). A parent’s

noncompliance with a treatment plan generally “demonstrates a

lack of commitment to meeting the child’s needs and, therefore,

may also be considered in determining unfitness.” People in Interest

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

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

treatment plan before the juvenile court terminates parental rights.

People in Interest of D.Y., 176 P.3d 874, 876-77 (Colo. App. 2007).

¶ 21 When determining whether a parent’s conduct or condition is

likely to change in a reasonable time, the juvenile 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. People in Interest of D.L.C., 70

P.3d 584, 588-89 (Colo. App. 2003). Where a parent has made little

to no progress on a treatment plan, the court need not give the

parent additional time to comply. See People in Interest of R.B.S.,

717 P.2d 1004, 1006 (Colo. App. 1986).

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¶ 22 The determination of a reasonable period is fact-specific and

varies from case to case. D.Y., 176 P.3d at 876; see also People in

Interest of S.Z.S., 2022 COA 133, ¶ 24. 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.

S.Z.S., ¶ 24. When a child is under six years old, as in this case,

the juvenile court must also consider the expedited permanency

planning (EPP) provisions, which require that the child be placed in

a permanent home as expeditiously as possible. See

§§ 19-1-102(1.6), 19-1-123, 19-3-702(5)(c), C.R.S. 2024.

¶ 23 Whether the juvenile court properly terminated parental rights

is a mixed question of fact and law. People in Interest of A.M. v.

T.M., 2021 CO 14, ¶ 15. We review the court’s factual findings for

clear error, and we review de novo its legal conclusions based on

those facts. People in Interest of S.R.N.J-S., 2020 COA 12, ¶ 10.

B. Analysis

¶ 24 The juvenile court found that the parents had not complied

with their treatment plans, remained unfit, and were unlikely to

become fit within a reasonable time. Specifically, the court found

that the parents were unlikely to become fit within a reasonable

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time because (1) they had “treatment plans in place for a full year,

with minimal progress”; (2) there was a lengthy history of substance

dependence and involvement in previous dependency and neglect

proceedings; and (3) the children needed permanency as “soon as

practicable.”

¶ 25 The record supports the juvenile court’s findings. The court

took judicial notice of mother’s six previous dependency and neglect

cases. The caseworker from the case immediately preceding the

current case testified that mother did not comply with treatment or

participate in monitored sobriety. In the present case, mother did

not complete a dual diagnosis evaluation until more than a year

after the case opened, minimally participated in treatment

thereafter, and missed nearly 200 drug screens. Mother testified

that she began using drugs over twenty years ago and had spent

time in prison for drug charges. The caseworker opined that

mother could not become fit within a reasonable time, noting that

she had already had enough time to comply but did not do so.

¶ 26 As for father, the record shows that, although he began

treatment somewhat earlier than mother, he did not fully engage.

For example, the caseworker said that father started treatment in

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June 2023 before being discharged for noncompliance in October

2023. Then, he did another intake with a new provider in

November 2023, but never engaged. And in January 2024, he

entered detox and inpatient treatment but left after a few days. The

record also shows that father completed more drugs screens than

mother, but all his screens were positive for substances, and he had

not provided any screens since November 2023. Like mother, father

admitted to a long history of substance dependence going back over

twenty years. The caseworker opined that father could not become

fit within a reasonable time based on his lack of participation and

the children’s needs.

¶ 27 Nevertheless, both parents assert that the juvenile court erred

because they made sufficient progress during the case to warrant

additional time. For example, mother notes that she had housing,

completed the dual diagnosis evaluation, attended some therapy

sessions, cooperated with the life skills coach, and attended feeding

therapy, while father points to evidence that he consistently

attended family time and participated in services to address his

substance dependence issues. But the court considered this

evidence and still concluded that the parents were unlikely to

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become fit in a reasonable time. Because the record supports the

court’s findings, as described above, we cannot reweigh the

evidence or substitute our judgment for that of the juvenile court.

See S.Z.S., ¶ 29. We therefore reject the parents’ assertions.

¶ 28 Mother also contends that, if the Department had made

reasonable efforts, then she could have become fit within a

reasonable time. We reject this argument for the same reasons

described in Part II.B. above.

¶ 29 Last, father maintains that the juvenile court erred because he

had only five months to comply with his treatment plan between

adoption of the treatment plan and filing of the termination motion.

But the most relevant timeframe is not how long the parent had

between adoption of the treatment plan and the filing of the

termination motion. Rather, it is the period that father had from

the treatment plan’s adoption to the termination hearing. See D.Y.,

176 P.3d at 876-77 (noting that the court erred when it gave father

only three months between adoption of the treatment plan and

termination of parental rights). And father had over a year to work

on his treatment plan. See A.J., 143 P.3d at 1152. Considering

that this was an EPP case, we cannot say that the court erred by

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terminating father’s parental rights after giving him over a year to

work on his treatment plan.

IV. Less Drastic Alternative

¶ 30 Father argues that the juvenile court erred by finding that

there was no less drastic alternative to termination. We disagree.

A. Applicable Law and Standard of Review

¶ 31 In addition to the termination criteria in section

19-3-604(1)(c), the juvenile court must also consider and eliminate

less drastic alternatives. People in Interest of M.M., 726 P.2d 1108,

1122-23 (Colo. 1986). When considering less drastic alternatives, a

court 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). In

assessing less drastic alternatives to termination, the court may

consider, among other things, whether (1) an ongoing relationship

between the parent and child would be beneficial, People in Interest

of A.R., 2012 COA 195M, ¶ 38; (2) the child is bonded with the

parent, People in Interest of N.D.V., 224 P.3d 410, 421 (Colo. App.

2009); (3) the placement option prefers adoption over an allocation

of parental responsibilities (APR), S.N-V., 300 P.3d at 920; and

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(4) an APR provides adequate permanence and stability for the

child, People in Interest of T.E.M., 124 P.3d 905, 910-11 (Colo. App.

2005).

¶ 32 To aid the juvenile court in determining whether there is a less

drastic alternative to termination, the department must evaluate a

reasonable number of people the parent identifies as placement

options. People in Interest of D.B-J., 89 P.3d 530, 532 (Colo. App.

2004). But the department is not obligated to “independently

identify and evaluate other possible placement alternatives.” Z.P.,

167 P.3d at 215.

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

“adequate[ly]” meet a child’s needs. A.M., ¶ 27. If the juvenile court

considers a less drastic alternative but finds instead that

termination is in the child’s best interests, it must reject the less

drastic alternative and order termination. Id. at ¶ 32. And under

those circumstances, we must affirm the court’s decision if its

findings are supported by the record. People in Interest of B.H.,

2021 CO 39, ¶ 80.

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B. Analysis

¶ 34 The juvenile court found that there was no less drastic

alternative to termination and that termination and adoption were

in the children’s best interests. In doing so, the court found that

the Department had adequately investigated family members for

placement, but the court concluded that there was either no

available family to serve as a placement or they would not accept an

alternative to adoption. In any event, the court recognized that “the

mere existence of a relative placement willing to accept an

alternative to adoption” was not determinative of whether a less

drastic alternative existed because the alternative must also be in

the children’s best interests. And after considering the parent’s

unfitness and the children’s need for permanency, the court

ultimately rejected less drastic alternatives and ordered

termination.

¶ 35 The record supports the juvenile court’s findings. The

caseworker testified that the Department initiated two family

searches during the case. The caseworker spoke with family

members after the first search, but they declined placement

because they were unable to meet the children’s medical needs.

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After the second search, the caseworker invited some family

members to a team meeting, at which the family members agreed

that the children should stay with the foster parents. However, the

caseworker said that she still initiated a home study for a relative

who said she could be a placement if the court “wanted to have the

babies go back to family.”

¶ 36 The caseworker opined that it was in the children’s best

interests to remain with their current placement because

transitioning to a new placement would be difficult for them. The

caseworker said that the foster parents could meet all the children’s

special needs and were interested in adopting them. She also

opined that an APR was not appropriate in this case because it

could not meet the children’s needs for permanency, the parents

had not made any progress, and there were ongoing child protection

concerns.

¶ 37 The record therefore shows that the juvenile court considered

less drastic alternatives but rejected them because they were not in

the children’s best interests. See A.M., ¶ 32. And because the

record supports the court’s finding, we cannot disturb it. See B.H.,

¶ 80.

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¶ 38 We are not persuaded to reach a different conclusion based on

father’s assertion that the Department failed to adequately

investigate relatives. As described above, the record shows that the

Department investigated relatives, but they were only interested in

being a placement option if the current placement did not work out.

The parents never asked the Department to investigate any specific

person for placement nor did they ask the juvenile court to place

the children with someone else. In any event, even if there was a

relative who was an appropriate placement option, the court found,

with record support, that an APR would not be in the children’s

best interests based on the factors previously discussed.

¶ 39 Nor are we convinced by father’s contention that a less drastic

alternative existed because he had a bond with the child. To be

sure, a juvenile court should consider whether a child has a bond

with a parent when deciding if there is a viable less drastic

alternative to termination. See N.D.V., 224 P.3d at 421. But this is

just one of the factors that is relevant in deciding whether a less

drastic alternative is in the children’s best interests. See A.R., ¶ 38

(noting that the court “may consider various factors” in its analysis

of less drastic alternatives). And the court determined that there

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was no viable less drastic alternative to termination based on the

parent’s unfitness and the children’s need for permanency. The

record supports the court’s findings, and we cannot reweigh the

evidence or substitute our judgment to reach a different conclusion.

See B.H., ¶ 80; A.M., ¶ 32; see also S.Z.S., ¶ 29.

V. Disposition

¶ 40 The judgment is affirmed.

JUDGE PAWAR and JUDGE SCHUTZ concur.

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