Peo in Interest of EMK

24CA0666 Peo in Interest of EMK 10-31-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0666
Larimer County District Court No. 22JV30046
Honorable C. Michelle Brinegar, Judge

The People of the State of Colorado,

Appellee,

In the Interest of E.M.K., a Child,

and Concerning A.M.A.,

Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE SCHOCK
Fox and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 31, 2024

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

Josi McCauley, Counsel for Youth, Superior, Colorado, for E.M.K.

Just Law Group LLC, John F. Poor, Denver, Colorado, for Appellant
¶1 A.M.A. (mother) appeals the judgment terminating her parent-

child legal relationship with E.M.K. (the child). We affirm.

I. Background

¶2 The Larimer County Department of Human Services (the

Department) filed a petition in dependency and neglect after

receiving a report that mother was withholding food, water, and

other basic necessities from the fourteen-year-old child. The child

had been sleeping on the ground outside the family’s tent with no

blankets or sleeping bag. The Department was granted temporary

custody of the child, and she was placed in foster care. The court

adjudicated her dependent or neglected by summary judgment and

adopted a treatment plan for mother.

¶3 Mother’s treatment plan required her to (1) maintain contact

with the Department; (2) complete a psychological evaluation and

follow any recommendations; (3) participate in individual therapy to

understand the child’s trauma and demonstrate trauma-informed

parenting practices; (4) find and maintain a safe home environment

for herself and the child and provide for the child’s medical, dental,

and mental health needs; (5) participate in family time with the

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child; and (6) comply with the law and all requirements stemming

from a criminal case that had been filed against her.

¶4 More than a year after the treatment plan was adopted, the

Department moved to terminate mother’s parental rights, and

mother was appointed a guardian ad litem. After a hearing, the

juvenile court granted the Department’s motion.

II. Reasonable Efforts

¶5 Mother contends that the juvenile court erred by concluding

that the Department made reasonable efforts because it did not

reasonably accommodate her disabilities. We disagree.

A. Applicable Law and Standard of Review

¶6 Before the juvenile court may terminate parental rights under

section 19-3-604(1)(c), C.R.S. 2024, the state must make

reasonable efforts to rehabilitate the parent and reunite the family.

§§ 19-3-100.5(1), 19-1-103(114), 19-3-208, 19-3-604(2)(h), C.R.S.

2024. “Reasonable efforts” means the “exercise of diligence and

care” for a child who is in out-of-home placement. § 19-1-103(114).

This standard is satisfied by the provision of services in accordance

with section 19-3-208, C.R.S. 2024. § 19-1-103(114); see also

People in Interest of C.T.S., 140 P.3d 332, 335 (Colo. App. 2006).

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¶7 The services must be “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 responsible for using those

services to obtain the assistance needed to comply with the plan.

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

¶8 When a parent has a qualifying disability under the Americans

with Disabilities Act (ADA), the Department has an affirmative duty

to “account for and, if possible, make reasonable accommodations

for the parent’s disability when devising a treatment plan and

providing rehabilitative services.” People in Interest of S.K., 2019

COA 36, ¶ 34; see also § 19-3-208(2)(g) (requiring services to

comply with the ADA). And in assessing the reasonableness of the

Department’s efforts, the juvenile court must consider whether

reasonable accommodations were made. S.K., ¶ 34. But for a

parent to benefit from a reasonable accommodation, the parent

must raise the applicability of the ADA as early in the proceedings

as possible. See People in Interest of S.Z.S., 2022 COA 133, ¶ 16.

¶9 Whether the Department 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

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court’s factual findings for clear error but review de novo its legal

determination, based on those findings, as to whether the

Department satisfied its reasonable efforts obligation. Id.

B. Reasonable Accommodation

¶ 10 Mother contends that the Department did not reasonably

accommodate her disabilities of Multiple Chemical Sensitivity (MCS)

and Chronic Fatigue Syndrome (CFS). She does not identify any

specific accommodation that the Department should have provided.

Instead, she asserts generally that the Department failed to

adequately account for her disabilities in developing and

implementing her treatment plan. We are not persuaded.

¶ 11 Mother asserts that she informed a caseworker about her

disabilities early in the case. But while the caseworker testified that

mother told her she had “medical conditions” and “mental health

[conditions],” the caseworker was not aware of any specific

diagnoses or requests for accommodations. See S.K., ¶ 22 (“The

Department can accommodate, and the juvenile court can address,

only disabilities that are known to them.”). About a week after

mother’s first court appearance, mother’s counsel told the court

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that mother suffered from MCS but made no specific request for

accommodation, saying only, “I don’t know what to really do.”

¶ 12 Three weeks later, mother’s counsel filed a motion for

accommodations under the ADA, explaining that she had been

diagnosed with MCS and CFS. But the only accommodation mother

requested was that she be allowed to participate virtually in future

court proceedings. The district court granted mother’s request and

allowed her to appear virtually to accommodate her disabilities.

And although the caseworker testified that she was not aware of the

ADA request, she too was prepared to arrange virtual services.

¶ 13 For example, the caseworker testified that she could have

arranged for urinalysis testing at mother’s home. She also testified

that, if mother had communicated with her, she could have

arranged for a virtual psychological evaluation and individual

therapy. And she testified more generally that the Department

could have accommodated mother’s requests for virtual services if

she had engaged in the case. But mother’s lack of communication

and unwillingness to tell the caseworker where she lived prevented

the Department from moving forward with such arrangements.

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¶ 14 Mother points to other discussions of her significant physical

needs and medical diagnoses at subsequent hearings. But she

never requested any additional accommodation. See id. at ¶ 21

(“[T]he parent should also identify any modifications that he or she

believes are necessary to accommodate the disability.”). At the

termination hearing, the caseworker testified that mother never

communicated about “ways to work around” her medical issues.

¶ 15 Mother asserts on appeal that she also had mental health-

related disabilities. But although the caseworker testified that she

was aware mother had mental health “conditions,” mother does not

point to anywhere in the record (and we have found none) where

she argued that her mental health conditions constituted a

disability under the ADA or requested any accommodation for such

disability. See S.Z.S., ¶¶ 20-21 (holding that mother did not

preserve ADA argument where she did not indicate that her

condition constituted an ADA-cognizable disability).

¶ 16 The record also shows that, although the Department was

willing to arrange for virtual services and accommodate mother not

wanting to leave her home, mother did not engage in any aspect of

her treatment plan. J.C.R., 259 P.3d at 1285. Among other things,

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mother did not give the Department a working phone number and,

through her guardian ad litem, told the caseworker she was “not

allowed to go and try to see her.” Without any ability to contact

mother, the caseworker was unable to help her set up the necessary

services. Mother also never provided releases of information to the

caseworker so that she could speak with mother’s probation officer

or pretrial services concerning the status of her criminal case.

Ultimately, the caseworker testified that none of the child protection

concerns giving rise to this case had been resolved by the time of

the termination hearing and that mother remained an unfit parent.

¶ 17 In granting the Department’s motion, the juvenile court

acknowledged mother’s request for ADA accommodations and noted

that, in light of that request, it had allowed mother to appear

virtually. It further explained that although the Department

“absolutely should accommodate any ADA need,” it did not have

“any information about what is needed or what is requested.” The

court also found that the Department had “tried to contact mother

so they could accommodate her,” but mother was “not cooperative.”

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¶ 18 The record supports the juvenile court’s findings, and we agree

with its conclusion that the Department made reasonable efforts to

support mother’s rehabilitation under the facts of this case.

III. Disposition

¶ 19 The judgment is affirmed.

JUDGE FOX and JUDGE JOHNSON concur.

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