Peo in Interest of ASN

24CA0360 Peo in Interest of ASN 10-31-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0360
La Plata County District Court No. 22JV21
Honorable Kim Soon Shropshire, Judge

The People of the State of Colorado,

Appellee,

In the Interest of A.S.N., a Child,

and Concerning M.B. and K.M.P.,

Appellants.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE WELLING
Brown and Moultrie, JJ., concur

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

Sheryl Rogers, County Attorney, Katie A. Dittelberger, Assistant County
Attorney, Durango, Colorado, for Appellee

Rachel D. Muhonen, Guardian Ad Litem

Elizabeth A. McClintock, Office of Respondent Parents’ Counsel, Colorado
Springs, Colorado, for Appellant M.B.

Robin Tieman, Office of Respondent Parents’ Counsel, Boulder, Colorado, for
Appellant K.M.P.
¶1 In this dependency and neglect action, K.M.P. (mother) and

M.B. (father) appeal the judgment terminating their parent-child

legal relationships with A.S.N. (the child). We affirm.

I. Background

¶2 The Archuleta County Department of Human Services filed a

petition in dependency and neglect, alleging that the child was born

affected by illegal substances and expressing concern about

domestic violence in father and mother’s relationship. The juvenile

court adjudicated the child dependent and neglected. The court

also adopted a treatment plan for mother.

¶3 At mother and father’s request, venue was changed to La Plata

County. The juvenile court there adopted a treatment plan for

father. After an additional safety assessment, the La Plata County

Department of Human Services (the Department) requested

mother’s and father’s treatment plans be amended to address

concerns about domestic violence. After a contested hearing, the

court amended the treatment plans.

¶4 The Department later moved to terminate both parents’

parental rights. Almost two years after the petition was filed, the

juvenile court granted the motion.

1
II. Appropriate Treatment Plan

¶5 Father contends that the juvenile court erred by finding that

his treatment plan was appropriate when it included a requirement

that he address domestic violence concerns. We disagree.

A. Standard of Review and Applicable Law

¶6 Except in some limited circumstances not applicable here, a

juvenile court must adopt an appropriate treatment plan for a

parent following a dispositional hearing. § 19-3-508(1)(e)(I), C.R.S.

2024; People in Interest of Z.P.S., 2016 COA 20, ¶ 15. The purpose

of a treatment plan is to preserve the parent-child legal relationship

by assisting the parent in overcoming the problems that required

intervention into the family. People in Interest of L.M., 2018 COA

57M, ¶ 25. Therefore, an appropriate treatment plan is one that is

approved by the court, relates to the child’s needs, and provides

treatment objectives that are reasonably calculated to render the

parent fit to provide adequate parenting to the child within a

reasonable time. § 19-1-103(12), C.R.S. 2024; People in Interest of

K.B., 2016 COA 21, ¶ 13.

¶7 We measure the appropriateness of a treatment plan by its

likelihood of success in reuniting the family, which we assess in

2
light of the facts existing at the time the juvenile court approved the

plan. People in Interest of B.C., 122 P.3d 1067, 1071 (Colo. App.

2005). The court may modify a treatment plan when new

information or changed circumstances render a previously approved

treatment plan no longer appropriate. Z.P.S., ¶¶ 26-27. The fact

that a treatment plan isn’t ultimately successful doesn’t mean that

it was inappropriate when the court approved it. People in Interest

of M.M., 726 P.2d 1108, 1121 (Colo. 1986).

¶8 A juvenile court has discretion to formulate a treatment plan

that relates to the child’s needs and is reasonably calculated to

render the parent fit within a reasonable period of time. People in

Interest of M.W., 2022 COA 72, ¶ 32. A juvenile court abuses its

discretion when its actions are manifestly arbitrary, unreasonable,

or unfair or based on an erroneous understanding or application of

the law. Id. at ¶ 12.

B. Analysis

¶9 After a contested hearing, the juvenile court adopted a

treatment plan for father that included an objective that the child

“experience a home environment free from physical violence and

coercive control.” The objective included action steps requiring

3
father to “demonstrate non-abusive, non-violent behavior,”

acknowledge past abuse and violent behavior, attend a domestic

violence treatment program, encourage mother’s connection with

the child and her support system, and refrain from physically

violent and coercive behaviors in the future.

¶ 10 As part of the termination judgment, the juvenile court found

that the domestic violence objective in the treatment plan was both

appropriate and necessary. The court also found “by clear and

convincing evidence, that [father] emotionally, psychologically, and

physically abuses [mother].”

¶ 11 During the hearing to amend the treatment plan and the

termination hearing, father maintained that he wasn’t a perpetrator

of domestic violence because he hadn’t been criminally charged or

convicted of domestic violence. The juvenile court specifically

considered and rejected this argument, finding that (1) “domestic

violence can, and in this case does, exist outside a formal criminal

system;” (2) father wasn’t credible in his denial given “his own

behavior and demeanor during trial, the testimony and evidence

presented regarding domestic violence, past law enforcement

involvement, and [mother]’s interactions with [father] during trial;”

4
and (3) the results of the parent-child interactional assessment,

which revealed father’s “hyperfocus on [mother], to the exclusion of

being fully engaged with the child.” Accordingly, the court found

that “the provisions of the treatment plan which addressed the

emotional and physical safety of the child in the home, with no

elements of domestic violence, [were] appropriate.”

¶ 12 The record supports these findings, made at both the

dispositional and termination hearings. The caseworker testified

that domestic violence “is not just a criminal act, it is a pattern of

coercive and controlling behavior that is often unreported to law

enforcement.” The guardian ad litem’s expert on victim/offender

dynamics testified that physical violence or injury “does not have to

be a part of it and is oftentimes used as coercive control . . . there

may not be any violence involved at all.” The caseworker testified

that the original referral included information about two incidents

— one the day of the child’s birth and one a few days later — where

the parents were fighting and law enforcement became involved.

The caseworker testified that she and other Department employees

observed father’s coercive control of mother “on multiple occasions.”

Mother and father failed to appear for meetings with the

5
Department when they were fighting. Department staff observed

bruising on mother, which she would try to explain away without

prompting. Mother told her family and the Department that she

wanted to leave father but was “extremely fearful of retaliation.”

Father himself testified that when mother attempted to leave the

relationship he called the Department and told them that mother

was using illegal substances. The caseworker testified that father

frequently spoke on behalf of mother and, in at least one text

conversation with the caseworker, responded impersonating

mother.

¶ 13 Importantly, the caseworker testified that the domestic

violence in mother and father’s relationship needed to be addressed

before reunification could safely occur. The caseworker testified

that “the level of fighting and tension in their relationship continues

to prevent [mother and father] from being able to be fully present for

[the child].” Both mother and the caseworker testified that mother

declined to attend family time without father, even though the

Department offered to transport her. The caseworker also testified

that domestic violence, including patterns of coercive and

controlling behavior, impact children “significantly.” The

6
caseworker opined that “the impact of domestic violence on really

small children, especially, is pretty profound.” The caseworker

expressed concern about reunification because if the child “were to

be full time in their home, she would absolutely be exposed to

violence and chaos” based on the caseworker’s observations of the

power and control dynamic between father and mother.

¶ 14 The record also supports the juvenile court’s detailed findings

regarding its observations of the dynamic between mother and

father during the termination hearing. The court noted that “when

questioned on domestic violence . . . [mother] looked to [father] at

every question and her eyes flicked to him during her answers, her

body language shifted dramatically, including a rounding of the

shoulders, picking at her fingers, and her voice lowered to the point

she was difficult to hear.” The record reflects that mother looked to

father during her testimony. Indeed, at one point, father audibly

interrupted mother’s testimony to tell her what to say. In his

testimony, father denied that mother ever had injuries while the

case was pending, despite testimony from the caseworker and the

placement provider to the contrary.

7
¶ 15 The court found that mother “exhibits a level of anxiety, and

fear, even in the presence of other people when she should

otherwise feel safe. [Father] is not even able to manage his own

anger in front of the judicial body.” It’s within the juvenile court’s

purview to determine witness credibility. 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 . . . .”); see also Carrillo v. People, 974 P.2d 478, 486 (Colo.

1999) (recognizing “the trial court’s unique role and perspective in

evaluating the demeanor and body language of live witnesses” and

“discourag[ing] an appellate court from second-guessing those

judgments based on a cold record”).

¶ 16 Father claims that the addition of the domestic violence

objective in his treatment plan “was not in response to safety

concerns identified during an assessment of the family.” But the

record belies this assertion. The petition filed in Archuleta County

identified domestic violence as a concern in the initial assessment.

At the hearing to amend father’s treatment plan, the caseworker

testified that the Department also conducted a safety assessment

8
that identified domestic violence as a “specific and observable threat

to the child,” which was a barrier to returning the child home.

¶ 17 Likewise, the record doesn’t support father’s assertion that he

“could not participate in domestic violence treatment” because “he

had never been charged with a criminal offense and he was not

willing to admit that he had committed such a criminal offense.”

Because father made a similar argument at the termination

hearing, the juvenile court addressed it in the termination

judgment, as follows:

[Father] would have the court find that [the
domestic violence provider] said he did not
have to engage in domestic violence treatment
because he’s never been charged and convicted
of domestic violence and therefore, cannot be
made to attend treatment . . . . The court
strenuously disagrees with [father’]s
interpretation . . . . What [the domestic
violence provider] concluded is that [father]
denies he has ever perpetrated domestic
violence. If a perpetrator will not admit or
acknowledge they have engaged in
domestically violent behavior, treatment will,
in essence, have no effect. If a perpetrator has
a conviction or pending criminal charges, this
can be used to challenge the denial and
become a starting place for treatment. [Father]
has no criminal charges nor convictions.
Therefore, in the face of this outright denial,
[the domestic violence treatment provider]
concluded that “since he was unable to

9
acknowledge violence by him, it was
determined that having him do individual
domestic violence counseling was wasteful of
time.”

¶ 18 Based on this observation, the court found that father’s

“denial [was], in effect, a refusal to engage in domestic violence

treatment” or address the “violent and coercive and controlling

behavior” which was a barrier to reunification with the child. The

record supports these findings.

¶ 19 The domestic violence provider testified that she was a

licensed therapist approved by the Domestic Violence Offender

Management Board to provide treatment “for clients who are

mandated to do domestic violence treatment.” She further testified

that father “can’t be in the treatment program because there’s no

domestic violence charge, but [she] could do individual domestic

violence focused treatment with him.” The domestic violence

provider testified that domestic violence treatment would include

things like taking accountability and victim empathy, but father’s

focus “was more in that they had psychological stressors and they

had lost custody . . . so [she couldn’t] do domestic violence

treatment with somebody who says there’s not domestic violence.”

10
Although the domestic violence provider offered, and father agreed

to, individual counseling, father didn’t come to their scheduled

appointment and declined the Department’s further efforts to

provide individual counseling.

¶ 20 Finally, father contends that the juvenile court erred in

referencing a criminal matter in its findings regarding the

appropriateness of the treatment plan. At the treatment plan

hearing, the court disclosed that it presided over a criminal matter

involving mother and therefore had background information that it

considered, in addition to the caseworker’s testimony, “with regard

to certain behaviors that have occurred.” At the termination

hearing, the court disclosed that other cases were “set in [its]

division and therefore the court does have knowledge” and, later in

the proceedings, that it received information “not just through this

particular case but through related correlated criminal cases.”

However, despite the court’s clear and repeated disclosure of its

knowledge and consideration of the criminal matter involving

mother, father didn’t raise any objection. We therefore decline to

address this contention now. See People in Interest of T.E.R., 2013

COA 73, ¶ 30 (generally, issues not raised in the trial court will not

11
be considered on appeal); see also People v. Rediger, 2018 CO 32,

¶¶ 39-40 (when a party waives an issue below, we do not review it

on appeal).

III. Reasonable Efforts

¶ 21 Mother contends that the juvenile court erred by finding that

the Department made reasonable efforts to provide her with

substance abuse and domestic violence treatment. We aren’t

persuaded.

A. Applicable Law and Standard of Review

¶ 22 A department must make reasonable efforts to rehabilitate

parents and reunite families following the out-of-home placement of

an abused or neglected child. §§ 19-1-103(114), 19-3-100.5,

19-3-604(2)(h), C.R.S. 2024. “Reasonable efforts” means “the

exercise of diligence and care” to reunify parents with their child.

§ 19-1-103(114).

¶ 23 To that end, services that are provided in accordance with

section 19-3-208, C.R.S. 2024, are consistent with reasonable

efforts. § 19-1-103(114). The services that “must be available and

provided” as determined by individual case planning include,

among others, screening, assessments, home-based family and

12
crisis counseling, information and referral services to assistance

resources, family time, and placement services. § 19-3-208(2)(b).

Additional services may be required if funding is available,

including transportation, childcare, diagnostic and mental health

services, drug and alcohol treatment services, and family support

services. § 19-3-208(2)(d).

¶ 24 To evaluate whether a department made reasonable efforts, a

juvenile court should consider whether the provided services 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 a

department has “discretion to prioritize certain services or

resources to address a family’s most pressing needs in a way that

will assist the family’s overall completion of the treatment plan.”

People in Interest of My.K.M. v. V.K.L., 2022 CO 35, ¶ 33. So,

whether a department made reasonable efforts “must be measured

holistically rather than in isolation with respect to specific

treatment plan objectives.” Id. at ¶ 35.

¶ 25 The parent is ultimately responsible for using the provided

services to obtain the assistance needed to comply with the

treatment plan. People in Interest of J.C.R., 259 P.3d 1279, 1285

13
(Colo. App. 2011). The court may therefore consider a parent’s

unwillingness to participate in treatment when determining whether

a department made reasonable efforts. See People in Interest of

A.V., 2012 COA 210, ¶ 12.

¶ 26 Whether a juvenile court properly terminated parental rights

presents a mixed question of fact and law because it involves

application of the termination statute to evidentiary facts. People in

Interest of A.M. v. T.M., 2021 CO 14, ¶ 15. “We review the juvenile

court’s findings of evidentiary fact — the raw, historical data

underlying the controversy — for clear error and accept them if they

have record support.” People in Interest of S.R.N.J-S., 2020 COA 12,

¶ 10. But we review de novo the juvenile court’s legal conclusions

based on those facts. See id. In particular, the ultimate

determination of whether the Department provided reasonable

efforts is a legal conclusion we review de novo. People in Interest of

A.S.L., 2022 COA 146, ¶ 8.

B. Substance Abuse Treatment

¶ 27 Mother’s treatment plan included an objective that she “will be

physically available to meet all of [the child]’s needs and will ensure

all of [the child’s] basic needs are met.” As relevant here, the

14
objective included action steps requiring that mother complete a

substance use evaluation and follow any treatment

recommendations. Mother completed the evaluation, which

recommended that she attend treatment two to four times a month

for at least six months, “with a combination of group and individual

sessions to address anxiety, depression, and gain relapse

prevention skills.” Mother attended a follow-up appointment with

the clinician three months later. The clinician testified that she

called mother several times after the appointment to engage mother

in the recommended treatment, but she wasn’t able to reach her.

¶ 28 Ten months after the evaluation, mother told the caseworker

that she didn’t have a good connection with the clinician and

wanted a different provider. The caseworker attempted to connect

with mother’s preferred provider, but could only find information

indicating that the provider wasn’t in private practice. Mother

didn’t respond to the caseworker’s request for more information.

¶ 29 The juvenile court found that the Department provided mother

with reasonable — and at times, active — efforts towards

reunification. These efforts included case management services,

placement services, gas voucher assistance, family time services,

15
transportation, telephones, information about domestic violence

survivor organizations, shelters, and Medicaid, and referrals for a

parent-child interactional assessment and a substance abuse

evaluation.

¶ 30 Mother now contends that the Department didn’t make

reasonable efforts because it failed to address her request for a

different therapeutic provider. Mother doesn’t provide — and we

aren’t aware of — any authority that indicates that a department

must provide a referral to a provider of a parent’s choice.

¶ 31 In any event, the juvenile court considered mother’s argument

and found that mother “did not pursue finding another treatment

provider as was her responsibility . . . . [W]hen advised on ways she

could obtain a different provider, [mother] never followed through.”

The court found that mother “took only minimal steps to complete

the evaluation but did nothing further to comply with this

requirement of the treatment plan . . . . [Mother] cannot admit, let

alone address, her addiction issues, despite more than ample efforts

by [the Department] to engage her in treatment.”

¶ 32 The record supports these findings regarding the Department’s

efforts to provide mother with substance abuse treatment. The

16
Department made a timely referral for a substance abuse

evaluation. Ten months later, mother told the Department she

wanted a different provider. The caseworker testified that she

obtained a release of information from mother and attempted to

locate the provider that mother had requested. When the

caseworker was unable to reach mother’s preferred provider, the

caseworker asked mother for more information. Both the

caseworker and the original clinician testified that they could have

helped mother get connected with a different therapeutic provider,

but mother didn’t ask them to do so. The record therefore supports

the juvenile court’s finding that it was mother’s failure to follow

through with treatment, and not a lack of reasonable efforts, that

prevented her from successfully completing this objective. See A.V.,

¶ 12.

C. Domestic Violence Treatment

¶ 33 Mother’s amended treatment plan included an objective that

she “will use her knowledge of domestic violence victimization and

safety strategies to enhance her and [the child]’s safety and well-

being.” The treatment plan originally included an action step that

mother meet with a specific provider, Alternative Horizons, but was

17
amended five months later to reflect mother’s request to meet with a

different provider, Rise Above Violence.

¶ 34 The juvenile court found that the Department made multiple

referrals for mother to comply with this treatment plan objective.

The court also found that the Department made reasonable efforts

by providing mother with information about the domestic violence

survivor resources, including local agencies, shelters that could

house her if she decided to leave father, and other safety planning

attempts. The court found that, “despite these efforts, [mother] did

not engage in any aspects of her treatment plan.”

¶ 35 Mother contends that the juvenile court erred in making these

findings because the Department “never attempted to engage in

safety planning with mother” despite a requirement in the

treatment plan that mother “meet with the caseworker, learn what

services were available and create a safety plan.”

¶ 36 But this contention misstates the record made by the

Department when the domestic violence objective was adopted. At

the contested disposition hearing, the caseworker testified that

mother needed to meet with the caseworker to obtain a referral to

the domestic violence provider. But the caseworker made clear that

18
the treatment plan required mother to “work with the local domestic

violence shelter to identify a safety plan for herself.”

¶ 37 The record made at the termination hearing further supports

the juvenile court’s findings. The caseworker testified that she

made mother aware of the scope of services available through both

domestic violence survivor organizations. The expectation and hope

was for mother to “meet with a domestic violence advocate because

the safety planning process is very intensive.” The caseworker

made clear that a safety plan should be made with a domestic

violence advocate and not a caseworker because the advocates are

specially trained and have a specific safety planning tool that is “far

more detailed and comprehensive” than what was available through

the Department. In any event, the caseworker testified that the

Department followed up with mother often, gave her information

about the resources that were available, and offered to take mother

to an appointment with the domestic violence survivor organization

where she could make the required safety plan. Despite these

efforts, the caseworker testified that mother didn’t follow through

with scheduling an appointment, attending an appointment, or

creating a safety plan during that appointment.

19
¶ 38 The juvenile court’s factual findings are supported by the

record. And considering those findings, we agree with the court’s

conclusions that the Department made reasonable efforts to

rehabilitate mother and reunify the family. Thus, we discern no

error.

IV. Disposition

¶ 39 The judgment is affirmed.

JUDGE BROWN and JUDGE MOULTRIE concur.

20