Peo in Interest of GDO

24CA0756 Peo in Interest of GDO 11-14-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0756
Jefferson County District Court No. 23JV30013
Honorable Ann Gail Meinster, Judge

The People of the State of Colorado,

Appellee,

In the Interest of G.D.O., a Child,

and Concerning D.T.,

Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE LUM
Freyre and Grove, JJ., concur

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

Kimberly Sorrells, County Attorney, Sarah Oviatt, Assistant County Attorney,
Golden, Colorado, for Appellee

Samantha Metsger, Guardian Ad Litem

Harald Van Gaasbeek, Office of Respondent Parents’ Counsel, Fort Collins,
Colorado, for Appellant
¶1 D.T. (mother) appeals the judgment terminating the parent-

child legal relationship with her child, G.D.O. We affirm.

I. Background

¶2 In January 2023, the Jefferson County Division of Children,

Youth and Families (Division) received a report of domestic violence

between mother and her boyfriend. The Division asked mother to

submit to a drug screen, and she tested positive for controlled

substances. After receiving the test results, the caseworker

attempted to meet with mother to discuss a safety plan, but while

at the home, mother became “escalated” and was arrested for

assaulting a police officer. As a result, the Division removed the

child and placed him with maternal great-aunt.

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

dependency and neglect. Mother admitted to the allegations in the

petition, and the juvenile court adjudicated the child dependent and

neglected. The court then adopted a treatment plan for mother that

required her to (1) address her substance abuse issues; (2) provide

for the child’s needs; and (3) ensure a home free of violence.

¶4 In October 2023, the guardian ad litem (GAL) moved to

terminate mother’s parental rights. The juvenile court held an

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evidentiary hearing in January 2024. After considering the

evidence, the court granted the GAL’s motion and terminated

mother’s parental rights.

II. Expert Witness Disclosure

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

caseworker to testify as an expert witness even though the GAL did

not disclose the caseworker as an expert before the termination

hearing. She also asserts that the lack of disclosure resulted in a

violation of her due process right to a fundamentally fair

proceeding. We disagree.

A. Standard of Review

¶6 We review the juvenile court’s resolution of discovery issues for

an abuse of discretion. People v. Bueno, 2013 COA 151, ¶ 10, aff’d,

2018 CO 4; People in Interest of S.L., 2017 COA 160, ¶ 68

(admission of expert testimony). An abuse of discretion occurs only

when the court’s decision is manifestly arbitrary, unreasonable, or

unfair, or when it is based on an erroneous view of the law. People

in Interest of A.C.E-D., 2018 COA 157, ¶ 31.

¶7 An error in the admission of evidence is harmless if it does not

affect a substantial right of a party. C.R.C.P. 61; People in Interest

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of D.B., 2017 COA 139, ¶ 31. An error affects a substantial right if

it can be said with fair assurance that it substantially influenced

the outcome of the case or impaired the basic fairness of the trial

itself. D.B., ¶ 31.

¶8 Because parents have a fundamental liberty interest in the

care, custody, and control of their children, People in Interest of

A.M. v. T.M., 2021 CO 14, ¶ 17, due process requires the

government to provide fundamentally fair procedures to a parent

facing termination, People in Interest of R.J.B., 2021 COA 4, ¶ 27.

In termination proceedings, a parent is entitled to notice of the

hearing, advice of counsel, and the opportunity to be heard and

defend. People in Interest of Z.P.S., 2016 COA 20, ¶ 40.

¶9 We review procedural due process claims de novo. People in

Interest of C.J., 2017 COA 157, ¶ 25. But a parent may not obtain

relief on a due process claim absent a showing of harm or prejudice.

People in Interest of J.A.S., 160 P.3d 257, 262 (Colo. App. 2007).

B. Analysis

¶ 10 At the termination hearing, the GAL asked the juvenile court

to qualify the ongoing caseworker as an expert in casework with an

emphasis in child protection. Mother objected because the GAL did

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not disclose the caseworker as an expert witness on his witness list.

The GAL admitted that he had not disclosed the caseworker as an

expert, but he argued that there was no surprise because mother

knew that the caseworker would be testifying about her work on the

case.

¶ 11 The juvenile court found that the caseworker was not properly

disclosed as an expert witness but agreed with the GAL that mother

should not be surprised given her involvement throughout the case.

Nevertheless, the court asked mother’s counsel whether she wanted

to “meet with the caseworker before . . . begin[ning] examination” to

“cure any prejudice” from the late disclosure. She declined, stating

that she did not “need to discuss anything with” the caseworker

because she had the caseworker’s report. The court then qualified

the caseworker as an expert in casework with an emphasis in child

protection.

¶ 12 To begin, we note that mother has not directed us to any

authority that required the GAL to disclose the caseworker as an

expert witness before the termination hearing. At the time of the

termination hearing, the Colorado Rules of Juvenile Procedure did

not include any provisions related to the disclosure of expert

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witnesses.1 That said, when the juvenile rules do not specifically

address an issue, courts may apply the Colorado Rules of Civil

Procedure. See C.R.J.P. 1. But C.R.C.P. 26, the civil rule requiring

expert witness disclosures, does not apply in dependency and

neglect cases unless specifically “ordered by the court or stipulated

by the parties.” Mother has not directed us to anything indicating

that either the juvenile court ordered compliance with, or the

parties stipulated to the application of, C.R.C.P. 26. Nevertheless,

we will assume, in the absence of any controlling authority, that the

GAL needed to, at a minimum, disclose that the caseworker would

testify as an expert witness.

¶ 13 We reject mother’s appellate contention for three reasons.

¶ 14 First, the juvenile court did not abuse its discretion by

permitting the caseworker to testify as an expert because the record

clearly shows that the GAL’s failure to disclose the caseworker as

an expert did not deny mother the opportunity to defend against the

evidence. Cf. Todd v. Bear Valley Vill. Apartments, 980 P.2d 973,

1 C.R.J.P. 4.6(g) (effective July 1, 2024) now requires disclosure of

expert witness reports and qualifications no later than seven days
before a contested hearing.

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979 (Colo. 1999) (holding that, under C.R.C.P. 37, witness

preclusion is inappropriate if late disclosure is harmless). Mother’s

counsel admitted that she knew what the caseworker would testify

to because she had a copy of her report, declined the juvenile

court’s offer to remedy any prejudice, and did not ask for a

continuance. See S.L., ¶ 72 (rejecting a parent’s assertion that the

court erred by admitting expert testimony where the parent “cited

nothing other than the Department’s technical noncompliance with

the rule as the rationale for barring the testimony”).

¶ 15 Second, even if the juvenile court abused its discretion by

allowing the caseworker to testify as an expert at the hearing, any

error was harmless. See D.B., ¶ 31. The court admitted the

caseworker’s expert report, without objection, and the few expert

opinions the caseworker expressed were consistent with those

expressed in her report. See § 19-3-604(3), C.R.S. 2024 (noting

that the court may receive and consider written reports relating to

the child’s mental, physical, and social history in a termination

hearing). Therefore, because the challenged testimony was

cumulative of the report, we discern no reversible error. See People

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in Interest of M.V., 2018 COA 163, ¶ 67, overruled on other grounds

by People in Interest of E.A.M. v. D.R.M., 2022 CO 42.

¶ 16 Finally, we disagree with mother that the termination

judgment should be reversed because her procedural due process

rights were violated. Considering the information above, nothing in

the record suggests that mother was deprived of notice of the

hearing, advice of counsel, or the opportunity to be heard and

defend. See Z.P.S., ¶ 40. And mother does not identify any

testimony that was inconsistent with the caseworker’s report or that

generated unfair surprise, and she has not otherwise established

that she suffered any harm or prejudice because of the juvenile

court’s ruling. See J.A.S., 160 P.3d at 262.

III. Reasonable Efforts

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

the Division made reasonable efforts to rehabilitate her and reunify

her with the child. We disagree.

A. Applicable Law and Standard of Review

¶ 18 In deciding whether to terminate parental rights under section

19-3-604(1)(c), the juvenile court must consider whether the county

department of human services made reasonable efforts to

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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 The reasonable efforts standard is satisfied if the department

provides services in accordance with section 19-3-208. § 19-1-

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

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 substance abuse treatment services. § 19-3-

208(2)(d)(V).

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

court should consider 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

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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), and the

court may consider a parent’s unwillingness to participate in

treatment in determining whether the department made reasonable

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

¶ 21 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.2

2 The Division contends there is a divisional split regarding the

standard of review applicable to reasonable efforts issues. See
People in Interest of E.S., 2021 COA 79, ¶ 16 (noting that whether
we review a reasonable efforts determination de novo or for clear
error is not clear). To the extent a divisional split exists, we need
not resolve it because the outcome is the same under both
standards. Id. at ¶¶ 16-17.

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B. Analysis

¶ 22 Mother maintains that the Division failed to make reasonable

efforts because it did not provide her with (1) adequate substance

abuse treatment services; (2) a telephone; and (3) housing

resources. We discern no reversible error.

¶ 23 First, the record shows that the Division provided mother with

the necessary resources for her to comply with the substance abuse

component of her treatment plan, but she did not use those

services. See A.V., ¶ 12; S.N-V., 300 P.3d at 915. The caseworker

testified that the Division made a referral for mother to do a

substance abuse evaluation, but she never completed it. The

caseworker also said that she offered to drive mother to the

evaluation and attempted to do so, but mother slept through the

appointment. The Division also arranged for monitored sobriety,

but mother only completed seven screens, all of which were positive

for controlled substances.

¶ 24 Second, we reject mother’s assertion that the Division failed to

provide reasonable efforts because it did not provide her with a

phone. The caseworker testified that, despite some communication

struggles, she was able to regularly maintain contact with mother.

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Indeed, the record shows that the caseworker utilized a plethora of

different communication mediums to reach mother, including

calling mother when mother had WiFi, calling maternal

grandmother, contacting mother by email, and visiting her in

person. Section 19-3-208 does not require the Division to furnish a

parent with a phone, mother never asked the Division to provide

her a phone, and nothing in the record shows that mother’s

communication problems prevented her from completing the

treatment plan objectives.

¶ 25 We recognize that the Division did not provide mother with

housing resources, which may have contributed to difficulties in

fulfilling certain “action steps” that were part of mother’s treatment

plan objectives. For example, one component of the objective that

the child be “cared for by safe and substance . . . free adults” was

that mother “provide a safe, stable, and substance-free

environment” for the child. As the juvenile court acknowledged,

housing was “a barrier” because maternal grandmother — with

whom mother lived — was also a substance user.

¶ 26 Nevertheless, even if the Division’s failure to provide mother

with housing resources rendered its efforts in this area

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unreasonable, we perceive no reversible error. The record reflects

that the juvenile court did not primarily rely on mother’s living

situation when it concluded that she hadn’t complied with her

treatment plan. Instead, it terminated mother’s parental rights as a

result of her noncompliance with other aspects of her treatment

plan, particularly her failure to (1) complete a substance use

evaluation, engage in treatment in any meaningful way, or

demonstrate any period of sobriety; (2) complete an anger

management evaluation or any domestic violence treatment; and (3)

engage consistently with family time.

¶ 27 For these reasons, any error the court made in concluding

that the Division’s efforts related to housing were reasonable did

not affect mother’s substantial rights because it did not

“substantially influence[] the outcome of the case.” See D.B., ¶ 31.

IV. Less Drastic Alternative

¶ 28 Mother argues that the juvenile court erred by finding that

there was no less drastic alternative to termination. Specifically,

she asserts that an allocation of parental responsibilities (APR) to

maternal great-aunt was a viable less drastic alternative. We

disagree.

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¶ 29 Before terminating parental rights under section 19-3-

604(1)(c), the juvenile court must consider and eliminate less

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

1122-23 (Colo. 1986). In 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). The court

may consider various factors when deciding whether there is a

viable less drastic alternative to termination, including whether (1)

an ongoing relationship between the parent and child would be

beneficial, A.R., ¶ 38; (2) the child is bonded with the parent, People

in Interest of N.D.V., 224 P.3d 410, 421 (Colo. App. 2009); and (3)

the placement option prefers adoption over an APR, S.N-V., 300

P.3d at 920.

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

“adequate[ly]” meet a child’s needs; rather, it must be the “best”

option for the child. A.M., ¶ 27. Therefore, 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

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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.

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

alternative to termination and that termination and adoption was in

the child’s best interests. The court noted that maternal great-aunt

preferred adoption over an APR but also recognized that “[t]he

preference of the caregiver is only one factor the [c]ourt may

consider.” In large part, the court concluded that an APR was not a

less drastic alternative to termination in this case because an

ongoing relationship with mother would not be beneficial for the

child. See A.R., ¶ 38. Specifically, the court based this conclusion

on “[t]he protective concerns posed by untreated substance use

disorder, domestic violence issues, and criminal history.”

¶ 32 Because the record supports the juvenile court’s

determination, we decline to disturb its judgment. See B.H., ¶ 80.

As previously noted, the record shows that mother did not

participate in any substance abuse treatment and continued to test

positive for substances during the case. The caseworker also stated

that, although mother ended the relationship that she was involved

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in at the beginning of the case, she later engaged in another abusive

relationship. And the caseworker said that mother had not

completed an anger management evaluation or done anything else

to address the domestic violence issues. Finally, the record shows

that mother committed assault during the case, was sentenced to

probation, did not comply with her probation, and had an active

warrant.

¶ 33 Mother asserts that the juvenile court erred because the

evidence established that (1) she had a bond with the child and (2)

maternal great-aunt might be open to an APR. As noted, whether a

child has a bond with a parent, see N.D.V., 224 P.3d at 421, and

the placement is open to an APR, see S.N-V., 300 P.3d at 920, are

factors that the court may consider when deciding if there is a

viable less drastic alternative to termination. But as the court

correctly noted, these are just some of the factors that are relevant

in deciding whether a less drastic alternative is viable. See A.R.,

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

analysis of less drastic alternatives). And here the court determined

that, because mother had not resolved any of the safety concerns in

this case, an ongoing relationship would not benefit the child,

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regardless of whether he was bonded with mother or the maternal

great-aunt would accept an APR. Because the record supports the

court’s findings, we cannot reweigh the evidence or substitute our

judgment to reach a different conclusion. See B.H., ¶ 80; A.M.,

¶ 32; see also People in Interest of S.Z.S., 2022 COA 133, ¶ 29.

V. Disposition

¶ 34 The judgment is affirmed.

JUDGE FREYRE and JUDGE GROVE concur.

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