CourtListener 10377218•Peo in Interest of EW
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24CA0535 Peo in Interest of EW 11-14-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0535
El Paso County District Court No. 22JV30413
Honorable Lin Billings Vela, Judge
The People of the State of Colorado,
Appellee,
In the Interest of E.W., a Child,
And Concerning R.A.,
Appellant.
JUDGMENT AFFIRMED
Division A
Opinion by JUDGE GRAHAM*
Román, C.J., and Bernard*, J., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 14, 2024
Kenneth Hodges, County Attorney, Shannon Boydstun, Assistant County
Attorney, Colorado Springs, Colorado, for Appellee
Josi McCauley, Guardian Ad Litem
The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for
Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 In this dependency and neglect proceeding, R.A. (mother)
appeals the juvenile court’s judgment terminating her parent-child
legal relationship with E.W. (the child). Mother’s sole contention on
appeal is that the court erred by finding that no less drastic
alternative to termination existed. We affirm.
I. Background
¶2 In December 2022, the El Paso County Department of Human
Services (Department) received reports of concern that the child had
been born with substance exposure and exhibited severe
withdrawal symptoms, as well as concerns that the parents were
abusing substances. Based on these reports, the Department
initiated a dependency and neglect proceeding.
¶3 The juvenile court placed the child with a maternal cousin as a
kinship placement and the child remained with her for the
remainder of the proceeding.
¶4 Meanwhile, the parents admitted the allegations in the petition
and the child was adjudicated dependent and neglected. Due to the
Department requesting additional time to amend the proposed
treatment plans, and counsel requesting additional time to review
the amendments, the court adopted treatment plans for the parents
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six months after adjudication. Referrals for treatment services,
however, were available to the parents before adjudication occurred.
¶5 Later, the Department moved to terminate parental rights. A
termination hearing was held over two days, and, at the conclusion
of the hearing, the court granted the motion and terminated
parental rights.
II. Less Drastic Alternative to Termination
¶6 Mother contends that the juvenile court erred by not finding
that there was a less drastic alternative to termination of parental
rights when the child was placed with a maternal relative who could
have provided permanency through APR or guardianship. We
disagree.
A. Standard of Review
¶7 Whether a juvenile court properly terminated parental rights
presents a mixed question of fact and law because it involves the
application of the termination statute to evidentiary facts. People in
Interest of A.M. v. T.M., 2021 CO 14, ¶ 15. A determination of the
proper legal standard to be applied in a case and the application of
that standard to the particular facts of the case are questions of law
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that we review de novo. M.A.W. v. People in Interest of A.L.W., 2020
CO 11, ¶ 31.
¶8 However, we will not disturb the court’s factual findings and
conclusions when they are supported by the record. Id. at ¶ 32; see
also A.M., ¶ 15. The credibility of the witnesses as well as the
sufficiency, probative value, and weight of the evidence, and the
inferences and conclusions to be drawn from it are within the
court’s discretion. A.M., ¶ 15.
B. Applicable Law and Standard of Review
¶9 The juvenile court may terminate parental rights if it finds, by
clear and convincing evidence, that (1) the child has been
adjudicated 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.
¶ 10 The juvenile court must consider and eliminate less drastic
alternatives before terminating parental rights. People in Interest of
M.M., 726 P.2d 1108, 1122-23 (Colo. 1986). When making this
determination, the court must give primary consideration to the
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child’s physical, mental, and emotional conditions and needs. See
§ 19-3-604(3); People in Interest of K.B., 2016 COA 21, ¶ 35.
¶ 11 When deciding whether long-term or permanent placement
with a relative or other person is a viable less drastic alternative to
termination, the court may consider various factors including
whether a permanent placement prefers adoption rather than an
allocation of parental responsibilities (APR). People in Interest of
Z.M., 2020 COA 3M, ¶ 31.
¶ 12 For a less drastic alternative to be viable, it must do more than
“adequately” meet a child’s needs. A.M., ¶ 27. Rather, the
proposed alternative must be the “best” option for the child. Id.
Therefore, if the court considers a less drastic alternative but finds
that termination is in the child’s best interests, it must reject the
proposed alternative and order termination. Id. at ¶ 32. Permanent
placement is not a viable less drastic alternative if the child needs a
stable, permanent home that can only be assured by adoption.
People in Interest of S.N-V., 300 P.3d 911, 920 (Colo. App. 2011).
¶ 13 When the juvenile court considers a less drastic alternative
and still determines that the termination of parental rights is in the
child’s best interests, we are bound to affirm that decision if the
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court’s findings are supported by the record. People in Interest of
B.H., 2021 CO 39, ¶ 80.
C. Analysis
¶ 14 Here, giving primary consideration of the child’s physical,
mental, and emotional conditions and needs, the juvenile court
found that there were no less drastic alternatives to termination. It
also found there was “no evidence before the [c]ourt to find that an
APR or [relative guardian assistance program (RGAP)] would be an
appropriate less-drastic alternative to meet [the child’s] best
interests.”
¶ 15 The court further found mother was unfit, that the problems
which led to initiation of the case still existed at the time of the
termination and mother had not reasonably complied with her
treatment plan. There is record support for the court’s findings.
Notably, mother also does not challenge these findings.
¶ 16 Mother asserts the kinship placement’s testimony revealed she
did not understand the differences between the permanency options
typically available in a dependency and neglect case. Because of
this, she argues it is “clear that there were less drastic alternatives”
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available and the court could have ensured permanency for the
child through APR or RGAP.
¶ 17 True, the kinship placement’s testimony revealed she was
unsure in the different permanency options available. Nevertheless,
she testified she would like the court to terminate parental rights
“so we can move forward with where [the child] is going
permanently as she’s over a year old and kind of not much has
changed.”
¶ 18 And, while the court may consider whether a potential
permanent placement prefers adoption over an APR, the primary
consideration in eliminating less drastic alternatives is the child’s
physical, mental, and emotional conditions and needs. See § 19-3-
604(3); Z.M., ¶ 31; K.B., ¶ 35. Here, taking those primary
considerations into account, the court explicitly found there were
no less drastic alternatives available and termination was in the
child’s best interests.
¶ 19 In addition, the caseworker testified, and the court found
credible, that she believed it was in the child’s best interests to
terminate parental rights given that mother had essentially not
engaged in any component of her treatment plan. Mother’s
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communication with the Department was sporadic and at times
nonresponsive. She was referred to multiple providers to complete
a substance abuse evaluation, even before her treatment plan was
entered, but never completed an evaluation or treatment. She also
had four referrals to family time providers but missed most of her
visits with the child, causing her to be discharged from at least
three providers for noncompliance.
¶ 20 Finally, Mother was not employed at the time of the
termination hearing and reportedly homeless. And despite referrals
being in place for nearly the entirety of the case, she never engaged
with life skills or family preservation services.
¶ 21 There is record support for the court’s findings, and the record
shows that the court considered and eliminated less drastic
alternatives. B.H., ¶ 80.
III. Disposition
¶ 22 The judgment is affirmed.
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