in Interest of E.S , 2021 COA 79 ( 2021 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
June 3, 2021
2021COA79
No. 20CA1400, People in Interest of E.S. — Juvenile Court —
Dependency and Neglect — Termination of the Parent-Child
Legal Relationship
A division of the court of appeals considers whether, during a
dependency and neglect proceeding, a county department of human
services may bar a parent from participating in visitation solely
because the parent has outstanding warrants, without a finding
that visitation would be detrimental to the children’s health and
safety. The division holds that a department may not adopt a
blanket policy barring parental visitation without consideration of
the children’s health and safety. The division therefore reverses the
judgment terminating father’s parental rights.
COLORADO COURT OF APPEALS 2021COA79
Court of Appeals No. 20CA1400
Arapahoe County District Court No. 18JV261
Honorable Natalie T. Chase, Judge
The People of the State of Colorado,
Appellee,
In the Interest of E.S. and L.S., Children,
and Concerning F.S.,
Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division VI
Opinion by JUDGE LIPINSKY
Pawar and Taubman*, JJ., concur
Announced June 3, 2021
Ronald Carl, County Attorney, Heather L. Tomka, Assistant County Attorney,
Aurora, Colorado, for Appellee
Alison Bettenberg, Sheena Knight, Guardians Ad Litem
Patrick R. Henson, Office of Respondent Parents’ Counsel, Denver, 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. 2020.
¶1 In determining whether a parent’s parental rights should be
terminated under section 19-3-604(1)(c), C.R.S. 2020, following an
adjudication that the parent’s children are dependent or neglected,
a juvenile court must consider whether the county department of
human services made reasonable efforts to rehabilitate the parent.
The Colorado Children’s Code details how a department can satisfy
the reasonable efforts standard. Providing visitation services for
parents with children in out-of-home placement is one of the
actions a department must take to satisfy the standard.
¶2 In this case, we consider whether a department may bar a
parent from participating in visitation solely because the parent has
outstanding warrants, without a finding that visitation would be
detrimental to the children’s health and safety. We hold that a
department may not adopt such a blanket policy. For that reason,
we reverse the juvenile court’s judgment terminating the father’s
parental rights.
I. Background
¶3 F.S. (father) appeals the judgment terminating his parental
rights to E.S. and L.S. (the children). (In this case, C.P. (mother)
also appealed the judgment terminating her parental rights to the
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children. Because we grant mother’s motion for limited remand in
a separate order, we do not address mother’s appellate arguments
in this opinion.)
¶4 In March 2018, the Arapahoe County Department of Human
Services (Department) initiated a dependency and neglect case
based on concerns that mother was using marijuana around the
children, then ages three and one, and that the home was unsafe
for the children. The Department did not know father’s
whereabouts and reported he had an active warrant for his arrest.
(The record contains references both to a “warrant” and “warrants.”
The caseworker’s reports state that father had outstanding
warrants in El Paso County and Denver, and the treatment plan
similarly refers to “warrants.” For this reason, we refer to father’s
“warrants.”)
¶5 The juvenile court adjudicated the children dependent and
neglected. The juvenile court adopted a treatment plan for father
that required him to (1) maintain employment; (2) refrain from
criminal activity; (3) attend parenting time once he had cleared his
active warrants; (4) remain in contact with the caseworker; and (5)
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complete a domestic violence evaluation and comply with treatment
recommendations.
¶6 In October 2019, the Department moved to terminate father’s
parental rights. The Department refiled the termination motion in
June 2020 after the termination hearing was continued.
¶7 Following an evidentiary hearing in July 2020, the juvenile
court terminated father’s parental rights.
¶8 After this case was fully briefed, father joined with mother in a
motion for limited remand. In their motion, the parents note that
the supreme court publicly censured Natalie Chase, the juvenile
court judge who ordered the termination of their parental rights, for
undermining the confidence in the impartiality of the judiciary by
manifesting bias or prejudice based on race or ethnicity. See In re
Chase, 2021 CO 23, ¶ 7, ___ P.3d ___, ___.
¶9 Because we reverse the judgment as to father on the merits,
the motion for limited remand is moot as to him. We grant the
motion for limited remand as to mother in a separate order.
II. Termination Criteria and Standard of Review
¶ 10 The juvenile court terminated father’s parental rights under
section 19-3-604(1)(c). Under that statute, the juvenile court may
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terminate parental rights if it finds by clear and convincing evidence
that (1) the child was adjudicated dependent or neglected; (2) the
parent has not complied with an appropriate, court-approved
treatment plan or the plan was unsuccessful; (3) the parent is unfit;
and (4) the parent’s conduct or condition is unlikely to change in a
reasonable time.
¶ 11 Where resolution of an issue necessitates application of the
termination statute to evidentiary facts, it presents a mixed
question of fact and law. People in Interest of A.M. v. T.M., 2021 CO
14, ¶ 15, 480 P.3d 682, 686. We review the juvenile court’s factual
findings for clear error. C.R.C.P. 52. The credibility of witnesses;
the sufficiency, probative effect, and weight of the evidence; and the
inferences and conclusions to be drawn therefrom are all within the
province of the juvenile court. People in Interest of C.A.K., 652 P.2d
603, 613 (Colo. 1982). But 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 that
we review de novo. M.A.W. v. People in Interest of A.L.W., 2020 CO
11, ¶ 31, 456 P.3d 1284, 1289.
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III. Discussion
A. Reasonable Efforts
¶ 12 Father first asserts that the Department failed to make
reasonable efforts because it did not provide him visitation services.
We agree.
1. Preservation and Standard of Review
¶ 13 The Department and the guardian ad litem (GAL) contend that
father’s challenge to the Department’s reasonable efforts is
unpreserved because he failed to raise it before the termination
hearing. Divisions of this court are split on this issue. One division
has held that a parent must bring any deficiencies in the
department’s lack of reasonable efforts to the court’s attention
before the termination hearing to preserve such a challenge for
appeal. See People in Interest of D.P., 160 P.3d 351, 355-56 (Colo.
App. 2007). Another division has held that a parent’s failure to
object to the department’s lack of reasonable efforts before the
termination hearing does not bar appellate review of a reasonable
efforts claim. See People in Interest of S.N-V., 300 P.3d 911, 916
(Colo. App. 2011).
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¶ 14 Under the circumstances of this case, we need not decide
which approach is correct because even if we assume, without
deciding, that father failed to preserve this issue, we elect to
address his claim to avert a miscarriage of justice. See People in
Interest of M.B., 2020 COA 13, ¶ 21, 459 P.3d 766, 770-71 (“[G]iven
the constitutional nature of parental rights, we will recognize a
miscarriage of justice exception for review of unpreserved errors.”);
In re R.G.B., 98 P.3d 958, 959 (Colo. App. 2004) (“Where an error of
the trial court . . . involves a miscarriage of justice, we may consider
the issue for the first time on appeal.”). This exception to the
preservation rule applies to “those limited situations in which an
error by the trial court, not otherwise properly preserved for appeal,
should be characterized as . . . one causing a miscarriage of
justice.” People in Interest of A.E., 914 P.2d 534, 539 (Colo. App.
1996). For the reasons discussed below, we conclude that a
miscarriage of justice would result if we expressly or implicitly
enforced a blanket policy barring parental visitation in a
dependency and neglect case without consideration of the children’s
health and safety.
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¶ 15 The Department and the GAL also disagree with father
regarding which standard of review applies to our review of a
reasonable efforts claim. They assert that we should review the
court’s reasonable efforts finding only for clear error. C.A.K., 652
P.2d at 613. Father responds, however, that while the court’s
factual findings — “the raw, historical data underlying the
controversy” — are reviewed for clear error, its legal determinations
based on those factual findings are still subject to de novo review.
People in Interest of S.R.N.J-S., 2020 COA 12, ¶ 10, ___ P.3d ___, ___
(citing People in Interest of S.N. v. S.N., 2014 CO 64, ¶ 21, 329 P.3d
276, 282).
¶ 16 We recognize that a division of this court recently concluded
that “it is unclear whether we are to review the juvenile court’s
determination of reasonable efforts . . . de novo or for clear error.”
People in Interest of A.A., 2020 COA 154, ¶ 13, 479 P.3d 57, 61
(noting that our supreme court had not yet reviewed a juvenile
court’s judgment terminating parental rights as a mixed question of
fact and law). But the division in A.A. determined that it did not
need to resolve the question “because the juvenile court’s
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decision . . . was erroneous under either standard.” A.A., ¶ 13, 479
P.3d at 61.
¶ 17 For the reasons explained below, we, too, need not resolve this
dispute because, under either standard, the juvenile court’s
decision on reasonable efforts was erroneous.
2. Law
¶ 18 In determining whether a parent is unfit under section
19-3-604(1)(c), the juvenile court must consider whether the
Department made reasonable efforts to rehabilitate the parent.
§ 19-3-604(2)(h); S.N-V., 300 P.3d at 915. “Reasonable efforts”
means “the exercise of diligence and care” for a child in out-of-home
placement. § 19-1-103(89), C.R.S. 2020.
¶ 19 The reasonable efforts standard is satisfied when services are
provided in accordance with section 19-3-208, C.R.S. 2020.
§ 19-1-103(89). Among the efforts required under section 19-3-208
are 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; visitation services for parents with children in
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out-of-home placement; and placement services including foster
care and emergency shelter. § 19-3-208(2)(b).
3. Analysis
¶ 20 Father asserts that the Department did not make reasonable
efforts because it prohibited him from visiting his children while he
had outstanding warrants. For the reasons discussed below, we
agree with father and conclude that the Department did not make
reasonable efforts.
¶ 21 Father’s treatment plan required him to participate in
visitation “[t]o assist [him] with developing and maintaining a
positive and appropriate relationship with [the children] once active
warrants have been cleared by El Paso and Denver Counties.”
(Emphasis added.) The caseworker testified that father never
visited with the children because he had not resolved his warrants.
She said that a Department policy prohibited any parent from
participating in visitation if the parent had an outstanding warrant.
The caseworker did not explain the reasons for the policy, nor did
she elaborate why such a policy was appropriate in this case.
Father asked the Department to make an exception to the policy to
allow him to have face-to-face visitation with the children. The
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caseworker declined father’s request, however, because “it was just
against what the policy states.”
¶ 22 Father maintains that the Department’s policy is “per se
invalid” under section 19-3-208 because the statute provides that
the Department “must” provide him with visitation services. See
Ryan Ranch Cmty. Ass’n v. Kelley, 2016 CO 65, ¶ 42, 380 P.3d 137,
146 (“[T]he word ‘must’ connotes a mandatory requirement.”).
Section 19-3-208 requires the Department to provide visitation to
parents, but only “as determined necessary and appropriate by
individual case plans.” § 19-3-208(2)(b). However, the juvenile
court, and not the Department, must decide whether visitation
services are necessary and appropriate in a particular case. People
in Interest of B.C., 122 P.3d 1067, 1070-71 (Colo. App. 2005) (noting
that questions concerning the children’s health and safety are
matters entrusted to the juvenile court’s sound discretion, and
decisions regarding visitation may not be delegated to a
department). We therefore agree with father that the Department’s
blanket policy violates section 19-3-208 because it creates a general
prohibition on visitation services without any consideration of the
children’s health and safety or whether visitation is necessary and
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appropriate under the treatment plan. See People in Interest of
D.G., 140 P.3d 299, 302 (Colo. App. 2006).
¶ 23 In concluding that the Department’s policy is improper, we do
not intend to suggest that the Department could never recommend
suspending visitation services for a parent with an outstanding
warrant. Rather, the Department could deny a parent visitation
services under these circumstances, but only if the juvenile court
found that visitation with the parent would be detrimental to the
health and safety of the child. See, e.g., id. at 305 (noting that
face-to-face visitation may not be appropriate if the parent is
incarcerated or has committed sexual assault on a child). But,
absent health and safety concerns, a juvenile court may not
approve a treatment plan that does not provide for face-to-face
visitation. Id. (“[T]he trial court erred in approving a case plan that
provided for written communication in lieu of visitation services.”).
¶ 24 The Department and the GAL do not direct us to anywhere in
the record where the juvenile court explicitly found that the
prohibition of father’s visitation was necessary to protect the
children. See People in Interest of K.C., 685 P.2d 1377, 1379-80
(Colo. App. 1984) (noting that visitation may not be denied without
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the court’s approval or knowledge). To the extent the juvenile court
implicitly approved the limitation by adopting the treatment plan,
the juvenile court did not make any specific findings about whether
such a limitation was needed to protect the children’s health and
safety. See A.A., ¶¶ 24-27, 479 P.3d at 62-63; see also D.G., 140
P.3d at 305. And we see no evidence in the record that father’s
active warrants in and of themselves posed a threat to the
children’s health and safety. Compare People in Interest of T.W.,
797 P.2d 821, 823 (Colo. App. 1990) (denying visitation because
there was a strong possibility that the parent had sexually
assaulted the child and the child “became extremely upset before
and after visits” with the parent), with D.G., 140 P.3d at 305 (noting
that visitation could not be denied “because of the department’s
generalized belief that the children could be emotionally harmed if
they had any personal contact with their parents”).
¶ 25 The lack of visitation here is akin to the situation described in
A.A., ¶ 25, 479 P.3d at 63, in which the department recommended
suspending visitation until the parents could “demonstrate two
weeks of monitored sobriety.” See also D.G., 140 P.3d at 305
(noting that the juvenile court erred by adopting the department’s
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recommended visitation plan that prohibited face-to-face contact).
In A.A., ¶¶ 25-27, 497 P.3d at 63, the court adopted the
department’s recommendation, but it did not explain why it did so
or how the “order was designed to promote the health, safety, and
well-being of the children.” Because one of the parents “never
established two consecutive weeks of clean urinalysis tests, the
[d]epartment never offered services for her.” Id. at ¶ 30, 497 P.3d at
63. According to the division, this situation resulted in a “total[]
depriv[ation] of the visitation services required by section
19-3-208(2)[(b)] without any showing that such total deprivation
was necessary to protect the children.” Id. Therefore, the
department did not make reasonable efforts. Id.
¶ 26 Because we agree with the analysis in A.A., we also conclude
that “the juvenile court did not ensure that [father] was provided
adequate visitation services” here. Id. The Department did not offer
visitation to father solely because of its policy prohibiting visitation
for a parent with an outstanding warrant, resulting in a total
deprivation of the visitation services that section 19-3-208(2)(b)
requires. See A.A., ¶ 30, 497 P.3d at 63. To the extent that the
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juvenile court approved of the limitation, see K.C., 685 P.2d at
1379-80, it erred, see A.A., ¶ 26, 497 P.3d at 63.
¶ 27 Lastly, the Department and the GAL do not argue that the
court’s refusal to allow father to have visitation with the children,
consistent with the Department’s blanket policy, constituted
harmless error in light of father’s noncompliance with other parts of
his treatment plan. Rather, their assertion that father did not
engage in his treatment plan is inextricably intertwined with their
argument that father could have visited the children if he had
complied with the Department’s blanket policy by addressing his
outstanding warrants.
¶ 28 We therefore conclude that the juvenile court erred by
applying the blanket policy to support its finding that the
Department had made reasonable efforts. For this reason, we
reverse the judgment. To the extent that father’s treatment plan
was based on the Department’s blanket policy, the juvenile court
must modify father’s treatment plan as described above and afford
father an opportunity to have face-to-face visitation, subject to any
concerns regarding the children’s health or safety, under section
19-3-208.
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¶ 29 Because we reverse the termination judgment based on the
Department’s failure to make reasonable efforts to provide father
with visitation services, we need not address (1) whether the
Department’s policy also violated father’s due process rights or (2)
father’s other claims challenging the Department’s failure to make
reasonable efforts. For the same reason, there is no need for a
remand to address whether Judge Chase’s bias or prejudice based
on race or ethnicity may have affected her decision to terminate
father’s parental rights.
B. Appropriate Treatment Plan
¶ 30 Father also asserts that his treatment plan was inappropriate
because it included a component that required him to address
domestic violence even though domestic violence was not an issue.
Because this issue is likely to arise on remand, we choose to
address it. We reject father’s contention.
1. Law
¶ 31 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, 433 P.3d 114, 119-20.
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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(10); People in Interest of K.B., 2016 COA 21, ¶ 13, 369
P.3d 822, 826.
¶ 32 We measure the appropriateness of a treatment plan by its
likelihood of success in reuniting the family, which we assess by
considering the facts when the juvenile court approved the plan.
B.C., 122 P.3d at 1071. That a treatment plan is not ultimately
successful does not mean that it was inappropriate. People in
Interest of M.M., 726 P.2d 1108, 1121 (Colo. 1986).
2. Analysis
¶ 33 Father contends that, because he had no criminal history
involving domestic violence, the domestic violence component of his
treatment plan was unnecessary.
¶ 34 The petition listed a domestic violence conviction from 2009.
However, as father points out, later reports from the Department
did not include the 2009 conviction. It is unclear to us whether the
Department intentionally removed the conviction in the later reports
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because father did not have such a conviction or for some other
reason.
¶ 35 At the termination hearing, the caseworker testified that the
Department required father to complete a domestic violence
evaluation, in part based on his “criminal history.” When pressed
on cross-examination about father’s criminal history related to
domestic violence, the caseworker said, “I’d have to look at my
notes, but . . . there [were] just more aggressive charges, not
specifically around domestic violence, but I’d have to look.”
Father’s attorney asked whether the “[i]nformation that you listed in
the report to the [c]ourt[,] is that . . . the information you would be
referring back to?” The caseworker responded, “Yes.” The report
did not list any domestic violence charges.
¶ 36 In any event, even if father did not have a criminal conviction
for domestic violence, we conclude that record evidence supported
the domestic violence component. At the termination hearing, the
caseworker testified that the domestic violence component was
added “based on reports from [mother].” Father does not contend
on appeal that the juvenile court erred by adopting the domestic
violence component based on mother’s reports of domestic violence.
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We therefore conclude that the juvenile court did not err by
including the domestic violence component in father’s treatment
plan.
IV. Conclusion
¶ 37 We reverse the judgment terminating father’s parental rights.
On remand, before the court may again consider termination of
father’s parental rights, it must modify the existing treatment plan
to the extent it was based on the Department’s blanket policy
prohibiting him from participating in visitation. In implementing
father’s treatment plan, the court should determine whether, and
under what conditions, the Department must provide father with
visitation, considering the children’s health and safety, under
section 19-3-208. Absent health or safety concerns, the
Department must afford father an opportunity to have visitation
before it may file another termination motion, if it chooses to do so.
JUDGE PAWAR and JUDGE TAUBMAN concur.
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