Peo in Int of SZS ( 2022 )

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
November 17, 2022
2022COA133No. 22CA0305, People in the Interest of S.Z.S. — Juvenile
Court — Dependency and Neglect — Termination of the Parent-
Child Legal Relationship; Health and Welfare — Disability —
Americans with Disabilities Act — Reasonable Accommodations
A division of the court of appeals holds that a parent
challenging termination of her parental rights cannot claim for the
first time on appeal that she has a qualifying disability under the
Americans with Disabilities Act of 1990 that the department of
human or social services or the court failed to accommodate. The
division also holds that when a court terminates parental rights for
abandonment under section 19-3-604(1)(a), C.R.S. 2022, it does not
need to consider whether the parent had a reasonable amount of
time to comply with a treatment plan or whether the department
made reasonable efforts to rehabilitate the parent.
COLORADO COURT OF APPEALS 2022COA133Court of Appeals No. 22CA0305
Boulder County District Court No. 20JV235
Honorable Norma A. Sierra, Judge
The People of the State of Colorado,
Appellee,
In the Interest of S.Z.S., a Child,
and Concerning T.Z.D.M. and T.G.,
Appellants.
JUDGMENT AFFIRMED
Division II
Opinion by JUDGE J. JONES
Brown and Kuhn, JJ., concur
Announced November 17, 2022
Benjamin Pearlman, County Attorney, Debra W. Dodd, Special County
Attorney, Jeanne Banghart, Deputy County Attorney, Boulder, Colorado, for
Appellee
Josi McCauley, Guardian Ad Litem
Patrick R. Henson, Office of Respondent Parents’ Counsel, Andrew Gargano,
Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant
T.Z.D.M.
Steven Baum, Office of Respondent Parents’ Counsel, Denver, Colorado, for
Appellant T.G.
¶1 T.Z.D.M. (mother) and T.G. (father) appeal the judgment
terminating the parent-child legal relationship between them and
S.Z.S. (the child). We affirm.
I. Background
¶2 In April 2020, the Boulder County Department of Housing and
Human Services initiated an action in dependency and neglect and
assumed temporary legal custody of the newborn child. The
Department alleged, among other things, that the child had been
born at home without proper medical care and had tested positive
for marijuana after mother took her to the hospital. When the
Department filed the petition, it didn’t have any information about
the identity of the child’s father.
¶3 About a month later, the Department asked to amend the
petition to add father as the child’s alleged father. The juvenile
court granted the Department’s request to serve father by
publication. Father didn’t appear, and the juvenile court
adjudicated the child dependent and neglected as to father by
default judgment. The court then adopted a treatment plan for
father.
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¶4 Meanwhile, mother denied the allegations in the petition and
asked for a jury trial. The jury found in favor of the Department,
and the juvenile court adjudicated the child dependent and
neglected as to mother based on the jury’s verdict. The court
adopted a treatment plan for mother.
¶5 In April and May 2021, a psychologist performed a
psychological evaluation of mother. The psychologist forwarded her
report to the Department in late June 2021. The report included
several recommendations for treatment and further consultation.
But the psychologist didn’t diagnose mother as suffering from any
mental impairment rising to the level of a disorder under the DSM-
V.
¶6 In September 2021, the Department moved to terminate
mother’s and father’s parental rights. Shortly thereafter, father
contacted the caseworker for the first time and requested genetic
testing. However, he didn’t comply with testing for several months.
Genetic testing confirmed father’s paternity in December 2021. The
court adopted an amended treatment plan for father in January
2022.
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¶7 The juvenile court held an evidentiary hearing on the
Department’s termination motion in February 2022. After hearing
the evidence, the juvenile court terminated mother’s parental rights
under section 19-3-604(1)(c), C.R.S. 2022, and father’s parental
rights under section 19-3-604(1)(a).
II. Mother’s Appeal
¶8 Mother contends that the juvenile court erred by finding that
(1) the Department made reasonable efforts to rehabilitate her and
reunify her with the child when she had a disability that the
Department didn’t reasonably accommodate, and (2) she couldn’t
become fit in a reasonable time. We disagree with both contentions.
A. Termination Criteria and Standard of Review
¶9 Under 19-3-604(1)(c), the juvenile court may terminate
parental rights if it finds, by clear and convincing evidence, that
(1) the child was adjudicated dependent and neglected; (2) the
parent hasn’t complied with an appropriate, court-approved
treatment plan or the plan hasn’t been successful; (3) the parent is
unfit; and (4) the parent’s conduct or condition is unlikely to change
within a reasonable time.
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¶ 10 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 won’t disturb the
court’s factual findings if evidence in the record supports them. Id.The credibility of the witnesses — as well as the sufficiency,
probative effect, and weight of the evidence and the inferences and
conclusions to be drawn from it — is within the juvenile court’s
province. People in Interest of A.J.L., 243 P.3d 244, 249-50 (Colo.
2010). 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.
B. Reasonable Efforts
¶ 11 Mother first contends that the Department failed to make
reasonable accommodations for her disability, as required by the
Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-
12213, when it didn’t implement the recommendations in her
psychological evaluation. In response, the Department argues that
mother didn’t preserve an ADA claim for appellate review, and
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therefore we shouldn’t address it. See People in Interest of M.B.,
2020 COA 13, ¶ 14 (“[A]ppellate courts review only issues presented
to and ruled on by the lower court.”).
¶ 12 For the reasons discussed below, we agree with the
Department that mother didn’t preserve her ADA claim, and we
therefore decline to review it.
1. Law
¶ 13 Before the court may terminate parental rights under section
19-3-604(1)(c), the county department of human or social services
must make reasonable efforts to rehabilitate the parent and reunite
the family. §§ 19-1-103(114), 19-3-100.5(1), 19-3-208, 19-3-
604(2)(h), C.R.S. 2022. Reasonable efforts means the “exercise of
diligence and care” for a child who is in out-of-home placement, and
the reasonable efforts standard is satisfied when services are
provided in accordance with section 19-3-208. § 19-1-103(114).
¶ 14 A parent may not assert the ADA as a defense in a termination
of parental rights proceeding. People in Interest of T.B., 12 P.3d
1221, 1223 (Colo. App. 2000). Nonetheless, the department has an
affirmative duty to make reasonable accommodations for a parent
with a qualifying disability when providing rehabilitative services to
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that parent. People in Interest of S.K., 2019 COA 36, ¶¶ 25, 34; see
42 U.S.C. § 12102 (defining “disability” under the ADA); 42 U.S.C.
12111(8) (defining “qualified individual” under the ADA). And the
juvenile court must consider whether the department made
reasonable accommodations for a parent’s disability when
determining whether it made reasonable efforts. S.K., ¶ 34; § 19-3-
208(2)(g) (services provided under this section must meet the
provisions of the ADA). Absent reasonable modifications to
rehabilitative services offered to a parent with a disability, the
department fails to perform both its duty under the ADA to
reasonably accommodate a disability and its obligation to make
reasonable efforts to rehabilitate the parent, and thus it does not
satisfy the criteria for terminating parental rights under section 19-
3-604(1)(c). S.K., ¶ 33.
2. ADA
¶ 15 Mother contends that her ADA claim is preserved because her
attorney argued in closing that mother had “psychological issues”
and “there were a number of modalities recommended in the
psychological evaluation that were never referred.” We aren’t
persuaded.
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¶ 16 For a parent to benefit from a reasonable accommodation, the
parent must raise the issue of the ADA’s applicability in a timely
manner. See In re Terry, 610 N.W.2d 563, 570 (Mich. Ct. App.
2000). “The [d]epartment can accommodate, and the juvenile court
can address, only disabilities that are known to them.” S.K., ¶ 22.
Preferably, if the parent knows or has reason to know she has an
ADA-cognizable disability, the issue should be raised before the
court adopts a treatment plan and enters a dispositional order, so
the department can include the requested accommodations in the
treatment plan for court approval and can provide services
accommodating the disability throughout the case. See In re
Adoption of Gregory, 747 N.E.2d 120, 127 (Mass. 2001); see also
§ 19-3-507(1)(c), C.R.S. 2022 (where a parent has a disability, the
department must identify accommodations and modifications in the
report prepared for the dispositional hearing). “A parent who waits
until the eleventh hour to request a modification under the ADA
may thoroughly undermine her ability to establish that such
modification is reasonable, particularly once the best interests of
the child are taken into account.” State in Interest of K.C., 2015 UT
92, ¶ 27.
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¶ 17 In some jurisdictions, courts have held that a parent may not
raise the ADA issue for the first time at the termination hearing.
See Gregory, 747 N.E.2d at 127; Terry, 610 N.W.2d at 570-71. But
in Colorado, at least one division of this court has determined that
a parent can preserve an ADA claim by raising it for the first time in
closing argument at the termination hearing. People in Interest of
C.Z., 2015 COA 87, ¶ 9. At any rate, waiting until the termination
hearing to raise the ADA issue is problematic because when the
department and the juvenile court don’t know that the parent has a
disability, the department can’t provide, and the court can’t order
the department to provide, reasonable accommodations to
rehabilitate the parent during the case. S.K., ¶ 22.
¶ 18 However, even if we assume that a parent can preserve an
appellate claim by raising the ADA for the first time in closing
argument at a termination hearing, we still conclude that mother’s
counsel didn’t do so. We acknowledge that mother’s counsel noted
in closing that mother had some “psychological issues” and that the
Department should have made additional referrals based on the
recommendations in the psychological evaluation. But neither
mother nor her attorney ever specifically mentioned the ADA,
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asserted that she had a qualifying disability within the meaning of
the ADA, or argued that the recommendations in the psychological
evaluation amounted to reasonable accommodations for that
disability. While we agree with mother that her attorney wasn’t
required to use “talismanic language” to preserve her appellate
claim, she still needed to present the court with an adequate
opportunity to make findings of fact and legal conclusions on the
ADA issue. People v. Melendez, 102 P.3d 315, 322 (Colo. 2004)
(quoting People v. Syrie, 101 P.3d 219, 223 n.7 (Colo. 2004)).
Mother’s counsel didn’t do so.
¶ 19 Still, mother insists that her disability, which she describes
generally as a “mental impairment,” was obvious. See 42 U.S.C.
§ 12102(1)(A) (a disability includes a mental impairment); 28 C.F.R.
§ 35.108(b)(1)(ii) (2021) (mental impairment includes an
“intellectual disability, organic brain syndrome, emotional or mental
illness, and specific learning disability”). If the parent’s disability is
obvious, the department should know that an individual is disabled
and would thus be required under the ADA to provide reasonable
accommodations. S.K., ¶ 22; see also In re Hicks/Brown, 893
9
N.W.2d 637, 640 (Mich. 2007). But, in this case, no ADA-
cognizable disability was obvious.
¶ 20 Mother relies on the caseworker’s testimony at a temporary
custody hearing before a magistrate that mother had difficulty
paying attention to the child’s cues and “she’s diagnosed herself
with [post-traumatic stress disorder (PTSD)],” and on her own
testimony at that hearing that she was taking prescription
medication for her anxiety. But mother’s counsel did not then (or
at any time later) indicate that this condition constituted an ADA-
cognizable disability. And even the psychological evaluation, on
which mother also relies, and which was provided to the
Department more than a year later, concluded that she doesn’t
have a specific learning disorder, obsessive compulsive disorder, or
borderline personality disorder. Although the evaluation identified
some issues with anxiety, the evaluator noted that mother’s
symptoms didn’t “reach the level of clinical paranoia.” And while
the evaluation notes that mother may have been “significantly
traumatized” in the past, she “endorsed only two of the three
required symptom clusters” for a PTSD diagnosis.
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¶ 21 Considering all this, we aren’t convinced that the court was on
notice that mother had a disability under the ADA. If mother’s
counsel believed that she did, given the Department’s failure to
recognize any such disability, it was incumbent on mother’s counsel
to raise the issue with the court so that it could resolve that factual
question. See S.K., ¶ 21 n.2 (whether a parent is a qualified
individual with a disability under the ADA requires a fact-specific
determination that, if disputed, the court should resolve). But
because mother never raised the ADA issue, even by implication,
either before or during the termination hearing, the juvenile court
didn’t make any specific findings about the applicability of the ADA
for us to review. And we “don’t (and, indeed, can’t) make findings of
fact.” Carousel Farms Metro. Dist. v. Woodcrest Homes, Inc., 2019
CO 51, ¶ 19.1
1 In her reply brief, mother urges us to review her ADA argument
under the miscarriage of justice exception to preservation,
sometimes applied in dependency and neglect cases, if we conclude
that the argument isn’t preserved. See People in Interest of E.S.,
2021 COA 79, ¶ 14. We decline to do so. As discussed, this issue
is inherently fact-dependent, People in Interest of S.K., 2019 COA
36, ¶¶ 21 & n.2, 35 & n.4, and we don’t make factual
determinations. Moreover, mother didn’t develop a factual record
on the issue in the juvenile court sufficient to enable the juvenile
court to make the relevant factual findings.
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C. Fit Within a Reasonable Time
¶ 22 Mother next contends that the juvenile court erred by finding
that she couldn’t become fit within a reasonable time.
¶ 23 An unfit parent is one whose conduct or condition renders her
unable or unwilling to give a child reasonable parental care. People
in Interest of D.P., 160 P.3d 351, 353 (Colo. App. 2007). Reasonable
parental care requires, at a minimum, that the parent provide
nurturing and safe parenting sufficiently adequate to meet the
child’s physical, emotional, and mental needs and conditions.
People in Interest of A.J., 143 P.3d 1143, 1152 (Colo. App. 2006).
¶ 24 In determining whether a parent’s conduct or condition is
likely to change within a reasonable time, the court may consider
whether any change has occurred during the proceeding, the
parent’s social history, and the chronic or long-term nature of the
parent’s conduct or condition. People in Interest of D.L.C., 70 P.3d
584, 588-89 (Colo. App. 2003). Where a parent has made little to
no progress on a treatment plan, the juvenile court need not give
the parent additional time to comply. See People in Interest of
R.B.S., 717 P.2d 1004, 1006 (Colo. App. 1986); see also People in
Interest of V.W., 958 P.2d 1132, 1134-35 (Colo. App. 1998) (even
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“increased compliance” over the course of a case may not justify
additional time).
¶ 25 A “reasonable time” isn’t an indefinite time and must be
determined by considering the child’s physical, mental, and
emotional conditions and needs. A.J., 143 P.3d at 1152. What
constitutes a reasonable time is fact-specific and varies from case to
case. People in Interest of D.Y., 176 P.3d 874, 876 (Colo. App.
2007). However, when, as in this case, the child is under six years
old, the court must also consider the expedited permanency
planning provisions, which require that the child be placed in a
permanent home as expeditiously as possible. §§ 19-1-102(1.6),
19-1-123, C.R.S. 2022.
¶ 26 The juvenile court determined that mother was unfit based on
her continuing mental health problems; lack of demonstrated
sobriety; “history of engagement in domestic violence, both as a
perpetrator and as a victim,” for which she hadn’t participated in
treatment; and inability to integrate feedback from her parenting
coaches. See § 19-3-604(2)(e) (a parent may be unfit based on
“[e]xcessive use of intoxicating liquors or controlled substances”);
People in Interest of K.T., 129 P.3d 1080, 1082 (Colo. App. 2005)
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(substance abuse); People in Interest of C.T.S., 140 P.3d 332, 334
(Colo. App. 2006) (domestic violence). While the court recognized
that mother had made some improvements during the case, it didn’t
believe that she could become fit within a reasonable time. See
V.W., 958 P.2d at 1134-35. The court noted that the child was very
young, had been in foster care most of her life, and needed stability
as soon as possible.
¶ 27 The record supports the court’s findings. The caseworker
testified at the termination hearing that mother “uses high levels of
marijuana that aren’t managed,” stopped participating in individual
treatment, didn’t engage in domestic violence treatment at all, and
wasn’t able to integrate feedback from her parenting coaches during
parenting time. The caseworker opined that, given mother’s
inability to address the major concerns in the case, mother couldn’t
provide the child with reasonable parental care. The caseworker
also opined that mother couldn’t become fit within a reasonable
time, given the length of time that the child had been in foster care,
as well as the length of time that mother had been given to
demonstrate improvement. See A.J.L., 243 P.3d at 256 (“[T]he trial
court could reasonably find and conclude that the children’s age
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and need for permanency precluded giving mother more time to
address her mental health needs.”).
¶ 28 Mother argues that she could become fit within a reasonable
time because she substantially complied with her treatment plan.
Specifically, she notes that she maintained regular contact with the
Department, attended about eighty percent of her visits, had
housing and income from legal sources, participated in therapy,
and completed the required evaluations. Coupled with her
compliance, mother further asserts that, had the Department made
reasonable accommodations for her disability, she could have
become fit in a reasonable time.
¶ 29 We aren’t persuaded by mother’s argument, for two reasons.
First, while there is record support for mother’s assertion that she
complied with parts of her treatment plan, we can’t reweigh the
evidence or substitute our judgment for that of the juvenile court.
See People in Interest of K.L.W., 2021 COA 56, ¶ 62. The record
shows that the court properly considered evidence supporting
mother’s compliance, weighed it against contrary evidence and the
needs of the child, and determined that mother couldn’t become fit
within a reasonable time. Because there is record support for the
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court’s finding, we can’t disturb it. See A.M., ¶¶ 15, 48. Second,
because we have already determined that mother didn’t preserve
her ADA argument, her assertion that she could become fit within a
reasonable time if she had reasonable accommodations necessarily
fails.
III. Father’s Appeal
¶ 30 Father contends that the juvenile court erred by terminating
his parental rights because (1) he didn’t have a reasonable amount
of time to comply with his treatment plan, and (2) the Department
didn’t make reasonable efforts. The Department contends that,
because the juvenile court terminated father’s parental rights under
section 19-3-604(1)(a), the court didn’t need to consider whether
father had a reasonable amount of time to comply with his
treatment plan or whether the Department made reasonable efforts.
We agree with the Department.2
A. Reasonable Time to Comply with the Treatment Plan
¶ 31 The juvenile court adopted a treatment plan for father in June
2020, following the entry of a default adjudication. This treatment
2 Father doesn’t challenge the sufficiency of the evidence supporting
termination under subsection (1)(a).
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plan only required that father contact and cooperate with the
Department. But after father contacted the Department over a year
later, the court adopted an amended treatment plan that was more
comprehensive in January 2022. This was only a few weeks before
the termination hearing.
¶ 32 Unlike mother, however, the juvenile court terminated father’s
parental rights under subsection (1)(a), which required the
Department to prove, by clear and convincing evidence, that the
parent (1) surrendered physical custody of the child for a period of
six months or more and (2) didn’t manifest during such period the
firm intention to resume physical custody of the child or make
permanent legal arrangement for the care of the child. In contrast
to subsection (1)(c), subsection (1)(a) doesn’t require that a parent
be provided with a treatment plan before the court may terminate
parental rights. See People in Interest of L.M., 2018 COA 57M, ¶ 19;
see also § 19-3-508(1)(e)(I), C.R.S. 2022 (the court may find that an
appropriate treatment plan can’t be devised as to a particular
parent because the child has been abandoned as set forth in
section 19-3-604(1)(a)).
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¶ 33 Under subsection (1)(c), once a reasonable treatment plan is
approved by the juvenile court, the parent must be given a
reasonable amount of time to comply with its provisions. D.Y., 176
P.3d at 876. But subsection (1)(c) is the only basis for termination
in section 19-3-604 that requires the juvenile court to have first
approved an appropriate treatment plan. L.M., ¶ 23. Thus, the
requirement that a court allow a parent a reasonable time to comply
with a treatment plan only applies in cases in which parental rights
are terminated under subsection (1)(c). See D.Y., 176 P.3d at 876(under section 19-3-604(1)(c), “the General Assembly intended that
a parent would be afforded a reasonable time to comply with an
appropriate treatment plan before parental rights could be
terminated”).
¶ 34 Because the juvenile court terminated father’s parental rights
under section 19-3-604(1)(a), his reliance on subsection (1)(c) and
D.Y. is misplaced. Under subsection (1)(a), the juvenile court isn’t
required to provide a parent with a treatment plan and allow a
reasonable time for compliance with the plan before it can
terminate parental rights. We therefore reject father’s contention.
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B. Reasonable Efforts
¶ 35 Father next contends that the Department failed to make
reasonable efforts because it did not seek to engage him after
paternity was established and instead immediately pursued
termination. We disagree.
¶ 36 As noted, when a juvenile court terminates parental rights
under section 19-3-604(1)(c), it must consider whether reasonable
efforts have been unable to rehabilitate the parent. See § 19-3-
604(2)(h). However, because the court isn’t required to adopt a
treatment plan under subsection (1)(a), the court isn’t required to
make a finding of reasonable efforts when it terminates parental
rights under that subsection. See C.Z., ¶ 57 (when a juvenile court
finds that no appropriate treatment plan can be devised pursuant
to section 19-3-604(1)(b), “the Department is relieved of its
obligation to provide reasonable efforts”).
¶ 37 Nonetheless, we recognize that the court did, in fact, adopt a
treatment plan for father. Of course, the Department is obligated to
provide the services envisioned in the plan while the plan remains
in effect. See id. at ¶ 58. But a court can make an abandonment
finding under subsection (1)(a) regardless of whether a treatment
19
plan was adopted or services were provided. See People in Interest
of Z.P.S., 2016 COA 20, ¶ 29 (“[T]he court may proceed to terminate
a parent’s rights based on no appropriate treatment plan even when
the existing dispositional order includes the provision of a
treatment plan for the parent.”). And under those circumstances,
the court isn’t required to consider whether the Department made
reasonable efforts before entering its termination order. See C.Z.,
¶ 59. Thus, because the juvenile court ultimately terminated
parental rights under section 19-3-604(1)(a), it wasn’t required to
consider whether the Department had made reasonable efforts. See
id.IV. Conclusion
¶ 38 The judgment is affirmed.
JUDGE BROWN and JUDGE KUHN concur.
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