24CA0053 Peo in Interest of ZRM 07-25-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0053
Mesa County District Court No. 22JV31
Honorable Valerie J. Robison, Judge
The People of the State of Colorado,
Appellee,
In the Interest of Z.R.M., a Child,
and Concerning E.J.B. and D.W.M.,
Appellants.
JUDGMENT AFFIRMED
Division II
Opinion by JUDGE GROVE
Fox and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 25, 2024
Todd M. Starr, County Attorney, Brad Junge, Assistant County Attorney,
Grand Junction, Colorado, for Appellee
Jenna L. Mazzucca, Guardian Ad Litem
Joel M. Pratt, Office of Respondent Parents’ Counsel, Colorado Springs,
Colorado, for Appellant E.J.B.
Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for
Appellant D.W.M.
1
¶ 1 In this dependency and neglect action, E.J.B. (mother) and
D.W.M. (father) appeal the judgment terminating their parent-child
legal relationships with Z.R.M. (the child). We affirm.
I. Background
¶ 2 The Mesa County Department of Human Services (the
Department) filed a petition in dependency and neglect, alleging
concerns about neglect and substance abuse. The Department also
alleged that both parents were arrested on warrants for criminal
child abuse, leaving the child without a legal caregiver.
¶ 3 The juvenile court granted temporary custody of the child to
the Department for placement with the paternal grandfather. Less
than a month later, the court granted the Department’s motion to
move the child to a foster care placement provider based on
concerns that the paternal grandfather was leaving the child in the
care of the paternal aunt, who it claimed was “an unapproved and
inappropriate” family member. The child was moved to a kinship
placement provider about a year after the petition was filed, and
remained there at the time of the termination hearing.
¶ 4 The juvenile court adjudicated the child dependent and
neglected and adopted treatment plans for both parents.
2
¶ 5 The Department later moved to terminate both parents’
parental rights. Twenty-one months after the petition was filed, the
juvenile court terminated mother’s and father’s parental rights
following a contested hearing.
II. Reasonable Efforts
¶ 6 Mother first contends that the juvenile court erred by finding
the Department made reasonable efforts to rehabilitate her.
Specifically, she argues that the Department did not provide
reasonable accommodations under the Americans with Disabilities
Act (ADA) and failed to help her secure income or housing
independent from father. We address each claim in turn.
A. Standard of Review and Applicable Law
¶ 7 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 court’s legal conclusions based on
3
those facts. See id. In particular, the ultimate determination of
whether a department provided reasonable efforts is a legal
conclusion we review de novo. People in Interest of A.S.L., 2022
COA 146, ¶ 8.
¶ 8 It is for the juvenile court, as the trier of fact, to determine the
sufficiency, probative effect, and weight of the evidence and to
assess witness credibility. People in Interest of A.J.L., 243 P.3d 244,
249-50 (Colo. 2010).
¶ 9 Before the juvenile court may terminate parental rights under
section 19-3-604(1)(c), C.R.S. 2023, a department of human
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. 2023. 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).
¶ 10 When a department knows or should know that a parent has a
qualifying disability, it has an affirmative duty to make reasonable
accommodations for that parent when providing rehabilitative
4
42 U.S.C. § 12102(1) (defining “disability” under the ADA); see also
42 U.S.C. § 12131(2) (defining “qualified individual” under the
ADA). When a parent is found to be a qualified individual, the
juvenile court must consider whether a department made
reasonable accommodations for a parent’s disability when
determining whether it made reasonable efforts. S.K., ¶ 34.
¶ 11 For a parent to benefit from a reasonable accommodation, the
parent must raise the ADA’s applicability as early in the
proceedings as possible. See People in Interest of S.Z.S., 2022 COA
133, ¶ 16. “The Department can accommodate, and the juvenile
court can address, only disabilities that are known to them.” S.K.,
¶ 22.
¶ 12 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
(Colo. App. 2011). The juvenile 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.
5
B. Analysis
¶ 13 The juvenile court found that the Department made
reasonable efforts but, despite those efforts, mother did not become
fit to parent the child. The court found that those efforts included
providing structured family time with three different providers, life
skills services, substance testing, substance abuse and mental
health assessments and services, capacity to parent evaluations,
bus passes, and assistance in applying for a Housing Authority
voucher.
1. Accommodations Related to Mother’s Disabilities
¶ 14 Mother contends that the Department knew that she had
diagnosed mental health concerns, a seizure disorder, and was
severely injured when she was hit by a drunk driver. She claims
that the juvenile court erred by finding the Department made
reasonable efforts because the record does not clearly demonstrate
that the services offered to her accommodated her medical and
mental health conditions.
¶ 15 Mother correctly argues that when a parent’s disability is
obvious, the Department is required under the ADA to provide
reasonable accommodations. S.K., ¶ 22.
6
¶ 16 But here, no ADA-cognizable disability was obvious. When the
Department asked mother about possibly needing accommodations,
she told the Department she did not need any. Mother stipulated to
the appropriateness of her treatment plan. At no point during the
nearly two years that the action was open did mother ask the
juvenile court to recognize or provide a reasonable accommodation
for any disability that might have been connected to her medical or
mental health diagnoses.
¶ 17 Mother did not provide any evidence at the termination
hearing regarding either her possible status as a qualified
individual under the ADA or reasonable accommodations that
might have been made by the Department. In her closing argument
at the termination hearing, mother referred to case law regarding
the Department’s obligation to provide reasonable accommodations.
But even then, she did not argue that the ADA applied to her or
that the Department should have made any accommodations when
delivering services to her.
¶ 18 Thus, it is unclear whether the juvenile court knew it needed
to make specific factual findings or legal conclusions about the
applicability of the ADA related to mother’s medical or mental
7
health concerns, including whether she was a “qualified individual”
under the ADA, or what accommodations would have been
warranted to further assist her. See S.Z.S., ¶ 18.
¶ 19 Even on appeal, it is unclear what impacts mother is claiming
and what accommodations she thinks should have been made.
Mother argues, without providing any support, that “shifting that
burden to [her] to identify accommodations would be improper.”
However, a parent is responsible for disclosing to the Department
and the juvenile court information regarding a disability and any
reasonable accommodations that are needed to address the
disability. See S.Z.S., ¶ 16; see also S.K., ¶ 22.
¶ 20 Nonetheless, the record reveals that the Department made
reasonable efforts to address mother’s mental health and medical
diagnoses. See S.K., ¶ 22. The treatment plan proposed by the
Department and adopted by the juvenile court included objectives
to address mother’s untreated physical and mental health
concerns. The caseworker maintained regular contact with mother
and reminded her of appointments. The Department provided bus
passes and offered to reimburse mother for transportation to family
time. And the caseworker made referrals for a wide range of
8
services, including for life skills, which could have provided
additional support for any issues that mother disclosed needing
help with.
¶ 21 The Department attempted to provide mother with necessary
services to address her medical and mental health concerns, but
she did not consistently participate in those services. Under these
circumstances, the Department met its reasonable efforts
obligation. See J.C.R., 259 P.3d at 1285 (the parent is ultimately
responsible for using the provided services to obtain the assistance
needed to comply with the treatment plan); see also A.V., ¶ 12 (the
court may consider a parent’s unwillingness to participate in
treatment when determining whether a department made
reasonable efforts).
2. Mother’s Basic Needs
¶ 22 Mother next argues that the Department failed to make
reasonable efforts because it made “minimal effort” to help her
obtain housing or stabilize her income. She asserts that she could
not benefit from any services offered by the Department “when she
could not even meet her basic needs,” and that the Department’s
9
failure to “help [her] meet her basic needs for food and shelter
fatally infected its other efforts to rehabilitate her.”
¶ 23 The juvenile court specifically considered mother’s argument
that the Department should have been required to assist mother
with housing. The court found that “it is not within the purview of
this case or within the reasonable requirements of a treatment plan
to require a housing authority to authorize a housing voucher, or
that [the Department] provide housing for respondent parents.
There is no legal authority provided to indicate such a condition
should have been” required.
¶ 24 We are not aware of, nor does mother provide, any authority to
suggest that a department is required to provide housing or direct
financial assistance as part of its reasonable efforts obligation.
Instead, if deemed necessary and appropriate by a parent’s
individual case plan, a department must provide “information and
referral services to available public and private assistance
resources,” § 19-3-208(2)(b)(III).
¶ 25 The record supports the juvenile court’s findings that the
Department met this obligation. The Department referred mother
for a housing voucher through the Housing Authority and helped
10
her fill out the required application. When mother was denied a
housing voucher because of her criminal history, the Department
offered to reimburse mother for application fees or rent. The
Department also referred mother to life skills services, which could
have helped her connect with other community services. While
mother now urges us to consider whether she was unwilling to
engage in life skills services because her disability prevented her
from understanding its value, we decline to do so. People in Interest
of T.E.R., 2013 COA 73, ¶ 30 (generally, issues not raised in the
trial court will not be considered on appeal)
3. Effect on Mother’s Fitness
¶ 26 Mother argues that, because the Department did not provide
reasonable efforts, it failed to demonstrate that she could not
become fit within a reasonable time if provided with appropriate
services. Because we discern no error in the juvenile court’s
reasonable efforts findings, we decline to further consider mother’s
fitness argument.
11
III. Fit in a Reasonable Period of Time
¶ 27 Father contends that the juvenile court erred by finding that
he was unlikely to become fit within a reasonable time. We discern
no error.
A. Applicable Law
¶ 28 An unfit parent is one whose conduct or condition renders the
parent “unable or unwilling to give the child reasonable parental
care to include, at a minimum, nurturing and safe parenting
sufficiently adequate to meet the child’s physical, emotional, and
mental health needs and conditions.” § 19-3-604(2). A parent need
not comply absolutely with every provision of a treatment plan, but
partial or even substantial compliance may not result in a
successful plan that renders a parent fit. People in Interest of
D.L.C., 70 P.3d 584, 588 (Colo. App. 2003).
¶ 29 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.” S.Z.S., ¶ 24.
12
¶ 30 What constitutes a reasonable time is fact specific and must
be determined by considering the child’s physical, mental, and
emotional conditions and needs. Id. at ¶ 25. A “reasonable time” is
not an indefinite time. Id. And even when a parent has made
recent progress on a treatment plan, the court is not required to
give the parent additional time to comply. See id. at ¶¶ 24-25.
B. Analysis
¶ 31 Father asserts that he could become fit within a reasonable
time because he completed a co-occurring assessment, participated
in some substance abuse treatment, engaged in court hearings and
Department meetings, and attended family time.
¶ 32 The juvenile court found that father was not likely to become
fit within a reasonable time. In doing so, the court found that
father attempted to “deflect any accountability,” continued to have
legal issues, and had not addressed his substance abuse. The
court specifically considered, and rejected, giving father more time
to become fit as a less drastic alternative to termination, finding
that doing so would not be in the child’s best interests.
¶ 33 The record supports these findings. Father testified that he
did not complete inpatient or outpatient programs for substance
13
abuse. The caseworker acknowledged that father completed a co-
occurring assessment, but testified that he did not follow any of the
recommendations for treatment. Although the treatment plan was
adopted more than a year before termination, father was not
compliant with any of the treatment plan objectives. The
caseworker testified that father wanted to become fit within a
reasonable time but “he lacks a lot of accountability and the ability
to make those changes in a reasonable amount of time.”
¶ 34 And because the child was under the age of six when the
petition was filed, the expedited permanency planning provisions
applied. §§ 19-1-102(1.6), 19-1-123, C.R.S. 2023. The provisions
required the juvenile court to place the child in a permanent home
as expeditiously as possible. § 19-3-702(5)(c), C.R.S. 2023. As the
court noted, the child had been in out of home placement for all
twenty-one months of the case.
¶ 35 Given this evidence, we conclude that the record supports the
juvenile court’s findings, and we perceive no error in the court’s
legal conclusion that father was unlikely to become fit within a
reasonable time.
14
¶ 36 Father further claims that that he should have been given
extra time to complete his treatment plan because (1) the objectives
of his treatment plan required significant time to make progress; (2)
he was hampered by transportation and housing barriers; and (3)
“his significant commitment and progress” implicated a due process
right to continue working on his treatment plan. However, because
he did not present these arguments to the juvenile court, we will
not consider them here. T.E.R., ¶ 30 (generally, issues not raised in
the trial court will not be considered on appeal).
IV. Less Drastic Alternative
¶ 37 Both parents assert that the juvenile court erred by finding
there was no less drastic alternative to termination. Specifically,
they argue that (1) the child would have benefited from a continued
relationship with them; (2) paternal relatives were available to
accept an allocation of parental responsibilities (APR); and (3) the
kinship placement provider was not “fully apprised” of the APR
option and did not refuse to accept an APR. We discern no basis for
reversal.
15
A. Applicable Law and Standard of Review
¶ 38 Consideration of less drastic alternatives is implicit in the
statutory criteria for termination. A.M., ¶ 19. When considering
less drastic alternatives, the juvenile court bases its decision on the
best interests of the child, giving primary consideration to the
child’s physical, mental, and emotional conditions and needs.
§ 19-3-604(3). A court may consider and weigh various factors in
determining the viability of a less drastic alternative, including
whether (1) a less drastic alternative is available, People in Interest
of D.P., 160 P.3d 351, 356 (Colo. App. 2007); (2) an ongoing
relationship with the parent would be beneficial or detrimental to
the child, People in Interest of B.H., 2021 CO 39, ¶ 81; and (3) the
alternative option provides the child with adequate permanency or
meets the child’s needs, People in Interest of T.E.M., 124 P.3d 905,
910 (Colo. App. 2005).
¶ 39 To aid the court in making this determination, the Department
must evaluate a reasonable number of persons the parent identifies
as placement options. People in Interest of D.B
-
J., 89 P.3d 530, 532
(Colo. App. 2004). Even when a placement provider is willing to
enter into a permanent custody agreement with a parent, the court
16
may properly determine that such an arrangement does not
adequately meet the needs of the child. See T.E.M., 124 P.3d at 910
(permanent placement with a relative may not be a viable
alternative if it does not provide adequate permanence or otherwise
meet the child’s needs); D.B-J., 89 P.3d at 532 (a proposed
placement is not a less drastic alternative to termination if the
placement provider lacks appreciation of a parent’s problems or a
child’s needs and conditions).
¶ 40 A primary consideration of a child’s conditions and needs
“requires more than a mere assessment of adequacy.” A.M., ¶ 31.
If a juvenile court considers a less drastic alternative and finds that
termination and not the proposed less drastic alternative is in the
child’s best interests, it must reject the alternative and order
termination. Id. at ¶¶ 32, 37.
¶ 41 When the juvenile court considers the availability of a less
drastic alternative and still determines that the termination of a
parent’s rights would be in the child’s best interests, we are bound
to affirm the court’s decision if its findings have record support.
B.H., ¶ 80.
17
B. Analysis
¶ 42 The juvenile court took “a careful look at whether a less
drastic alternative would be in the best interest of the child.” The
court considered a potential APR and a guardianship and giving
additional time for the parents to become fit. The court noted that
it was especially “cognizant of the relationship the child has with
her parents.”
¶ 43 The juvenile court nonetheless found that there was no less
drastic alternative to termination that would meet the child’s needs.
The court found that the child worried about her parents, and not
“knowing where she stands [was] impacting her significantly.”
Although the court considered placement with a different relative
who might accept an APR, it ultimately determined that a different
placement would not be appropriate or meet the child’s needs. The
child needed permanency which, for her, could only be assured
through adoption. Allowing the parents to retain some parental
responsibilities would not provide the child with the stability that
she needed.
¶ 44 The record supports these findings. The child’s therapist
testified that the child’s high level of worry for and enmeshment
18
with her parents was concerning. Although the therapist agreed
that repairing the ruptures in the relationship between the child
and the parents was important “if it can happen,” the therapist
testified that the child was uncomfortable with the therapist’s
attempts to integrate the parents into therapeutic work and asked
that her parents not come back to therapeutic sessions. The
therapist opined that, for any repair to be successful, the parents
would need to do their own “therapeutic work fully,” which they had
not done. The child’s therapist testified that it was not helpful for
children to stay in a “stressful, distressing, overwhelming situation
waiting for something to happen” or to stay in foster care “for years
and years and years.” The child’s therapist opined that the child’s
anxiety increased as the case went on and that “feeling very
powerless about what’s going to happen, and being in the unknown
and not knowing, . . . has had a lot of toll on [the child]
psychologically.”
¶ 45 Mother and father contend that the record also demonstrated
that the child wanted contact with them and would have benefited
from an ongoing relationship with them. While there is some record
support for these contentions, we cannot reweigh evidence or
19
substitute our own judgment for that of the juvenile court. See
People in Interest of K.L.W., 2021 COA 56, ¶ 62.
¶ 46 We are not persuaded by father’s contention that the
Department “did not properly investigate or explore the paternal
aunt as a less drastic alternative” because “no home study was ever
performed by the Department.” We are not aware of any
requirement that a department complete a home study as part of its
evaluation of either placement providers or less drastic alternatives,
and father provides no support for this proposition. Instead, the
record makes clear that the Department knew about the paternal
aunt’s availability and decided not to pursue placement of the child
with her because of (1) the paternal aunt’s participation in events
that led to the child’s removal from the paternal grandfather’s
home; (2) department regulations that precluded placement with
the paternal aunt because of her criminal history that included
child abuse; and (3) mother and father’s requests early in the case
that the child not be placed with the paternal aunt. Regardless of
any placement decision, the less drastic alternative of permanent
custody was considered and rejected by the juvenile court, with
record support as discussed above.
20
¶ 47 Similarly, we reject the parents’ arguments about the kinship
placement provider’s knowledge about an APR. Father argues that
a less drastic alternative was not properly explored because the
kinship placement providers “did not have an accurate or
meaningful understanding” of what an APR would involve because
they did not consult with an attorney. In a similar argument,
mother contends that the juvenile court erred by rejecting less
drastic alternatives because the kinship placement provider testified
they preferred adoption but did not specifically testify that they
would not accept an APR. But we are not aware of, and neither
parent provides support for, any requirement that these steps be
followed before a placement provider develops a preference for
adoption or permanent custody. Furthermore, a placement
provider’s preference is only one of many factors that may be
considered by the juvenile court. See People in Interest of S.N-V.,
300 P.3d 911, 920 (Colo. App. 2011). And, although the kinship
placement provider testified their preference was for adoption, the
court did not mention this preference in either its oral or written
judgment.
21
¶ 48 Mother contends that the juvenile court erred by finding that
the child “would be subject to instability with an APR rather than a
termination or adoption” because, if true, “the entire domestic
relations system under Title 14 provides instability to children.”
Mother does not provide, and we are not aware of, any support for
her contention.
¶ 49 While an APR can provide adequate permanency for some
children, a juvenile court must make an individual determination
for each child, giving primary consideration to that child’s physical,
mental, and emotional needs. § 19-3-604(3); see People in Interest
of J.L.M., 143 P.3d 1125, 1126 (Colo. App. 2006); see also T.E.M.,
124 P.3d at 910 (permanent placement with a relative may not be a
viable alternative if it does not provide adequate permanence or
otherwise meet the child’s needs); A.M., ¶ 31 (“Primary
consideration of the child’s physical, mental, and emotional
condition and needs requires more than a mere assessment of
adequacy in order to satisfy the overall intent of the Children’s
Code.”).
¶ 50 Here, the juvenile court found “the child needs a permanent
stable home that can be assured only through adoption. To place
22
the child with a family member or to allow [mother and father] some
parental responsibilities doesn’t provide the child the stability she
needs.” These findings are appropriately specific to this child and
her family members and, as described above, are supported by the
record.
¶ 51 Because the record supports the juvenile court’s findings, we
conclude the court did not err in finding that clear and convincing
evidence showed no less drastic alternative to termination existed
for this specific child. See B.H., ¶ 80.
V. Disposition
¶ 52 The judgment is affirmed.
JUDGE FOX and JUDGE SULLIVAN concur.
