23CA1523 Peo in Interest of AA 07-03-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1523
Weld County District Court No. 17JV682
Honorable W. Troy Hause, Judge
The People of the State of Colorado,
Appellee,
In the Interest of An.A. and Ar.A., Childs-Appellants,
and Concerning R.C.,
Appellee.
JUDGMENT AFFIRMED
Division III
Opinion by JUDGE MOULTRIE
Yun and Davidson*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 3, 2024
Bruce T. Barker, County Attorney, David S. Anderson, Assistant County
Attorney, Greeley, Colorado, for Appellee The People of the State of Colorado
Debra W. Dodd, Guardian Ad Litem
Patrick R. Henson, Office of Respondent Parents’ Counsel, Justin Twardowski,
Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellee R.C.
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2023.
1
¶ 1 An.A. and Ar.A. (the children), through their guardian ad litem
(GAL), appeal the juvenile court’s judgment denying the motion to
terminate their parent-child legal relationship with R.C. (mother).
We affirm.
I. Background
¶ 2 In October 2017, a petition in dependency or neglect was filed
due to concerns about sexual abuse to then-three-year-old Ar.A. by
an older sibling, sexualized behaviors between the siblings residing
in the home, possible sexual abuse to the children by father, and
mother’s substance use. Ar.A. and then-four-year-old An.A. were
removed from the home and placed into foster care. Mother has
resided out of state in Wisconsin throughout these proceedings.
The children were adjudicated dependent or neglected in November
2017, and the court adopted treatment plans for both parents in
December 2017. Father passed away in June 2019.
¶ 3 As relevant here, mother’s treatment plan required her to
• reestablish a parenting relationship with the children,
including by maintaining contact with the children and
2
participating in any Interstate Compact on the Placement
of Children (ICPC)
1
requests;
• maintain sobriety and participate in any recommended
substance abuse treatment; and
• participate in a psychological evaluation and follow any
recommended treatment.
¶ 4 The court later amended mother’s treatment plan to require
her to complete a parenting assessment specific to the risk of
sexual offending and follow any resulting recommendations.
¶ 5 Alleging that mother had not reasonably complied with her
treatment plan and that the plan had not been successful, and
noting that the children had been in foster care “most of their lives,”
the children’s GAL moved to terminate mother’s parental rights.
¶ 6 The juvenile court held a contested hearing over five days in
March 2023. The central issues were mother’s treatment plan
compliance and whether mother’s home in Wisconsin could be
1
The Interstate Compact on the Placement of Children facilitates
interstate “coordination of placement and provision of services to
children being placed by one state’s child protective services agency
in a home in another state.” People in Interest of I.J.O., 2019 COA
151, ¶ 9.
3
approved for placement. An ICPC home study of mother’s home
was pending at the time of the termination hearing. After the close
of evidence, but before the juvenile court had ruled on the motion to
terminate, the Weld County Department of Human Services (the
Department) asked to reopen the evidence because it had received
the results of the ICPC home study. Over the GAL’s objection, the
juvenile court reopened the evidence and allowed the parties to
present additional evidence over two days. The juvenile court
ultimately denied the GAL’s motion to terminate mother’s parental
rights.
¶ 7 In its ruling, the juvenile court found that the GAL had clearly
established that the court could find mother unfit based on the
length of time the children had been in foster care,
2
but it
determined this was due in large part to mother residing out of
state and the barriers to the Department’s efforts to implement
treatment services for mother. The court found that the GAL had
2
Unless the juvenile court determines certain exceptions not
relevant here apply, the juvenile court “shall consider . . . [t]hat [a]
child has been in foster care under the responsibility of the county
department for fifteen of the most recent twenty-two months” in
determining whether a parent is unfit. § 19-3-604(2)(k), C.R.S.
2023.
4
failed to establish by clear and convincing evidence (1) any other
basis for mother’s unfitness; (2) that mother hadn’t reasonably
complied with her treatment plan; (3) that her conduct or condition
was unlikely to change within a reasonable time; or (4) that mother
was unable or unwilling to provide the children with reasonable
care to meet their needs.
¶ 8 In reaching these findings, the district court recognized the
concerns leading to the filing of the petition, the children’s complex
needs, and their need for permanency given the length of time the
case had been open. Nonetheless, the court found that mother had
substantially complied with her treatment plan; that she had
“visited regularly by phone, video conferencing, or in person”; and
that although the treatment issues had not “totally resolved,” her
relationship with the children had improved and it was not in the
children’s best interest to sever that relationship.
¶ 9 On appeal, the GAL argues the juvenile court reversibly erred
by concluding that mother substantially complied with her
treatment plan and that she could become fit within a reasonable
period of time. The GAL also asserts the Department and the
juvenile court “jointly violated the children’s right to due process”
5
by failing to comply with expedited permanency procedures, and
that the juvenile court’s failure to order an evaluation of the
children’s needs and conditions prior to issuing its final order
violated their due process rights.
II. Applicable Law
¶ 10 The purpose of dependency or neglect proceedings is to
preserve the family and protect children. L.L. v. People in Interest of
R.W., 10 P.3d 1271, 1277 (Colo. 2000). Where, as here, children
are under six years old when a petition is filed, section
19-1-102(1.6), C.R.S. 2023, provides that expedited placement
procedures apply because “children undergo a critical bonding and
attachment process prior to the time they reach six years of age.”
Thus, for young children removed from their parents’ custody,
courts should proceed with “all possible speed” to achieve legal
determinations that serve the children’s best interests.
§ 19-1-102(1)(c).
¶ 11 The juvenile court may terminate parental rights if it finds, by
clear and convincing evidence, that (1) the children have been
adjudicated dependent and neglected; (2) the parent has not
complied with an appropriate, court-approved treatment plan or the
6
plan has not been successful; (3) the parent is unfit; and (4) the
parent’s conduct or condition is unlikely to change within a
reasonable time. § 19-3-604(1)(c), C.R.S. 2023; People in Interest of
E.S., 2021 COA 79, ¶ 10. It is the parent’s responsibility to comply
with a treatment plan. People in Interest of S.M.A.M.A., 172 P.3d
958, 962 (Colo. App. 2007). A treatment plan is successful if “it
corrects or improves the original conduct or condition which led to
intervention by the state.” People in Interest of S.R.N.J-S., 2020
COA 12, ¶ 39 (quoting People in Interest of C.L.I., 710 P.2d 1183,
1185 (Colo. App. 1985)).
¶ 12 An unfit parent is one whose conduct or condition renders the
parent unable to give the child reasonable parental care.
§ 19-3-604(2). The determination of parental fitness is intertwined
with a determination of the child’s best interests. S.R.N.J-S., ¶ 59.
But a parent cannot be deemed unfit merely to improve the child’s
condition. Id. (citing People in interest of E.A., 638 P.2d 278, 285
(Colo. 1981)).
¶ 13 Whether a juvenile court properly terminated parental rights
presents a mixed question of fact and law because it involves
applying the termination statute to evidentiary facts. People in
7
Interest of A.M. v. T.M., 2021 CO 14, ¶ 15. As the trier of fact, it is
within the juvenile court’s discretion to determine the credibility of
the witnesses; the sufficiency, probative value, and weight of the
evidence; and the inferences to be drawn from the evidence. See id.
We review the juvenile court’s findings of evidentiary fact for clear
error and accept them if they have record support, but we review de
novo the juvenile court’s legal conclusions based on those facts.
S.R.N.J-S., ¶ 10.
III. Discussion
A. Treatment Plan Compliance
¶ 14 The GAL contends that the juvenile court erroneously
determined that mother substantially complied with her treatment
plan. We disagree.
¶ 15 During the termination hearing, the court heard testimony
from numerous witnesses and received multiple exhibits. The GAL
asserts that the evidence didn’t support the juvenile court’s finding
that mother had substantially complied with her treatment plan
because
• mother hadn’t sufficiently demonstrated ongoing sobriety or
successful completion of substance abuse treatment;
8
• she hadn’t complied with all treatments recommended by a
psychological evaluation or adequately internalized the
therapeutic interventions she had participated in; and
• there were several ICPC home studies of mother’s home in
Wisconsin that were denied and expert testimony suggested
that there were concerns about the risk of harm to the
children if they were reunified with mother.
¶ 16 The juvenile court found with record support that mother’s
out-of-state residence presented a barrier to her ability to engage in
treatment. With respect to substance use, a caseworker
supervisor — who the parties stipulated was an expert in child
protection casework — testified about the Department’s attempts to
identify an agency in Wisconsin that could provide random
monitored urinalysis testing for mother, but noted numerous
procedural complications and barriers such as the testing center’s
distance from mother’s home. Despite this, the court received
evidence that mother completed several evaluations that diagnosed
her as having a substance use disorder in sustained remission and
she had been participating in ongoing substance use monitoring
through a therapy provider.
9
¶ 17 And the caseworker supervisor testified that mother had
completed “upwards of [fifty] UAs total that have been negative” over
the life of the case, which the caseworker supervisor opined was
likely inconsistent with someone experiencing an ongoing “addictive
issue.” Similarly, Dr. Sarah Lukens, an expert in psychology called
by the GAL, testified that “the longer somebody is able to maintain
sobriety — the more evidence there is that they may be able to
continue to maintain sobriety.”
¶ 18 The following evidence also supports that mother substantially
complied with the therapeutic assessment and intervention portion
of her treatment plan:
• she completed a parental risk assessment that “showed
no elevations” in testing related to dysfunctional sexual
behaviors;
• she actively engaged in her individualized healthy sexual
boundaries curriculum, understood the need for it, and
demonstrated an ability to identify potential scenarios
that might present a risk of sexual abuse to the children;
10
• she successfully completed therapeutic parenting
coaching and demonstrated her ability to apply the skills
she learned in family time with the children;
• she completed a parenting assessment that
recommended her family time with the children be
monitored rather than supervised due to observed
improvements in her interactions with the children;
• she engaged in ongoing individual therapy to address her
trauma history, manage her anxiety and depression,
develop trauma-informed parenting skills, and develop
and utilize healthy coping skills; and
• she successfully engaged in family therapy with the
children.
¶ 19 Additionally, as discussed below, mother completed numerous
ICPC home studies — seven total — supporting the court’s finding
that she substantially complied with this portion of her treatment
plan.
¶ 20 It was up to the juvenile court, as the trier of fact, to weigh the
evidence — including any conflicting evidence — and assess witness
credibility. See People in Interest of A.J.L., 243 P.3d 244, 249-50
11
(Colo. 2010). Where, as here, the juvenile court’s factual findings
are supported by competent evidence in the record, we will not
disturb them. Id. at 256 (a reviewing court cannot substitute its
opinion for the juvenile court’s when conflicting evidence exists).
B. Determination of Fitness
¶ 21 The GAL next asserts
3
that the juvenile court erroneously
concluded that mother’s unfitness wasn’t established by clear and
convincing evidence. Again, we disagree.
¶ 22 In support of this contention, the GAL contends that the
numerous ICPC home studies that were denied demonstrated
mother’s ongoing and pervasive inability to provide the children
with reasonable parental care. But those home studies identified
concerns — such as mother’s history of substance use and the
3
We reject the GAL’s assertion that the juvenile court’s written
finding of unfitness controls over the detailed verbal findings it
made at the end of the termination hearing. The written order
references the court’s verbal findings, even if it doesn’t explicitly
incorporate them. See People in Interest of S.R.N.J-S., 2020 COA 12
¶ 17 (considering the juvenile court’s verbal termination hearing
findings where the written order incorporated them by reference).
And to the extent there is a “conflict,” the GAL, as the party directed
to submit the proposed written order, injected that error and cannot
now profit from it. People in Interest of M.H-K., 2018 COA 178,
¶ 19.
12
children’s sexualized behaviors — that were already being
addressed as part of mother’s court-approved treatment plan. And
the record reflects that, consistent with its obligation to provide
reasonable efforts, the Department made extensive efforts to
address the reasons the home studies were denied through the
provision of services to mother in Wisconsin and in Colorado, when
she traveled here to see the children. See People in Interest of I.J.O.,
2019 COA 151, ¶ 17 (noting the department’s obligation to make
reasonable effort to help a parent rectify concerns identified in a
home study). The court also noted that the ongoing reassessment
of mother’s home through the ICPC process was necessary because
the children had specialized needs that would likely require ongoing
supportive services if the court didn’t terminate mother’s parental
rights and authorized the children to transition to her care in
Wisconsin in the future.
¶ 23 Thus, the court considered the reasons the home studies had
been denied, the services provided by the Department to rectify the
concerns, and the circumstances that ultimately led to mother’s
home being approved following the initial portion of the termination
hearing. The court found with record support that the concerns
13
referenced in the home studies could be mitigated and concluded
the GAL had not proved by clear and convincing evidence that
mother’s conduct made her unwilling or unable to give the children
reasonable parental care minimally adequate to meet their needs.
¶ 24 Because the court concluded that the GAL hadn’t proved
mother’s unfitness after weighing the conflicting but competent
evidence, we won’t disturb that conclusion.
C. Fitness Within a Reasonable Time
¶ 25 The GAL also contends that the juvenile court erred by finding
that mother was likely to become a fit parent within a reasonable
time. We disagree.
¶ 26 It’s undeniable that this case has been open for a significant
time. However, the children’s need for permanency alone is
insufficient to terminate mother’s parental rights. See S.R.N.J-S.,
¶ 58. 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 pendency of the
proceeding. People in Interest of A.J., 143 P.3d 1143, 1152 (Colo.
App. 2006). A “reasonable time” is relative and determined by the
children’s physical, mental, and emotional conditions and needs.
14
See § 19-3-604(1)(c)(III); K.D. v. People, 139 P.3d 695, 700 (Colo.
2006).
¶ 27 As already noted, the court explicitly considered the treatment
progress mother made over the life of the case. Additionally, the
court considered evidence that mother and the children enjoyed a
positive relationship, which had improved over time.
¶ 28 The court again highlighted the barriers mother’s out-of-state
residence presented to identifying treatment services, but it noted
that with an approved ICPC home study, mother could potentially
begin additional family therapy services in Wisconsin within six
months.
¶ 29 Again, it was up to the juvenile court to assess any conflicting
evidence. Given mother’s therapeutic progress, her relationship
with the children, and an approved home study that would allow
the court to consider and plan for potentially transitioning the
children to mother’s care, we find no error in the court’s conclusion
that the sole conduct or condition that supported a finding that
mother was unfit — the fact that she resided out of state — could
be rectified within a reasonable time from the children’s point of
15
view. Because there is evidence in the record supporting the
juvenile court’s finding, we won’t disturb its legal conclusion.
D. Due Process
¶ 30 The GAL argues that the Department violated the children’s
due process
4
rights by failing to secure permanency for them in a
timely manner. We decline to address this issue because it has not
been properly preserved.
¶ 31 While divisions of this court are divided on taking up
unpreserved constitutional arguments in dependency and neglect
cases, see People in Interest of M.B., 2020 COA 13, ¶ 34, the general
rule in civil cases is that parties may not raise for the first time on
appeal “[a]rguments never presented to, considered by, or ruled
upon by a [district] court,” Colo. Div. of Ins. v. Statewide Bonding,
Inc., 2022 COA 67, ¶ 73. And while talismanic language isn’t
required to preserve an issue, a party must have presented the
“sum and substance” of the argument to the district court.
4
The GAL states this argument is a “substantive” due process issue
but cites Mathews v. Eldridge, 424 U.S. 319 (1976), which provides
the test for analyzing procedural due process claims.
16
Madalena v. Zurich Am. Ins. Co., 2023 COA 32, ¶ 50 (citation
omitted).
¶ 32 The sum and substance of the GAL’s argument on appeal —
that the juvenile court and the Department denied the children
procedural due process and violated their “fundamental liberty
interest in being placed in a permanent, secure, stable and loving
environment” by failing to secure permanency for them in a timely
manner — wasn’t presented to the juvenile court. The GAL’s
general references to the expedited placement guidelines and the
length of time the case had been open were insufficient to place the
juvenile court on notice that a constitutional procedural due
process claim was being asserted on the children’s behalf. See
Fisher v. State Farm Mut. Auto. Ins. Co., 2015 COA 57, ¶ 44 (holding
that where the argument raised in the trial court did not raise a
constitutional issue, it was insufficient to preserve a constitutional
claim for appeal).
¶ 33 The GAL argues that even if we determine this issue hasn’t
been preserved, we should consider it to “avert unequivocal and
manifest injustice.” But the juvenile court conducted a thorough
hearing on the GAL’s motion. See In re J.D.K., 37 P.3d 541, 543
17
(Colo. App. 2001) (procedural due process for a termination hearing
requires notice and an opportunity to be heard). Thus, the GAL has
not demonstrated that a miscarriage of justice occurred. See In re
E.R.S., 2019 COA 40, ¶ 41 (holding no manifest injustice occurred
where the party was entitled to and received fundamentally fair
procedures); see also M.B., ¶ 26 (rejecting assertion of due process
violation based on delayed paternity hearing despite statutory
mandate that paternity determinations be expeditiously resolved).
¶ 34 We also decline to address the GAL’s unpreserved argument
that the juvenile court violated the children’s due process rights by
not ordering an evaluation, under section 19-3-604(3), to assess the
children’s relationship with mother because the GAL doesn’t
identify where in the record the necessity of such an evaluation was
presented to the juvenile court. O’Quinn v. Baca, 250 P.3d 629,
631 (Colo. App. 2010) (noting appellant is obligated to identify
where issues have been preserved in the record).
IV. Disposition
¶ 35 The judgment is affirmed.
JUDGE YUN and JUDGE DAVIDSON concur.
