23CA2221 Peo in Interest of TB 07-11-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA2221
Fremont County District Court No. 22JV7
Honorable Kaitlin B. Turner, Judge
The People of the State of Colorado,
Appellee,
In the Interest of T.B., a Child,
and Concerning T.B.,
Appellant.
JUDGMENT AFFIRMED
Division A
Opinion by JUDGE RICHMAN*
Román, C.J., and Bernard*, J., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 11, 2024
Eric Bellas, County Attorney, Sean Biddle, Assistant County Attorney, Cañon
City, Colorado, for Appellee
Jenna L. Mazzucca, Guardian Ad Litem
Partick R. Henson, Office of Respondent Parents’ Counsel, Justin Twardowski,
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. 2023.
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¶ 1 T.B. (father) appeals the judgment terminating the parent-
child legal relationship between him and T.B. (the child). We affirm.
I. Background
¶ 2 In January 2022, the Fremont County Department of Human
Services filed a petition in dependency and neglect, alleging, among
other things, that the child tested positive for illegal substances at
birth and father was incarcerated. The Department placed the child
with a foster family who had adopted the child’s sibling following a
dependency and neglect proceeding in 2019. After father admitted
to the allegations in the petition, a magistrate adjudicated the child
dependent and neglected and adopted a treatment plan for father.
¶ 3 In October 2022, the Department moved to terminate father’s
parental rights. A few weeks later, paternal grandmother moved to
intervene in the case, see § 19-3-507(5)(a), C.R.S. 2023 (allowing a
grandparent to intervene “as a matter of right following
adjudication”), and she requested guardianship and legal custody of
the child, see § 19-3-602(2), C.R.S. 2023 (noting that a grandparent
must file a request for guardianship and legal custody within
twenty days of the filing of the termination motion). The magistrate
conducted an evidentiary hearing on the termination motion, and
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after considering the evidence, the magistrate entered a written
order terminating the parent-child legal relationship between father
and the child.
¶ 4 Father petitioned the juvenile court for review of the
magistrate’s judgment terminating his parental rights. See § 19-1-
108(5.5), C.R.S. 2023 (noting that “[a] petition for review is a
prerequisite before an appeal may be filed with the Colorado court
of appeals”). The juvenile court affirmed the magistrate’s judgment.
II. Discussion
¶ 5 Father contends that the juvenile court erred by erroneously
applying the sibling group presumption in section 19-3-605(2),
C.R.S. 2023, and as a result, finding that there was no less drastic
alternative to termination. For the reasons explained below, even if
the juvenile court erroneously referred to the statute, we discern no
reversible error.
¶ 6 A magistrate may terminate parental rights if it finds, by clear
and convincing evidence, that (1) the child was adjudicated
dependent and neglected; (2) the parent has not complied with an
appropriate, court-approved treatment plan or the plan has not
been successful; (3) the parent is unfit; and (4) the parent’s conduct
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or condition is unlikely to change in a reasonable time. § 19-3-
604(1)(c), C.R.S. 2023.
¶ 7 Before terminating parental rights under section 19-3-
604(1)(c), the magistrate must consider and eliminate less drastic
alternatives. People in Interest of M.M., 726 P.2d 1108, 1122-23
(Colo. 1986). In considering less drastic alternatives, a magistrate
must give primary consideration to the child’s physical, mental, and
emotional conditions and needs. § 19-3-604(3); People in Interest of
Z.P., 167 P.3d 211, 214 (Colo. App. 2007). Permanent placement
with a relative may not be a viable alternative if the relative cannot
appropriately care for the child. See People in Interest of T.E.M., 124
P.3d 905, 910 (Colo. App. 2005).
¶ 8 For a less drastic alternative to be viable, it must do more than
“adequate[ly]” meet a child’s needs; rather, it must be the “best”
option for the child. People in Interest of A.M. v. T.M., 2021 CO 14,
¶ 27. Therefore, if the magistrate considers a less drastic
alternative but finds instead that termination is in the child’s best
interests, the magistrate must reject the less drastic alternative and
order termination. Id. at ¶ 32. And under those circumstances, we
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must affirm the decision if the magistrate’s findings are supported
by the record. People in Interest of B.H., 2021 CO 39, ¶ 80.
¶ 9 Our review of the juvenile court’s decision affirming the
magistrate’s judgment is effectively a second layer of appellate
juvenile court, we must accept the magistrate’s factual findings
judgment based on errors of law or findings that do not conform to
the statutory criteria. Id.
¶ 10 Section 19-3-605(1) requires the court to consider a timely
request by a grandparent for guardianship and legal custody of a
child following an order terminating parental rights. § 19-3-605(1).
In doing so, the court may give preference to a grandparent who
makes a timely request if “such placement is in the best interests of
the child.” Id. However, “when the child is part of a sibling group
and the sibling group is being placed out of the home,” there is a
rebuttable presumption that “placement of the entire sibling group
in [a] joint placement is in the best interests of the children.” § 19-
3-605(2). In making these post-termination placement decisions,
the court must consider the relevant factors in section 19-3-605(3),
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which include, for example, whether the placement can meet the
child’s needs and the possible effects of removing a child from the
current placement.
¶ 11 In affirming the magistrate’s order, the juvenile court
concluded that the sibling group presumption applied and then
considered the factors in section 19-3-605(3) (even though father
never raised section 19-3-605 and the magistrate did not rule on
that basis) to reject father’s assertion that the magistrate had erred
by rejecting permanent placement with paternal grandmother.
¶ 12 On appeal, father asserts that the juvenile court erred because
the plain language of section 19-3-605(2) does not apply when only
one child is being placed, rather than an entire sibling group, such
as in the present case. But, as noted above, section 19-3-605
involves a court’s placement decisions after it terminates parental
rights. See § 19-3-605(1), (3). In other words, the sibling group
presumption described in section 19-3-605(2) was not relevant to
the juvenile court’s consideration of whether the magistrate
properly terminated father’s parental rights, and we therefore need
not consider whether the juvenile court erred by interpreting the
language in section 19-3-605(2).
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¶ 13 However, we decline to reverse the judgment based on the
juvenile court’s erroneous application of section 19-3-605 because
father has not directed us to anything in the record indicating that
the magistrate also relied on the sibling group presumption in
section 19-3-605(2) when it terminated his parental rights. Rather,
the record is clear that the magistrate rejected permanent
placement with paternal grandmother as a less drastic alternative
to termination because the evidence established that she was not
an appropriate placement option. See T.E.M., 124 P.3d at 910.
Specifically, the magistrate found, with record support, that the
Department had provided paternal grandmother with the
opportunity to demonstrate that she was a suitable placement
option, but she did not comply with the Department’s requests. In
sum, because there is nothing in the record indicating that the
magistrate believed that he was required to place the child with his
sibling under the sibling group presumption, or that the magistrate
rejected a less drastic alternative on that basis, we reject father’s
contention.
¶ 14 Except for the juvenile court’s purported erroneous
interpretation of section 19-3-605(2), father has not provided us
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with any basis to conclude that the magistrate erred by terminating
his parental rights. Indeed, father does not challenge any of the
magistrate’s factual findings underlying its decision to terminate
parental rights under section 19-3-604(1)(c) or rejecting a less
drastic alternative in the form of permanent placement with
paternal grandmother. See A.M., ¶ 48.
¶ 15 Therefore, because the magistrate properly considered less
drastic alternatives but determined that termination was in the
child’s best interest, the magistrate was required to reject
placement with grandmother and order termination. See id. at
¶ 32. And because the record supports the magistrate’s findings,
III. Disposition
¶ 16 The judgment is affirmed.
CHIEF JUDGE ROMÁN and JUDGE BERNARD concur.
