23CA2128 Peo in Interest of MM 07-18-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA2128
El Paso County District Court No. 22JV30034
Honorable Robin Chittum, Judge
The People of the State of Colorado,
Appellee,
In the Interest of M.M. and J.M. III, Children,
and Concerning T.W.,
Appellant.
JUDGMENT AFFIRMED
Division III
Opinion by JUDGE YUN
Dunn and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 18, 2024
Kenneth R. Hodges, County Attorney, Shannon Boydstun, Assistant County
Attorney, Colorado Springs, Colorado for Appellee
Debra W. Dodd, Guardian Ad Litem
Bergner Law Office, LLC, Stephanie Bergner, Leif Ericson, Carbondale,
Colorado for Appellant
1
¶ 1 T.W. (mother) appeals the judgment terminating her
parent-child legal relationships with M.M. and J.M. III (the
children). We affirm.
I. Background
¶ 2 The El Paso County Department of Human Services (the
Department) filed a petition in dependency and neglect, alleging
that mother physically abused and failed to supervise the children
and that she had a history of abusing substances. Mother admitted
the allegations, and the juvenile court adjudicated the children
dependent and neglected. The court then adopted a treatment plan
for mother that required, among other things, that she address her
substance abuse and mental health issues, participate in life skills
training, demonstrate parental protective capacity, and provide for
the children’s needs.
¶ 3 About a year later, the Department moved to terminate
mother’s parental rights. The juvenile court held an evidentiary
hearing, after which it granted the Department’s motion and
terminated the parent-child legal relationships between mother and
the children.
2
II. Reasonable Efforts
¶ 4 Mother asserts that the juvenile court erred by finding that the
Department made reasonable efforts to rehabilitate her and reunify
her with the children. We disagree.
A. Applicable Law and Standard of Review
¶ 5 Before a juvenile court may terminate parental rights under
section 19-3-604(1)(c), C.R.S. 2023, the county department of
human services must make reasonable efforts to rehabilitate
parents and reunite families. §§ 19-3-100.5(1), 19-1-103(114),
19-3-208, 19-3-604(2)(h), C.R.S. 2023. Reasonable efforts means
the “exercise of diligence and care” to reunify parents with their
children. § 19-1-103(114).
¶ 6 Services provided in accordance with section 19-3-208 satisfy
the reasonable efforts standard. § 19-1-103(114). Among the
services 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; family
time; and placement services. § 19-3-208(2)(b). Other services,
3
including transportation assistance, must also be provided if the
government has sufficient funding. § 19-3-208(2)(d).
¶ 7 The juvenile court should consider whether the services
provided were appropriate to support the parent’s treatment plan,
People in Interest of S.N-V., 300 P.3d 911, 915 (Colo. App. 2011), by
“considering the totality of the circumstances and accounting for all
services and resources provided to a parent to ensure the
completion of the entire treatment plan,” People in Interest of
My.K.M. v. V.K.L., 2022 CO 35, ¶ 33. But the parent is ultimately
responsible for using the services to comply with the plan. People in
Interest of J.C.R., 259 P.3d 1279, 1285 (Colo. App. 2011). And the
court may consider a parent’s unwillingness to participate in
treatment in determining whether the department made reasonable
¶ 8 Whether a department of human services satisfied its
obligation to make reasonable efforts is a mixed question of fact and
law. People in Interest of A.S.L., 2022 COA 146, ¶ 8. We review the
juvenile court’s factual findings for clear error but review de novo its
legal determination, based on those findings, as to whether the
department satisfied its reasonable efforts obligation. Id.
4
B. Analysis
¶ 9 The juvenile court found that the Department had made
reasonable efforts by “try[ing] to support and engage” mother and
“get[ting] her access to resources” that she needed to complete her
treatment plan. For example, the court found that the Department
arranged supervised family services and that the caseworker “even
supervised some visits herself.” The court also found that the
Department had “offered and provided transportation assistance,”
which included a monthly bus pass and rides from staff and
providers. The court further found that the Department had made
“many referrals” to “numerous providers” for substance abuse,
mental health, and life skills services.
¶ 10 However, the juvenile court concluded that the Department’s
efforts were “tempered” by mother’s “willingness to engage.”
Although mother completed substance abuse and mental health
evaluations, the court noted, she did not consistently participate in
treatment or monitored sobriety. The court found that mother had
only “sporadically” participated in life skills and that her minimal
participation did not result in stability in her life. And while the
court recognized mother’s participation in family time, it also found
5
that mother continued to “struggl[e] with parental protective
capacity based on the issues that have come up during her
visitation.”
¶ 11 The record supports the juvenile court’s findings. The
caseworker testified that mother completed substance abuse and
mental health evaluations and the Department made “numerous
referrals to numerous providers,” but mother did not engage in
treatment. The caseworker also reported that mother completed
just three drug screens, all of which were positive for
methamphetamine. The caseworker said that the Department
made three referrals for life skills; the life skills worker for the third
provider described mother’s engagement as “sporadic” at best. The
caseworker and a family time supervisor also discussed two
different incidents that occurred at family time — one in which
mother “flipped” over a table and another where she threw a chair
at an employee. Finally, the caseworker testified that the
Department gave mother “a bus pass on a monthly basis” and
provided her with rides, as well as “resource lists of individuals that
she could connect with to have transportation services set up.” And
6
the caseworker indicated that the life skills worker and mother’s
family time supervisor also provided mother with rides.
¶ 12 Despite this record, mother asserts that the Department failed
to make reasonable efforts because it did not provide her with
(1) adequate family time services; (2) necessary transportation to
her services, particularly visits; and (3) housing resources.
¶ 13 We first address mother’s assertion that the Department failed
to provide her with family time services for three reasons. We reject
all three reasons.
¶ 14 First, we are not persuaded by mother’s contention that the
Department failed to provide her with visits for “weeks at a time.”
Mother directs us to only a single circumstance of this purported
failure, which occurred before the juvenile court adopted a
treatment plan for her. At that time, the court found that the
Department had not made reasonable efforts, and it ordered the
Department to make up the missed visits. On appeal, mother has
not directed us to anything in the record to indicate that the
Department subsequently failed to provide these make-up visits
and therefore failed to provide adequate family time services.
7
¶ 15 Second, mother argues that the Department did not provide
video visits to her during a very brief period about three months
before the termination hearing. The record shows that, after
mother threw a chair at the family time supervisor and was
discharged from services, the caseworker made additional referrals
but could not find a new provider. Meanwhile, the juvenile court
declined the guardian ad litem’s request to suspend mother’s visits
after the incident and ordered that the children have “video visits
until they get back into therapy.” The caseworker testified that the
Department did not offer any video visits because she started
supervising in-person visits shortly after the court’s order. As a
result, mother missed, at most, one week of family time, and we
therefore discern no reversible error.
¶ 16 Third, mother asserts that the Department failed to make
reasonable efforts because it never expanded or liberalized her
family time, even though the juvenile court gave it discretion to do
so. But section 19-3-208(2)(b) only requires that the Department
provide family time services “as determined necessary and
appropriate by individual case plans.” Stated another way, to
satisfy the reasonable efforts requirement, the Department must
8
provide family time as ordered by the court, which, except as
described above, mother does not challenge. The record therefore
shows that the Department satisfied its burden under section
19-3-208, and we are not convinced that it had any duty to exercise
its discretion to expand or liberalize family time, especially while
there were concerns with mother’s behavior during family time.
¶ 17 Next, we turn to mother’s assertion that the Department failed
to provide her with adequate transportation services. Specifically,
she contends that the record shows that the caseworker gave her
only two rides and did not know how many rides the life skills
worker had provided. But, as noted above, the record shows that
mother also received rides from the family time supervisor and that
the Department provided her with bus passes and other resources
for rides throughout the case. Thus, because the record supports
the juvenile court’s finding that the Department provided adequate
transportation services as required by section 19-3-208(2)(d)(I) and
mother has not directed us to anything in the record showing that
she missed a visit or a treatment appointment due to the
Department’s failure to provide adequate transportation services,
we reject her assertion.
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¶ 18 Finally, we disagree with mother’s assertion that the
Department did not provide her with housing resources. Here,
mother notes that she “lacked safe and appropriate housing for her
family” because her home “did not have functioning kitchen
appliances or even a locking front door.” But the record shows that
the Department bought mother a microwave and arranged for
someone to install a new door. Mother also asserts that “the
caseworker testified . . . that she was not aware of where [mother]
lived and had not even asked [her] about her housing situation.”
But the context of this testimony was that, about three weeks
before the termination hearing, the caseworker learned that mother
was getting evicted and therefore the caseworker could not confirm
whether mother had housing at the time of the hearing.
¶ 19 In sum, we conclude that the record supports the juvenile
court’s findings that the Department provided the necessary
resources for mother to comply with her treatment plan but she did
not use those resources to become a fit parent. See A.V., ¶ 12;
J.C.R., 259 P.3d at 1285. We therefore decline to disturb the
court’s judgment.
10
III. Less Drastic Alternatives
¶ 20 Mother next contends that the juvenile court failed to properly
consider less drastic alternatives, such as an allocation of parental
responsibilities (APR).
1
We disagree.
¶ 21 Before terminating parental rights under section
19-3-604(1)(c), the juvenile court 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
court 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). Long-term
placement may not be a viable alternative to termination if the child
needs a stable, permanent home that can be assured only by
adoption. Z.P., 167 P.3d at 214.
¶ 22 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”
1
Mother presents this argument in the reasonable efforts section of
her brief. As our supreme court has previously concluded, a
challenge to “the Department’s search for placement options”
should be construed as a challenge to less drastic alternatives, not
11
¶ 27. Therefore, if the juvenile court considers a less drastic
alternative but finds instead that termination is in the child’s best
interests, it must reject the less drastic alternative and order
termination. Id. at ¶ 32. And under those circumstances, we must
affirm the court’s decision if its findings are supported by the
¶ 23 In this case, the juvenile court found that there was no less
drastic alternative to termination, noting that the Department had
investigated “other family members,” but there were not “any other
family members . . . willing to do [an] APR except for [the] maternal
grandmother, who is not [an] appropriate” placement option. The
court noted that the children had been in their paternal aunt’s care
for “a good chunk of time” and they were “thriving in her care.”
¶ 24 The juvenile court further found that, even if an APR was an
available option, it would not be in the children’s best interests.
Specifically, the court noted that, because these children had been
in multiple placements (even before the case began), they “needed to
know that they [were not] moving again for the sake of their mental
and emotional well-being.” Therefore, the court concluded that
12
termination, not an APR, was in the children’s best interests, so
that the children “know that they are in a permanent home.”
¶ 25 Mother first contends that the juvenile court erred because the
Department failed to conduct a diligent search for relatives. But,
for the purpose of less drastic alternatives, the Department is not
required to independently identify and evaluate possible placement
options. Z.P., 167 P.3d at215. Instead, the Department is only
required to 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). Mother did not identify any placement
options, either in the juvenile court or on appeal, that the
Department failed to investigate and evaluate. We therefore discern
no error.
¶ 26 Mother next asserts that the Department “never fully explored
the possibility of an APR” to the paternal aunt because the
caseworker only provided the paternal aunt “with a form document
listing the available permanency options and asked [the paternal
aunt] to let her know which option she chose.” Nevertheless, it is
undisputed that the paternal aunt did not want an APR and
13
that a court may consider whether a placement option prefers
adoption rather than an APR in its decision to reject less drastic
alternatives); see also People in Interest of P.D., 41 Colo. App. 109,
113, 580 P.2d 836, 838 (1978) (noting that a court cannot award an
APR to an unwilling person who is not the child’s parent). Because
mother has not directed us to any authority requiring the
Department to do more than ask the placement option about her
preference for an adoption or APR, we reject her argument.
¶ 27 Finally, mother contends that the Department should have
“reevaluate[d] placement” with the maternal grandmother. The
caseworker testified that the Department eliminated the maternal
grandmother as a placement option because she did not have the
ability to meet the children’s needs, allowed mother to have
unauthorized contact with the children, and had reportedly
emotionally and physically abused the children. See People in
Interest of T.E.M., 124 P.3d 905, 910 (Colo. App. 2005) (placement
with a relative is not a less drastic alternative if the placement
option cannot appropriately care for the child). Based on
statements made by the county attorney at a hearing in September
2023, mother suggests that the Department failed to reevaluate the
14
maternal grandmother after the juvenile court ordered it to do so in
March 2023. But the caseworker testified at the termination
hearing that she reassessed the maternal grandmother for
placement and continued to have the same concerns.
¶ 28 At any rate, even assuming that the maternal grandmother
was an appropriate placement option, we discern no error. As
noted, the juvenile court found that an APR was not in the
children’s best interests because they needed permanency that
could not be achieved through an APR. See Z.P., 167 P.3d at 214.
In other words, the court determined, with record support, that an
APR, regardless of the placement option, was not a less drastic
alternative to termination.
IV. Disposition
¶ 29 The judgment is affirmed.
JUDGE DUNN and JUDGE MOULTRIE concur.
