24CA0260 People in Interest of SB 07-18-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0260
Jefferson County District Court No. 22JV30192
Honorable Ann Gail Meinster, Judge
The People of the State of Colorado,
Appellee,
In the Interest of S.B., a Child,
and Concerning J.B.,
Appellant.
JUDGMENT AFFIRMED
Division II
Opinion by JUDGE SULLIVAN
Fox and Grove, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 18, 2024
Kimberly Sorrells, County Attorney, Sarah Oviatt, Assistant County Attorney,
Golden, Colorado, for Appellee
Robert G. Tweedell, Guardian Ad Litem
The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for
Appellant
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¶ 1 In this dependency and neglect proceeding, J.B. (father)
appeals the judgment terminating his parent-child legal
relationship with S.B. (the child). We affirm.
I. Background
¶ 2 The Jefferson County Division of Children, Youth and Families
(the Division) received a report that the then-six-year-old child was
found with father, who was “passed out” in his car. Father was
arrested after law enforcement found methamphetamine residue
and fentanyl in the car, and a family friend picked up the child.
When the caseworker met with father, he admitted that he’d been
driving under the influence with the child in the car and that he
used fentanyl and methamphetamine on a daily basis.
¶ 3 The Division filed a petition in dependency and neglect based
on concerns regarding both parents’ substance abuse. The juvenile
court ordered that the child be placed in the temporary legal
custody of the Division, and the child remained in the family
friend’s care. Approximately three months later, the child was
placed with her maternal aunt.
¶ 4 The juvenile court adjudicated the child dependent and
neglected. The court adopted a treatment plan that required father
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to abstain from using alcohol, marijuana, and all other drugs;
engage in substance abuse treatment; communicate with the
caseworker and other professionals; comply with his criminal
matters; and meet the child’s developmental, physical, and
emotional needs. The court also ordered that father be given four
hours of supervised family time with the child every week.
¶ 5 The Division later moved to terminate father’s parental rights.
Following a hearing, the juvenile court granted the motion.
II. Discussion
¶ 6 Father’s sole contention on appeal is that the juvenile court
erred by failing to provide him with a reasonable amount of time to
comply with his treatment plan before terminating his parental
rights. Father argues that he had made consistent, significant
progress in substance abuse treatment and maintained a loving,
bonded relationship with the child throughout the course of the
proceeding. Thus, he argues that the court’s finding that he
couldn’t become fit within a reasonable amount of time was
unsupported by the record. We disagree.
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A. Standard of Review and Preservation
¶ 7 Whether a juvenile court properly terminated parental rights
presents a mixed question of law and fact because it involves
application of the termination statute to evidentiary facts. People in
Interest of S.R.N.J-S., 2020 COA 12, ¶ 10. We review the court’s
factual findings for clear error, but we review de novo the court’s
legal conclusions based on those facts. Id.
¶ 8 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 the evidence, are within the province
of the juvenile court. People in Interest of A.J.L., 243 P.3d 244, 249–
50 (Colo. 2010). We don’t reweigh the evidence or substitute our
judgment for that of the court. People in Interest of K.L.W., 2021
COA 56, ¶ 62.
¶ 9 The Division asserts that father failed to preserve the issue on
appeal because, while he argued that it was in the child’s best
interest to keep the case open for father to work on his treatment
plan, he didn’t argue that the conduct or conditions that rendered
him unfit were likely to change within a reasonable time. To
properly preserve an argument for appeal, a party must present
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“the sum and substance of the argument” to the trial court. Gebert
v. Sears, Roebuck & Co., 2023 COA 107, ¶ 25 (citation omitted).
Here, however, we need not determine whether father’s arguments
to the juvenile court were sufficient to preserve his claim because
even if we assume that the claim was preserved, we discern no
basis for reversal.
B. Applicable Law
¶ 10 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 in a reasonable time. § 19-3-
604(1)(c), C.R.S. 2023.
¶ 11 An unfit parent is one whose conduct or condition renders the
parent unable or unwilling to give a child reasonable parental care.
People in Interest of S.Z.S., 2022 COA 133, ¶ 23. “Reasonable
parental care requires, at a minimum, that the parent provide
nurturing and protection adequate to meet the child’s physical,
emotional, and mental health needs.” S.R.N.J-S., ¶ 9. A parent’s
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noncompliance with a treatment plan generally “demonstrates a
lack of commitment to meeting the child’s needs and, therefore,
may also be considered in determining unfitness.” People in Interest
of D.P., 181 P.3d 403, 408 (Colo. App. 2008).
¶ 12 A parent must have a reasonable amount of time to work on a
treatment plan before the juvenile court terminates their parental
rights. People in Interest of D.Y., 176 P.3d 874, 876 (Colo. App.
2007). Periods as short as five to nine months have been held to be
sufficient to comply with a treatment plan. People in Interest of
A.J., 143 P.3d 1143, 1152 (Colo. App. 2006).
¶ 13 In determining whether a parent’s conduct or condition is
likely to change and whether the parent can become fit in a
reasonable time, the juvenile court may consider several factors,
including (1) whether any change occurred during the dependency
and neglect proceeding; (2) the parent’s social history; and (3) the
chronic or long-term nature of the parent’s conduct or condition.
K.D. v. People, 139 P.3d 695, 700 (Colo. 2006).
¶ 14 The determination of a reasonable period is necessarily fact-
specific, and thus, what constitutes a reasonable time to comply
with a treatment plan may vary from case to case. D.Y., 176 P.3d at
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876. But a reasonable time is not an indefinite time, and it must be
determined by considering the physical, mental, and emotional
conditions and needs of the child. S.Z.S., ¶ 24.
C. Analysis
¶ 15 The juvenile court found that father had been given a
reasonable amount of time to comply with his treatment plan, but
the court wasn’t satisfied that father had sufficiently addressed the
issues that triggered the Division’s involvement. The court stated
that given father’s “lengthy history” with substance abuse problems,
it would’ve wanted to see at least six months of documented
sobriety before moving toward reunification. It found that father
never reached that point. The court acknowledged that father
“deserve[d] credit” for testing negative for fentanyl in the months
leading up to the termination hearing. But the court also found
that throughout the case, father missed urinalysis (UA) tests, never
tested negative for all substances, and lacked engagement in
treatment. Thus, the court found that father’s recent progress
didn’t outweigh the lack of consistent progress and demonstrated
sobriety throughout the rest of the case. And, crediting the family
time supervisor’s testimony, the court found that father hadn’t
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sufficiently addressed the basic protective concerns that were
present at the beginning of the case. The court concluded that the
same problems outlined in father’s treatment plan still existed
without adequate improvement and that the conduct or condition
that rendered father unable to care for the child was unlikely to
change in a reasonable time.
¶ 16 Additionally, the juvenile court determined that the expedited
permanency planning (EPP) provisions didn’t apply but nevertheless
found that it was “very close” and that “this child’s need for
permanency [wasn’t] any less because she missed a close deadline.”
The court noted that the case had been open for fifteen months and
that the child was showing the “stress of the situation.” The court
found that the child had been in out-of-home placement for the
entirety of the case and needed the stability and permanency of an
adoptive home.
¶ 17 The record supports these findings.
¶ 18 The Division had received reports concerning father’s
substance use dating back to 2019. Approximately fifteen months
had passed between the time the caseworker initially referred father
to substance abuse treatment and the termination hearing. And
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about a year had passed between the adoption of father’s treatment
plan and the hearing. But the record shows that by the time of
termination, father hadn’t successfully resolved the concerns about
his substance use.
¶ 19 The caseworker testified that while father hadn’t tested
positive for fentanyl in the three months leading up to the hearing,
father had also missed at least one UA within that timeframe.
Throughout the case, father missed fifty-nine UAs, tested positive
for controlled substances fifty-six times, and never provided a UA
that was negative for all substances. Father consistently tested
positive for methadone and marijuana at all times leading up to the
hearing.
¶ 20 We acknowledge that at some point before the termination
hearing father told the caseworker he had been prescribed a
medical marijuana card. But father’s treatment plan required him
to immediately notify the Division of any new prescriptions for
medications and provide verification for those prescriptions. And
father didn’t provide a signed release to allow the caseworker to
contact the prescribing doctor until the morning of the termination
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hearing. Also, father never told his probation officer that he had a
medical card.
¶ 21 The caseworker testified that father didn’t complete an intake
or start any substance abuse treatment until eight months into the
case. After father started treatment, he missed thirty-five out of
sixty-one required treatment groups. There were only two weeks in
which father attended all required groups, and one of those was the
week before the termination hearing.
¶ 22 The family time supervisor testified that about two weeks
before the termination hearing, when father arrived at his family
time, he opened his van door and a very strong odor of marijuana
was present. The supervisor testified that this incident raised
safety concerns about father’s ability to safely transport the child
anywhere. And after approximately nine months of feedback and
coaching, the supervisor stated that father still struggled to
implement the structure the child needed, plan ahead to provide a
meal during family time, or consistently ensure that the child was
completing her reading.
¶ 23 The caseworker opined that based on the child’s needs and
father’s ongoing substance use, she didn’t believe father could be a
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safe and appropriate caregiver in the near future. The caseworker
also opined that termination was in the child’s best interests
because, throughout the case, father didn’t successfully address his
substance use, nor was he able to meet the child’s needs despite
receiving the same feedback and redirection for approximately nine
months.
¶ 24 Last, as father points out, the EPP provisions didn’t apply
because the child was over the age of six when the Division filed the
petition in dependency and neglect. See §§ 19-1-102(1.6), 19-1-
123, C.R.S. 2023. However, the case commenced only seventeen
days after the child’s sixth birthday. While the juvenile court didn’t
apply the EPP provisions, it properly considered the child’s young
age, time in out-of-home placement, and need for permanency in
determining that father had been given a reasonable amount of time
to address the issues in his treatment plan. See S.Z.S., ¶ 24 (a
reasonable amount of time must be determined by considering the
physical, mental, and emotional conditions and needs of the child).
¶ 25 In sum, the juvenile court determined that father couldn’t
become fit within a reasonable time by considering the evidence
showing father’s partial compliance and weighing it against the
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contrary evidence and the child’s needs. Because the record
supports the court’s determination, we decline to disturb the
judgment.
III. Disposition
¶ 26 We affirm the judgment.
JUDGE FOX and JUDGE GROVE concur.
