21CA0323 Peo in Interest of CC 11-24-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA0323
Weld County District Court No. 19JV803
Honorable W. Troy Hause, Judge
The People of the State of Colorado,
Appellee,
In the Interest of C.C., a Child,
and Concerning C.C.,
Appellant.
JUDGMENT AFFIRMED
Division A
Opinion by JUDGE TAUBMAN*
Bernard, C.J., and Vogt*, J., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 24, 2021
Bruce T. Baker, County Attorney, David S. Anderson, Assistant County
Attorney, Greeley, Colorado, for Appellee
Jenna L. Mazzucca, Guardian Ad Litem
Patrick R. Henson, Office of Respondent Parents’ Counsel, Andrew Gargano,
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. 2021.
1
¶ 1 In this dependency and neglect proceeding, C.C. (father)
appeals the juvenile court’s judgment terminating his parent-child
legal relationship to C.C. (child). We affirm.
I. Background
¶ 2 In September 2019, the Weld County Department of Human
Services (Department) received a report that the child had tested
positive for methamphetamine at birth. At the initial hearing, the
caseworker, qualified as an expert in child protection, testified that
the child was experiencing withdrawal symptoms from the drug.
Mother and father admitted using methamphetamine. The juvenile
court granted the Department temporary custody of the child, and
the Department placed him with kinship placement providers
(kinship providers).
¶ 3 The Department then filed a petition in dependency and
neglect alleging, among other things, that the child’s environment
was injurious to his welfare. Mother admitted the allegations in the
petition; father neither admitted nor denied the petition, remaining
silent to protect his rights in several ongoing criminal matters. The
juvenile court adjudicated the child dependent and neglected by
them. The juvenile court adopted treatment plans for both parents.
2
¶ 4 Father’s treatment plan required him to (1) cooperate with
case professionals; (2) complete a substance abuse evaluation and
follow any treatment recommendations; (3) comply with urinalysis
testing; (4) participate in parenting time; (5) complete a mental
health evaluation and follow any treatment recommendations; (6)
obtain and maintain housing appropriate for himself and the child;
(7) secure legal income; and (8) cooperate with any current and
ongoing criminal cases.
¶ 5 Later, alleging that father had not complied with his treatment
plan and that it was unsuccessful, the Department moved to
terminate his parental rights. After a hearing, the juvenile court
granted the motion.
II. Legal Framework
¶ 6 Under 19-3-604(1)(c), C.R.S. 2021, the juvenile court may
terminate parental rights if it finds by clear and convincing evidence
that (1) the child was adjudicated dependent or neglected; (2) the
parent has not complied with an appropriate, court-approved
treatment plan or the plan was unsuccessful; (3) the parent is unfit;
and (4) the parent’s conduct or condition is unlikely to change
within a reasonable time.
3
III. Reasonable Efforts
¶ 7 Father contends that the juvenile court erred when it
determined that the Department made reasonable efforts. We do
not agree.
A. Standard of Review
¶ 8 The Department and guardian ad litem urge us to employ a
clear error standard of review. We decline to do so. The supreme
court has directed us that resolution of an issue necessitating
application of the termination statute to evidentiary facts presents a
mixed question of fact and law. People in Interest of A.M. v. T.M.,
¶ 9 We review the juvenile court’s factual findings for clear error.
C.R.C.P. 52. The credibility of witnesses; the sufficiency, probative
effect, and weight of the evidence; and the inferences and
conclusions to be drawn therefrom are all within the province of the
juvenile court. People in Interest of C.A.K., 652 P.2d 603, 613 (Colo.
1982). However, a determination of the proper legal standard to be
applied in a case and the application of that standard to the facts of
the care are questions of law that we review de novo. M.A.W. v.
4
People in Interest of A.L.W., 2020 CO 11, ¶ 31, 456 P.3d 1284,
1290.
B. Relevant Law
¶ 10 When determining parental unfitness, the juvenile court must
consider whether the Department made reasonable efforts to
rehabilitate the parent and reunify the family. § 19-3-604(2)(h).
“Reasonable efforts” means “the exercise of diligence and care” for a
child who is in out-of-home placement. § 19-1-103(89), C.R.S.
2021; see also People in Interest of A.A., 2020 COA 154, ¶ 5, 479
P.3d 57, 60. The reasonable efforts standard is satisfied when
services are provided in accordance with section 19-3-208, C.R.S.
2021. § 19-3-103(89).
¶ 11 In determining whether the Department made reasonable
efforts, we do not look to the Department’s promulgated rules and
regulations, as father would have us do. Instead, we look to see
whether the juvenile court considered whether “(1) the services
provided were appropriate to support the parent’s treatment plan
but (2) they were unsuccessful in accomplishing the treatment
plan’s purpose of rendering [the parent] fit.” People in Interest of
S.N-V., 300 P.3d 911, 915 (Colo. App. 2011).
5
¶ 12 The parent is responsible for using the services provided by
the Department to obtain the assistance needed to comply with the
treatment plan’s requirements, 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 as a factor in
determining whether the Department has made reasonable efforts,
see People in Interest of A.V., 2012 COA 210, ¶ 12, 297 P.3d 1019,
1022.
C. Analysis
¶ 13 The juvenile court, similar to the division in J.C.R., 259 P.3d at
1285, concluded that, although the Department made reasonable
efforts to rehabilitate him, father did not make an effort to
“maintain contact with the [c]hild” and did not “develop[] a bond
with the [c]hild.” The record evidence supports these
determinations.
1. Communication Between Father and the Department
¶ 14 Father asserts that the Department failed to maintain contact
with him while he was incarcerated, and thereby did not provide
reasonable efforts. We are not convinced.
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¶ 15 Despite father’s contrary assertions on appeal, the caseworker
testified that she “had ongoing communication every month” with
father. Father testified that he was visited in jail at least twice by
caseworkers. He also stated that he regularly received mail from
the Department while he was incarcerated. During his period of
release, although father testified that he made “quite a few
attempts” to reach the caseworker, she stated that father’s contact
with her consisted only of reaching out “once or twice.” Further,
the caseworker testified that father stopped almost all
communication in August 2020. She had not been contacted by
father since his reincarceration. Significantly, the juvenile court
concluded that it found the caseworker’s testimony to be credible.
See C.A.K., 652 P.2d at 613.
2. Starting and Restarting Visitation
¶ 16 Father next asserts that the Department “failed to provide . . .
visitation services while he was incarcerated despite his request for
visitation services.” Similarly, father asserts that the Department
failed to timely schedule a noncompliance meeting to restart
father’s visitation with the child. While the record contains
7
conflicting testimony regarding father’s assertions, the trial court
properly relied on the caseworker’s testimony it found credible.
¶ 17 Section 19-3-208(2)(b)(IV) requires the Department to provide
visitation services between a parent and child, as determined
appropriate and necessary by an individual case plan. The child’s
health and safety are the paramount concerns in determining
whether visitation services are necessary and appropriate. A.A., ¶
17, 479 P.3d at 62.
¶ 18 The record shows that father chose not to participate in his
treatment plan’s visitation requirement. See A.V., ¶ 12, 297 P.3d at
1022 (a court may consider a parent’s unwillingness to participate
in treatment as a factor in determining whether the Department has
made reasonable efforts). Father became incarcerated days after
the case opened, on the very date of his first scheduled in-person
visit with the child. He remained incarcerated until March 2020.
The caseworker testified that no in-person visits could be provided
at the jail, and phone or video visits through the jail were not
appropriate at that time because the child was still a newborn.
¶ 19 When father was released, at the beginning of the COVID-19
pandemic, the Department reasonably determined it could only
8
offer video visitation with the child to prevent virus transmission.
See People in Interest of D.G., 140 P.3d 299, 306-07 (Colo. App.
2006) (absent safety concerns, a parent is entitled to face-to-face
visitation). Initially, father rejected video visits; he preferred to wait
until he could have in-person visits. However, in late May or June
of 2020, father requested video visitation with the child. The
caseworker submitted a referral for in-person visits and began video
visits in the meantime.
¶ 20 Despite his access to video visitation, father attended only five
video visits from March until September 2020. After father
cancelled two visits in a row in June 2020, he was subsequently
discharged from the visitation program until he could attend a
noncompliance meeting with the caseworker to discuss any barriers
to his participation. The caseworker testified that she told father
that it was his responsibility to set up a noncompliance meeting.
She also testified that, during this time, father “contacted [her], but
he didn’t respond in regards to visitation; never . . . expressed
wanting to set up our [noncompliance] meeting.” She stated that it
was not until “late . . . August that he actually confirmed wanting to
set up a meeting . . . .”
9
¶ 21 After the meeting, father failed to attend his September 2020
in-person visit and was again discharged for noncompliance. The
caseworker testified that father told her that he skipped the
September in-person visit because “he was just not in a good
place . . . in his life. . . . [H]e did not feel that it was a good time for
him to have visits with [the child].” Father was reincarcerated in
November 2020 and remained in jail until the termination hearing.
3. Technical Issues
¶ 22 Father asserts that the Department “failed to assist” him with
“the technical issues that arose during virtual visitations.”
However, the record indicates that father did not timely inform the
caseworker of his technical issues, and, indeed, resolved them
himself. At father’s noncompliance meeting, in August 2020, father
stated for the first time that his phone was not working, preventing
him from attending video visits. He also stated, however, that he
had purchased a tablet and “it should no longer be an issue.”
4. Visitation and Kinship Providers’ Order of Protection Against
Father
¶ 23 Last, father asserts that the Department “failed [to] make any
accommodations for the [kinship providers’] protective order against
10
[him] that prevented him from attending visits.” Again, the record
clearly contradicts this assertion.
¶ 24 The mandatory protection order father signed at the beginning
of the case prevented him from contacting mother. Father testified
that he thought it also prevented him from contacting the kinship
provider and therefore unfairly limited his contact with the child.
However, father also testified that it was his attorney — and not a
court order — who advised him not to have contact with the kinship
provider, who was a prosecution witness. Ultimately, father
confirmed that the Department “ensured he would have no contact
with [the kinship provider]” during visits.
¶ 25 Given this record, we will not disturb the juvenile court’s
determination that the Department made reasonable efforts to
rehabilitate father.
IV. Fitness in a Reasonable Time
¶ 26 Father also contends that the juvenile court erred when it
determined that he was unfit and unlikely to become fit in a
reasonable time. Specifically, father asserts that he “substantially
complied with all components of his treatment plan.” We disagree.
11
¶ 27 As a threshold matter, we are not convinced by the
Department’s assertion that father failed to preserve this claim.
Father’s counsel’s argument that father substantially complied with
the treatment plan, as well as his assertion that father could
provide the child with “minimally adequate parent[ing] upon his
release from jail,” preserved father’s fitness contention for appeal.
¶ 28 The court found that “we are not in a place where we could
find that there’s any likelihood within a reasonable time that
[father] is going to be able to be the minimal, adequate parent that
[the child] deserves.” The record supports this finding.
¶ 29 The juvenile court erroneously found, contrary to record
evidence, that father did not sign a release allowing the caseworker
to access his completed integrated evaluation. The record suggests
that the caseworker had obtained a valid release and spoke with the
therapist about father’s engagement in treatment. This error,
however, is harmless; record evidence otherwise supports the
juvenile court’s conclusion that father had not complied with his
treatment plan and remained unfit. For example, father’s therapist
reported to the caseworker that father stopped participating in
treatment in October 2020, around the same time that father
12
testified he had had a breakdown. Similarly, as outlined above,
father had not been in contact with the Department or engaged in
parenting time in many months. Although he had “resolved his
pending criminal matters,” at the time of the termination hearing he
had not yet been sentenced. He testified that it was likely that, on
his release, he would likely have to “comply with substance abuse
classes . . . drug and alcohol classes and all that other stuff,” and
he would likely have “court supervision for . . . the next four years.”
¶ 30 Thus, even though father had signed a release, there is no
record evidence that the child’s best interest would be served by
delaying his permanency. In fact, the caseworker testified that the
child had no relationship with his father and needed “stability and
permanency” through adoption.
¶ 31 Given this record evidence, we perceive no error in the juvenile
court’s determination that father could not become fit within a
reasonable time.
V. Conclusion
¶ 32 We affirm the judgment.
CHIEF JUDGE BERNARD and JUDGE VOGT concur.
