21CA0523 Peo in Interest of CC 12-09-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA0523
Jefferson County District Court No. 19JV452
Honorable Ann Gail Meinster, Judge
The People of the State of Colorado,
Appellee,
In the Interest of C.C., a Child,
and Concerning S.C.,
Appellant.
JUDGMENT AFFIRMED
Division VI
Opinion by JUDGE JOHNSON
Fox and Welling, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 9, 2021
Kimberly Sorrells, County Attorney, Sarah Oviatt, Assistant County Attorney,
Golden, Colorado, for Appellee
Anna N.H. Ulrich, Guardian Ad Litem
The Morgan Law Office, Kris P. Morgan, Colorado Springs, Colorado, for
Appellant
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¶ 1 In this dependency and neglect proceeding, S.C. (mother)
appeals the juvenile court judgment terminating her parent-child
legal relationship with C.C. (the child). We affirm.
I. Background
¶ 2 In May 2019, the child, who was then five months old, was
found unresponsive while in the care of mother’s boyfriend. A
physician later determined that the child had sustained brain
damage due to a lack of oxygen caused by unsafe sleep practices.
The physician classified this as nonaccidental trauma. As a result,
the Jefferson County Division of Children, Youth and Families
(Division) initiated the dependency and neglect proceeding.
¶ 3 The juvenile court placed the child in the Division’s custody.
And, based on mother’s admission, the court adjudicated the child
dependent and neglected. The juvenile court also adopted a
treatment plan that required mother to (1) participate in individual
therapy to address mental health and safety issues; (2) demonstrate
an understanding of the child’s needs and attend the child’s
medical appointments; and (3) visit the child.
¶ 4 Later, the Division moved to terminate the legal relationship
between mother and the child. After a contested hearing in late
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February and early March 2021, the juvenile court terminated
mother’s parental rights.
II. Standard of Review
¶ 5 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 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
or condition is unlikely to change in a reasonable time. § 19-3-
604(1)(c), C.R.S. 2021; People in Interest of C.H., 166 P.3d 288, 289
(Colo. App. 2007).
¶ 6 Whether a juvenile court properly terminated parental rights
presents a mixed question of fact and law because it involves
application of the termination statute to evidentiary facts. People in
Interest of A.M. v. T.M., 2021 CO 14, ¶ 15. Determining the proper
legal standard to be applied in a case and applying that standard to
the particular facts of the case are questions of law that we review
de novo. M.A.W. v. People in Interest of A.L.W., 2020 CO 11, ¶ 31.
¶ 7 We will not, however, disturb the court’s factual findings and
conclusions when the record supports them. Id. at ¶ 32; see also
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A.M., ¶ 15. Indeed, the credibility of the witnesses and the
sufficiency, probative effect, and weight of the evidence, and the
inferences and conclusions to be drawn from it are within the
juvenile court’s discretion. People in Interest of C.A.K., 652 P.2d
603, 613 (Colo. 1982).
III. Likelihood of Change
¶ 8 Mother contends that the juvenile court erred by concluding
that she could not become a fit parent within a reasonable time. In
support of her argument, mother asserts that (1) she had
substantially complied with the treatment plan and (2) COVID-
related restrictions affected her ability to gain necessary skills and
demonstrate that she could care for the child. We are not
persuaded.
A. Applicable Law
¶ 9 An unfit parent is one whose conduct or condition renders him
or her unable or unwilling to give a child reasonable parental care.
People in Interest of D.P., 160 P.3d 351, 353 (Colo. App. 2007).
Reasonable parental care requires, at a minimum, that the parent
provide nurturing and safe parenting sufficiently adequate to meet
the child’s physical, emotional, and mental health needs. People in
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Interest of A.J., 143 P.3d 1143, 1152 (Colo. App. 2006).
Significantly, a parent may be unfit as to one, but not all, of his or
her children. People in Interest of D.L.C., 70 P.3d 584, 588 (Colo.
App. 2003).
¶ 10 In determining whether a parent can become fit in a
reasonable time, the court may consider whether the parent made
any changes during the dependency and neglect case, the parent’s
social history, and the chronic or long-term nature of the parent’s
conduct or condition. D.P., 160 P.3d at 353. A reasonable time is
not indefinite and must be determined by considering the child’s
conditions and needs. A.J., 143 P.3d at 1152.
¶ 11 Additionally, because the child was under the age of six when
the petition was filed, the expedited permanency planning
provisions applied and required that he be placed in a permanent
home as expeditiously as possible. §§ 19-1-102(1.6), 19-1-123, 19-
3-702(5)(c), C.R.S. 2021.
B. Analysis
¶ 12 Evidence presented at the termination hearing established
that the child had extensive needs. An expert in pediatrics
explained that the child had sustained damage to the cell structure
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in his brain and his brain had stopped growing. As a result, the
child
• had permanent visual impairment;
• would not be able to “progress like a normal child would with
higher learning”;
• would be unable to walk or move independently with purpose;
• had extreme irritability and difficulty soothing himself;
• was unable to swallow properly and relied on a G-tube for
hydration, nutrition, and medication;
• showed signs of abnormal muscle tone;
• was at risk of joint contracture if he remained in one position
for too long, which required him to be moved frequently
throughout the day, and, if not monitored, would affect his
ability to later be placed in a wheelchair; and
• had developed two seizure conditions — myoclonic seizures as
well as infantile spasms, which were hard to detect, and, if not
monitored, would result in the potential of further brain
damage or cardiac arrest.
¶ 13 Because of these conditions, the child needed to have his
respiration, bowel sounds, heart, lungs, G-tube, and skin checked
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multiple times each day. He also had to be repositioned and have
braces put on and off every few hours. And the child took nine
medications per day, which had to be administered at three
different times.
¶ 14 As a result of these severe health issues, the child required
extensive medical treatment, including medical appointments, and
he also participated in occupational and physical therapy three
times each week. Given his severe developmental delays, he also
engaged in twice weekly speech and vision therapy, as well as
weekly music therapy.
¶ 15 The medical appointments required the child to visit several
medical providers. Specifically, the child saw (1) a pediatrician
every six months; (2) a gastroenterologist every six months; (3) an
endocrinologist every year; (4) an eye doctor every six months;
(5) the Nonaccidental Brain Injury Clinic (NBIC) every six months;
(6) a nephrologist every year; (7) a specialist to fit his braces every
six months; and (8) a neurologist specializing in epilepsy every three
to six months.
¶ 16 To be sure, the juvenile court found that mother tried to
engage in the services required by the treatment plan and to learn
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to meet the child’s needs. And the court recognized that mother
had regained custody of the child’s younger sibling, born during the
pendency of this case, who had been subject to a separate
dependency and neglect proceeding. And the juvenile court
recognized that mother could provide the child with love. Even so,
the court determined that mother remained unable to meet the
child’s needs.
¶ 17 The record supports this determination. Even before the child
was discharged from the hospital, mother received education from
the child’s therapists and nurses. A nurse care coordinator also
worked with mother for more than a year to help her understand
the complexity of the child’s needs and ensure that she had access
to training to learn how to meet those needs. This included
providing mother with information concerning available G-tube
training.
¶ 18 Despite these efforts, mother failed to follow through with the
G-tube training. And, in late 2019, mother missed an in-person
appointment for the child at the NBIC clinic. At a different medical
appointment, mother refused to receive hands-on training regarding
how to administer a shot to treat the child’s infantile spasms.
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Mother said she could not stand to watch the child get an injection
and left the room.
¶ 19 After the onset of the COVID-19 pandemic in March 2020, the
nature of some of these services changed. For example, mother was
only able to have video visits with the child for many months.
Similarly, most of the child’s medical and therapeutic appointments
were conducted via video. But mother was still able to participate
in these medical appointments and the Division arranged for one
weekly session of the child’s physical and vision therapies to occur
during mother’s video visits with the child. The Division scheduled
these therapies to coincide with the mother’s visitation via video to
assist educating the mother about caring for the child.
¶ 20 Mother correctly points out that a psychologist who evaluated
her concluded that she likely had difficulty learning skills via video
because she was in the lower end of the borderline range of
intellectual functioning. The psychologist explained that mother
was a “hands-on learner” and needed “one-to-one teaching” and
repetition.
¶ 21 Regardless, the record establishes that mother continued to
miss opportunities to demonstrate that she could meet the child’s
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needs. An expert in pediatric rehabilitation explained that it was
critical for the child to consistently attend medical and therapeutic
appointments. Yet, mother attended just two of the child’s
twenty-six medical appointments that occurred via video between
May and November 2020. She also failed to attend the child’s
vision appointment the next month. And mother missed another
two medical appointments for the child in early 2021.
¶ 22 Indeed, mother agreed that she had missed a lot of the child’s
medical appointments because she was “going through a very dark
phase” before the child’s younger sibling was returned to her care.
Mother also acknowledged that she still needed training related to
using the G-tube, as well as learning about the child’s seizures.
And mother testified that she would need to become more familiar
with the child’s new medications.
¶ 23 The caseworker further explained that mother had recently
reported that she was uncomfortable speaking to the child’s medical
treatment providers. The nurse care coordinator likewise testified
that mother indicated that she was intimidated by the use of
medical terminology and the number of people present at the child’s
medical appointments.
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¶ 24 Separate from the record support that mother was unable to
handle the child’s extensive life-long medical needs, mother does
not challenge the juvenile court’s determination that the child
would not be safe in her care because she continued to live with the
same boyfriend who was responsible for the child’s trauma. The
record supports that, although mother acknowledged that the child
was severely injured while in the care of her boyfriend, she
minimized the injuries or care the child would need for the rest of
his life and instead chose to attend the boyfriend’s criminal
hearings rather than the child’s medical appointments. And the
record supports that some of the child’s injuries did not result from
unsafe sleeping practices, as a physician opined that the bruising
was indicative of the child being hit or slapped on the face. Mother
seemed unable to recognize the risk posed to the child by staying
with the boyfriend, despite the boyfriend’s past behavior of passing
out and leaving the child crying in his crib unattended.
¶ 25 Under these circumstances, we will not disturb the juvenile
court’s determination that mother’s condition as an unfit parent
was unlikely to change in a reasonable time.
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IV. Conclusion
¶ 26 The judgment is affirmed.
JUDGE FOX and JUDGE WELLING concur.
