21CA0809 Peo in Interest of JT 01-06-2022
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA0809
Douglas County District Court No. 20JV110
Honorable H. Clay Hurst, Judge
The People of the State of Colorado,
Appellee,
In the Interest of J.T. and W.J.T., Children,
and Concerning W.J.T., III,
Appellant,
and
L.L.Z.,
Appellee.
JUDGMENT AFFIRMED
Division III
Opinion by JUDGE LIPINSKY
Furman and Brown, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 6, 2022
Lance J. Ingalls, County Attorney, Kathryn Cherry, Assistant County Attorney,
Castle Rock, Colorado, for Appellee the People of the State of Colorado
Gina G. Bischofs, Guardian Ad Litem
Chelsea A. Carr, Office of Respondent Parents’ Counsel, Patrick R. Henson,
Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant
Debra Dodd, Office of Respondent Parents’ Counsel, Berthoud, Colorado, for
Appellee
1
¶ 1
In this dependency and neglect proceeding, W.J.T., III (father)
appeals the juvenile court’s judgment allocating parental
responsibilities for J.T. and W.J.T. (the children) to L.L.Z. (mother).
We affirm.
I. Background
¶ 2
In June 2020, the Douglas County Department of Human
Services (Department) initiated an action in dependency and neglect
and assumed temporary legal custody of the children. The
Department alleged that mother had mental health issues that
impacted her ability to care for the children. The Department
further alleged that father lived in Utah, he had not had any recent
contact with the children, and mother and father had a history of
domestic violence. The parents made no-fault admissions to the
petition, the juvenile court adjudicated the children dependent and
neglected, and it adopted treatment plans for the parents.
¶ 3
In January 2021, mother moved for an order allocating
parental responsibilities for the children and granting her sole
decision-making responsibility for, and primary physical custody of,
them. She also asked that father’s parenting time be professionally
supervised. The Department agreed with mother’s proposed
2
allocation of parental responsibilities (APR) arrangement, except
that it recommended that father have unsupervised parenting time.
¶ 4
The juvenile court held an evidentiary hearing in April 2021.
After hearing the evidence, the court took the matter under
advisement before issuing a written order in May 2021. The court
granted decision-making responsibilities and physical custody to
mother; it awarded father supervised parenting time and provided a
path for him to transition to unsupervised visits. The court certified
the case into a domestic relations proceeding and closed the
dependency and neglect matter.
II. Judicial Notice of Criminal Charges
¶ 5
Father first contends that the juvenile court erred by taking
judicial notice of his criminal convictions. Mother and the
Department assert that, because the court never took judicial notice
of the criminal convictions, father’s argument necessarily fails. We
agree with mother and the Department.
¶ 6
During a discussion of preliminary matters, mother’s counsel
asked the court to take judicial notice of father’s two criminal
convictions. See CRE 201(a)-(b) (noting that a court may take
judicial notice of an adjudicative fact not subject to reasonable
3
dispute); People in Interest of T.T., 845 P.2d 539, 541 (Colo. App.
1992) (concluding that the juvenile court did not err by taking
judicial notice of the parent’s criminal convictions). Father
objected, asserting that the court could not take judicial notice of
the convictions without “a certified criminal record.” Contrary to
mother’s assertion, the court did not make a definitive ruling about
whether it would take judicial notice of the convictions; instead the
court stated that it would require mother’s counsel to “prove the
evidence that may make [the convictions] relevant” and then it
would “take up arguments on those cases and [a] further request”
for judicial notice.
¶ 7
Later, mother’s counsel asked the caseworker whether father
had “a criminal history related to domestic violence,” and father
objected to relevance. The court overruled the objection, stating
that it would “allow a little leeway” but would only consider the
evidence if it was “relevant with regard to [father’s] relationship
[with mother] and these children.” Mother’s counsel then rephrased
the question to ask whether the Department had any information
“relate[d] to domestic violence between [mother and father].” In
response, the caseworker explained that the State of Utah denied
4
the Department’s request to place the children with father in Utah
because he did not pass the “background check.” However, the
caseworker testified that she did not know “the specifics [of] the
background check” or the reasons for its denial. In other words,
the caseworker had no information about whether Utah denied the
placement request because of father’s criminal history or some
other reason.
¶ 8
But the caseworker did testify that she investigated father’s
criminal history as part of her background investigation. The
caseworker said that she “noted [father’s criminal history] in the
Family Services Report,” which she said included “a trespassing
case [and] a burglary case,” as well as “one past domestic violence
case and a protection order violation.” The caseworker testified that
she did not craft any treatment plan components based on father’s
criminal history, however.
¶ 9
In sum, the record shows that mother asked the court to take
judicial notice of father’s criminal convictions, but the juvenile court
deferred ruling on the request at that time. Because mother never
renewed her request for the court to take judicial notice of father’s
convictions, nothing in the record from the APR hearing indicates to
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us that the court took judicial notice of father’s convictions. Nor do
we see anything in the court’s order suggesting that it took judicial
notice of those convictions. Therefore, we agree with mother and
the Department that the court did not take judicial notice of father’s
criminal convictions.
¶ 10
Finally, to the extent that mother produced evidence of those
convictions through the caseworker’s testimony and report, father
never objected to the admission of that evidence. See People in
Interest of M.B., 2020 COA 13, ¶ 14 (In dependency and neglect
cases, “generally appellate courts review only issues presented to
and ruled on by the lower court.”).
III. Supervised Parenting Time
¶ 11
Father next asserts that the juvenile court erred by entering
an APR order that required him to exercise his parenting time in a
supervised setting. We are not persuaded.
¶ 12
The Colorado Children’s Code authorizes a juvenile court to
enter an order allocating parental responsibilities and addressing
parenting time when it maintains jurisdiction in a case involving a
child who is dependent and neglected. § 19-1-104(6), C.R.S. 2021;
People in Interest of E.Q., 2020 COA 118, ¶ 10. Because the
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overriding purpose of the Children’s Code is to protect a child’s
welfare and safety by providing procedures to serve the child’s best
interests, the court must allocate parental responsibilities in
accordance with the child’s best interests. L.A.G. v. People in
Interest of A.A.G., 912 P.2d 1385, 1391-92 (Colo. 1996); L.G. v.
People, 890 P.2d 647, 654 (Colo. 1995); People in Interest of H.K.W.,
2017 COA 70, ¶ 13.
¶ 13
The allocation of parenting time and decision-making
responsibilities are within the court’s discretion and will not be
disturbed on review if the judgment is supported by competent
evidence in the record. See People in Interest of A.M.K., 68 P.3d
563, 565 (Colo. App. 2003); see also People in Interest of D.G., 140
P.3d 299, 302 (Colo. App. 2006) (providing that visitation decisions
are entrusted to the juvenile court’s sound discretion). It is for the
juvenile court, as the trier of fact, to determine the sufficiency,
probative effect, and weight of the evidence, and to assess the
credibility of witnesses. People in Interest of A.J.L., 243 P.3d 244,
249-50 (Colo. 2010); see also In re Parental Responsibilities
Concerning B.R.D., 2012 COA 63, ¶ 15 (when there is record
7
support for the court’s findings, its resolution of conflicting evidence
is binding on review).
¶ 14
In its APR order, the court awarded father in-person,
supervised visitation to occur every other month beginning in June
2021 and continuing for six months. The court furthered ordered
that, following the initial six-month period, father could begin
unsupervised visits in January 2022. As relevant here, the court
provided that supervised visitation was in the children’s best
interests based on father’s “minimal contact” with the children and
“the length in time that the children lacked contact with” him.
Because the record supports the court’s findings, we decline to
disturb them.
¶ 15
Here, the record shows that, prior to the case, father had not
had any contact with the children since at least April 2019. As a
result of father’s lack of a relationship with the children, the
Department recommended that he have supervised visitation.
However, the record shows that supervised visitation did not begin
until March 2021, and father participated in only four supervised
visits by the time of the APR hearing three months later. The
caseworker testified that the Department would have offered in-
8
person visitation earlier in the case, but it could not arrange those
visits because father did not make himself available sooner. The
caseworker also expressed concern about father’s consistency in
visitation once it did begin, noting that father arrived nearly an
hour late for one visit and about twenty minutes late for another
one.
¶ 16
To be sure, the caseworker testified that the Department was
no longer recommending supervised visitation for father. But the
caseworker also opined that, considering the young ages of the
children and the fact that they had been in mother’s care for some
time, “more consistent visits for a longer period of time would be
beneficial for the [children] to really build [a] relationship with
[father].” She also testified that, in general, supervised visitation
should occur for a “consistent period of time” before transitioning to
unsupervised visitation.
¶ 17
Based on this record, we cannot say that the court abused its
discretion by requiring father to continue engaging in supervised
visitation before transitioning to unsupervised visitation.
¶ 18
Nevertheless, father contends that the evidence before the
court did not support an order limiting his parenting time to
9
supervised visits. Specifically, he directs us to evidence that the
caseworker no longer recommended supervised visitation and that
the visitation supervisors said that they did not observe any safety
concerns related to father’s parenting. Because it is within the
court’s purview to weigh the evidence and assess the credibility of
witnesses, we discern no error from the court’s decision to disregard
some of the caseworker’s opinion or otherwise afford little weight to
the visitation supervisors’ testimony. See A.J.L., 243 P.3d at 249-
50. Nor can we reweigh the evidence or substitute our judgment for
that of the juvenile court even if there might be evidence supporting
a different result. Id. at 256; see also B.R.D., ¶ 15. Rather,
decisions about parenting time are within the court’s sound
discretion, D.G., 140 P.3d at 302, and we cannot disturb the court’s
decision where, as here, there is some evidence in the record
supporting the court’s finding, see A.M.K., 68 P.3d at 565.
¶ 19
Father also appears to challenge the court’s decision that he
exercise his parenting time in Colorado (rather than in Utah, where
he lived). But father did not sufficiently develop this argument for
us to decide the issue. Because the argument is undeveloped, we
10
decline to address it. People v. Liggett, 2021 COA 51, ¶ 53, 492
P.3d 356, 366.
IV. Conclusion
¶ 20
The judgment is affirmed.
JUDGE FURMAN and JUDGE BROWN concur.
