21CA0737 Peo in Interest of JMM 01-20-2022
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA0737
El Paso County District Court No. 19JV553
Honorable Theresa M. Cisneros, Judge
The People of the State of Colorado,
Appellee,
In the Interest of J.M.M., a Child,
and Concerning M.M.,
Appellant.
JUDGMENT AFFIRMED
Division VII
Opinion by JUDGE JOHNSON
Berger and Brown, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 20, 2022
Diana K. May, County Attorney, Melanie Douglas, Contract Attorney, Colorado
Springs, Colorado, for Appellee
Gina G. Bischofs, 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, M.M. (mother)
appeals the juvenile court’s order terminating her parent-child legal
relationship with J.M.M. (the child). We affirm.
I. Background
¶ 2 The El Paso County Department of Human Services
(Department) filed a petition in dependency and neglect regarding
the one-year-old child. The petition alleged that the Department
received a report of mother using methamphetamine in the
presence of the child. The petition also alleged that mother said she
did not know which drug a urinalysis test “would be positive for” if
she were required to take one. The petition further alleged that the
family home was hazardous, dirty, and cluttered with needles on
the floor. The petition described a previous dependency and neglect
case involving mother and three older children, resulting in the
termination of mother’s parental rights as to those children.
¶ 3 The juvenile court adjudicated the child dependent and
neglected following a jury trial. The court adopted a treatment plan
for mother requiring that she, among other things, (1) complete
substance abuse and mental health evaluations and follow any
recommendations; (2) obtain stable housing and employment; (3)
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participate in life skills and parenting classes; and (4) visit the child
regularly.
¶ 4 The Department later moved to terminate mother’s parental
rights. After a hearing, the juvenile court terminated mother’s
parental rights.
II. Standard of Review
¶ 5 To terminate parental rights, clear and convincing evidence
must establish that (1) the child has been adjudicated dependent or
neglected; (2) the parent did not comply with or was not
successfully rehabilitated by an appropriate, court-approved
treatment plan; (3) the parent is unfit; and (4) the parent’s conduct
or condition is unlikely to change within 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 Where resolution of an issue necessitates application of the
termination statute to evidentiary facts, it presents a mixed
question of fact and law. People in Interest of A.M. v. T.M., 2021 CO
14, ¶ 15. 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
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conclusions to be drawn from the evidence are all within the
province of the juvenile court. People in Interest of C.A.K., 652 P.2d
603, 613 (Colo. 1982). But a determination of the proper legal
standard to be applied in a case and the application of 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.
III. Child’s Best Interests
¶ 7 Mother argues that the juvenile court erred when it found
termination was in the child’s best interests because she
demonstrated a loving bond during visits. We are unpersuaded.
A. Applicable Law
¶ 8 A goal of a treatment plan is to preserve the parent-child
relationship by assisting the parent to overcome problems that led
to the adjudication. People in Interest of K.B., 2016 COA 21, ¶ 11.
It is the responsibility of the parent to successfully complete the
treatment plan. People in Interest of D.P., 160 P.3d 351, 354 (Colo.
App. 2007). The treatment plan objectives must be “reasonably
calculated to render the parent fit to provide adequate parenting to
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the child within a reasonable time.” People in Interest of E.S., 2021
COA 79, ¶ 31; see also K.B., ¶ 13; § 19-1-103(12), C.R.S. 2021.
B. Analysis
¶ 9 The record shows that, despite her care for the child during
the visits she attended, mother did not visit the child regularly.
Mother missed more than half of her scheduled visits and admitted
that, at the time of the termination hearing, she had not seen the
child for three weeks. The juvenile court noted that even if mother
disagreed with the substance abuse and mental health
recommendations from the treatment plan, it expected her to be
more compliant with the visitation plan.
¶ 10 As to the substance abuse and mental health requirements of
the treatment plan, mother had not complied with any of the
recommendations and referrals for services made by the
Department. Although mother testified that she did not have a
substance abuse problem, she admitted that she used
methamphetamine during the case. And mother also admitted that
she did not submit urinalysis tests as recommended by her
substance abuse evaluation.
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¶ 11 Also, mother did not have stable housing or employment and
had not attended any parenting classes.
¶ 12 Because the record supports the findings that mother had not
complied with the treatment plan and visitation with the child had
been irregular, we see no basis to disturb the juvenile court’s
termination judgment.
IV. Less Drastic Alternatives
¶ 13 Mother argues that the juvenile court should have placed the
child permanently with maternal grandmother as a less drastic
alternative to termination. We disagree.
A. Applicable Law
¶ 14 The juvenile court must consider and eliminate less drastic
alternatives before it terminates the parent-child legal relationship.
People in Interest of D.P., 181 P.3d 403, 408 (Colo. App. 2008).
When considering less drastic alternatives, the court bases its
decision on the best interests of the child, giving primary
consideration to the child’s physical, mental, and emotional
conditions and needs. § 19-3-604(3).
¶ 15 A less drastic alternative of long-term or permanent placement
may not be appropriate when it does not provide adequate
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permanence or otherwise meet the child’s needs. People in Interest
of M.M., 726 P.2d 1108, 1122 (Colo. 1986). When determining
whether placement with a relative or other person is a viable
alternative to termination, the juvenile court may consider various
factors, including whether an ongoing relationship with the parent
would be beneficial or detrimental to the child. People in Interest of
A.R., 2012 COA 195M, ¶ 38. This determination will be influenced
by a parent’s fitness to care for his or her child’s needs. See § 19-3-
604(2); A.R., ¶ 38. Long-term placement with a relative is not a
viable less drastic alternative to termination if the child needs a
stable, permanent home that can only be assured by adoption.
People in Interest of M.B., 70 P.3d 618, 627 (Colo. App. 2003).
¶ 16 When the child is less than six years old at the filing of the
petition, the expedited permanency planning (EPP) provisions apply.
§§ 19-1-102(1.6), 19-1-123, C.R.S. 2021; People in Interest of M.T.,
121 P.3d 309, 313 (Colo. App. 2005). The EPP provisions require
that a child be placed in a permanent home as expeditiously as
possible. § 19-1-102(1.6).
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B. Analysis
¶ 17 The record supports the juvenile court’s determination that no
less drastic alternative to termination was available.
¶ 18 Nothing in the record indicates that grandmother was willing
to care for the child. One caseworker testified that the Department
submitted a kinship referral for grandmother but that she did not
respond. The caseworker also testified that grandmother was very
hard to contact and did not stay in communication. Indeed, the
caseworker testified that the Department reached out to
grandmother via phone, left voicemails, and sent a letter but never
received a response. Case reports indicate that the previous
caseworker talked with grandmother about being a placement, but
she did not give a clear answer and said she would “let the
caseworker know.” The Department also reported that it set up a
home visit with grandmother to discuss a possible placement, but
grandmother cancelled and did not reschedule the meeting.
¶ 19 Although it is true that grandmother never explicitly stated
she would not be a placement option for the child, the fact that she
did not respond to the Department’s repeated requests or
communications demonstrated a lack of interest. No evidence in
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the record establishes that grandmother was willing to care for the
child subject to an allocation of parental responsibilities or any
other arrangement.
¶ 20 Even if grandmother was an available placement, the record
likewise establishes that the child needed the permanency that only
adoption could provide. Two caseworkers testified that termination
and adoption by the child’s foster parents were in his best interests.
¶ 21 Based on this record, which included mother’s lack of
compliance with the treatment plan, we cannot conclude that the
juvenile court erred when it found no available less drastic
alternative.
V. Conclusion
¶ 22 We affirm the juvenile court’s judgment.
JUDGE BERGER and JUDGE BROWN concur.
