21CA0619 Peo in Interest of LD 01-27-2022
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA0619
Jefferson County District Court No. 20JV41
Honorable Lindsay VanGilder, Judge
The People of the State of Colorado,
Appellee,
In the Interest of L.D., a Child,
and Concerning R.S. and L.S.D.,
Appellants.
JUDGMENT AFFIRMED
Division V
Opinion by JUDGE DUNN
Welling and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 27, 2022
Kimberly Sorrells, County Attorney, Sarah Oviatt, Assistant City Attorney,
Golden, Colorado, for Appellee
Gina G. Bischofs, Guardian Ad Litem
Law Offices of Brittany Radic, LLC, Brittany Radic, Aurora, Colorado, for
Appellant R.S.
Bergner Law Office, LLC, Stephanie Bergner, Leif Ericson, Carbondale,
Colorado, for Appellant L.S.D.
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¶ 1 R.S. (mother) and L.S.D. (father) appeal the judgment
terminating the parent-child legal relationship with L.D. (the child).
We affirm.
I. Background
¶ 2 In January 2020, the Jefferson County Division of Children,
Youth and Families filed a dependency and neglect petition
regarding the then-newborn child. The Division alleged that mother
and the child had tested positive for methamphetamine when the
child was born and that the child was experiencing withdrawal
symptoms. The Division also alleged that — while at the hospital —
the parents “went into a restroom for 45 minutes” and mother’s
urine drug screen “was later tampered with.”
¶ 3 The juvenile court adjudicated the child dependent and
neglected and adopted treatment plans for both parents.
¶ 4 The Division later moved to terminate the parents’ rights. And
in February 2021, following a hearing, the juvenile court granted
the motion.
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II. Termination of Parental Rights
A. General Law
¶ 5 The juvenile court may terminate parental rights if it finds, by
clear and convincing evidence, that (1) the child has been
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 within a
reasonable time. § 19-3-604(1)(c), C.R.S. 2021; People in Interest of
E.S., 2021 COA 79, ¶ 10.
¶ 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. “We review the juvenile
court’s findings of evidentiary fact — the raw, historical data
underlying the controversy — for clear error and accept them if they
have record support.” People in Interest of S.R.N.J-S., 2020 COA 12,
¶ 10. But we review de novo the juvenile court’s legal conclusions
based on those facts. Id.
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B. Sufficient Time
¶ 7 Mother and father contend that the juvenile court failed to
provide them sufficient time to comply with their treatment plans.
We disagree.
¶ 8 Once the juvenile court approves an appropriate treatment
plan, it must give the parent a reasonable time to comply with it.
People in Interest of D.Y., 176 P.3d 874, 876 (Colo. App. 2007).
What constitutes a reasonable time to comply is fact-specific and
varies from case to case. Id. But a reasonable time is not indefinite
and must be determined by considering the child’s physical,
mental, and emotional conditions and needs. People in Interest of
J.C.R., 259 P.3d 1279, 1284 (Colo. App. 2011).
¶ 9 The juvenile court found that the parents hadn’t shown “any
reasonable compliance” with their treatment plans, noting “[t]here
have been virtually no [urinalysis tests], no treatment, and nothing
to address the concerns about the parties’ [substance abuse].” And
it observed that “methamphetamine addiction is not something that
disappears or goes away without any work, and there has been no
evidence of completed sessions or treatment that would address
that problem or concern.” Given the parents’ overall minimal
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engagement, the court found that additional time was unlikely to
change their parental fitness and treatment plan compliance.
¶ 10 The record supports these findings. Mother had
approximately eight months and father had approximately nine
months to comply with their respective treatment plans before the
termination hearing. See People in Interest of A.J., 143 P.3d 1143,
1152 (Colo. App. 2006) (“[P]eriods as short as five to nine months
have been held to be sufficient time to comply with a treatment
plan.”). Yet neither parent had demonstrated sobriety or
participated in substance use treatment. And given the lack of any
meaningful progress, that the court terminated the parent-child
relationship before the estimated completion date of the treatment
plans (May 2021) doesn’t mean the parents weren’t given enough
App. 1986) (a court may terminate the parent-child relationship
before the proposed period of treatment has ended).
¶ 11 Both parents argue, however, that the amount of time to
comply wasn’t sufficient given difficulties stemming from the
COVID-19 pandemic. But the case opened before the pandemic
started. And the evidence shows no identified pandemic-related
5
barrier. In fact, when asked, the parents told the caseworker that
“they had all the resources they needed” and “there were no
barriers.”
¶ 12 To the extent mother argues there was no evidence that the
child’s physical, mental, and emotional needs would be impacted by
providing her with additional time to comply, we disagree. The
juvenile court found — with record support — that “the entirety of
this child’s one year of life has been outside of his biological
parents[’] care,” a year “is a very long time for a child this young,”
and the child was “thriving in the foster home.” And the caseworker
confirmed that the child had bonded to his caregivers and it was in
his best interest to terminate parental rights so he could be “free to
adopt.” See People in Interest of K.B., 2016 COA 21, ¶¶ 37, 40
(rejecting mother’s argument that it was in the children’s best
interests to give her more time to complete her treatment plan
because the record adequately supported the court’s finding that
the need for permanence outweighed any risk of terminating the
parent-child relationship).
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¶ 13 For these reasons, we reject the parents’ contention that the
court did not give them sufficient time to comply with their
treatment plans.
C. Reasonable Efforts
¶ 14 Mother and father also contend that the juvenile court erred
by finding that the Division made reasonable efforts to rehabilitate
them. In particular, they argue that the Division failed to provide
resources related to housing and technological assistance to enable
them to participate in virtual treatment and visitation.
¶ 15 The Division says we should not consider this argument
because the parties did not raise it before the termination hearing,
and thus it is not preserved.
¶ 16 To be fair, divisions of this court disagree on whether a parent
must challenge the Division’s reasonable efforts before the
termination hearing to preserve the issue for appellate review.
Compare People in Interest of S.N-V., 300 P.3d 911, 916 (Colo. App.
2011) (holding that a parent’s failure to object to services does not
bar appellate review of a reasonable efforts findings), with People in
Interest of D.P., 160 P.3d 351, 355-56 (Colo. App. 2007) (declining
to review a reasonable efforts finding because the parent failed to
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object to services provided before the termination hearing).
Because the outcome is the same either way, we elect to consider
the parents’ reasonable efforts argument.
¶ 17 The state must make reasonable efforts to rehabilitate parents
and reunite families following the out-of-home placement of abused
or neglected children. §§ 19-1-103(114), 19-3-100.5, 19-3-
604(2)(h), C.R.S. 2021. “Reasonable efforts” means “the exercise of
diligence and care” to reunify parents with their children. § 19-1-
103(114).
¶ 18 Services provided in accordance with section 19-3-208, C.R.S.
2021, satisfy the reasonable efforts standard. See § 19-1-103(114).
Among the services required under section 19-3-208 are screening,
assessments, and individual case plans for the provision of services;
home-based family and crisis counseling; information and referral
services to available public and private assistance resources;
visitation services for parents with children in out-of-home
placement; and placement services including foster care and
emergency shelter. § 19-3-208(2)(b). Parents, however, are
responsible for using the services to obtain the necessary assistance
to comply with their treatment plans. J.C.R., 259 P.3d at 1285.
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¶ 19 The record supports the juvenile court’s finding that the
Division made reasonable efforts to provide rehabilitative services to
the parents and those efforts had not been successful. Indeed, it’s
largely undisputed that the Division devised treatment plans for the
parents, referred them for substance abuse treatment and sobriety
monitoring, gave them bus passes and resources for homeless
shelters, coordinated in-person and virtual visits, and facilitated
placement services for the child.
¶ 20 Even so, the parents argue that when the visits and treatment
services went virtual because of the COVID-19 pandemic, they were
unable to participate because they didn’t have reliable telephone,
computer, or internet access. But nothing in the record shows that
either parent reported any trouble accessing virtual services. In
fact, the caseworker testified that neither parent asked for
assistance with internet service or access to a telephone or
computer. Rather, the caseworker said that she asked the parents
about barriers to participating in treatment or visits throughout the
case, and they confirmed that “they had all the resources they
needed” and “there were no barriers.” The caseworker also
explained that mother responded to her by email and a text
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messaging app that required internet service. And the caseworker
stated that the parents never asked for a device or a “hot spot” to
assist them with virtual visits. The caseworker further testified that
if the parents had told her that they needed internet service, she
“could have addressed it.” For instance, when the parents raised a
transportation issue, the Division provided them with bus passes.
¶ 21 Mother also contends the Division failed “to provide reasonable
efforts” in “the area of housing” — specifically, that the Division
failed to provide her “housing vouchers.” But the caseworker
explained that the Division couldn’t provide housing vouchers
unless a parent was employed and demonstrating sobriety (which
neither parent did). Still, the caseworker testified that she talked
with mother about resources for homeless shelters and other
housing options. But it was up to mother to access those services.
See J.C.R., 259 P.3d at 1285.
¶ 22 And, finally, though mother contends that the Division failed
to provide adequate visitation services because the pandemic
required that some of the visits occur virtually, we are unpersuaded
for a couple of reasons. First, the Division never stopped providing
visitation services. Though the pandemic required the Division to
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move to virtual visits to protect the child as well as the parents and
caregivers, the Division still coordinated virtual visitation services.
But the parents did not consistently attend. Second, despite the
pandemic, there were periods throughout the case when the
parents had the opportunity for in-person visits. Nonetheless, the
parents still missed multiple visits.
¶ 23 For these reasons, we conclude the record supports the
juvenile court’s finding that the Division made reasonable efforts to
rehabilitate the parents.
D. Less Drastic Alternatives
¶ 24 Finally, we reject father’s contention that the juvenile court
erred by failing to consider the less drastic alternative of allowing
him “more time to complete treatment.”
¶ 25 The juvenile court must consider and eliminate less drastic
alternatives before it terminates the parent-child legal relationship.
People in Interest of L.M., 2018 COA 57M, ¶ 24. “[A] less drastic
alternative analysis considers whether any placement, short of
termination, would be in the child’s best interest.” People in Interest
of A.R., 2012 COA 195M, ¶ 44 (emphasis added).
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¶ 26 But father doesn’t argue that the court overlooked an
alternative placement that would have allowed it to end the
dependency and neglect action without terminating his parental
rights. Instead, he contends that the juvenile court should have
given him more time to become a fit parent. We therefore construe
father’s contention as a challenge to the juvenile court’s finding that
his conduct or condition was unlikely to change within a reasonable
time. See § 19-3-604(1)(c)(III) (providing that a juvenile court may
not terminate parental rights unless it finds, by clear and
convincing evidence, that the parent’s conduct or condition is
unlikely to change in a reasonable time).
¶ 27 In determining whether a parent’s conduct will meet the
child’s needs within a reasonable time, the court may consider
whether any change has occurred during the proceeding, the
parent’s social history, and the chronic or long-term nature of the
parent’s conduct or condition. People in Interest of D.L.C., 70 P.3d
584, 588-89 (Colo. App. 2003). A reasonable time is relative, not
indefinite, and it’s determined by the child’s physical, mental, and
emotional conditions and needs. A.J., 143 P.3d at 1152.
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¶ 28 Because the child was less than six years old when the
petition was filed, the expedited permanency planning (EPP)
provisions applied. §§ 19-1-102(1.6), 19-1-123, C.R.S. 2021. The
EPP provisions require that the child be placed in a permanent
home as expeditiously as possible. § 19-3-702(5)(c), C.R.S. 2021.
¶ 29 The juvenile court found that father had “ample” time to
complete his treatment plan, that he exhibited “the same problems
without any adequate improvement,” and that no “additional period
of time” would allow for the successful completion of the plan. As a
result, the court found that father was unfit and his conduct or
condition was “unlikely to change within a reasonable amount of
time.”
¶ 30 The record supports these findings. The case had been open
for over a year, and father had not resolved the substance use
issues that led to the Division’s involvement. Although father
completed the substance abuse evaluation, he didn’t participate in
the recommended treatment or consistently engage in sobriety
monitoring. He completed only two urine screens, one of which was
positive for methamphetamine. Because father hadn’t successfully
addressed his substance use concerns, the caseworker opined that
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“he is not a safe and sober caregiver” and “he might not be able to
meet [the child’s] immediate emotional or physical needs if he is
under the influence.” And beyond his continuing substance use,
father was also equally unsuccessful with other aspects of his plan.
He remained unemployed and attended less than half of the
scheduled visits. When he attended in-person visits, he didn’t bring
diapers or food for the child. His last in-person visit was in
September 2020, and his last virtual visit was several weeks before
the termination hearing.
¶ 31 And as we’ve explained, the juvenile court was required to
place the child in a permanent home “as expeditiously as possible.”
§ 19-3-702(5)(c). At the time of the termination hearing, the child
had been in a foster home for approximately one year.
¶ 32 Given this evidence, we conclude the record supports the
juvenile court’s findings that father’s condition was unlikely to
change in a reasonable amount of time.
III. Conclusion
¶ 33 We affirm the judgment.
JUDGE WELLING and JUDGE YUN concur.
