Peo in Interest AF ( 2024 )


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    <div>24CA0656 Peo in Interest AF 10-17-2024 </div>
    <div> </div>
    <div>COLORADO COURT OF APPEALS </div>
    <div> </div>
    <div> </div>
    <div>Court of Appeals No. 24CA0656  </div>
    <div>Costilla County District Court No. 23JV30000 </div>
    <div>Honorable <span>Kimberly D</span>. Cortez, Judge </div>
    <div> </div>
    <div> </div>
    <div>The People of the State of Colorado, </div>
    <div> </div>
    <div>Appellee, </div>
    <div> </div>
    <div>In the Interest of A.F., III, A.F. and <span>Z.F., Children</span>, </div>
    <div> </div>
    <div>and Concerning B.J.L.,  </div>
    <div> </div>
    <div>Appellant. </div>
    <div> </div>
    <div> </div>
    <div>JUDGMENT AFFIRMED<span> </span>
    </div>
    <div> </div>
    <div>Division VI </div>
    <div>Opinion by JUDGE BROWN </div>
    <div>Welling<span> and Hawthorne*, JJ., concur </span>
    </div>
    <div> </div>
    <div>NOT PUBLISHED PURSUANT TO C.A.R. 35(e)<span> </span>
    </div>
    <div>Announced October 17, 2024 </div>
    <div> </div>
    <div> </div>
    <div>Rebecca N. Rian<span>, Special County Attorney, Alamosa, Colorado, for Appellee </span>
    </div>
    <div> </div>
    <div>Jenna L. Mazzucca, Guardian Ad Litem </div>
    <div> </div>
    <div>Harald Van Gaasbeek, Office of Respondent Parents’ Counsel, <span>Ft. Collins, </span>
    </div>
    <div>Colorado, for Appellant </div>
    <div> </div>
    <div> </div>
    <div>*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. </div>
    <div>VI, § 5(3), and § 24-51-1105, C.R.S. 2024. </div>
    </div></div>
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    <div>1 </div>
    <div>¶ 1<span> </span><span>In this dependency and neglect action, B.J.L. (mother) appeals </span>
    </div>
    <div>the judgment terminating her parent-child legal relationships with </div>
    <div>A.F. III, A.F., and Z.F. (the children).  We affirm. </div>
    <div>I.<span> <span>Background </span></span>
    </div>
    <div>¶ 2<span> </span><span>The Costilla County Department of Social Services (the </span>
    </div>
    <div>Department) filed a petition in dependency and neglect, alleging </div>
    <div>concerns about substance use and educational neglect.  The </div>
    <div>juvenile court adjudicated the children dependent and neglecte<span></span>d </div>
    <div>and adopted a treatment plan for mother.  The court later am<span></span>ended </div>
    <div>the treatment plan to address additional concerns about domestic </div>
    <div>violence.  The Department then <span>moved to terminate mother’s </span>
    </div>
    <div>parental rights.  More than a year after the petition was filed, <span></span>the </div>
    <div>court granted the motion following a contested hearing. <span></span>  </div>
    <div>II.<span> <span>Motion to Continue </span></span>
    </div>
    <div>¶ 3<span> </span><span>Mother first contends that the juvenile court erred <span>by</span> denying </span>
    </div>
    <div>her motion to continue the termination hearing.  We disagree. </div>
    <div>A.<span> <span>Standard of Review and Applicable Law </span></span>
    </div>
    <div>¶ 4<span> </span><span>When ruling on a motion to continue, the juvenile court must </span>
    </div>
    <div>balance the reasons provided in the motion, the need to prompt<span>ly</span> </div>
    <div>resol<span>ve</span><span> <span>the proceeding, and the children’s best interests.  <span>People in </span></span></span>
    </div>
    </div></div>
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    <div><div>
    <div>2 </div>
    <div>Interest of T.E.M.<span>, 
    124 P.3d 905
    , 909 (Colo. App. 2005).  When, as </span>
    </div>
    <div>here, a child <span>is</span> under six years old at the time the petition is filed, </div>
    <div>the <span>case</span> is subject to the expedited permanency planning provisions </div>
    <div>(EPP),<span>  <span>§§ <span>19</span><span>-1-102(1.6), <span>19</span>-1-123, C.R.S. 2024, and the court </span></span></span>
    </div>
    <div>“<span>shall not grant a delay unless good cause is shown and unless t<span></span>he </span>
    </div>
    <div>court finds that the best interests of the child will be serve<span></span>d by </div>
    <div>granting a delay,<span>” § 19</span>-3-602(1), C.R.S. 2024<span>.  </span> </div>
    <div>¶ 5<span> </span><span>A motion to continue is left to the juvenile court<span>’s sound </span></span>
    </div>
    <div>discretion, and its ruling will not be disturbed on appeal absent a </div>
    <div>clear abuse of that discretion.  <span>People in Interest of A.J.</span>, 143 P.3d </div>
    <div>1143, 1150 (Colo. App. 2006).<span>  </span>A court abuses its discretion when </div>
    <div>its decision is manifestly arbitrary, unreasonable, or unfair o<span></span>r when </div>
    <div>it is based on an erroneous understanding or application <span></span>of the law.  </div>
    <div>People in Interest of M.V.<span>, 
    2018 COA 163
    , ¶ 52.   </span>
    </div>
    <div>B.<span> <span>Additional Background </span></span>
    </div>
    <div>¶ 6<span> </span><span>Mother did not appear at the termination hearing<span>.  Mother’s </span></span>
    </div>
    <div>counsel moved to continue the hearing, stating that mother had left </div>
    <div>New Mexico the night before with the intention of appearing fo<span></span>r the </div>
    <div>hearing in person<span>, <span>but</span></span> she had issues with her vehicle on the <span></span>way.  </div>
    <div>The court recessed to give counsel more time to try to reach m<span></span>other<span>.  </span>
    </div>
    </div></div>
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    <div>3 </div>
    <div>When those efforts were unsuccessful, counsel again moved to </div>
    <div>continue the hearing<span>, </span><span>argu</span><span>ing that mother “should be able to </span>
    </div>
    <div>provide what evidence she has, especially related to the recent </div>
    <div>treatment and the progress she has made on the treatment <span></span>plan.”<span> </span>
    </div>
    <div>¶ 7<span> </span><span>The juvenile court denied the motion, finding there was not </span>
    </div>
    <div>good cause for a continuance <span>“given the pattern and history in the </span>
    </div>
    <div>case.”  <span>In particular, the court noted that it could not recall or find </span>
    </div>
    <div>in the court file any instance where mother had appeared for court </div>
    <div>in person <span>and that there “seem[s] to be a history of failing <span></span>to </span>
    </div>
    <div>appear.<span>”</span><span> </span>
    </div>
    <div>¶ 8<span> </span><span>Under the case management order, before the hearing, mother </span>
    </div>
    <div>had disclosed a supervisor at <span>a </span>residential treatment program as an </div>
    <div>expert witness.  Because mother had intended to appear and testify </div>
    <div>herself, her counsel told the other parties that he would probably </div>
    <div>not call the program supervisor.  When the court denied the m<span></span>otion </div>
    <div>to continue, counsel requested leave to call the program superviso<span>r </span>
    </div>
    <div>“as a lay witness just to provide some information without </div>
    <div>respondent mother being here.”  <span>Counsel did not offer or req<span></span>uest to </span>
    </div>
    <div>offer the program supervisor as an expert witness.<span>  </span>The court </div>
    </div></div>
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    <div>4 </div>
    <div>granted the request, and counsel call<span>ed</span> the supervisor out of order </div>
    <div>to accommodate the <span>witness’</span> schedule<span>.  </span> </div>
    <div>C.<span> <span>Analysis </span></span>
    </div>
    <div>¶ 9<span> </span><span>Mother contends that the juvenile court erred <span>by</span> denying her </span>
    </div>
    <div>motion to continue because <span>the denial “fundamentally altered [her] </span>
    </div>
    <div>defense.<span>”</span><span>  <span>As we understand <span>it</span></span>, <span>she argues that she was prejudiced </span></span>
    </div>
    <div>because (1) if not for the denial, she would have testified; and </div>
    <div>(2) she did not present expert testimony <span>fr</span>om the program </div>
    <div>supervisor because she planned to testify.  But mother did not </div>
    <div>make this argument <span>to</span> the court and does not explain on appeal </div>
    <div>how <span>the children’s best interests would</span> have <span>be<span>en</span></span> served by </div>
    <div>granting a delay.  <span>See </span>§ 19-3-602(1).  Absent such a showing, the </div>
    <div>court was required to deny th<span>e </span>motion to continue.  <span>Id. </span> Because the </div>
    <div>court was so constrained, we discern no abuse of discretion in its </div>
    <div>denial of <span>mother’s motion to continue the </span>termination hearing.  </div>
    <div>III.<span> <span>Fit within a Reasonable Time   </span></span>
    </div>
    <div>¶ 10<span> </span><span>Mother next contends that the juvenile court erred by finding </span>
    </div>
    <div>that she could not become fit within a reasonable time.  We <span></span>discern </div>
    <div>no basis for reversal. </div>
    </div></div>
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    <div>5 </div>
    <div>A.<span> <span>Applicable Law </span></span>
    </div>
    <div>¶ 11<span> </span><span>An unfit parent is one whose conduct or condition rende<span></span>rs </span>
    </div>
    <div>them “unable or unwilling to give the child reasonable parental ca<span></span>re </div>
    <div>to include, at a minimum, nurturing and safe parenting sufficient<span></span>ly </div>
    <div>adequate to meet the child’s physical, emotional, and mental <span>health </span>
    </div>
    <div>needs and conditions.”  § 19<span>-3-604(2), C.R.S. 2024.  In determining </span>
    </div>
    <div>whether a parent’s conduct or condition is likely to change wit<span></span>hin a </div>
    <div>reasonable time, “the court may consider whether any change <span></span>has </div>
    <div>occurred during the proceeding, the parent’s soc<span>ial history, and the </span>
    </div>
    <div>chronic or long-<span>term nature of the parent’s conduct or c<span></span>ondition.”  </span>
    </div>
    <div>People in Interest of S.Z.S.<span>, 
    2022 COA 133
    , ¶ 24.  The co<span></span>urt need not </span>
    </div>
    <div>give a parent additional time, even when there has been recent<span></span> </div>
    <div>progress on the treatment plan.  <span>Id. </span><span>at</span><span> <span>¶¶ </span></span>24, 28-29.  </div>
    <div>¶ 12<span> </span><span>What constitutes a reasonable time is fact specific and must </span>
    </div>
    <div>be determined by considering each child<span>’s</span> physical, mental, and </div>
    <div>emotional conditions and needs.  <span>Id.</span> at ¶ 25.  When the EPP </div>
    <div>provisions apply, <span>the court must consider the child’s need to <span></span>be </span>
    </div>
    <div>placed in a permanent home as expeditiously as possible.  </div>
    <div>§§<span> </span><span>19</span><span>-1-102(1.6), 19-1-123.    </span>
    </div>
    </div></div>
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    <div><div>
    <div>6 </div>
    <div>B.<span> <span>Additional Background </span></span>
    </div>
    <div>¶ 13<span> </span><span>Six weeks before the termination hearing, mother reached <span></span>out </span>
    </div>
    <div>to the caseworker and expressed a desire to go to a residential </div>
    <div>treatment program<span>.  </span>This was not the first time mother expressed a </div>
    <div>desire to go to withdrawal management <span>or </span>residential treatment<span></span>.  </div>
    <div>The caseworker called multiple programs over the weekend to locate </div>
    <div>an opening and personally drove to Albuquerque, New <span></span>Mexico to </div>
    <div>bring mother to a residential treatment program in Pueblo, </div>
    <div>Colorado. </div>
    <div>¶ 14<span> </span><span>Mother successfully completed a three-day withdrawal </span>
    </div>
    <div>management program and began a residential treatment prog<span></span>ram at </div>
    <div>the same facility just over a month before the termination hea<span></span>ring.  </div>
    <div>Although the program was designed to last thirty to sixty day<span></span>s, </div>
    <div>mother left against clinical advice after only two weeks.  The </div>
    <div>program supervisor testified <span>that mother “made minimal </span>
    </div>
    <div>measurable <span>progress in the two weeks she was there.”  </span> </div>
    <div>¶ 15<span> </span><span>The program supervisor testified that mother expressed </span>
    </div>
    <div>wanting to get into outpatient services, but did not accept the </div>
    <div>program’s offer to connect her with another program<span> when she left<span></span><span>.  </span></span>
    </div>
    <div>The caseworker testified that mother did not reach out <span></span>to her for </div>
    </div></div>
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    <div><div>
    <div>7 </div>
    <div>assistance in setting up services <span>—</span> or for any other purpose <span>—</span> after </div>
    <div>she left the residential treatment program. </div>
    <div>C.<span> <span>Analysis </span></span>
    </div>
    <div>¶ 16<span> </span><span>The juvenile court determined that mother was unfit based on </span>
    </div>
    <div>her unaddressed and significant substance abuse issues<span>.  </span>The court </div>
    <div>found that she had not complied with her treatment plan beca<span></span>use </div>
    <div>she had (1) failed, without cause, to attend family time with the </div>
    <div>children and (2) demonstrated the same issues with substance </div>
    <div>abuse and inability to provide a stable environment for the child<span></span>ren </div>
    <div>that were present at the start of the dependency and neglect acti<span></span>on. </div>
    <div>¶ 17<span> </span><span>Unrebutted testimony at the termination hearing supports the </span>
    </div>
    <div>court’s findings regarding family time.  The caseworker testified t<span></span>hat </div>
    <div>mother confirmed eleven family time opportunities in<span></span> the first three </div>
    <div>months of the case but attended only three of them.  By the time of<span></span> </div>
    <div>the termination hearing, the caseworker testified that <span></span>the children </div>
    <div>did not have a relationship with mother; they had not <span></span>seen her for </div>
    <div>ten months. </div>
    <div>¶ 18<span> </span><span>As<span> <span>to mother’s substance abuse, m</span>other asserts that her </span></span>
    </div>
    <div>intentions to engage in treatment were sincere <span>and that “wit<span></span>h more </span>
    </div>
    <div>time and more resources, [she] could become fit.”  <span>But the juvenile </span>
    </div>
    </div></div>
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    <div><div>
    <div>8 </div>
    <div>court specifically considered mother’s <span>recent stay at the residential </span>
    </div>
    <div>treatment program<span>.  <span>It</span></span> found that <span>“in starting and then leaving </span>
    </div>
    <div>inpatient treatment after two weeks, [mother] was following <span></span>the </div>
    <div>same pattern as she has in the last year with no sign something<span></span> will </div>
    <div>change in the future or soon<span>.”  </span>It also <span>found that mother’s </span>
    </div>
    <div>“substance abuse issues are significant and long term —<span> entering </span>
    </div>
    <div>an inpatient treatment program and then abandoning it<span></span> after two </div>
    <div>weeks is not enough to show that [mother] has made chang<span>es </span>
    </div>
    <div>necessary to ensure sustained sobriety and stability t<span></span>o care for the </div>
    <div>children.”  <span> </span>
    </div>
    <div>¶ 19<span> </span><span>The record supports these findings.  The program supervisor </span>
    </div>
    <div>testified that mother reported struggling with substance abuse fo<span></span>r </div>
    <div>nearly ten years and disclosed a number of untreated mental health </div>
    <div>issues.  The caseworker testified that mother indicated that<span></span> she was </div>
    <div>reaching out to residential treatment programs throughout <span></span>the </div>
    <div>case<span>, but until the month before termination mother did not follow </span>
    </div>
    <div>through<span>.  <span>The caseworker also testified that she attempted to take </span></span>
    </div>
    <div>mother to withdrawal management many times, even driving her to </div>
    <div>multiple locations before mother would back out.  According to the </div>
    <div>caseworker, at other times mother would say she wanted to engage </div>
    </div></div>
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    <div><div>
    <div>9 </div>
    <div>and then disappear without contacting the caseworker for months </div>
    <div>at a time.   </div>
    <div>¶ 20<span> </span><span>The juvenile court found that allowing mother additional time </span>
    </div>
    <div>to become fit was not reasonable for the children.  The court found </div>
    <div>that it was “clear that uncertainty does affect them and that<span></span> </div>
    <div>continuing for additional time would not be reasonable.”  <span>It also </span>
    </div>
    <div>found that <span>“uncertainty over these proceedings and whether </span>
    </div>
    <div>[mother] will once again appear and disappear from their lives h<span></span>as </div>
    <div>created significant anxiety for the children.”  In particular, <span></span>the court </div>
    <div>found that it was “critical for [A.<span>F. III] to know as a child that his </span>
    </div>
    <div>well-<span>being will not be linked to [mother’s] highs and lows.”  <span> </span></span>
    </div>
    <div>¶ 21<span> </span><span>The record supports these findings.  The day before mother left </span>
    </div>
    <div>the residential treatment program, she asked the casework<span></span>er to set </div>
    <div>up phone calls with the children.  The caseworker did so, but by <span></span>the </div>
    <div>time family time was arranged to begin four days later, mother had </div>
    <div>already left treatment.  <span>The children’s placement provider t<span></span>estified </span>
    </div>
    <div>that all three children regressed in their behaviors when they were </div>
    <div>told phone calls might be happening again with mother, and A.F. </div>
    <div>III<span>, in particular, experienc</span><span>ed</span><span> high stress around the t<span></span>ermination </span>
    </div>
    <div>hearing.  </div>
    </div></div>
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    <div><div>
    <div>10 </div>
    <div>¶ 22<span> </span><span>Because t<span>he record supports the juvenile court’s findings </span>that </span>
    </div>
    <div>mother was unlikely to become fit within a reasonable period of </div>
    <div>time for these children<span>, we perceive no error in the court’s legal </span>
    </div>
    <div>conclusions<span>. <span> </span></span>
    </div>
    <div>IV.<span> </span><span>Disposition </span>
    </div>
    <div>¶ 23<span> </span><span>The judgment is affirmed.    </span>
    </div>
    <div>JUDGE WELLING and JUDGE HAWTHORNE concur. </div>
    </div></div>
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Document Info

Docket Number: 24CA0656

Filed Date: 10/17/2024

Precedential Status: Precedential

Modified Date: 10/21/2024