People In Interest of A.S.L., a Child

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
December 22, 2022
2022COA146No. 22CA0723, People in Interest of A.S.L. — Juvenile Court —
Dependency and Neglect — Allocation of Parental
Responsibilities — Out-of-Home Placement Options —
Reasonable Efforts; Appeals — Standard of Review — Mixed
Question of Law and Fact
In this dependency and neglect case, a division of the court of
appeals holds for the first time that whether the government
satisfied its obligation to make reasonable efforts to reunify the
family and avoid out-of-home placement is a question of law we
review de novo.
COLORADO COURT OF APPEALS 2022COA146Court of Appeals No. 22CA0723
Weld County District Court No. 19JV704
Honorable Meghan Saleebey, Judge
The People of the State of Colorado,
Appellee,
In the Interest of A.S.L., a Child,
and Concerning A.S.V., a/k/a A.S.V.B.,
Appellant,
and
M.B. and J.B.,
Intervenors.
JUDGMENT AFFIRMED
Division III
Opinion by JUDGE TOW
Fox and Yun, JJ., concur
Announced December 22, 2022
Bruce T. Barker, County Attorney, David S. Anderson, Assistant County
Attorney, Windsor, Colorado, for Appellee
Josi McCauley, Guardian Ad Litem
Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr,
Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant
Weibel, Zacheis, & Greenfield, LLC, Dallas D. Greenfield, Greeley, Colorado, for
Intervenors
¶1 In this dependency and neglect proceeding, A.S.V. (mother)
appeals the juvenile court’s judgment allocating parental
responsibilities for A.S.L. (the child) to foster parents. We affirm. In
doing so, we conclude for the first time that an appellate court
reviews de novo the court’s ultimate conclusion whether a child
protection agency’s actions in a dependency and neglect case satisfy
its obligations to make reasonable efforts to reunify the family and
avoid out-of-home placement of the child.
I. Background
¶2 After the Weld County Department of Human Services received
a report of domestic violence and drug paraphernalia in the home,
and that mother had had a “major overdose,” a juvenile court
magistrate ordered the child and a younger half-sibling (who is not
part of this appeal) into the Department’s emergency temporary
custody. The Department then filed a petition in dependency and
neglect, alleging that the child’s environment was injurious to his
welfare and that he lacked proper parental care through mother’s
actions or omissions. Mother admitted the allegations, and the
1
court adjudicated the child dependent and neglected. The
Department placed the then-fourteen-year-old child in foster care.1
¶3 The court adopted a treatment plan for mother, which, among
other things, required her to engage in parenting time with the
child. Initially, the court ordered mother to participate in
supervised parenting time a minimum of two times per week. A few
weeks later, however, a caseworker testified that mother had been
“inappropriate” and “erratic” at her parenting time visits, causing
the child to become “dysregulated” and to “shut down.” The court
suspended mother’s visits pending her (1) completion of “detox”; or
(2) scheduling and participating in mental health and substance
abuse evaluations; or (3) providing two weeks of clean urinalysis
tests. Later, the Department informed the court that a provider had
indicated that mother could not complete a substance abuse
evaluation until her mental health concerns were addressed. The
Department then referred mother for a psychological evaluation.
1 Several months later, after an adjudicatory hearing at which
father, B.L., failed to appear, a treatment plan was adopted for
father, as well. Father is not a party to this appeal.
2
¶4 At one point, mother asserted that she had provided two
weeks of negative urinalysis tests, and she requested to resume
parenting time visits. The Department responded that mother just
needed to contact her caseworker to reinstate visits. Later,
however, the Department reported that mother had not done so and
had not visited the child. Throughout the case, the child
consistently expressed that he did not want to visit with mother.
¶5 Several months after the child was placed in foster care, the
foster parents intervened in the case. The Department and the
child’s parents entered into a stipulation allocating parental
responsibilities (APR) to the foster parents. However, the court
continued the APR hearing because the intervenors had not signed
the stipulation.2 At the beginning of the continued hearing, mother
withdrew her agreement to the stipulation, and the court proceeded
to a contested APR hearing. After that hearing, the court entered
an order consistent with the terms of the original stipulation,
granting APR for the child, who was then almost seventeen years
old, to the foster parents.
2The child’s maternal grandmother had also intervened in the case
and participated throughout. She is not a party to this appeal.
3
¶6 Mother appeals, contending that the juvenile court failed to
make sufficient findings and failed to hold the Department to its
burden of providing reasonable efforts to reunify the family and
avoid out-of-home placement of the child. In particular, mother
contends that the Department did not make reasonable efforts
because her visitation with the child was suspended and never
reinstated.
II. Standard of Review
¶7 As two divisions of this court have recently recognized, it is not
clear whether we are to review the juvenile court’s determination of
reasonable efforts de novo or for clear error. See People in Interest
of E.S., 2021 COA 79, ¶ 16; People in Interest of A.A., 2020 COA
154, ¶¶ 9-13. Even more recently, however, our supreme court
held that whether the government satisfied active efforts in an
Indian Child Welfare Act (ICWA) case is a mixed question of fact and
law, meaning that the court’s factual findings are reviewed for clear
error but “whether those findings satisfy ICWA’s active efforts
requirement is a question of law that we review de novo.” People in
Interest of My.K.M. v. V.K.L., 2022 CO 35, ¶ 20.
4
¶8 We see no logical distinction between the appellate review of
an active efforts finding under ICWA and a reasonable efforts
finding under the Children’s Code. Accordingly, we conclude that
whether the Department satisfied its obligation to make reasonable
efforts to reunify the family and avoid out-of-home placement of the
child is a mixed question of fact and law. Therefore, we review the
juvenile court’s factual findings on the issue for clear error but
review de novo the court’s legal determination, based on those
findings, as to whether the Department satisfied its reasonable
efforts obligation.
III. Legal Framework
A. Reasonable Efforts
¶9 The Children’s Code recognizes the obligation that federal law
imposes on states to make “‘reasonable efforts’ to prevent the
placement of abused and neglected children out of the home and to
reunify the family whenever appropriate.” § 19-3-100.5(1), C.R.S.
2022 (citing the “‘Adoption Assistance and Child Welfare Act of
1980,’ federal Public Law 96-272 [codified at 42 U.S.C. § 1397b]”).
The Children’s Code further recognizes that federal law “encourages
expediting permanency planning for children in out-of-home
5
placement by removing barriers to permanency and streamlining
entitlement services.” § 19-3-100.5(2) (citing the “‘Adoption and
Safe Families Act of 1997,’ federal Public Law 108-89 [codified at 42
U.S.C. § 671(a)(15)(A), (B)]”).
¶ 10 To that end, the General Assembly defines reasonable efforts
as “the exercise of diligence and care . . . for children and youth
who are in foster care or out-of-home placement or are at imminent
risk of foster care or out-of-home placement.” § 19-1-103(114),
C.R.S. 2022.3 This definitional section further provides that
“[s]ervices provided . . . in accordance with section
19-3-208[, C.R.S. 2022] are deemed to meet the reasonable effort
standard described in this subsection (114).” Id.; see also
§ 19-3-100.5(5).
¶ 11 Section 19-3-208, in turn, says that the Department “shall
provide a set of services” as set forth in that section. § 19-3-208(1).
These services are designed to accomplish certain goals, including,
3 Mother cites a previous codification of the statute, section
19-1-103(89), without denoting a year. However, the General
Assembly repealed and reenacted the entire definitional section of
the Children’s Code in 2021. Ch. 136, sec. 144, § 19-1-103, 2021
Colo. Sess. Laws 753.
6
among other things, “[a]void[ing] the unnecessary placement of
children into foster care,” and “[f]acilitat[ing], if appropriate, the
speedy reunification of parents with any of their children who have
been placed in out-of-home placement.” § 19-3-208(2)(a)(III), (IV).
Among the services the Department must provide are visitation
services for parents whose children have been placed outside of the
home. § 19-3-208(2)(b)(IV).
B. Best Interests of the Child
¶ 12 In proceedings under the Children’s Code, a juvenile court
must allocate parental responsibilities in accordance with the
child’s best interests. People in Interest of L.B., 254 P.3d 1203,
1208 (Colo. App. 2011). Specifically, the court must consider the
legislative purposes of the Children’s Code under section 19-1-102,
C.R.S. 2022. People in Interest of J.G., 2021 COA 47, ¶ 18. These
purposes include securing for each child in the case the care and
guidance, preferably in his or her own home, that will best serve the
child’s welfare and society’s interests. See § 19-1-102(1)(a).
¶ 13 The child’s health and safety are the paramount concerns in
determining whether services, including parenting time, are
necessary and appropriate. A.A., ¶ 17; People in Interest of B.C.,
7
122 P.3d 1067, 1070 (Colo. App. 2005). Visitation services must be
designed to promote the health, safety, and well-being of the child;
facilitate the speedy reunification of parents and children; and
promote the best interests of the child. § 19-3-208(2)(a); A.A., ¶ 17.
IV. Analysis
A. The Lack of Explicit Findings
¶ 14 Mother correctly asserts that the court made no specific
written or oral findings regarding reasonable efforts at the
continued APR hearing. She contends that the lack of findings
alone warrants reversal. We disagree.
¶ 15 Failure of the court to make express findings, on its own, does
not establish a failure by the court to ensure that the Department
made reasonable efforts. See L.B., 254 P.3d at 1207; see also People
in Interest of M.D., 2014 COA 121, ¶ 37 (finding no reversible error
despite the absence of specific findings regarding reasonable
efforts). Here, reviewing de novo the ultimate question of whether
the Department’s efforts satisfied its obligation, we conclude that
the record amply demonstrates the Department’s reasonable efforts
to ensure mother had adequate visitation.
8
B. The Department’s Reasonable Efforts
¶ 16 First, we reject the Department’s contention that reasonable
efforts are only required when parental rights are being terminated.
¶ 17 The Department argues that the reasonable efforts
requirement arises in the context of a determination of unfitness as
a prerequisite for termination. See § 19-3-604(2)(h), C.R.S. 2022.
But while reasonable efforts are relevant to a fitness inquiry,
mother does not rely on — or even cite — section 19-3-604. Rather,
mother cites sections 19-3-100.5 and 19-3-208.
¶ 18 The Department also relies on L.B., but this reliance is
misplaced because the Department misreads the case. The issue in
L.B. was whether the juvenile court’s lack of specific findings
regarding reasonable efforts required reversal. 254 P.3d at 1207.
The division held that reversal was not required, not because the
Department had no duty to provide reasonable efforts, but rather,
because “despite the absence of specific findings regarding
reasonable efforts, the Department made the necessary efforts”
under the relevant statute. Id. (emphasis added).
¶ 19 We also note that L.B. involved a permanency planning
hearing conducted pursuant to section 19-3-702, C.R.S. 2022.
9
Under that section, a juvenile court determining a permanent
placement for a child must consider “[w]hether reasonable efforts
have been made to finalize the permanency goal.” § 19-3-702(3)(b).
¶ 20 Here, it is unclear whether the APR hearing was considered a
permanency hearing. If it was, then the court was obviously
required to consider reasonable efforts under section 19-3-702.
But, as we have noted, even if the hearing was not a permanency
hearing, the Department has a statutory obligation to provide
reasonable efforts to reunify the family and avoid out-of-home
placement of the child. § 19-3-100.5. This obligation exists even
when the juvenile court, in lieu of terminating a parent’s rights,
enters an APR to a nonparent. See People in Interest of E.C., 259
P.3d 1272, 1276 (Colo. App. 2010).
¶ 21 We also reject mother’s contention that the present case is
similar to A.A., ¶¶ 25-29, in which a division of this court held that
a magistrate erred by suspending a parent’s visitation and refusing
to reinstate it until the parent could demonstrate sobriety. In this
case — unlike in A.A. — mother had been erratic and possibly
under the influence of drugs at earlier visits with the child.
Furthermore, when the court put its restrictions in place in this
10
case, it did so for the child’s well-being, finding that “it is
appropriate for the protection of the child[] that there be an
immediate order of protection” and that mother’s visits with the
child be suspended. Given these differences, the division’s
reasoning in A.A. is not applicable here.
¶ 22 Instead, as the record amply demonstrates, the Department
made reasonable efforts to ensure adequate visitation for mother.
Specifically, the Department referred mother to
 services she needed to complete in order to meet the
court’s requirements for reinstating her visitation;
 urinalysis testing, substance abuse and mental health
evaluations, and an inpatient substance abuse (“detox”)
program; and
 two therapeutic visitation facilities and at least one
supervised visitation provider.
Nevertheless, and despite mother’s assertions on appeal, the record
shows that mother did not engage in these services.
¶ 23 For example, mother asserts that, by January 2020, she had
successfully completed “detox” through the Wings program, but she
testified to the contrary in January 2021, saying that she was
11
“kicked out of the . . . program.” Mother also asserts that she
completed substance abuse and mental health evaluations. But the
record shows that she completed a substance abuse assessment
that was inconclusive because she did “not admit[] to recent use.”
¶ 24 Even when mother completed the prerequisites to reinstate her
visits with the child, she did not sufficiently follow through to
resume visitation. For example, after mother asserted that she had
met the court’s prerequisite of sobriety tests, mother was told she
merely needed to contact her caseworker to reinstate visits. But
she failed to do so.
¶ 25 Moreover, the record supports that mother’s visits were not in
the child’s best interests. The caseworker, who testified as an
expert in child protection casework, opined that contact between
the child and mother would negatively impact the child. The
caseworker testified at the APR hearing that the child was “almost
[seventeen] years old. He’s very stable. He’s . . . got . . . a good
head on his shoulders.” The caseworker continued, “[c]ontact at
this time [with mother] would cause confusion and disrupt[] the
stability of [the child’s] home.” Therefore, the caseworker opined
that the APR to foster parents was in the child’s best interests.
12
¶ 26 The court found that the child’s best interests would be served
by allocating primary residential custody to the foster parents and
providing for some parenting time for mother. That finding has
record support, and we will not disturb it.4
V. Disposition
¶ 27 The judgment is affirmed.
JUDGE FOX and JUDGE YUN concur.
4 Mother does not challenge the juvenile court’s finding regarding
the child’s best interests or the specific terms of the APR.
13