in Interest of S.K

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
March 7, 2019
2019COA36
No. 18CA0118, People in Interest of S.K. — Juvenile Court —
Dependency and Neglect — Termination of the Parent-Child
Legal Relationship — Criteria for Termination; Health and
Welfare — Disability — Americans with Disabilities Act —
Reasonable Accommodations
A division of the court of appeals considers how the
requirements to make reasonable accommodations found in the
Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213(2018), and section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
§ 794 (2018), relate to termination of parental rights based on a
disabled parent’s lack of success with a treatment plan, unfitness,
and unlikelihood of change. The division concludes that a juvenile
court must consider reasonable accommodations in deciding
whether such a parent’s treatment plan was appropriate and
whether reasonable efforts were made to rehabilitate the parent.
COLORADO COURT OF APPEALS 2019COA36
Court of Appeals No. 18CA0118
Gunnison County District Court No. 16JV8
Honorable J. Steven Patrick, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of S.K., a Child,
and Concerning C.K. and S.R.,
Respondents-Appellants.
JUDGMENT AFFIRMED
Division III
Opinion by JUDGE WEBB
Román and Freyre, JJ., concur
Announced March 7, 2019
David Baumgarten, County Attorney, Gunnison, Colorado, for Petitioner-
Appellee
Robert G. Tweedell, Guardian Ad Litem
Susan C. Baker, Office of Respondent Parents’ Counsel, El Prado, New Mexico;
James Plumhoff, Guardian Ad Litem, for Respondent-Appellant C.K.
Pamela K. Streng, Office of Respondent Parents’ Counsel, Georgetown,
Colorado; Barbara Remmenga, Guardian Ad Litem, for Respondent-Appellant
S.R.
¶1 In this dependency and neglect proceeding, S.R. (mother) and
C.K. (father) appeal the juvenile court judgment terminating their
parent-child legal relationships with S.K. (the child). To resolve the
parents’ arguments on appeal, we must consider the requirements
of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.
§§ 12101-12213 (2018), and section 504 of the Rehabilitation Act of
1973, 29 U.S.C. § 794 (2018). The ADA, and in limited
circumstances, section 504 require public entities to make
reasonable accommodations for qualified individuals with
disabilities.
¶2 A division of this court has considered this requirement of the
ADA in the context of termination because an appropriate treatment
plan could not be devised to address the parent’s mental
impairment. See People in Interest of C.Z., 2015 COA 87, ¶ 1. But
this case presents a different question under the ADA, which has
not yet been addressed in Colorado — How does the requirement to
make reasonable accommodations relate to termination based on a
disabled parent’s lack of success with a treatment plan, unfitness,
and unlikelihood of change? We conclude that a juvenile court
must consider reasonable accommodations in deciding whether
1
such a parent’s treatment plan was appropriate and whether
reasonable efforts were made to rehabilitate the parent.
¶3 Ultimately, we hold that the juvenile court properly considered
reasonable accommodations for the parents’ disabilities as part of
its conclusions that the parents’ treatment plans were appropriate
and the Gunnison County Department of Health and Human
Services (Department) had made reasonable efforts to rehabilitate
them. These conclusions are supported by the record. We also
reject the parents’ remaining arguments regarding parental fitness,
likelihood of change, and a less drastic alternative to termination.
Therefore, we affirm the termination judgment.
I. The Dependency and Neglect Case
¶4 In June 2016, the Department began receiving reports that the
child, then less than three months old, was not gaining weight and
the parents were not feeding her often enough. Later that month,
the child was admitted to a local hospital for failure to thrive. The
next day, the child was transferred to Children’s Hospital because
she had lost more weight even while being fed every two hours by
hospital staff.
2
¶5 The medical team at Children’s Hospital believed that the
child’s failure to thrive was a combination of organic and inorganic
reasons. During the child’s stay, the medical team observed that
the parents
• continued to feed the child only two to three times a day;
• did not spend the night with the child;
• missed the child’s occupational therapy appointment;
• placed unsafe items in the child’s crib; and
• seemed to have difficulty retaining information regarding the
child’s care.
Based on these concerns, the Department initiated a dependency
and neglect case and took custody of the child.
¶6 The parents both stipulated that the child was dependent and
neglected because she was without proper care through no fault of
their own. In August 2016, the juvenile court adopted treatment
plans that required each parent to (1) consistently attend visits with
the child; (2) meet with an in-home parenting support provider and
learn skills to safely care for the child; (3) sign releases of
information; (4) meet the child’s needs and provide her with an
appropriate living environment; and (5) complete recommended
3
assessments, including neuropsychological and capacity to parent
evaluations, to determine appropriate services.
¶7 The parents completed the capacity to parent and
neuropsychological evaluations in the fall of 2016. An
administrative review division, an outside entity that reviewed the
Department’s work, advised the caseworker to rewrite the treatment
plans to include recommendations from the evaluations.
¶8 In late May 2017, the Department moved to amend the
treatment plans to include more specific language regarding the
plans’ requirements. The proposed amendments included
requirements for the parents to continue working with a parenting
coach; comply with recommendations from the capacity to parent
evaluator, including mental health treatment; and follow the
recommendations of the neuropsychological evaluator, including
therapy and inpatient substance abuse treatment for father and
dialectical behavior therapy for mother. The Department also asked
the court to appoint a guardian ad litem (GAL) for mother and
father based on their mental illnesses or developmental disabilities.
¶9 A few weeks later, the juvenile court appointed a GAL for each
parent and held an evidentiary hearing on the Department’s
4
proposal to amend the treatment plans. At the hearing, the parents
argued that they were not opposed to having more specifics in the
treatment plans, but that because the deadline to have permanency
for the child was close and the Department had indicated it would
be pursuing termination shortly, it was too late to amend the plans.
¶ 10 The child’s GAL also took the position that if the court was
going to adopt the amended treatment plans, it would need to
extend the permanency deadline. The Department responded that
if amending the plans would require an extension of the
permanency deadline, it would withdraw the request. In the end,
the juvenile court denied the Department’s motion to amend the
treatment plans and continued the existing plans in place.
¶ 11 The next month, the Department moved to terminate the legal
relationships between the child and the parents. Before the start of
the termination hearing, mother and father filed a joint motion
asking the court to find that the Department had not made
reasonable efforts to reunify them with the child, dismiss the
termination motion, and amend the treatment plans to provide
reasonable accommodations under the ADA. After a four-day
5
hearing, the court rejected the parents’ arguments, and in January
2018, terminated their parental rights.
II. Termination of Parental Rights and the ADA
¶ 12 Mother and father challenge the appropriateness of their
treatment plans, the efforts that the Department made to reunify
them with the child, and the extent of reasonable accommodations
required under the ADA. Mother contends the juvenile court erred
in concluding that her treatment plan was appropriate and the
Department had made reasonable efforts to rehabilitate her in light
of the ADA and section 504 of the Rehabilitation Act. Father
contends the juvenile court erred in granting termination because
the Department failed to make reasonable efforts to provide him
with an appropriate treatment plan and reasonable
accommodations under the ADA in creating and implementing his
treatment plan. We reject these contentions.
A. Termination Criteria
¶ 13 As pertinent here, the juvenile court may terminate parental
rights if it finds, by clear and convincing evidence, that (1) the child
was adjudicated dependent and neglected; (2) the parent has not
complied with an appropriate, court-approved treatment plan or the
6
plan has not been successful; (3) the parent is unfit; and (4) the
parent’s conduct or condition is unlikely to change in a reasonable
time. § 19-3-604(1)(c), C.R.S. 2018; People in Interest of C.H., 166
P.3d 288, 289 (Colo. App. 2007).
¶ 14 The purpose of a treatment plan is to preserve the parent-child
legal relationship by assisting the parent in overcoming the
problems that required intervention into the family. People in
Interest of K.B., 2016 COA 21, ¶ 11. Thus, an appropriate
treatment plan is one that is approved by the court and is
reasonably calculated to render the parent fit to provide adequate
parenting to the child within a reasonable time and that relates to
the child’s needs. § 19-1-103(10), C.R.S. 2018; People in Interest of
M.M., 726 P.2d 1108, 1123 (Colo. 1986).
¶ 15 In determining parental unfitness and the likelihood that a
parent’s conduct or condition will change, the court must consider
whether reasonable efforts have been unable to rehabilitate the
parent. § 19-3-604(2)(h); People in Interest of S.N-V., 300 P.3d 911,
915 (Colo. App. 2011). “Reasonable efforts” means the “exercise of
diligence and care” for a child who is in out-of-home placement.
§ 19-1-103(89).
7
¶ 16 The reasonable efforts standard is satisfied when services are
provided in accordance with section 19-3-208, C.R.S. 2018.
§ 19-1-103(89). Among other things, the Department must offer
screening, assessments, and individual case plans; information and
referrals to available public and private assistance resources; and
visitation services. § 19-3-208(2)(b)(I), (III)-(IV). If funding is
available, it must also provide mental health and substance abuse
treatment services. § 19-3-208(2)(d)(IV)-(V).
B. The ADA and Section 504
¶ 17 Title II of the ADA, 42 U.S.C. §§ 12131-12134 (2018), prohibits
a public entity from discriminating against a qualified individual
with disabilities in the provision or operation of public services,
programs, or activities. Tennessee v. Lane, 541 U.S. 509, 517
(2004). Section 504 of the Rehabilitation Act applies the same
requirement to entities that receive federal financial assistance.1
See In re H.C., 187 A.3d 1254, 1265 (D.C. 2018). It provides that a
qualified person with a disability shall not, “solely by reason of her
or his disability, be excluded from the participation in, be denied
1Although the juvenile court did not make a finding that the
Department was a recipient, it has not argued otherwise on appeal.
8
the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.” 29
U.S.C. § 794(a).
¶ 18 The ADA was enacted not only to remedy discrimination in the
form of intentional exclusion, but also to mandate reasonable
modifications to existing policies and to otherwise reasonably
accommodate individuals with disabilities. 42 U.S.C. § 12101(a)(5)
(2018); C.Z., ¶ 12. Consequently, it imposes an affirmative duty on
a public entity to make reasonable accommodations for qualified
individuals with disabilities. 28 C.F.R. § 35.130(b)(7) (2018); C.Z.,
¶ 12.
C. Qualified Individual
¶ 19 Under the ADA, a qualified individual with a disability is an
individual with a disability who, with or
without reasonable modifications to rules,
policies, or practices, the removal of
architectural, communication, or
transportation barriers, or the provision of
auxiliary aids and services, meets the essential
eligibility requirements for the receipt of
services or the participation in programs or
activities provided by a public entity.
42 U.S.C. § 12131(2) (2018).
9
¶ 20 A disability includes a mental impairment that substantially
limits one or more major life activities of the individual. 42 U.S.C.
§ 12102(1)(A) (2018). A mental impairment, in turn, includes any
mental or psychological disorder such as “intellectual disability,
organic brain syndrome, emotional or mental illness, and a specific
learning disability.” 28 C.F.R. § 35.108(b)(1)(ii) (2018).
¶ 21 Whether a parent is a qualified individual with a disability
under the ADA requires a case-by-case determination. 2 See Colo.
State Bd. of Dental Exam’rs v. Major, 996 P.2d 246, 249 (Colo. App.
1999). While the Department must provide appropriate screening
and assessments of a parent, the parent is responsible for
disclosing to the Department and the juvenile court information
regarding his or her mental impairment or other disability. And the
parent should also identify any modifications that he or she believes
are necessary to accommodate the disability.
¶ 22 The Department can accommodate, and the juvenile court can
address, only disabilities that are known to them. See In re
Hicks/Brown, 893 N.W.2d 637, 640 (Mich. 2017). In other words,
2 If disability status is disputed, the juvenile court should make a
finding.
10
before a public entity can be required under the ADA to provide
reasonable accommodations, the entity must know that the
individual is disabled, either because that disability is obvious or
more likely because that individual, or someone else, has informed
the entity of the disability. Id. (citing Robertson v. Las Animas Cty.
Sheriff’s Dep’t, 500 F.3d 1185, 1196 (10th Cir. 2007)).
¶ 23 In this case, as the juvenile court recognized in its termination
order, and the Department did not dispute, each parent has serious
intellectual or developmental disabilities. Mother’s
neuropsychological evaluation showed that she had a low average
intelligence quotient (IQ) and a neurodevelopmental or
neurocognitive disorder characterized by difficulties with complex
attention and language. She also had an unspecified personality
disorder with borderline traits. The neuropsychological evaluator
diagnosed father with borderline intellectual functioning based on
his IQ and possible symptoms of a premorbid anxiety disorder.
¶ 24 The juvenile court concluded that the parents’ low IQs and
developmental disabilities severely limited their ability to provide
appropriate care for the child. And it had previously appointed a
GAL for mother and father based on each parent’s mental illness or
11
developmental disability. Under these circumstances, the parents’
mental impairments were disabilities under the ADA. See C.Z., ¶ 14
(concluding that borderline intellectual functioning and mental
illness diagnoses that impeded the parents’ ability to parent the
child were disabilities under the ADA).
D. ADA’s Application to Treatment Plans and Reasonable Efforts
¶ 25 As past divisions of this court have recognized, the ADA does
not restrict a juvenile court’s authority to terminate parental rights
when the parent, even after reasonable accommodation of a
disability, is unable to meet his or her child’s needs. Id. at ¶ 17;
see also People in Interest of T.B., 12 P.3d 1221, 1223 (Colo. App.
2000). But, while Title II of the ADA is not a defense to termination
of parental rights, it applies to the provision of assessments,
treatment, and other services that the Department makes available
to parents through a dependency and neglect proceeding before
termination. C.Z., ¶¶ 19, 22.
¶ 26 Courts in other jurisdictions have also determined that the
requirement to make reasonable accommodations for a parent’s
disability affects the scope of rehabilitative services offered to the
parent.
12
¶ 27 For example, the Alaska Supreme Court has recognized that
family reunification services should be provided in a manner that
takes a parent’s disability into account. Lucy J. v. State, Dep’t of
Health & Soc. Servs., 244 P.3d 1099, 1115 (Alaska 2010). And it
concluded that reunification services are contemplated within Title
II of the ADA. Id. at 1116. Thus, it reasoned, whether reunification
services reasonably accommodated a parent’s disability is included
in the question whether reasonable efforts were made to reunite the
family. Id.¶ 28 Similarly, the Massachusetts Supreme Judicial Court
determined that the ADA requires a department to accommodate
the parent’s special needs in providing services before a termination
proceeding. In re Adoption of Gregory, 747 N.E.2d 120, 125-26
(Mass. 2001). And the Michigan Court of Appeals held that
reunification services must comply with the ADA. In re Terry, 610
N.W.2d 563, 570 (Mich. Ct. App. 2000).
¶ 29 The District of Columbia Court of Appeals also expressed its
agreement with the numerous other courts that have held or
assumed that the ADA’s requirement for public agencies to make
reasonable accommodations applies to reunification services
13
provided by states to parents whose children have been removed in
neglect proceedings. H.C., 187 A.3d at 1265. It explained that the
requirement of reasonable accommodations was entirely consistent
with, and perhaps subsumed within, an agency’s general statutory
obligation to expend reasonable efforts to make reunification
possible. Id.
¶ 30 The United States Departments of Health and Human Services
and Justice have also provided guidance on this subject. See U.S.
Dep’t of Health & Human Servs. & U.S. Dep’t of Justice, Protecting
the Rights of Parents and Prospective Parents with Disabilities:
Technical Assistance for State and Local Child Welfare Agencies and
Courts under Title II of the Americans with Disabilities Act and
Section 504 of the Rehabilitation Act (Aug. 2015),
https://perma.cc/AHU2-P29Y (Technical Assistance Document).
They explain that individuals with disabilities must be provided
opportunities to benefit from or participate in child welfare
programs, services, and activities that are equal to those extended
to individuals without disabilities. Id. And, to achieve that goal,
agencies must make reasonable changes in their practices and
services to accommodate the individual needs of a disabled parent.
14
Id. The requirement to make reasonable accommodations extends
to programs and activities of private and nonprofit agencies that
provide services to children and families on behalf of a child welfare
agency. Id. 3
¶ 31 Consistent with these federal guidelines, section
19-3-100.5(5), C.R.S. 2018, provides, in turn, that reasonable
efforts are satisfied when a Department offers services in
accordance with section 19-3-208 and “when full consideration has
been given to the provisions of section 24-34-805(2).” And section
19-3-208(2)(g) requires that services provided under that section
comply with the ADA and its implementing regulations.
¶ 32 Finally, section 19-3-507(1)(c), C.R.S. 2018, which governs
dispositional hearings, provides that
[i]f one or both of the parents have a disability,
reasonable accommodations and
modifications, as set forth in the federal
3 In April 2018 — about three months after the court issued the
termination judgment in this case — the General Assembly enacted
legislation concerning family preservation safeguards for parents
with disabilities. The legislation created section 24-34-805, C.R.S.
2018. See Ch. 164, sec. 1, § 24-34-805, 2018 Colo. Sess. Laws
1131. Section 24-34-805(2)(a)(III) states that a parent’s disability
alone must not serve as a basis for denial or restriction of parenting
time or parental responsibilities in a dependency and neglect
proceeding except when it impacts the child’s health or welfare.
15
“Americans with Disabilities Act of 1990”, 42
U.S.C. sec. 12101 et seq., and its related
amendments and implementing regulations,
are necessary to ensure the treatment plan
components are accessible. If applicable, any
identified accommodations and modifications
must be listed in the report prepared for the
dispositional hearing.
¶ 33 In sum, absent reasonable modifications to the treatment plan
and rehabilitative services offered to a disabled parent, a
department has failed to perform its duty under the ADA to
reasonably accommodate a disability and, in turn, its obligation to
make reasonable efforts to rehabilitate the parent. See
Hicks/Brown, 893 N.W.2d at 640. And because of this failure, an
unmodified plan or rehabilitative service does not satisfy the criteria
for terminating parental rights under section 19-3-604(1)(c). See
S.N-V., 300 P.3d at 915; see also People in Interest of D.G., 140 P.3d
299, 304 (Colo. App. 2006) (concluding that the juvenile court erred
in finding that the Department had provided appropriate
rehabilitative services to a parent and, thus, in terminating parental
rights).
¶ 34 For these reasons, when a parent involved in a dependency
and neglect proceeding has a disability under the ADA, the
16
Department and the juvenile court must account for and, if
possible, make reasonable accommodations for the parent’s
disability when devising a treatment plan and providing
rehabilitative services to the parent. And in deciding whether to
terminate parental rights under section 19-3-604(1)(c), a juvenile
court should consider whether reasonable accommodations were
made for the parent’s disability in determining whether the parent’s
treatment plan was appropriate and reasonable efforts were made
to rehabilitate the parent.
¶ 35 What constitutes a reasonable accommodation will be based
on an individual assessment. C.Z., ¶ 25. 4 For example, the
Technical Assistance Document explains that many parents, with
or without disabilities, may require training to develop appropriate
parenting skills. When, as here, a parent has a cognitive or other
mental disability and needs help acquiring parenting skills, child
welfare agencies may need to provide “enhanced or supplemental
training, to increase frequency of training opportunities, or to
provide such training in familiar environments conducive to
4 The juvenile court should also make a finding whether reasonable
accommodation has occurred.
17
learning” and “incorporate the use of visual modeling or other
individualized techniques to ensure equal opportunity to participate
in and benefit from the training.” Technical Assistance Document
10, 15. Technical Assistance Document 5; see also H.C., 187 A.3d
at 1266.
¶ 36 Even so, in considering whether reasonable accommodations
can be made for a parent’s disability, the juvenile court’s
paramount concern must remain the child’s health and safety.
C.Z., ¶ 32. In other words, the ADA does not protect a parent who,
even by virtue of his or her disability, poses a safety risk to others.
Id. Nor does the requirement to make reasonable accommodations
lower the standards for parents with disabilities. Technical
Assistance Document 5.
¶ 37 Of course, the juvenile court’s assessment of what constitutes
a reasonable accommodation must take into account the child’s
best interests and need for permanency. See State in Interest of
K.C., 362 P.3d 1248, 1253 (Utah 2015). For example, the
requirement to make reasonable accommodations under the ADA
does not force the court indefinitely to extend the time that a parent
is given to participate in rehabilitative services. Id. (recognizing that
18
the ADA does not afford a parent the right to extend a reunification
plan indefinitely).
¶ 38 As well, the duty to make reasonable accommodations does
not require a public entity to make modifications that would
fundamentally alter the nature of its services, programs, or
activities. C.Z., ¶ 25; see also 28 C.F.R. § 35.130(b)(7). Rather, the
ADA requires only accommodations that are reasonable. K.C., 362
P.3d at 1253; see also Pruett v. Arizona, 606 F. Supp. 2d 1065,
1079 (D. Ariz. 2009). A modification is reasonable if it is used
ordinarily or in the run of cases and will not cause undue hardship.
See Nat’l Fed’n of the Blind v. Lamone, 813 F.3d 494, 507 (4th Cir.
2016). Thus, for example, an accommodation may not be
reasonable if it would require a prohibitive cost or extraordinary
effort on the part of the public entity. Id.¶ 39 In the end, what constitutes a reasonable accommodation will
vary from case to case based on the child’s health and safety needs,
the nature of the parent’s disability, and the available resources.
¶ 40 Having reached this conclusion, we must next determine
whether the juvenile court properly determined that the Department
19
had made reasonable accommodations for mother’s and father’s
disabilities.
E. Standard of Review and Application
¶ 41 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 L.M., 2018 COA 57M, ¶ 17 (citing People in Interest of S.N.
v. S.N., 2014 CO 64, ¶ 21). The credibility of the witnesses; the
sufficiency, probative value, and weight of the evidence; and the
inferences and conclusions to be drawn from these evidentiary facts
are within the juvenile court’s discretion. People in Interest of
A.J.L., 243 P.3d 244, 250 (Colo. 2010). Hence, we will not set aside
a juvenile court’s factual findings when they have support in the
record. Id. at 249-50. However, when deciding mixed questions of
fact and law, we review the legal conclusions de novo. L.M., ¶ 17.
1. The Juvenile Court’s Conclusions
¶ 42 The juvenile court considered the many services offered to the
parents and concluded that the Department had provided services,
including parenting instruction, that reasonably accommodated the
parents’ limitations. It also determined that the parents’ treatment
20
plans were appropriate and that the Department had made
reasonable efforts to rehabilitate the parents.
2. The Parents’ Treatment Plans
¶ 43 Mother first argues that the juvenile court erred in finding that
her plan was appropriate because it did not include a requirement
that she attend training to learn how to meet the child’s heightened
medical needs. The record shows that the child had heightened
needs. In the beginning of the case, the child was diagnosed with a
variety of medical conditions, including failure to thrive as an
infant, severe protein calorie malnutrition, gastroesophageal reflux,
umbilical granuloma (a lesion), anisocoria, tongue tie (which could
make feeding and weight gain difficult), passive smoke exposure,
and a high-risk social situation.
¶ 44 Although the child’s conditions had improved, her pediatrician
continued to characterize her as a medically complicated child. He
explained that the child had multiple medical conditions, including
abnormal eye movement (nystagmus), a developmental delay, delay
in growth, and the possibility of a serious metabolic disorder.
¶ 45 While mother’s treatment plan did not specifically require her
to attend medical training for the child, it did include a provision
21
that required her to be able to safely care for the child by working
with an in-home parenting support provider. This provision
effectively required mother to participate in a service that would
prepare her to care for the child’s needs.
¶ 46 Next, mother argues that her treatment plan was
inappropriate because it did not require her to engage in couples
counseling with father. Mother correctly notes that several
witnesses identified concerns about bickering between the parents
during visits. Both the court-appointed special advocate (CASA)
assigned to the case and a separate CASA who intermittently
supervised visits described such behavior. The child’s occupational
therapist likewise reported that the parents bantered, which she
characterized as more explosive than arguing, during her sessions.
¶ 47 True, the parents’ expert recommended that they participate in
individual and couples therapy geared for adults with learning and
mental health needs. However, this recommendation came about
as a result of mother’s evaluation that was conducted the same
month of the termination hearing.
¶ 48 In contrast, the professionals who evaluated the parents
earlier in the case believed that mother should engage in
22
therapeutic services. And the record does not show that they or the
other treatment professionals working with the parents
recommended couples counseling. As a result, mother’s argument
that the treatment plan was inappropriate because it did not
include a requirement that she engage in couples counseling with
father falls short. See People in Interest of A.E., 749 P.2d 450, 452
(Colo. App. 1987) (recognizing that the appropriateness of a
treatment plan’s requirements must be assessed in light of the
realities extant at the time of its adoption).
¶ 49 Finally, mother asserts that the treatment plan was
inappropriate because it did not include accommodations for her
intellectual disability and was not amended to include
individualized treatment after the Department learned of her
diagnoses from the neuropsychological evaluator. However,
because mother fails to identify what accommodations or
individualized treatment should have been incorporated into the
plan, we are unable to consider this assertion.
¶ 50 Father asserts that his treatment plan was inappropriate
because it did not account for his disabilities. But, like mother in
her final assertion, he does not identify what additional components
23
or accommodations should have been included in the plan. As a
result, we are also unable to consider father’s argument.
¶ 51 For these reasons, we discern no error in the juvenile court’s
determination that the parents’ treatment plans were appropriate.
3. Reasonable Efforts and the Provision of Rehabilitative Services
¶ 52 We first address mother’s and father’s assertion that the
Department did not make efforts to implement the
recommendations contained in their capacity to parent and
neuropsychological evaluations. Then we conclude that the record
does not support this assertion.
¶ 53 The therapist who completed the capacity to parent evaluation
recommended that mother and father engage in therapeutic
services to treat their mental health issues. Specifically, she
believed that mother needed to address her childhood experiences
and depression, disordered personality, relationship issues, and
poor social skills. The therapist believed that father’s therapy
should focus on his childhood experiences, feelings of emotional
distress, symptoms of anxiety, and sleep disturbances, as well as
other feelings regarding losing control and feeling misunderstood.
The psychologist who completed the neuropsychological evaluations
24
believed that mother would benefit from dialectical behavior therapy
to treat her personality disorder because it would fit within the
limits of her neurocognitive deficits.
¶ 54 The record shows that both parents received mental health
services. Mother completed a mental health assessment and began
seeing a therapist sometime in 2016. The caseworker also tried to
coordinate dialectical behavior therapy for mother after receiving
the neuropsychological evaluation. However, mother missed the
first module that was necessary to start treatment and was unable
to participate in the program. Father participated in individual
therapy during the case.
¶ 55 In addition to therapeutic services, the psychologist opined
that mother’s deficits in complex attention and language warranted
accommodations. He recommended that her neurocognitive
disorder be accommodated by giving her additional time to complete
tasks, making sure that she was able to explain a concept in her
own words, communicating with her in a written format, and giving
repeated instructions.
¶ 56 Many of these accommodations were made during the
parenting instruction and coaching provided to the parents. For
25
example, the child’s occupational therapist began working with the
parents in May 2017 — first for one hour each week and then two
hours each week. During each session, the occupational therapist
tried to mimic a home environment and worked on skills such as
feeding; play that incorporated motor, perceptual, and cognition
skills for the child; and a pre-nap routine. The occupational
therapist explained that she assessed whether skills or information
needed to be repeated for the parents.
¶ 57 The occupational therapist also tried different methods for
helping the parents learn developmental skills for the child,
including giving them a “help chart” that broke down each month of
a child’s development; modeling the task that she wanted them to
do or the behavior (such as cruising) that she wanted to see from
the child; and giving direct feedback when the parents got
something right.
¶ 58 Besides working with the child’s occupational therapist, the
parents also received between two to four hours of parent coaching
each week beginning in March 2017. The parenting coach
explained that she tried different styles of teaching, including
offering instructions or recommendations as well as role modeling
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how to handle the situation. She would also give the parents
handouts with information they could take home, read, and return
with a sheet that they had filled out based on the information that
they read.
¶ 59 Additionally, the CASA assigned to the case testified that while
she was not allowed to coach the parents during visits, she would
ask follow-up questions to see if they understood the information
that was given to them during visits with the child.
¶ 60 The psychologist explained that father, who had an extensive
drug history which included daily methamphetamine use for six to
seven years, was taking a large dose of prescribed Xanax and had
possibly migrated from one substance to another. Thus, he
recommended that father participate in an inpatient substance
abuse program. The psychologist also recommended that father
receive coordination of care between his mental health therapist, a
psychiatrist who was prescribing the Xanax, and his primary care
physician.
¶ 61 Father resisted these recommendations. The caseworker
testified that father refused her efforts to coordinate care between
his mental health provider, his psychiatrist, and his primary care
27
physician. And he would not agree to participate in inpatient
treatment. The caseworker further explained that the Center for
Mental Health controlled the Department’s funding for inpatient
treatment and would not provide it unless one of their treatment
providers supported the recommendation. Father’s psychiatrist was
one of the center’s treatment providers and did not support the
recommendation.
¶ 62 The parents’ arguments that the Department offered limited
and delayed visitation services and parenting education fare no
better. True, the parents were only able to start parenting classes
offered through CASA in the month before the termination hearing.
Still, supervised visitation services and, later, hands-on parenting
instruction were offered throughout the case.
¶ 63 Visitation services began at the Department in July 2016.
During these initial visits, the caseworker provided direction —
verbal instructions as well as demonstrations — when the parents
appeared to have a deficit in their understanding of the child’s
needs. In early September 2016, visits moved to a CASA office; the
next month, visits moved to a different CASA office that was closer
to the child’s placement. The CASA who supervised visits from
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October 2016 through February 2017 and then again in July 2017
testified that she provided feedback to the parents during visits.
She also knew that the parents had been given a schedule of the
child’s routine.
¶ 64 The Department initially arranged for the parents to have a
one-hour visit twice each week, but later increased the schedule to
two four-hour visits each week. The caseworker also arranged for
the parents to be present for a surgical procedure for the child that
involved a muscle biopsy, EEG, and MRI. Because the procedure
occurred in Denver, she gave the parents money for gas and food,
rented the parents a hotel room, and supervised them while they
spent time with the child both pre- and post-operation.
¶ 65 Recall, the parents received several hours of parent coaching
and occupational therapy sessions with the child each week. True,
parent coaching was implemented about seven months after the
court adopted the treatment plan and the occupational therapy
sessions began two months later. Still, the parents had seven and
five months, respectively, to engage in these weekly services before
the termination hearing.
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¶ 66 The record also does not support the parents’ assertions that
the professionals providing parenting education were unqualified to
coach disabled parents and gave them conflicting information. The
child’s occupational therapist had experience working with
individuals with disabilities — she had done volunteer work with
the Board for Developmental Disabilities, worked at a school for
children with disabilities, and had previously worked with other
parents who had developmental disabilities to teach them the skills
for managing their child’s care.
¶ 67 Although the occupational therapist had not reviewed the
parents’ evaluations, the caseworker did tell her about some of the
evaluators’ recommendations. Additionally, the occupational
therapist explained that it became apparent to her that modeling
behaviors and calling out interaction styles to the parents, as well
as giving more education about the child’s developmental level,
would be helpful. She did both.
¶ 68 The parenting coach conceded that this was the first time she
had worked with parents who had intellectual deficits or delays.
However, the caseworker asked the parenting coach to make
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accommodations for the parents such as demonstrating how to
properly feed the child. And the parenting coach did so.
¶ 69 The caseworker agreed that the occupational therapist and the
parenting coach had different approaches to working with the
parents. She noted that the occupational therapist used hands-on
demonstration, while the parenting coach would step back, observe,
and then integrate instruction and demonstration. And, as the
juvenile court recognized, these providers may have given mixed
messages about whether to use a bottle or sippy cup with the child.
Yet, as the court concluded, the record does not show that these
providers otherwise gave conflicting instructions to the parents.
¶ 70 Mother further argues that the Department did not make
reasonable accommodations because it only sought to amend the
treatment plan and implement the recommendations from her
neuropsychological evaluation after it had decided to pursue
termination. The caseworker admitted that she had discussed an
adoptive home for the child in November 2016. She also
acknowledged that the Department had decided to pursue
termination of parental rights as early as January 2017. However,
the caseworker clarified that the Department did not file for
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termination for another six months because she found the
parenting coach and wanted her opinion. And as the juvenile court
concluded, the record did not suggest that the Department had
withdrawn services or reduced visits based on its earlier
consideration of termination.
¶ 71 Finally, we note that father asserts that the Department failed
to provide him with adequate assessments, treatment, and other
relevant services to enable him to meet the child’s basic needs. Yet,
he does not explain why the assessments that the Department
provided — the capacity to parent and neuropsychological
evaluations — were insufficient or identify other assessments that
were needed. And apart from his arguments that have already been
addressed, he does not identify other treatment or services that
would have accommodated his disability and enabled him to parent
the child.
¶ 72 For these reasons, the juvenile court properly concluded that
the Department made reasonable efforts to rehabilitate the parents
and provided services that reasonably accommodated the parents’
disabilities. Thus, we will not disturb its conclusion on appeal.
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III. Parental Fitness and Likelihood of Change
¶ 73 Mother contends the juvenile court erred in finding that she
was an unfit parent and her conduct or condition was unlikely to
change in a reasonable time. The record shows otherwise.
¶ 74 An unfit parent is one whose conduct or condition renders him
or her unable or unwilling to give a child reasonable parental care.
People in Interest of D.P., 160 P.3d 351, 353 (Colo. App. 2007).
Reasonable parental care requires, at a minimum, that the parent
provide nurturing and safe parenting sufficiently adequate to meet
the child’s physical, emotional, and mental health needs. People in
Interest of A.J., 143 P.3d 1143, 1152 (Colo. App. 2006).
¶ 75 In determining whether a parent can become fit within a
reasonable time, the court may consider whether the parent made
any changes during the dependency and neglect proceeding, the
parent’s social history, and the chronic or long-term nature of the
parent’s conduct or condition. D.P., 160 P.3d at 353. A reasonable
time is not indefinite and must be determined by considering the
child’s conditions and needs. A.J., 143 P.3d at 1152.
¶ 76 As mother points out, the occupational therapist agreed that
mother had shown improvements in some of the daily routines with
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the child. The parents’ expert witness also observed that mother
showed significant changes between her evaluation by another
expert a year earlier and the expert’s parent-child interactional
evaluation in October 2017.
¶ 77 Despite this progress, the parents’ expert did not believe that
the child could safely be reunited with the parents. The caseworker
also agreed that mother had tried during the case, but still believed
that mother had not been able to develop a parenting relationship
with the child and continued to struggle with empathy for others.
Both the caseworker and the CASA who supervised visits described
mother treating the child like she was a doll. The caseworker
elaborated that while mother loved the child, she was unable to
keep her safe, nourish her, and provide her with appropriate
stimulation.
¶ 78 Similarly, the parenting coach opined that mother could not
safely parent the child. She expressed concern that mother would
not be able to keep up with the child’s growth and development
because it would take too long for mother to learn information and
consistently implement it and, by that time, the child’s needs would
change.
34
¶ 79 During the pendency of the case, mother received a deferred
criminal sentence for child abuse involving bodily injury to another
child. Father had also told the parents’ expert that he had
concerns about the child returning to his home because mother
could be short-tempered and impatient. The psychologist who
evaluated mother expounded that the traits of mother’s borderline
personality disorder included a tendency to impulsively get very
angry and to have unstable and intense interpersonal relationships.
¶ 80 Mother asserts that the record shows that she could become a
fit parent in a reasonable time with coaching geared towards
individuals with disabilities. The parents’ expert believed that the
parents could be successfully reunited with the child if they
received additional services. However, the expert estimated that the
treatment would take a minimum of six additional months.
¶ 81 In contrast, the caseworker opined that the child needed a
permanent home. Because the child was under the age of six when
the petition was filed, the expedited permanency planning
provisions applied and required that she be placed in a permanent
home within twelve months of her initial out-of-home placement.
§§ 19-1-102(1.6), 19-1-123, 19-3-703, C.R.S. 2018; People in
35
Interest of M.T., 121 P.3d 309, 313 (Colo. App. 2005). And the
psychologist who evaluated mother opined that mother’s personality
disorder was a longstanding pattern of personality characteristics
and dysfunction that were unlikely to change over time.
¶ 82 Given this record, we discern no error in the juvenile court’s
conclusions that mother was an unfit parent and her conduct or
condition was unlikely to change in a reasonable time.
IV. Less Drastic Alternative to Termination
¶ 83 Finally, father contends placing the child with the paternal
grandmother was a viable less drastic alternative to termination.
Again, the record does not support him.
¶ 84 When considering termination under section 19-3-604(1)(c),
the court must also consider and eliminate less drastic alternatives
to termination. M.M., 726 P.2d at 1122. This determination is
implicit in, and thus intertwined with, the statutory criteria for
termination. Id. at 1122-23. As a result, the determination is
influenced by the parent’s fitness to meet his or her child’s needs.
People in Interest of A.R., 2012 COA 195M, ¶ 38.
¶ 85 But the juvenile court must give primary consideration to the
child’s physical, mental, and emotional conditions and needs when
36
considering less drastic alternatives to termination. § 19-3-604(3);
D.P., 160 P.3d at 356. Thus, placement with a grandparent is not a
viable alternative to termination if the grandparent lacks
appreciation of the parent’s problems or of the child’s conditions or
needs. People in Interest of D.B-J., 89 P.3d 530, 531 (Colo. App.
2004).
¶ 86 The record shows that an out-of-state home study of the
paternal grandmother resulted in her being denied for placement of
the child. The grandmother had a medical condition that would not
allow her to care for the child without assistance and she wanted
either father or both of the parents to help her care for the child.
However, father was unable to adequately feed the child,
understand her cues, or attend to her needs. And, as previously
discussed, mother was also unable to meet the child’s needs.
¶ 87 For these reasons, the record supports the juvenile court’s
determination that there was no less drastic alternative to
termination and we will not disturb it on appeal.
V. Conclusion
¶ 88 The judgment is affirmed.
JUDGE ROMÁN and JUDGE FREYRE concur.
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