20CA2022 Peo in Interest of DF 01-27-2022
COLORADO COURT OF APPEALS
Court of Appeals No. 20CA2022
Logan County District Court No. 18JV40
Honorable Michael K. Singer, Judge
The People of the State of Colorado,
Appellee,
In the Interest of Dem.F., Ki.F., Dek.F., Ky.F., Children,
and Concerning T.F. and C.S.,
Appellants.
JUDGMENTS AFFIRMED
Division III
Opinion by JUDGE J. JONES
Lipinsky and Gomez, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 27, 2022
Alan Samber, County Attorney, Kimberlee R. Keleher, Assistant County
Attorney, Sterling, Colorado, for Appellee
Barry Meinster, Guardian Ad Litem
Michael Kovaka, Office of Respondent Parents’ Counsel, Littleton, Colorado, for
Appellant T.F.
Patrick R. Henson, Office of Respondent Parents’ Counsel, Denver, Colorado,
for Appellant C.S.
1
¶ 1 In this dependency and neglect proceeding, T.F. (father) and
C.S. (mother) separately appeal the juvenile court’s judgments
terminating their parent-child legal relationships with their
children. We affirm both judgments.
I. Procedural History
¶ 2 In December 2018, the Logan County Department of Human
Services filed a dependency and neglect petition regarding five-year-
old Dem.F., three-year-old Ki.F., two-year-old twins Dek.F. and
Ky.F., and an older half-sibling who isn’t subject to this appeal. In
support of the petition, the Department asserted that
• mother’s home was in dire condition and an investigating
caseworker had smelled a foul odor coming from the home
even before opening the door;
• the twins were found locked in a basement bedroom that had
large bags of dirty diapers and was covered in flies as well as
urine and fecal matter;
• the twins, who were each in a separate “pack-n-play” with no
diaper, were covered in urine, fecal matter, rashes, and scabs;
• mother reported that she would bring the twins upstairs for
“an hour at a time”; and
2
• medical staff had diagnosed the twins with dehydration, full-
body dermatitis, and severe neglect.
¶ 3 The juvenile court placed the children in the Department’s
custody. Mother admitted that the children were in an injurious
environment, while father, who was incarcerated when the case
began, stipulated that the children were without proper care
through no fault of his own. Based on these admissions, the court
adjudicated the children dependent and neglected. At that time,
the court also adopted a treatment plan for father.
¶ 4 Not long after that, the Department filed motions asking the
court to determine that appropriate treatment plans could not be
devised for the parents in relation to the twins and to terminate
their parental rights on that basis. Mother relinquished her
parental rights to the twins. And the Department withdrew the
motions in relation to father.
¶ 5 In May 2019, the court issued a dispositional order adopting a
treatment plan for mother. The court also issued a further
dispositional order in relation to father and the twins.
¶ 6 Later, the Department moved to terminate father’s parental
rights to each of the four children, as well as mother’s parental
3
rights to Dem.F. and Ki.F. Following a hearing in October and
November 2020, the juvenile court entered separate judgments
granting the termination motions.
¶ 7 Mother and father separately appealed the termination
judgments. At father’s request, this court stayed the appeal and
remanded the case to the juvenile court to ensure compliance with
the Indian Child Welfare Act of 1978 (ICWA). Specifically, we
directed the juvenile court to have notice of the termination
proceeding given to two federally recognized Miwok tribes identified
in father’s request for a remand. After these notices were provided,
the juvenile court determined that ICWA is inapplicable. We then
denied father’s subsequent request to expand the remand to
include eight other tribes in the same ancestral group and
recertified the appeal.
II. ICWA Compliance
¶ 8 To start, we consider father’s contention that the record
doesn’t demonstrate compliance with ICWA’s provisions because no
notice was given to eight of the eleven federally recognized Miwok
tribes.
4
A. The Law
¶ 9 ICWA’s provisions are for the protection and preservation of
Indian tribes and their resources, and to protect Indian children
who are members of or are eligible for membership in an Indian
tribe. 25 U.S.C. § 1901(2), (3). ICWA also recognizes that Indian
tribes have a separate interest in Indian children that is equivalent
to, but distinct from, parental interests. B.H. v. People in Interest of
X.H., 138 P.3d 299, 303 (Colo. 2006); see also Mississippi Band of
Choctaw Indians v. Holyfield, 490 U.S. 30, 52 (1989).
¶ 10 If the court knows or has reason to know that an Indian child
is involved in a child custody proceeding, including termination of
parental rights, it must ensure that the Department provides notice
to the potentially concerned tribe or tribes. 25 U.S.C. § 1912(a);
§ 19-1-126(1)(b), C.R.S. 2021; see also People in Interest of L.L.,
2017 COA 38, ¶ 24. To adhere to ICWA’s notice provisions, the
Department must directly notify each tribe by registered mail with
return receipt requested of the pending child custody proceeding
and its right to intervene. People in Interest of M.V., 2018 COA 163,
¶ 26.
5
¶ 11 Where the identity and location of the tribe is known, the
Department must directly notify that tribe. See L.L., ¶ 34. If, on
the other hand, the parent is only able to identify a tribal ancestral
group, the Department must notify each of the tribes in that
ancestral group. People in Interest of L.H., 2018 COA 27, ¶ 8. And
copies of these notices must be sent to the appropriate regional
director of the Bureau of Indian Affairs (BIA). 25 C.F.R. § 23.11(a)
(2020); see also M.V., ¶ 28.
¶ 12 Whether ICWA’s notice requirements were satisfied is a
question of law that we review de novo. See People in Interest of
T.M.W., 208 P.3d 272, 274 (Colo. App. 2009).
B. Analysis
¶ 13 In response to inquiry from the court at a hearing in January
2019, father indicated that he believed the children were enrolled or
eligible to be enrolled in a Miwok tribe but was unsure of its
location. However, during the same hearing, father’s counsel
clarified that the tribe was the California Valley Miwok Tribe and
requested the Department to look into “that tribe.” And, at a later
hearing, counsel reiterated that father’s “family line is affiliated with
the California Valley Miwok Tribe.” The BIA’s register of tribal
6
agents identifies the California Valley Miwok Tribe as a federally
recognized tribe. See Designated Tribal Agents for Service of Notice,
85 Fed. Reg. 24,004 (Apr. 30, 2020).
¶ 14 True, at the start of the termination hearing, the juvenile court
recalled that “[father] did assert membership in the Miwok tribe in
California.” And, as previously noted, this court remanded the case
to ensure that notice was given to two additional Miwok tribes. At a
hearing on remand, father told the court that he knew only that he
was affiliated with a Miwok tribe, but he was unable to identify the
specific tribe. But these circumstances don’t overcome the fact that
at the time of the termination hearing, father had asserted that he
and the children were affiliated with a specific Miwok tribe — the
California Valley Miwok Tribe — as opposed to a general affiliation
with the Miwok tribal ancestral group.
¶ 15 The Department gave notice of the proceeding to the California
Valley Miwok Tribe, as well as the BIA. The California Valley Miwok
Tribe responded by indicating that neither father nor the children
are tribal members. Additionally, following the remand, the
Department sent notice of the proceeding to two other federally
7
recognized Miwok tribes. They also determined that the children
are not tribal members or eligible for membership.
¶ 16 As a result, the record demonstrates compliance with ICWA.
III. Qualification of Expert Witness
¶ 17 Next, we turn to mother’s assertion that the juvenile court
abused its discretion by qualifying a therapist who evaluated her
visits with Dem.F. and Ki.F. as an expert in infant mental health.
¶ 18 Expert testimony is testimony that could not be offered
without specialized experience, knowledge, or training. Venalonzo
v. People, 2017 CO 9, ¶ 23. CRE 702 governs the admissibility of
expert testimony:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact
in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education, may testify thereto in the form of an
opinion or otherwise.
¶ 19 A court may qualify an expert witness under any of the five
bases specified in CRE 702. Huntoon v. TCI Cablevision of Colo.,
Inc., 969 P.2d 681, 690 (Colo. 1998). The determination whether a
witness is qualified to render an expert opinion is left to the court’s
8
discretion. See id. We will uphold the court’s ruling unless it was
manifestly arbitrary, unreasonable, or unfair. Id.
¶ 20 Mother correctly points out that the therapist acknowledged
that she was still in the process of obtaining her certification in
infant mental health. But contrary to mother’s assertion, a witness
isn’t required to “hold a specific degree, training certificate,
accreditation, or membership in a professional organization, in
order to testify on a particular issue.” Id.
¶ 21 The record reveals that the therapist had education,
experience, and training related to infant mental health. The
therapist had a bachelor’s degree in psychology, a master’s degree
in counseling, and a postgraduate certificate for treating children
and adolescents. She had also been a registered play therapist for
about six years, which required her to have training related to
working with young children.
¶ 22 In addition to her education, the therapist had completed two
internships — one working with mothers and their infants in a
postpartum depression clinic and the other working with children
through a mental health center. The therapist had also worked as
an in-home provider supporting families involved in dependency
9
and neglect cases. And, later, the therapist had opened her own
practice, which involved treating children and families.
¶ 23 The therapist said that throughout her career she had
annually participated in conferences and workshops focusing on
attachment and bonding, which incorporated the mental health of
infants. Indeed, the therapist explained that attachment and
bonding had been an area of primary focus during her career.
¶ 24 Given this record, we conclude that the juvenile court acted
within its discretion by accepting the therapist as an expert in
attachment and bonding, early childhood trauma, and infant
mental health.
IV. Termination of Parental Rights
¶ 25 Father and mother also challenge the court’s termination
ruling. Father asserts that the termination judgment must be
reversed because he didn’t receive any visitation services and the
Department interfered with his efforts to have relationships with the
children. Mother contends that the court erred by determining that
(1) the Department made reasonable efforts to reunify her with
Dem.F. and Ki.F. when it failed to offer visits as well as family
therapy; and (2) there was no less drastic alternative to termination.
10
A. Termination Criteria and Standard of Review
¶ 26 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 hasn’t complied with an
appropriate, court-approved treatment plan or the plan hasn’t 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. 2021; People in Interest of C.H., 166 P.3d 288, 289
(Colo. App. 2007).
¶ 27 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. A determination of the
proper legal standard to be applied in a case and the application of
that standard to the particular facts of the case are questions of law
that we review de novo. M.A.W. v. People in Interest of A.L.W., 2020
CO 11, ¶ 31.
¶ 28 However, we won’t disturb the court’s factual findings and
conclusions if they have record support. A.M., ¶ 15; People in
Interest of C.A.K., 652 P.2d 603, 613 (Colo. 1982). Indeed, the
11
credibility of the witnesses and the sufficiency, probative effect, and
weight of the evidence, as well as the inferences and conclusions to
be drawn from it, are within the province of the juvenile court.
C.A.K., 652 P.2d at 613.
B. The Provision of Services
1. The Legal Framework
¶ 29 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). Thus, before the court may terminate
parental rights under section 19-3-604(1)(c), the state must make
reasonable efforts to rehabilitate parents and reunite families.
§§ 19-1-103(114), 19-3-100.5(1), 19-3-208, C.R.S. 2021; People in
Interest of C.Z., 2015 COA 87, ¶ 55.
¶ 30 “Reasonable efforts” means the “exercise of diligence and care”
for a child who is in out-of-home placement. § 19-1-103(114). The
reasonable efforts standard is satisfied when services are provided
in accordance with section 19-3-208. § 19-1-103(114). Among
other things, the Department must offer screening, assessments,
12
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 family support services, including family counseling. § 19-
3-208(2)(d)(VII).
¶ 31 Even so, the reasonable efforts that a Department must
provide are linked to the objectives of a parent’s treatment plan.
People in Interest of K.B., 2016 COA 21, ¶ 16. Indeed, in
determining whether reasonable efforts have been unable to
rehabilitate the parent, the court must first consider whether the
services provided were appropriate to support the parent’s
treatment plan. Id.; see also S.N-V., 300 P.3d at 915.
¶ 32 And, significantly, the child’s health and safety are the
paramount concerns in determining whether services, including
visitation, are necessary and appropriate. People in Interest of A.A.,
2020 COA 154, ¶ 17. In making this determination, the court may
rely on the recommendations of experts, such as therapists. See
People in Interest of B.C., 122 P.3d 1067, 1071 (Colo. App. 2005).
But the court must make the ultimate determination whether
visitation and other services are appropriate based on the child’s
13
health and safety and cannot delegate that decision to others. Id. at
1070-71; People in Interest of D.G., 140 P.3d 299, 302 (Colo. App.
2006).
2. Father’s Ability to Contact and Visit the Children
¶ 33 The court initially approved a treatment plan that didn’t
authorize face-to-face visitation for father. Rather, it required him
to maintain written and telephone contact with the children as
allowed by the court, the prison, the guardian ad litem, and the
Department. As part of the subsequent dispositional order, the
court determined that it wasn’t appropriate for father to have visits
with the twins. And, in later hearings, the court found that it
wasn’t appropriate for father to have visits with any of the children.
¶ 34 Although the court ultimately determined that father couldn’t
visit the children, it didn’t restrict his ability to have written contact
with them. Father wrote letters to each of the children. He had
also submitted to the Department photographs and pictures that he
had created for the children.
¶ 35 Yet, the caseworker testified that she hadn’t provided the
letters or pictures to the children based on the recommendations of
the older children’s therapists and a clinical social worker. Another
14
clinical social worker similarly testified that she had determined
that it wouldn’t be beneficial to the twins’ growth and development
to have contact with father.
¶ 36 Nonetheless, even if we assume that the court erred by failing
to approve face-to-face visits or oversee father’s ability to have
written contact with the children, we discern no basis for reversal.
Father doesn’t explain, and we are unable to understand, how
allowing him to have visits or contact with the children through
letters and pictures would have rendered him a fit parent who was
able to care for the children. Father remained incarcerated in
prison and wasn’t eligible for parole until nearly a year after the
termination hearing.
¶ 37 Additionally, evidence supports the court’s finding that father
has mental health disorders that render him unable to meet the
children’s needs within a reasonable time. A psychologist who
evaluated father diagnosed him as having (1) post-traumatic stress
disorder; (2) bipolar disorder; (3) an unspecified anxiety disorder
with dissociative features; and (4) a very severe mixed personality
disorder. Father’s personality disorder is characterized by
antisocial, narcissistic, borderline, and schizotypal features. The
15
psychologist explained that the personality disorder causes father
to be unable to trust anyone or show the empathy that is necessary
to safely raise children.
¶ 38 Based on this evidence, we won’t disturb the termination
judgment.
3. Visitation and Family Therapy Services for Mother
¶ 39 Mother was initially able to have supervised visits with Dem.F.
and Ki.F. However, the Department became concerned about how
Dem.F. and Ki.F. were responding to mother during visits, as well
as their behavior after visits. As a result, in May 2019, mother
participated in a visitation assessment.
¶ 40 The therapist who conducted the assessment determined that
having visits with mother was negatively impacting the social,
emotional, and physical health of Dem.F. and Ki.F. The therapist
explained that Dem.F. showed a disorganized attachment to
mother, which meant that he no longer relied on her in a trusting,
safe capacity. Ki.F. had an avoidant attachment, which the
therapist described as a complete lack of attachment to mother.
For example, during that assessment, Ki.F. referred to mother as
“[Dem.F.’s] mom.”
16
¶ 41 After mother completed the assessment, the court, without
objection, approved a treatment plan that precluded mother from
having visits with Dem.F. and Ki.F. until it determined otherwise.
And, at subsequent hearings, the court found that it wasn’t
appropriate for Dem.F. and Ki.F. to have visits with mother. By
doing so, the court relieved the Department of its obligation to
provide visitation services for mother. And mother doesn’t assert
that the court failed to base these determinations on the health and
safety of Dem.F. and Ki.F.
¶ 42 Additionally, the Department did make continuing efforts to
ascertain if it was appropriate for Dem.F. and Ki.F. to have visits
with mother. The Department arranged for the same therapist who
had completed the initial visitation assessment to conduct a re-
evaluation in August 2020. The purpose of the re-evaluation was to
again assess the children’s relationship with mother and see if any
progress had been made since the initial assessment.
¶ 43 During the re-evaluation, the therapist observed that mother
had made some progress as she was better able to play with the
children and observe how they were responding to her. But mother
continued to have difficulty recognizing the children’s nonverbal
17
cues showing mistrust and fear. Thus, the therapist believed that
mother remained unable to safely parent Dem.F. and Ki.F.
¶ 44 Mother correctly points out that the Department didn’t
arrange for her to engage in family therapy. But the treatment plan
didn’t contemplate mother participating in therapy with Dem.F. and
Ki.F. Thus, this wasn’t a service that the Department was required
to provide.
¶ 45 Moreover, the record is devoid of any indication that family
therapy would have been appropriate based on the children’s health
and safety. Indeed, the therapist who completed the visitation
assessment explained that family therapy would only be
appropriate once the children were therapeutically ready for it and
mother was able to take accountability for her actions.
¶ 46 Given this record, we discern no error in the termination
judgment.
C. Less Drastic Alternative
¶ 47 Finally, we turn to mother’s contention that the court erred by
determining that there was no less drastic alternative to
termination. She argues that she had successfully completed her
18
treatment plan and that giving her more time to participate in
family therapy was a viable alternative. Again, we aren’t persuaded.
1. The Law
¶ 48 When considering termination under section 19-3-604(1)(c),
the court must also consider and eliminate less drastic alternatives
to termination. People in Interest of M.M., 726 P.2d 1108, 1122
(Colo. 1986). This determination is implicit in, and thus
intertwined with, the statutory criteria for termination. People in
Interest of L.M., 2018 COA 57M, ¶ 24.
¶ 49 A parent must be given a reasonable time to comply with an
appropriate treatment plan before the court may terminate parental
rights. People in Interest of D.Y., 176 P.3d 874, 876 (Colo. App.
2007). What constitutes a reasonable time is fact-specific and
varies from case to case. Id. This determination may also be
influenced by whether a parent’s conduct or condition is likely to
change in a reasonable time. See People in Interest of J.C.R., 259
P.3d 1279, 1284 (Colo. App. 2011).
¶ 50 And, as with all termination criteria, the court must give
primary consideration to the child’s physical, mental, and emotional
conditions and needs. § 19-3-604(3); A.M., ¶ 20. Thus, the court
19
may consider whether an ongoing relationship with the parent
would be beneficial or detrimental to the child and the child’s need
for permanency when determining whether there is a viable
alternative to termination. L.M., ¶ 29. Indeed, the primary and
controlling issue in termination proceedings is the determination of
what will serve the child’s interests and welfare. A.M., ¶ 20.
2. The Record
¶ 51 The record reveals that mother had more than sixteen months
to engage in the services required by her treatment plan. And the
juvenile court recognized that mother had engaged in a variety of
services and made progress in many areas. Specifically, it found
that mother had completed two psychological evaluations, engaged
in therapy, took recommended psychotropic medication, found and
maintained employment, improved the condition of her home,
complied with probation, and learned some ways to empathize with
her children.
¶ 52 Despite these efforts, the court determined that mother had a
significant, long-standing mental illness that rendered her unable
to provide nurturing parenting for Dem.F. and Ki.F. within a
reasonable time. The record supports this determination.
20
¶ 53 The psychologist who twice evaluated mother determined that
she had an unspecified depressive disorder as well as a personality
disorder with histrionic, compulsive, and turbulent traits. The
psychologist explained that the personality disorder meant that
mother sought the attention of others and had a tendency to be
emotional in a superficial manner without much awareness of
underlying needs or feelings. And she used denial, avoidance, and
minimization as coping mechanisms. The psychologist also
elaborated that mother struggled with being aware of and
expressing her own feelings, which, in turn, limited her ability to
accurately see and meet her children’s needs. In the end, the
psychologist believed that mother’s personality disorder rendered
her unable to meet the children’s needs.
¶ 54 The psychologist acknowledged that mother had showed some
significant and positive changes, including addressing her
depression, during the follow-up evaluation in September 2020.
Nonetheless, the psychologist observed that mother’s personality
functioning of avoiding and denying serious issues had stayed the
same. Indeed, the psychologist described the personality disorder
21
as a chronic, long-standing condition, which was unlikely to change
in a reasonable time for Dem.F. and Ki.F.
¶ 55 The therapist who assessed mother’s interactions with Dem.F.
and Ki.F. also believed that mother wouldn’t be able to remedy the
children’s unhealthy attachment to her in a reasonable time. The
therapist estimated that it would take at least a year or more to do
so given the children’s extended out-of-home placement, Dem.F.’s
continued disorganized attachment to mother, Ki.F.’s avoidant
attachment, and mother’s continuing inability to attend to the
children’s cues and recognize their mistrust in her. The therapist
further explained that these attachment issues wouldn’t be
improved simply by having mother have more contact with the
children because continuing to expose the children to visits that led
to dysregulation would only reinforce pathology that would be
detrimental to their well-being.
¶ 56 The record further reveals that Dem.F. and Ki.F., who had
been in multiple placements during the nearly two years that the
case had been open, needed permanency. After initially being
placed in a local foster home, Dem.F. and Ki.F. transitioned to the
care of a kinship provider. However, the kinship provider was
22
unable to continue caring for them and they were placed in a
different foster family. When that foster family had to relocate to a
different part of the state, the Department moved Dem.F. and Ki.F.
to a different local foster home. But that local foster care provider
wasn’t able to serve as a long-term placement and, as a result, the
Department moved the children to a different foster home.
¶ 57 Ki.F. remained in that foster home, but Dem.F., who had
significant struggles in the home, had been moved to a respite
foster care provider. During the pendency of the termination
hearing, the Department learned that Dem.F. was receiving
inappropriate care in the respite home and had to move him to yet
another foster care provider.
¶ 58 Finally, Dem.F. and Ki.F. were under the age of six when the
Department initiated the dependency and neglect proceeding,
rendering the expedited permanency planning provisions
applicable. They required that the children be placed in a
permanent home as expeditiously as possible. §§ 19-1-102(1.6),
19-1-123, 19-3-702(5)(c), C.R.S. 2021.
¶ 59 For these reasons, we won’t disturb the juvenile court’s
determination that extending the time for mother to continue
23
working on the treatment plan was not a less drastic alternative to
termination.
V. Conclusion
¶ 60 The judgments are affirmed.
JUDGE LIPINSKY and JUDGE GOMEZ concur.