21CA0273 Peo in Interest of JRN 01-27-2022
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA0273
Douglas County District Court No. 19JV109
Honorable H. Clay Hurst, Judge
The People of the State of Colorado,
Appellee,
In the Interest of J.R.N., Jr., a Child,
and Concerning J.R.N.,
Appellant,
and
S.D.N.,
Appellee.
JUDGMENT AFFIRMED
Division III
Opinion by JUDGE FURMAN
Lipinsky and Brown, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 27, 2022
Lance J. Ingalls, County Attorney, R. LeeAnn Reigrut, Assistant County
Attorney, Lori Kennedy, Assistant County Attorney, Castle Rock, Colorado, for
Appellee
Debra W. Dodd, Guardian Ad Litem
Peak Family Law, L.L.C, Sean S. Peek, Ricardo Vasquez, Denver, Colorado, for
Appellant
Griffiths Law PC, Leslie Hansen, Lone Tree, Colorado, for Appellee S.D.N.
1
¶ 1
In this dependency and neglect case, J.R.N. (father) appeals a
juvenile court judge’s allocation of parental responsibilities (APR) for
J.R.N., Jr. (the child), to S.N. (mother). He contends that we should
reverse the APR for two primary reasons: (1) the judge erroneously
upheld a magistrate’s decision that the child was not required to
participate in reintegration therapy with him, and (2) the Douglas
County Department of Human Services (Department) did not make
diligent efforts to reunify him with his child. We disagree with each
of father’s contentions and affirm the APR.
I. The APR
¶ 2
In the answer brief, the child’s guardian ad litem (GAL) aptly
summarizes this case as follows. “For years [the child] has been
caught in the middle of his parents’ bitter custody battle; a fight
which began as a domestic relations case, morphed into a
dependency and neglect case, and stands now as an appellate case.
In fact, it was ‘one of the most atrocious divorce cases’ the court
had witnessed.”
¶ 3
Father’s case on appeal requires us to address orders entered
by a magistrate and juvenile court judge in this dependency and
neglect case. We put these orders in context.
2
¶ 4
In April 2019, the Department received a report that the then
twelve-year-old child had been hospitalized for mental health
concerns. The Department filed a petition alleging that the child
was dependent or neglected.
¶ 5
The parents were involved in a dissolution of marriage case in
Arapahoe County that included post-decree litigation. As part of
the Arapahoe County case, the child and father participated in
reintegration therapy. The Department received a report that the
child was “refusing to have contact with his father [and] that
reintegration sessions had not been going well.”
¶ 6
A magistrate initially gave the Department temporary
protective custody of the child, and later ordered the child into
mother’s legal custody with the Department’s supervision. Later
still, the Department placed the child with maternal grandmother
due to “concerns that [mother] was not ensuring that [the child] was
attending school . . . [and] that she was possibly not meeting his
mental health needs or his medical needs.”
¶ 7
But, in May 2019, on the recommendation of the child’s then-
therapist, the magistrate returned custody of the child to mother.
The child remained at home with mother for the rest of the case.
3
That same month, the domestic relations court certified the
parenting time and custody issues from the dissolution case into
the dependency and neglect case.
¶ 8
In June 2019, a magistrate ordered that reintegration therapy
be stopped. About six months later, both parents stipulated to the
allegations in the petition, and the court adjudicated the child
dependent or neglected. Father’s signed stipulation included:
[Father] is in agreement with the attached
treatment plan, provided that all parties
recognize that time is of the essence with
respect to [father and child] engaging in
reintegration therapy so that parenting-time
between [f]ather and [the child] can be re-
established as soon as practical and in the
best interests of the child.
¶ 9
The court adopted treatment plans for both parents. Father’s
treatment plan required him to participate in reintegration therapy
with the child. This would become a central issue in this case.
¶ 10
It was undisputed that, after the adoption of father’s treatment
plan, the magistrate twice interviewed the child (on June 25, 2019,
and August 23, 2019). In these interviews, the child expressed that
he did not want to have contact with father.
4
¶ 11
In October 2019 and in December 2019, father filed forthwith
motions regarding discovery and placement.
¶ 12
In December 2019, the magistrate held a hearing to address
father’s forthwith motions. At this hearing, the parties also
discussed (1) their inability to agree on a new reintegration
therapist for the child; (2) whether the child should begin trauma
therapy; and (3) whether father should begin reintegration therapy
on his own. The magistrate concluded that the previous
reintegration therapist should separately work with father, and that
the child should begin trauma therapy with a therapist selected by
the GAL. Father’s placement motions were set for a contested
hearing in June 2020.
¶ 13
In January 2020, father filed a “Forthwith Motion of Lack of
Reasonable Efforts and for Selection of Therapist,” contending that
the parties could not agree on a trauma therapist for the child. The
magistrate set a hearing on this matter for February 2020. At this
hearing — which proceeded without taking testimony or entering
evidence — the GAL reported that the child did not want to
participate in reintegration therapy.
5
The more I’ve thought about it, Your
Honor, and the more -- having gone
through this process of trying to select a
therapist for him, I had to question myself
why we are forcing this child to do
something that he has been so adamantly
against. He is doing quite well at this
point. He is attending school; he loves his
school. His attendance is not perfect by
any means, but I think you look back a
year ago, he was hospitalized at Denver
Springs after having a Skype session in
reintegration therapy with his dad.
As the Court knows, I mean, it’s been up
and down as far [as] him having self-
harming behaviors, and he is very stable
right now. He reported to me on Thursday
that he has not had any thoughts of self-
harming . . ., and that was towards the
end of the summer. He is engaging with
friends. His social-emotional skills at
school, according to the principal and to
the school psychologist, are very strong.
He’s actually seen as a leader.
He himself has set a goal that he wants to
get a 4.0. So he has really good goals for
himself and he’s following through on
them. He’s also making friends at school,
which is new. He’s having friends over for
play dates. He’s going to friends’ homes,
that’s also new for him.
So he’s doing really well. The only reason
that we would put him into trauma
therapy at this point is to address the
issues with his dad.
6
We’ve been at this for ten months as far as
trying different approaches to the
reintegration therapy, and quite honestly,
the only time that [the child] has really
been able to stabilize is when the Court
put reintegration on hold. And I think it’s
the fact that he didn’t have that weighing
on him. So my concern is, if we push him
and force him to do trauma therapy at this
point -- and he knows that if he does
trauma therapy the goal is to get him into
reintegration therapy. He’s a smart kid;
it’s going to be weighing him again, and I
think there’s a very good chance that it’s
going to derail the progress that he has
made.
After hearing this report from the GAL, the magistrate determined
that she was not going to order “the child to be forced into
reintegration therapy.”
¶ 14
One month later, the magistrate filed a written order from the
February 2020 hearing. In this order, the magistrate again denied
father’s request to start reintegration therapy with the child, finding
that the Department had made reasonable efforts to find a suitable
therapist and that it was not in the child’s best interests to see his
father.
¶ 15
Father petitioned for judicial review, claiming the magistrate’s
decision to not compel the child into reintegration therapy was
7
unsupported and an improper delegation of parenting time. The
judge affirmed, concluding that “it is not in the best interest of the
minor child . . . to be forced to see [father].” The court pointed out
that the magistrate was familiar with “the child, the child’s record,
[and] the facts.”
¶ 16
The GAL later moved to allocate parental responsibilities for
the child to mother. Mother filed a response and asked that she be
allowed to relocate with the child to Texas. Father objected,
contending that an APR would not be in the child’s best interests.
He also asked that the matter be heard by a judge.
¶ 17
The judge held a hearing on the APR motion in October 2020.
After the hearing, the judge made an APR, ordering that mother be
the child’s primary residential custodian and giving her authority to
make the day-to-day decisions for the child.
¶ 18
Father’s appeal challenges the judge’s review of the
magistrate’s order from the February 2020 hearing and the judge’s
October 2020 APR. We address each challenge in turn.
8
II. Review of the Magistrate’s Order from the February 2020
Hearing
¶ 19
Father contends that the judge erred by affirming the
magistrate’s decision to not require the child to participate in
reintegration therapy. We disagree.
A. Standard of Review
¶ 20
Section 19-1-108(5.5), C.R.S. 2021, provides for judicial review
of a magistrate’s order in a dependency and neglect case. Because
the judge reviews only the record of the hearing before the
magistrate, its review is similar to an appellate review of the
magistrate’s decision. People in the Interest of J.G., 97 P.3d 300,
302 (Colo. App. 2004). Our review, therefore, is like a second level
of appellate review. Id.
¶ 21
But the parties disagree on our standard of review. On the
one hand, father contends that we should apply de novo review
because resolution of this issue requires us to apply the Children’s
Code to evidentiary facts. On the other hand, the remaining parties
contend that we should apply a clearly erroneous standard of
review. We disagree with father because the magistrate’s decision
of whether to require the child to participate in reintegration
9
therapy is a factual question. And factual questions “shall not be
set aside unless clearly erroneous.” People in the Interest of A.J.L.,
243 P.3d 244, 249 (Colo. 2010).
B. Analysis
¶ 22
We conclude that the record supports the judge’s order
affirming the magistrate’s decision from the February 2020 hearing.
Id. We reach this conclusion for two reasons.
¶ 23
First, the record reveals that father had not had any visits with
the child for over eight months before the dependency and neglect
case began and that the child had a serious trauma response
brought on by contact with father.
¶ 24
Second, the magistrate properly considered the position of the
child, who was thirteen years old and gave input to the
professionals involved, when declining to order reintegration
therapy. See People in the Interest of H.K.W., 2017 COA 70, ¶ 3.
Father does not point to any authority — nor are we aware of any —
that would suggest the magistrate erred by relying on in camera
interviews with a child to inform her decision. See § 19-1-106(5),
C.R.S. 2021 (providing that a child “may be heard separately when
deemed necessary” by the court). And father didn’t designate
10
transcripts of these interviews, so we presume the record supports
the magistrate’s decision. See Colo. Dep’t of Pub. Health & Env’t v.
Bethell, 60 P.3d 779, 787 (Colo. App. 2002) (when appellant does
not provide a complete record on appeal, we presume the record
supports the trial court’s conclusions).
¶ 25
Father’s reliance on People in Interest of D.G., 140 P.3d 299
(Colo. App. 2006), for the proposition that the magistrate erred by
not ordering the child to engage in reintegration therapy is
misplaced. In D.G., the division concluded that a juvenile court
erred by terminating parental rights because the parent’s treatment
plan did not include face-to-face visitation and was, thus,
inappropriate. The division reasoned that “absent safety concerns,
a parent is entitled to face-to-face visitation” with the child. Id. at
302. But this case does not involve a termination of parental
rights, and the magistrate knew of the child’s trauma response
brought on by contact with father.
¶ 26
Father also contends that the magistrate’s decision included
an improper “delegation to the child of the decision regarding
parenting-time/visitation.” We disagree because the magistrate’s
11
order did not include such delegation. Parenting time was
addressed in the judge’s APR.
¶ 27
But wait, says father. The magistrate did not take any
evidence at the February 2020 hearing. Father misses the point.
The judge determined and the record reveals that “the magistrate
was familiar with the child, the child’s record, [and] the facts.” And
father does not contest this determination.
III. The Judge’s October 2020 APR
¶ 28
Father next contends that we should reverse the APR because
the Department did not make diligent efforts to reunify him with his
child. We disagree.
A. Law
¶ 29
When entering an APR, the juvenile court must “be guided by
the underlying purposes of the [Children’s] Code.” L.A.G. v. People
in Interest of A.A.G., 912 P.2d 1385, 1391 (Colo. 1996). But the
Children’s Code does not define factors the juvenile court must
consider in allocating parental responsibilities. People in Interest of
C.M., 116 P.3d 1278, 1281 (Colo. App. 2005). Instead, the juvenile
court “must allocate parental responsibilities based on the best
12
interests of the child and the public.” H.K.W., ¶ 13; see § 19-3-
508(1)(a), C.R.S. 2021.
¶ 30
The juvenile court may consider the best interest factors listed
in the Uniform Dissolution of Marriage Act, § 14-10-124(1.5)(a),
C.R.S. 2021, if the focus is on the protection and safety of the child
and not on the “custodial interests” of the parents. L.A.G., 912 P.2d
at 1391-92; People in Interest of M.D., 2014 COA 121, ¶ 12; C.M.,
116 P.3d at 1282. And the court may consider the “wishes of the
child if he or she is sufficiently mature to express reasoned and
independent preferences as to the parenting time schedule.”
H.K.W., ¶ 13.
B. Standard of Review
¶ 31
We will not disturb a juvenile court’s factual findings when
they are supported by the record. People in Interest of J.G., 2021
COA 47, ¶ 17 (examining whether the juvenile court erred in
allocating parental responsibilities in a dependency and neglect
case). But whether the juvenile court applied the correct legal
standard in making its findings is a question of law we review de
novo. Id.
13
C. Analysis
¶ 32
Father contends that the Department did not make diligent
efforts to reunify him with his child for three broad reasons. He
contends that (1) his treatment plan required “progress toward
reintegration therapy” and this did not happen; (2) his treatment
plan should have included, and the Department did not include in
its services, an assessment for parental alienation; and (3) his
treatment plan should have provided for face-to-face visitation. We
conclude the record supports the judge’s APR.
1. Reintegration Therapy
¶ 33
In allocating parental responsibilities, the judge found as
follows.
“[T]his is [a] dependency and neglect case with the goal of
returning the child home, which has been accomplished.”
The expert testimony of the caseworker, psychotherapist, and
trauma therapist “accurately portray[ed] [the child’s] mental
health conditions and fear of [father] [which] support[s] the
finding that [the child] continues to have anxiety and fear of
[father].”
14
“[R]eintegration therapy is traumatic” for the child, and that,
“if he were required to participate [in it] prior to completing
trauma therapy . . . he could self-harm.”
¶ 34
We conclude that the record supports the juvenile court’s
findings. See J.G., ¶ 17.
¶ 35
The record contains the following evidence.
A psychotherapist testified that he observed the child to show
“hesitance [and] expressed a desire to not want to do
[reintegration] therapy.” “There were times,” according to the
psychotherapist’s testimony, that the child would “put a
blanket over his head and not want to . . . talk about
[reintegration therapy].”
The caseworker testified that, as of the APR hearing, the child
“remained clear that he does not wish to have contact with his
father” and that the child “continues to be very clear that he
does not wish to participate in any reintegration therapy.”
The child’s trauma therapist, who was qualified as an expert
in child therapy with a specialization in trauma therapy,
testified that she was asked to work with the child to see “if we
could get him to a point where he would one day be ready for
15
reintegration therapy.” But she concluded that the child was
not ready for trauma therapy.
The trauma therapist also opined, “I do not recommend that
he be forced to do reintegration therapy until trauma therapy
is completed. Because I think it will cause decompensation.”
She clarified that “decompensate[ion] means that he could
become suicidal again.”
¶ 36
And the caseworker testified that father could have
participated in reintegration therapy, even without the child’s
participation.
2. Parental Alienation
¶ 37
We note first that the record shows that parental alienation
and enmeshment are related. The trauma therapist testified that
enmeshment was a symptom of parental alienation.
¶ 38
The judge found as follows:
The Department recognized that enmeshment between mother
and the child was a possibility.
The Department hired a psychoanalyst to assess whether
enmeshment was an issue.
16
One of father’s experts — a Child and Family Investigator (CFI)
from the parent’s dissolution of marriage case, qualified as an
expert in child family psychology and child family investigation
— could not “draw conclusions there is enmeshment because
of his limited ability to assess the parties.”
The CFI “was not convinced that enmeshment or parental
alienation exists in their relationship” and characterized
mother and child’s bond as “healthy” and “strong.” “Mother
has demonstrated her ability to meet [the child’s] physical,
mental, and emotional needs and to place his needs above her
own.”
¶ 39
We conclude that the record supports the juvenile court’s
findings about parental alienation and parental enmeshment. See
J.G., ¶ 17. We come to this conclusion for four reasons:
¶ 40
First, the record contains the following evidence.
The caseworker testified that “there might be enmeshment.”
The Department tasked a psychotherapist — qualified as an
expert in in-home cognitive behavioral therapy — to assess the
relationship between mother and the child and to determine
whether he saw any “enmeshment qualities.”
17
The psychotherapist opined that enmeshment qualities
included (1) “whether or not the emotional states of the
parents and children mimic each other”; (2) whether adults
talk over children when questions are presented; and (3)
whether the adults allow the children to share what they are
feeling. He testified that he had observed no such qualities
between mother and son.
¶ 41
Second, although father contends that the juvenile court
mischaracterized the CFI’s testimony, the record supports the
court’s description of the CFI’s inability to reach a conclusion about
alienation. The CFI opined that when he was involved in the case a
year and half earlier, there “were very porous boundaries between
[mother] and [the child].” He testified he was not asked, in the
Arapahoe County case, to report on alienation, but that “he would
have put [a discussion of alienation] into [his] final report.”
¶ 42
Despite this, the CFI could not conclude that alienation
existed when he worked with the family because he did not have
enough information about the case. The CFI never made a final
report, let alone one that concluded alienation existed, in the
Arapahoe County case before that case was certified into the
18
dependency and neglect case. And, at the time of the APR hearing,
the CFI did not have enough information to make conclusions
about alienation.
¶ 43
Third, to the extent father asks us to consider his expert’s
alienation factors, we decline to do so. This is a matter properly
reserved for the juvenile court judge. See People in Interest of
S.M.A.M.A., 172 P.3d 958, 962 (Colo. App. 2007) (we defer to the
juvenile court’s resolution of any conflicts in the evidence). And we
have concluded that there is record support for the judge’s findings.
¶ 44
Fourth, although father also contends that the judge made
inaccurate findings about the child’s relationship to mother, there
is record evidence to support the judge’s characterization of the
mother-child relationship. The caseworker testified that she saw
mother and the child together monthly and that “their relationship
is very comfortable for [the child].” And she had no concerns “from
a child protection standpoint” with the relationship’s dynamics.
3. Face-to-Face Visitation
¶ 45
The judge found that it was in “the best interests of the child
that parenting time” for father “shall not occur until further order of
19
the court and once [the child] has successfully completed trauma
therapy.”
¶ 46
We conclude that the record supports the court’s finding. See
J.G., ¶ 17.
¶ 47
At the APR hearing, multiple experts testified that the child’s
safety was affected by contact with father. For example, the
caseworker testified that the child had been hospitalized after
threatening suicide because “he felt forced to have communication
with his father.” Similarly, the child’s trauma therapist opined, “I
do not recommend that he be forced to do reintegration therapy
until trauma therapy is completed. Because I think it will cause
decompensation.” She clarified that “decompensate means that he
could become suicidal again.”
¶ 48
True, section 19-3-208 requires the Department to provide
visitation in out-of-home placement in every dependency and
neglect proceeding. See People in Interest of A.A., 2020 COA 154, ¶
17. But the child was not in out-of-home care, having been placed
with mother. And even if we concluded that the requirement of
face-to-face visitation nevertheless applies, the child’s health and
safety are the paramount concerns in determining whether
20
visitation services are necessary and appropriate. See id. The judge
considered these concerns in its order.
¶ 49
Father’s reliance on People in Interest of E.S., 2021 COA 79, ¶
23, for the proposition that a juvenile court commits error when it
denies face-to-face visitation for a parent is also misplaced. In E.S.,
the division held that the Department may not bar visitation with a
parent simply because a parent has an outstanding warrant,
without considering child safety. Id. Whereas, here, the record is
clear that contact with father created a safety concern for the child.
¶ 50
Father’s reliance on A.A. for the proposition that the
Department does not provide reasonable efforts when it does not
provide referrals for therapy or therapeutic visitation between a
parent and a child reluctant to visit is also misplaced. Unlike in
A.A., here, the Department provided therapy and reintegration
services to father on his own; father refused these services.
¶ 51
To the extent father contends that his due process rights were
violated by the judge’s APR, we conclude father was afforded
sufficient protections. Although a termination of parental rights
implicates a parent’s fundamental liberty interest in the care,
custody, and control of their children, see Troxel v. Granville, 530
21
U.S. 57, 66 (2000), a parent’s due process rights in an APR to
another parent is circumscribed, at best. See People in Interest of
L.B., 254 P.3d 1203, 1206 (Colo. App. 2011) (parent has no due
process right to counsel when the state seeks to award custody of
the children to another parent).
¶ 52
Father’s reliance on People in Interest of B.J.D., 626 P.2d 727,
730 (Colo. App. 1981) is misplaced. In B.J.D., the division
concluded that the parent’s treatment plan was not appropriate
because it had unrealistic requirements. See id. at 729-30. But,
here, the Children’s Code contains no provision requiring a court to
consider the appropriateness of the parent’s treatment plan before
ordering an APR. See C.M., 116 P.3d at 1281. And the court
appropriately considered the best interests of the child in allocating
parenting responsibilities for the child to mother. H.K.W., ¶ 13.
IV. Conclusion
¶ 53
The APR judgment is affirmed.
JUDGE LIPINSKY and JUDGE BROWN concur.