Peo in Interest of NLG

24CA0245 Peo in Interest of NLG 09-05-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0245

Las Animas County District Court No. 22JV30010

Honorable Dawn Marie Mann, Judge

The People of the State of Colorado,

Appellee,

In the Interest of N.L.G. and L.G., Children,

and Concerning E.V. and J.G.,

Appellants.

JUDGMENT AFFIRMED

Division VII

Opinion by JUDGE TOW

Gomez and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced September 5, 2024

Josi McCauley, Special County Attorney, Superior, Colorado, for Appellee

Debra W. Dodd, Guardian Ad Litem

Patrick R. Henson, Office of Respondent Parents’ Counsel, Justin Twardowski,

Office of Respondent Parents’ Counsel, Denver, Colorado, for E.V.

Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for

J.G.

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¶ 1 In this dependency and neglect proceeding, E.V. (mother) and

J.G. (father) each appeal the juvenile court’s judgment terminating

their parent-child legal relationships with N.L.G. and L.G. (the

children). We affirm.

I. Background

¶ 2 The Las Animas County Department of Human Services

investigated reports that mother was abusing drugs with the

children, who were then three years old and three months old, in

her care. The Department had previously opened dependency and

neglect cases and removed the older child from the parents’ custody

on two occasions. Those cases were ultimately closed because

mother attained sobriety, though father never engaged with the

Department or participated in any services to address his substance

use and domestic violence.

¶ 3 After several attempts to contact mother following the latest

report, a Department caseworker met with her. During this

interaction, mother repeatedly began to fall asleep to the point that

the caseworker was concerned mother would drop the infant child.

At the caseworker’s request, mother completed a drug screen,

which was positive for morphine and methamphetamine.

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¶ 4 Given father’s history, the caseworker inquired about father’s

involvement with the family. According to mother, father did not

live with mother or the children but would occasionally come to the

home.

¶ 5 The older child, N.L.G., has spina bifida, and requires a

wheelchair and frequent catheterization. Shortly after the

Department became involved with the family for the third time, both

children tested positive for multiple controlled substances,

including both opiates and amphetamines.

¶ 6 After the investigation, the Department filed a petition in

dependency and neglect. The court adjudicated the children

dependent and neglected and adopted treatment plans for both

parents.

¶ 7 Each parent’s treatment plan required them to (1) participate

in family time, take parenting classes, and complete a parent-child

interactional evaluation; (2) comply with probation and refrain from

further criminal activity; (3) complete a substance abuse evaluation,

engage in any recommended treatment, and submit drug screening

samples; (4) complete a mental health assessment and follow all

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recommendations; (5) communicate with case professionals and

sign releases of information; and (6) maintain appropriate housing.

¶ 8 Eight months after the treatment plans were adopted, the

Department moved to terminate mother’s and father’s parental

rights, alleging that they had not complied with their treatment

plans and remained unfit. After a hearing, a magistrate granted the

motion. The parents jointly petitioned for district court review. The

juvenile court denied the parents’ petition and adopted the

magistrate’s order terminating parental rights.

II. Legal Framework

¶ 9 A juvenile court may terminate parental rights if it finds, by

clear and convincing evidence, that (1) the children have been

adjudicated dependent or neglected; (2) the parent did not comply

with or was not successfully rehabilitated by an appropriate, court-

approved treatment plan; (3) the parent is unfit; and (4) the parent’s

conduct or condition is unlikely to change within a reasonable time.

§ 19-3-604(1)(c), C.R.S. 2024; People in Interest of E.S., 2021 COA

79, ¶ 10. When a court decides whether a parent is unfit or

whether their conduct or condition will change, it must evaluate

whether the Department’s reasonable efforts have been unable to

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rehabilitate them. § 19-3-604(2)(h); People in Interest of S.N-V., 300

P.3d 911, 915 (Colo. App. 2011).

¶ 10 If the children are under six years old when the petition is

filed, as in this case, the court must also consider the expedited

permanency planning (EPP) provisions, which require 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. 2024;

see also People in Interest of S.Z.S., 2022 COA 133, ¶ 25.

¶ 11 In determining whether the court erred by terminating

parental rights under section 19-3-604(1)(c), we review the court’s

factual findings for clear error but review its legal conclusions de

novo. People in Interest of S.R.N.J-S., 2020 COA 12, ¶ 10.

III. Treatment Plan Compliance and Fitness in a Reasonable Time

¶ 12 Mother contends that the juvenile court erred when it

concluded that she did not comply with her treatment plan and

could not become a fit parent within a reasonable time. We

perceive no error.

A. Relevant Law

¶ 13 Because this case is subject to the EPP provisions, the juvenile

court could not find that mother reasonably complied with a

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treatment plan if she “exhibit[ed] the same problems addressed in

the treatment plan without adequate improvement.”

§ 19-3-604(1)(c)(I)(B). Although absolute compliance with a

treatment plan is not required, even substantial compliance might

not be sufficient to correct or improve the parent’s conduct or

condition, or to render the parent fit. People in Interest of T.E.M.,

124 P.3d 905, 909 (Colo. App. 2005).

¶ 14 An appropriate treatment plan aims to render the parent fit to

provide adequate parenting to the children within a reasonable

time. See § 19-1-103(12), C.R.S. 2024; People in Interest of K.B.,

2016 COA 21, ¶ 13. A “reasonable time” is not indefinite and is

determined by considering the children’s physical, mental, and

emotional needs. People in Interest of A.J., 143 P.3d 1143, 1152

(Colo. App. 2006). “In determining whether the parent’s conduct or

condition is likely to change within a reasonable time, the court

may consider whether a change has occurred during the

proceeding, the parent’s social history, and the chronic or long-term

nature of the conduct or condition.” S.Z.S., ¶ 24.

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B. Analysis

¶ 15 The juvenile court determined that mother did not reasonably

comply with her treatment plan and “therefore, the treatment plan

was unsuccessful.” It then concluded that mother was unfit and

could not become fit within a reasonable time. The record supports

these findings.

¶ 16 The caseworker testified that mother completed a parenting

class and a parent-child interactional evaluation. Nevertheless, the

caseworker — whom the court qualified as an expert in child

welfare — opined that mother was not able to “demonstrate an

understanding of how her lifestyle choices have affected her ability

to safely parent.” The caseworker confirmed that mother’s family

time with the children had recently been going very well, but,

overall, mother missed more than half of the in-person visits that

the Department scheduled for her.

¶ 17 The record shows that mother’s probation from an earlier

criminal conviction was revoked during this case. Thus, mother

had not been able to comply with probation, as her treatment plan

required. Indeed, at the time of the termination hearing, she had

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been sentenced and was in the custody of the Colorado Department

of Corrections (CDOC).

¶ 18 Although mother eventually completed substance abuse and

mental health evaluations, she did not attend any recommended

substance abuse or mental health counseling until she was

incarcerated after having her probation revoked. Similarly, before

she was incarcerated, she did not comply with all of her court-

ordered sobriety testing. Of the samples she submitted for testing,

approximately half were positive for methamphetamine, fentanyl, or

other drugs.

¶ 19 Before her incarceration, mother did not maintain regular

contact with the Department. And, at the time of the termination

hearing, mother had not yet found safe housing.

¶ 20 By the termination hearing, the case had been open for

approximately twenty months. The caseworker opined that keeping

the case open longer would not be beneficial and that mother was

not likely to change within a reasonable time. In reaching this

conclusion, the caseworker considered mother’s history with the

Department, including her two previous dependency and neglect

cases. The caseworker testified that, given mother’s previous cases

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dealing with the same concerns, mother exhibited the same

problems she had at the case’s opening. She opined that mother

“can comply [with treatment plans], but as soon as the Department

no longer has any involvement, we’re back involved with the same

concerns [of substance use].” Ultimately, the caseworker opined

that the young children could not wait longer for mother to comply

with her treatment plan and that termination of parental rights was

in their best interests.

¶ 21 The record supports the juvenile court’s finding that mother —

despite recent progress with her treatment plan requirements —

was unable to overcome her lengthy history of noncompliance in

order to become fit within a reasonable time given the children’s

needs. We therefore cannot disturb the court’s ruling on appeal.

IV. Reasonable Efforts

¶ 22 Mother and father both contend that the juvenile court erred

when it concluded that the Department made reasonable efforts to

rehabilitate them and reunify the family. We perceive no error.

A. Relevant Law and Standard of Review

¶ 23 Before a juvenile court may terminate parental rights under

section 19-3-604(1)(c), the county department of human services

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must make reasonable efforts to rehabilitate parents and reunite

families. §§ 19-3-100.5(1), 19-1-103(114), 19-3-208,

19-3-604(2)(h), C.R.S. 2024. Reasonable efforts means the

“exercise of diligence and care” to reunify parents with their

children. § 19-1-103(114).

¶ 24 Services provided in accordance with section 19-3-208 satisfy

the reasonable efforts standard. § 19-1-103(114). Among the

services required under section 19-3-208 are screenings,

assessments, and the development of individual case plans for the

provision of services; home-based family and crisis counseling;

information and referral services to available public and private

assistance resources; family time; and placement services.

§ 19-3-208(2)(b); see also People in Interest of A.D., 2017 COA 61,

¶ 32. Other services, including transportation assistance, must

also be provided if the government has sufficient funding. § 19-3-

208(2)(d).

¶ 25 The purpose of a treatment plan is to preserve the parent-child

legal relationship by assisting the parent in overcoming the

problems that required the government’s intervention. K.D. v.

People, 139 P.3d 695, 699 (Colo. 2006). The juvenile court should

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consider whether the services provided were appropriate to support

the parent’s treatment plan, S.N-V., 300 P.3d at 915, by

“considering the totality of the circumstances and accounting for all

services and resources provided to a parent to ensure the

completion of the entire treatment plan,” People in Interest of

My.K.M. v. V.K.L., 2022 CO 35, ¶ 33. But the parent is ultimately

responsible for using the services to comply with the plan. People in

Interest of J.C.R., 259 P.3d 1279, 1285 (Colo. App. 2011). And the

court may consider a parent’s unwillingness to participate in

treatment in determining whether the department made reasonable

efforts. See People in Interest of A.V., 2012 COA 210, ¶ 12.

¶ 26 Whether a department of human services satisfied its

obligation to make reasonable efforts is a mixed question of fact and

law. People in Interest of A.S.L., 2022 COA 146, ¶ 8. We review the

juvenile court’s factual findings for clear error but review de novo its

legal determination, based on those findings, as to whether the

department satisfied its reasonable efforts obligation. Id.

B. Mother’s Contention

¶ 27 Mother argues that the Department did not exercise diligence

and care, as required by the definition of reasonable efforts, when it

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did not include any services related to mother’s and father’s

relationship, including domestic violence therapy. We read this as

a contention that her treatment plan was inappropriate. We

disagree with mother.

¶ 28 A treatment plan’s appropriateness is measured by its

likelihood of success in reuniting the family and is assessed in light

of the facts existing at the time the plan was adopted. People in

Interest of S.L., 2017 COA 160, ¶ 10. In determining whether a

treatment plan is appropriate, the court must consider whether the

plan’s objectives adequately address the safety concerns that led to

the filing of the petition. K.B., ¶ 14.

¶ 29 Here, the caseworker testified that no “current domestic

violence issues” were brought to the Department’s attention in this

case. And although the caseworker confirmed that domestic

violence concerns existed in mother’s previous cases, she opined

that no “type of allegation about [domestic violence] was[] relevant

to this particular case.” Domestic violence is not listed as a reason

for the case’s filing.

¶ 30 Moreover, notwithstanding the absence of services specifically

related to mother’s and father’s relationship, we perceive no error in

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the court’s conclusion that the Department made reasonable

efforts. See My.K.M., ¶ 33 (accounting for all services when

determining the sufficiency of a department’s efforts). The

Department referred mother to parenting classes, arranged for a

parent-child interactional, and set up family time for her with the

children. It also referred mother to a mental health assessment

provider and therapists. Mother did not comply with any of her

treatment plan objectives for the first fifteen months of the case.

Further, the fact that the only time mother was able to make

progress was when she was incarcerated speaks just as much to

the presence of someone — whether the Department caseworker or

the CDOC — watching over her behavior as to the absence of father

in her life.

¶ 31 We conclude that the Department satisfied its obligation to

provide reasonable efforts.

C. Father’s Contention

¶ 32 Father argues that the juvenile court erred by concluding that

the Department made reasonable efforts when the Department did

not (1) provide him with transportation assistance; (2) stay in

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communication with him; or (3) provide him with more

opportunities to sign releases. We perceive no error.

¶ 33 The record shows that the Department offered father

transportation assistance. The caseworker testified that, although

father was not provided gas vouchers or bus schedules, “the

Department offered transportation,” which father declined.

Similarly, although it is father’s responsibility to comply with his

treatment plan, the record shows that father did not stay in

communication with the Department or keep the Department

updated with his contact information. J.C.R., 259 P.3d at 1285.

The record also shows that father did not sign release paperwork,

as his treatment plan required, despite reminders that he needed to

do so during court hearings he attended.

¶ 34 The record supports the juvenile court’s factual findings

regarding the efforts the Department made. In light of those

findings, it is clear that the Department exercised reasonable

efforts.

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V. Less Drastic Alternatives

¶ 35 Both parents claim that the juvenile court erred by concluding

there were no less drastic alternatives to termination in this matter.

We are not convinced.

A. Relevant Law

¶ 36 Before terminating parental rights under section

19-3-604(1)(c), the juvenile court must consider and eliminate less

drastic alternatives. People in Interest of M.M., 726 P.2d 1108,

1122-23 (Colo. 1986). In considering less drastic alternatives, a

court must give primary consideration to the children’s physical,

mental, and emotional conditions and needs. § 19-3-604(3); People

in Interest of Z.P., 167 P.3d 211, 214 (Colo. App. 2007). Long-term

placement may not be a viable alternative to termination if the

children need a stable, permanent home that can be assured only

by adoption. Z.P., 167 P.3d at 214. We must affirm the court’s

decision if its findings are supported by the record. People in

Interest of B.H., 2021 CO 39, ¶ 80.

B. Mother’s Contention

¶ 37 Mother argues that additional time to comply with her

treatment plan was a viable less drastic alternative to termination.

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We disagree that giving mother more time constitutes a less drastic

alternative. The less drastic alternatives analysis involves the

consideration of whether a placement arrangement would satisfy

the children’s best interests. See People in Interest of A.R., 2012

COA 195M, ¶ 44 (considering whether an allocation of parental

responsibilities would satisfy the child’s best interests). Therefore,

we construe mother’s claim as a challenge to the court’s finding

that her conduct or condition was unlikely to change within a

reasonable time under section 19-3-604(1)(c)(III). We have already

concluded that the court did not err in that determination.

C. Father’s Contentions

¶ 38 Father asserts that the Department did not “properly

investigate and explore all relatives.” He also asserts that the

Department did not determine if the children’s placement would

accept an allocation of parental responsibilities (APR). The record

belies these assertions and supports the court’s conclusion that

“[l]ess drastic alternatives have been considered and ruled out as

not being in the best interest[s] of the child[ren].”

¶ 39 When considering less drastic alternatives to termination, the

Department is not required to independently identify and evaluate

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possible placement options. Z.P., 167 P.3d at 215. Instead, the

Department is only required to evaluate a reasonable number of

persons the parent identifies as placement options. People in

Interest of D.B-J., 89 P.3d 530, 532 (Colo. App. 2004).

¶ 40 The caseworker testified that the Department provided father

with a relative affidavit, but he did not fill it out. Nevertheless, the

caseworker testified that the Department identified and provided

notice to all of the children’s known relatives. The Department

specifically investigated paternal aunt and paternal grandfather,

but the caseworker opined that these placements would not have

been safe for the family. Paternal aunt had “an extensive criminal

history” and paternal grandfather, who also had a criminal

background, told the caseworker that he “was not going to

cooperate with the Department.”

¶ 41 The record also shows that the Department talked with the

children’s foster placement about the possibility of APR. When

father’s counsel asked whether it would be a possibility “just to

award custody to the foster placement,” the caseworker responded,

“[w]e’ve talked with the foster parents about that.” The caseworker

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also testified that she “discussed permanency” with the children’s

foster placement and that they are an “adoptive placement.”

¶ 42 Given this evidence, which supports the court’s determination

that no less drastic alternatives to termination existed in this case,

we will not disturb it on appeal.

VI. Disposition

¶ 43 The judgment is affirmed.

JUDGE GOMEZ and JUDGE KUHN concur.

Case Details

Case Name: Peo in Interest of NLG

Court Name: Colorado Court of Appeals

Date Published: Sep 5, 2024

Docket Number: 24CA0245

Court Abbreviation: Colo. Ct. App.