Peo in Interest of RPS

21CA0854 Peo in Interest of RPS 01-20-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA0854

Adams County District Court No. 19JV186

Honorable Katherine R. Delgado, Judge

The People of the State of Colorado,

Appellee,

In the Interest of R.P.S., a Child,

and Concerning T.S.,

Appellant.

JUDGMENT AFFIRMED

Division VI

Opinion by JUDGE FREYRE

Navarro and Harris, JJ., concur

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

Announced January 20, 2022

Heidi Miller, County Attorney, Rebecca Wiggins, Assistant County Attorney,

Westminster, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem

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

Appellant

1

¶ 1 In this dependency and neglect proceeding, T.S. (father)

appeals the judgment terminating his parental rights to R.P.S. (the

child). We affirm.

I. Background

¶ 2 In June 2019, the Adams County Human Services Department

(Department) initiated an action in dependency and neglect and

assumed temporary legal custody of the child. The Department

alleged that law enforcement found the child, who was two years old

at the time, wandering the streets without parental supervision.

The Department reported that father was incarcerated in the county

jail. The Department placed the child in a foster home.

¶ 3 Father made a no-fault admission to the petition, and the

juvenile court adjudicated the child dependent and neglected. The

court adopted a treatment plan for father in July 2019. After father

was released from jail, the court approved an amended treatment

plan for him.

¶ 4 The Department moved to terminate father’s parental rights in

April 2021. The juvenile court held an evidentiary hearing the

following month. After hearing the evidence, the court terminated

father’s parental rights.

2

II. Discussion

¶ 5 Father contends that the juvenile court erred by finding that

(1) the Department made reasonable efforts to rehabilitate him and

reunify him with the child; and (2) there were no less drastic

alternatives to termination. Specifically, he asserts that the

Department did not adequately investigate his family members for

placement and that the court should have continued the

termination proceeding to allow the Department to make a more

thorough investigation. We are not persuaded.

A. Standard of Review

¶ 6 Where resolution of an issue requires application of the

termination statute to evidentiary facts, it presents a mixed

question of fact and law. People in Interest of A.M. v. T.M., 2021 CO

14, ¶ 15. We review the juvenile court’s factual findings for clear

error. C.R.C.P. 52. The credibility of witnesses, the sufficiency,

probative effect, and weight of the evidence, and the inferences and

conclusions to be drawn therefrom are all within the province of the

juvenile court. People in Interest of C.A.K., 652 P.2d 603, 613 (Colo.

1982). But application of the proper legal standard to the

3

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.

B. Law

¶ 7 The juvenile court may terminate parental rights if it finds by

clear and convincing evidence that (1) the child was adjudicated

dependent or neglected; (2) the parent has not complied with an

appropriate, court-approved treatment plan or the plan was

unsuccessful; (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. 2021; People in Interest of C.H., 166 P.3d 288, 289

(Colo. App. 2007).

¶ 8 In determining whether a parent is unfit under section 19-3-

604(1)(c), the juvenile court must consider whether the Department

made reasonable efforts 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 in out-of-home placement. § 19-1-103(114), C.R.S. 2021.

¶ 9 The Department satisfies the reasonable efforts standard if

services are provided in accordance with section 19-3-208, C.R.S.

2021. § 19-1-103(114). Among the efforts required under section

4

19-3-208 are screenings, assessments, and 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; visitation services for parents with

children in out-of-home placement; and placement services

including foster care and emergency shelter. § 19-3-208(2)(b).

¶ 10 The juvenile court should consider whether the services

provided by the Department were appropriate to support the

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

responsible for using the services provided by the Department to

obtain the assistance needed to comply with the treatment plan’s

requirements, 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 as a factor in determining whether the

Department has made reasonable efforts, see People in Interest of

A.V., 2012 COA 210, ¶ 12.

¶ 11 Before terminating parental rights under subsection (1)(c), the

juvenile court must also consider and eliminate less drastic

alternatives. People in Interest of M.M., 726 P.2d 1108, 1122 (Colo.

1986); see also People in Interest of L.M., 2018 COA 57M, ¶ 24 (The

5

consideration of a less drastic alternative is not a separate criterion

but rather “is implicit in, and thus intertwined with, the statutory

criteria for termination.”). A less drastic alternative analysis

requires the court to consider whether any placement, short of

termination, would be in the child’s best interests. People in

Interest of A.R., 2012 COA 195M, ¶ 44. Thus, in considering less

drastic alternatives, courts must give primary consideration to the

child’s physical, mental, and emotional conditions and needs. § 19-

3-604(3).

¶ 12 In assessing whether a proposed less drastic alternative is a

viable option, a juvenile court may consider and weigh various

factors, including whether an ongoing relationship with the parent

would be beneficial or detrimental to the child. See A.R., ¶ 38.

Long-term or permanent placement with a family member is not a

less drastic alternative to termination where it does not provide the

child with adequate permanency. Id. at ¶ 41.

¶ 13 For a less drastic alternative to be viable, it must do more than

“adequately” meet a child’s needs; rather, the less drastic

alternative must be the “best” option for the child. A.M., ¶ 27.

Therefore, if the court considers a less drastic alternative but finds

6

instead that termination is in the child’s best interests, it must

reject the less drastic alternative and order termination. Id. at ¶ 32.

When the juvenile court considers the availability of a less drastic

alternative and still determines that the termination of parental

rights would be in the child’s best interests, 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.

C. The Record

¶ 14 At the beginning of the termination hearing, father requested a

continuance so that the Department could investigate his brother

(paternal uncle) as a potential placement option. The court denied

the request because the case had been open for almost two years,

and it could not find good cause for further delay.

¶ 15 The caseworker then testified that the only family member

father had suggested as a possible placement option was his mother

(paternal grandmother). The caseworker said that she had not

heard about paternal uncle until father’s counsel mentioned him

during her request for a continuance.

¶ 16 The caseworker testified that she contacted paternal

grandmother in September 2020, and paternal grandmother gave

7

the Department permission to run a background check on her at

that time. The caseworker said that the background check revealed

that paternal grandmother had a “felony record” that included

“child abuse and an assault charge.” On cross-examination, the

caseworker clarified that mother had only felony charges, not

convictions, from 2004. Additionally, the caseworker said that

paternal grandmother had two other people living in her home, but

she would not allow the Department to investigate her roommates.

Based on this information, the Department declined to place the

child with paternal grandmother.

¶ 17 Father testified that he knew paternal grandmother had

criminal charges on her record, but he thought she could still be an

appropriate placement option because the charges “were so old and

the accusations were dismissed.” He also said that it was “hard to

get a hold of anybody” while incarcerated, but that he had been

“trying” to contact paternal uncle, who he thought “would be a good

fit” for the child. Father also said that his “aunt would be a good

fit.” Father testified that he never mentioned paternal uncle or his

aunt (paternal great-aunt) to the Department because he “never

8

anticipated being back incarcerated” and did not think “it would be

problematic.”

¶ 18 In closing, father’s counsel argued that the juvenile court

should deny the motion to terminate and continue the case “so that

the Department could investigate potential family members as

permanent placement options.” She argued that the Department

“failed to fully consider” paternal grandmother and “look into”

paternal uncle and paternal great-aunt.

D. Reasonable Efforts

¶ 19 Father maintains that the Department failed to make

reasonable efforts because the caseworker did not “adequately

investigate the paternal grandmother or other family members as

potential placement options.”

¶ 20 Preliminarily, we note that father does not challenge the

juvenile court’s finding that the Department made reasonable

efforts by providing him with the necessary services to enable

compliance with the components of his treatment plan, including

domestic violence treatment, child protection therapy, parenting

classes, and visitation services. See S.N-V., 300 P.3d at 915. Nor

does father challenge the court’s finding that he failed to participate

9

in those services after he committed a domestic violence assault in

October 2020 and was incarcerated in the department of

corrections for the remainder of the case. A.V., ¶ 12; J.C.R., 259

P.3d at 1285.

¶ 21 The juvenile court found that the Department made efforts to

identify potential placement options for the child and father only

suggested paternal grandmother as a placement option. The court

also found that it was father’s responsibility to give the caseworker

names of family members that he wanted the Department to

investigate, and even though he was incarcerated, he had the ability

to contact the caseworker. The court noted that it had “learned of

two additional family members” for the first time “almost two years

into the case,” which “could have been provided much earlier.” The

court further noted that father was arrested and sentenced to the

Department of Corrections approximately seven months before the

termination hearing, and therefore, he had reason to “provide

information about other relatives” sooner rather than later.

¶ 22 The Department must evaluate a reasonable number of

persons identified by the parent as possible placement alternatives.

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

10

However, the Department has no obligation to independently

identify and evaluate other possible placement alternatives. People

in Interest of Z.P., 167 P.3d 211, 215 (Colo. App. 2007). Here, the

record is clear that father never asked the Department to

investigate paternal uncle or paternal great-aunt. Therefore, we

conclude that the Department had no obligation to investigate those

family members for placement, and as a result, we cannot say that

the Department failed to make reasonable efforts.

¶ 23 Still, the record shows that father did ask the Department to

investigate paternal grandmother. The record further indicates that

the Department conducted a background check on paternal

grandmother, which revealed criminal charges. The caseworker

also testified that paternal grandmother did not allow the

Department to run background checks on the other people living in

her home. For these two reasons, the caseworker said that the

Department declined to place the child with paternal grandmother.

¶ 24 On appeal, Father asserts that the Department’s “failure to

conduct any investigation into [paternal grandmother] beyond

reviewing her criminal background check demonstrates that it

11

failed in its duty to exercise reasonable efforts.” We disagree for two

reasons.

¶ 25 First, father does not provide us with any legal authority for

his position. Father’s brief cites to People in Interest of C.T.S., 140

P.3d 332, 335 (Colo. App. 2006) to support his argument that the

Department had to conduct further investigation to satisfy the

reasonable efforts requirement. Yet, C.T.S. says nothing about

whether a department must continue to investigate a relative

placement option if the relative does not pass the background

check. Nor does father direct us to anything in section 19-3-208

that would require the Department to take such an action to satisfy

its reasonable efforts requirement. See §§ 19-1-103(114), 19-3-

100.5(5), C.R.S. 2021 (noting that the Department makes

reasonable efforts by providing the services required in section 19-

3-208).

¶ 26 Second, father’s claim fails to address the Department’s

secondary reason for declining placement with paternal

grandmother. Even if paternal grandmother’s criminal history did

not exclude her from being a placement option, father does not

explain how the Department could have placed the child with

12

paternal grandmother without performing background checks on

the other people living in her home. The record does not show that

further investigation of paternal grandmother’s home would have

revealed whether her roommates had moved out or whether

paternal grandmother was now willing to allow the Department to

conduct background checks on the people living in her home.

¶ 27 Thus, based on the record before us, we cannot say that the

Department failed to make reasonable efforts in this case. We

therefore decline to disturb the judgment.

E. Less Drastic Alternatives

¶ 28 Father next contends that the juvenile court erred by finding

that there were no less drastic alternatives to termination, given

that “the record demonstrated that at the time of termination the

child was not in a permanent placement and potential kinship

options had not yet been adequately investigated.” We discern no

error in the court’s judgment for six reasons.

¶ 29 First, the record supports the court’s finding that termination

was in the child’s best interests because he needed permanency

that could only be achieved by termination and adoption. The

caseworker testified that it was in the child’s best interests for the

13

court to order termination because the case had been open for two

years, the child was very young, and he needed permanency as

soon as possible. See A.R., ¶ 41.

¶ 30 Second, the record supports the court’s finding that father had

not complied with his treatment plan, that he was unfit, and that

his conduct or condition was unlikely to change within a reasonable

time. Father does not challenge the propriety of these findings. See

A.M., ¶ 48 (noting that the parent did not challenge the termination

criteria in affirming the court’s less drastic alternative finding); L.M.,

27 (“[T]he determination of whether there is a less drastic

alternative to termination will be influenced by a parent’s fitness to

care for [the] child.”). Nor does he explain, given these findings,

how an ongoing relationship would be in the child’s best interests.

See A.R., ¶ 38.

¶ 31 Third, the record does not support father’s assertion that “the

child was not in a permanent placement.” To be sure, the record

reveals that the child had only recently moved into a new foster

home. But we see nothing in the record indicating that this foster

family could not give the child a permanent home. See § 19-3-

702(5), C.R.S. 2021 (defining a “permanent home” as the place

14

where a child may reside if the child is unable to return home to a

parent). In fact, the caseworker testified that the Department had

found a foster family that wanted to adopt the child.

¶ 32 Fourth, as noted in Part II.D., the record shows that the

Department adequately investigated the only potential placement

option suggested by father, and the court found that she was not an

appropriate placement for the child. See People in Interest of T.E.M.,

124 P.3d 905, 910 (Colo. App. 2005) (noting that long-term

placement with grandmother who ran a residential treatment

facility in her home was not an appropriate placement option). As

to the other relatives, the Department had no obligation to

investigate them because father did not offer them as potential

placement options. See Z.P., 167 P.3d at 215. Thus, there is no

evidence in the record suggesting that an appropriate alternative

placement option existed. See id.

¶ 33 Fifth, we are not persuaded by father’s assertion that the

juvenile court should have denied the termination motion and

continued the case for further investigation of the relatives. The

court denied father’s request to continue the termination hearing to

allow for further investigation, and he does not specifically address

15

how the juvenile court abused its discretion when it denied that

request. See People in Interest of A.W., 2015 COA 144M, ¶ 15

(whether to grant a continuance is a matter entrusted to the

juvenile court’s discretion). Nor does he explain how further delay

would be in the child’s best interests. See § 19-3-602(1), C.R.S.

2021 (In a case subject to the expedited permanency planning

provisions, such as this one, the court may not “grant a delay

unless good cause is shown and unless the court finds that the best

interests of the child will be served by granting a delay.”); see also §

19-3-604(3). In any event, father does not point to any evidence in

the record suggesting that further investigation of his relatives

would have resulted in a different outcome. Indeed, father testified

that he had yet to speak with either paternal uncle or paternal

great-aunt. Thus, we do not even know whether they would be

willing to accept placement.

¶ 34 Finally, when the juvenile court rejected less drastic

alternatives because the child needed permanency that only an

adoption could achieve, it could order termination even if there was

a relative available to care for the child. See A.M., ¶ 32. In other

words, the court determined that, regardless of the identity of the

16

placement option, any alternative short of termination was not in

the child’s best interests. Thus, even if an appropriate placement

existed, we would still be obliged to affirm the court’s judgment.

See B.H., ¶ 80.

III. Conclusion

¶ 35 The judgment is affirmed.

JUDGE NAVARRO and JUDGE HARRIS concur.