Peo in Interest of GM

21CA0465 Peo in Interest of GM 01-20-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA0465

Mesa County District Court No. 19JV198

Honorable Lance P. Timbreza, Judge

The People of the State of Colorado,

Appellee,

In the Interest of G.M. and A.M., Children,

and Concerning B.M.,

Appellant.

JUDGMENT AFFIRMED

Division IV

Opinion by JUDGE RICHMAN

Tow and Grove, JJ., concur

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

Announced January 20, 2022

Todd Starr, County Attorney, Jeremy Savage, Chief Deputy County Attorney,

Grand Junction, Colorado, for Appellee

Garrett Forsgren, Guardian Ad Litem

Ainsley Bochniak, Office of Respondent Parents’ Counsel, Denver, Colorado, for

Appellant

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¶ 1 B.M. (father) appeals the judgment terminating the

parent-child legal relationship with his children. We affirm.

I. Background

¶ 2 The Mesa County Department of Human Services filed a

petition in dependency and neglect regarding then-eleven-year-old

G.M. and then-nine-year-old A.M. (the children). The Department

alleged concerns about substance abuse, mental health, and

domestic violence. The Department also alleged that father was

incarcerated.

¶ 3 The juvenile court adjudicated the children dependent and

neglected. The court then adopted a treatment plan for father.

¶ 4 The Department later moved to terminate father’s parental

rights. Fourteen months after the petition was filed and following a

hearing, the juvenile court granted the motion.

II. Termination of Parental Rights

A. General Law

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

clear and convincing evidence, that (1) the child has been

adjudicated dependent and neglected; (2) the parent has not

complied with an appropriate, court-approved treatment plan or the

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plan has not been successful; (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).

¶ 6 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. “We review the juvenile

court’s findings of evidentiary fact — the raw, historical data

underlying the controversy — for clear error and accept them if they

have record support.” People in Interest of S.R.N.J-S., 2020 COA 12,

¶ 10. But we review de novo the juvenile court’s legal conclusions

based on those facts — including its conclusion that the

Department made reasonable efforts to rehabilitate the parent and

reunify the family under section 19-3-604(2)(h). See S.R.N.J-S.,

¶ 10.

B. Reasonable Efforts

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

the Department made reasonable efforts to rehabilitate him.

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Specifically, he asserts that the Department failed to help him with

domestic violence treatment. We discern no basis for reversal.

¶ 8 In determining whether a parent is unfit, the juvenile court

must consider whether the Department made reasonable efforts to

reunify the family. § 19-3-604(2)(h), (k)(III); see also §§ 19-3-100.5,

19-3-208, C.R.S. 2021 (requiring the state to make reasonable

efforts to reunite the family when appropriate).

¶ 9 Among the efforts required under section 19-3-208 are

screening, 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 Section 19-3-208 also lists other services that should be made

available if such a service is determined necessary and appropriate

by the case plan and there is adequate funding for it.

§ 19-3-208(2)(d). These include transportation, child care, in-home,

diagnostic, mental health, health care, drug and alcohol treatment,

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after care, family support, financial, and family preservation

services. Id.

¶ 11 The reasonable efforts standard is deemed met if services are

provided in accordance with section 19-3-208. § 19-1-103(114),

C.R.S. 2021; People in Interest of J.A.S., 160 P.3d 257, 262 (Colo.

App. 2007). The parent is responsible for using those services to

obtain the assistance that he or she needs to comply with their

treatment plan. People in Interest of J.C.R., 259 P.3d 1279, 1285

(Colo. App. 2011).

¶ 12 Here, the juvenile court found that the Department had made

reasonable efforts to provide services for father, but he had “not

taken advantage of those services to the extent required by his

treatment plan.”

¶ 13 The record shows that the Department devised a treatment

plan for father; coordinated letters and video visits between father

and the children; and facilitated placement services for the children.

We note that father had been incarcerated during the case and had

been released to Community Corrections approximately three

months before the termination hearing.

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¶ 14 Regarding domestic violence treatment, the record indicates

that three months before the termination hearing, father asked the

Department to pay $40 for the intake fee. The caseworker testified

that she received approval to pay for the intake and asked father to

give her “an invoice or a bill or something stating that that was the

amount of that intake.” She further testified that she emailed

father three times about an invoice, but he “did not get that back to

me, so that $40.00 was never paid.” Father testified that he had

completed the intake.

¶ 15 Later, father asked for $220 to pay for the assessment fee.

The caseworker testified that she again received approval to pay but

was told that a contract with the treatment provider was needed if

the Department was going to pay for ongoing treatment, that she

told father the Department needed to set up a contract, and that

she made several attempts to reach the treatment provider. She

further testified that she had received an email the day before the

termination hearing from the provider to arrange the contract. At

the time of the termination hearing, father had not completed the

domestic violence assessment or begun treatment.

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¶ 16 Because the record shows that the Department would have

paid for the intake, the assessment, and treatment if father had

provided some type of documentation from the treatment provider,

we cannot say that the Department failed to make reasonable

efforts to help father with domestic violence services. Father was

responsible for providing the necessary documentation so that he

could have participated in such services; but, he did not.

¶ 17 We conclude that the record supports the juvenile court’s

factual findings, and therefore, we will not disturb them or the

court’s legal conclusions on appeal.

C. Less Drastic Alternatives

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

there were no less drastic alternatives to termination. In particular,

he argues that the court could have allocated parental

responsibilities to the paternal aunt and uncle. We discern no

basis for reversal.

¶ 19 The juvenile court must also consider and eliminate less

drastic alternatives before it terminates the parent-child legal

relationship. People in Interest of D.P., 181 P.3d 403, 408 (Colo.

App. 2008). In considering less drastic alternatives, the court bases

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its decision on the best interests of the children, giving primary

consideration to their physical, mental, and emotional conditions

and needs. § 19-3-604(3).

¶ 20 Here, the juvenile court considered an allocation of parental

responsibilities (APR), but found that it was not appropriate or in

the children’s best interest. In doing so, the court found that the

children needed stability and an APR would “lead to potential

instability and disruption for the children.” The court recognized

that there were no concerns with the paternal aunt and uncle but

found that the children did not have strong connections with them

and that the current placement providers had “become the

permanency [the children] know.” Entering an APR with the aunt

and uncle would have required the children to be moved from their

location in Grand Junction. The court found that moving the

children would uproot them “from their geographic area, school,

community, mother, [other] siblings, and placement.”

¶ 21 The record supports the juvenile court’s findings. The case

had been going for over a year and the children needed

permanency. The caseworker testified that the children needed a

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stable and consistent home with caregivers who could meet their

needs.

¶ 22 The record also shows that the Department preferred adoption

over an APR. The caseworker had concerns about an APR because

the parents had tried to manipulate the children during the visits.

Specifically, the caseworker testified that there had been several

times where the parents pressured the children during the visits

and if the visits continued through an APR, the children would

experience “emotional harm.” The foster mother testified that she

strongly opposed an APR because the parents were “volatile” and

“cannot stay within the boundaries of what they are set up with [the

Department].” The caseworker also testified that although an APR

could provide permanency, it would not meet the children’s needs

here.

¶ 23 True, the Department approved the home study for the

paternal aunt and uncle. But, the caseworker opined that removing

the children from their current placement would be “very

detrimental” and would “force them to start all over in a new

environment with people that they don’t know very well.” The

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caseworker also testified that the children were “adamant” about

wanting to stay with their current placement providers.

¶ 24 Because the record supports the juvenile court’s factual

findings, we will not disturb those findings or the court’s legal

conclusions on appeal.

III. Conclusion

¶ 25 We affirm the judgment.

JUDGE TOW and JUDGE GROVE concur.