Peo in Interest of AJS

24CA0953 Peo in Interest of AJS 01-23-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0953
City and County of Denver Juvenile Court No. 22JV30488
Honorable Elizabeth J. McCarthy, Judge

The People of the State of Colorado,

Appellee,

In the Interest of A.J.S., a Child,

and Concerning L.N.S.,

Appellant.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE TOW
Dunn and Taubman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 23, 2025

Kerry Tipper, City Attorney, Christina R. Kinsella, Assistant City Attorney,
Denver, Colorado, for Appellee

Sheena Knight, Guardian Ad Litem

Joel M. Pratt, Office of Respondent Parents’ Counsel, Colorado Springs,
Colorado, for Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 In this dependency and neglect proceeding, L.N.S. (mother)

appeals the juvenile court’s judgment terminating her parent-child

legal relationship with A.J.S. (the child). We affirm.

I. Background

¶2 The Denver Human Services Department filed a petition in

dependency and neglect regarding the one-year-old child and his

two-year-old half-sibling, K.G.S. The petition alleged that mother

had reported that the child’s father, D.J.S., had sexually assaulted

K.G.S. and would not leave her apartment. Law enforcement

officers responded and found mother erratic and escalated. An

existing protective order prohibited contact between mother and

D.J.S. The home smelled of urine and there were feces smeared on

the children’s cribs, their feet, and the walls. And the petition also

alleged that mother had disclosed recent methamphetamine use.

The petition further alleged that mother had a previous dependency

and neglect proceeding involving K.G.S.

¶3 The juvenile court accepted mother’s no-fault admission to the

petition and adjudicated the child dependent and neglected. The

court adopted a treatment plan for mother requiring that she,

among other things, (1) complete a psychological evaluation and

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follow its recommendations including taking mental health

medications as prescribed; (2) participate in life skills services; (3)

complete a substance abuse evaluation and engage in

recommended treatment; (4) comply with outstanding orders from

criminal cases and refrain from engaging in further criminal

activity; and (5) engage in regular family time.

¶4 About thirteen months after the Department filed the petition,

the Department moved to terminate the parent-child legal

relationship between the child and both mother and D.J.S. Shortly

thereafter, mother was arrested and charged with the attempted

murder of her mother, among other offenses. Mother remained

incarcerated awaiting trial at the time of the termination hearing.

Following a hearing, the juvenile court terminated mother’s parent-

child legal relationship with the child.1

II. Termination Criteria and Standard of Review

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

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

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

1 D.J.S. died before the termination hearing.

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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.

¶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 juvenile court’s

province. A.M., ¶ 15. Determining the proper legal standard to be

applied to a case and applying 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.

III. Americans with Disabilities Act

¶7 Mother argues that the juvenile court erred by terminating her

parental rights because the Department did not provide reasonable

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accommodations for her disability under the Americans with

Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213.

¶8 Specifically, mother argues that the Department did not

accommodate her “significant mental health concerns” because it

purportedly failed to evaluate her capacity so that it could

determine how it could provide effective services and, instead, only

provided referrals to services which mother could not access on her

own.

¶9 Mother concedes that she did not raise the question of

whether she was an individual with a qualified disability or identify

any reasonable accommodations required by the ADA before the

juvenile court. We are therefore not inclined to address mother’s

assertion because a parent cannot raise noncompliance with the

ADA for the first time on appeal. See People in Interest of S.Z.S.,

2022 COA 133, ¶ 18; see also People in Interest of M.B., 2020 COA

13, ¶ 14 (“[A]ppellate courts review only issues presented to and

ruled on by the lower court.”).

¶ 10 She nonetheless urges us to address her unpreserved

assertion that the ADA applied to her because failure to do so would

result in a miscarriage of justice. See People in Interest of E.S.,

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2021 COA 79, ¶ 14. But we decline to do so because we would

have to make factual findings about whether mother had a

“qualified disability” under the ADA and about not only what

reasonable accommodations mother was entitled to, but whether

the Department had provided those reasonable accommodations.

See S.Z.S., ¶ 21 (“[B]ecause mother never raised the ADA issue . . .

either before or during the termination hearing, the juvenile court

didn’t make any specific findings about the applicability of the ADA

for us to review.”); People in Interest of S.K., 2019 COA 36, ¶ 21 n.2

(noting that whether a parent is a qualified individual with a

disability under the ADA requires a fact-specific determination that

a juvenile court must resolve).

IV. Reasonable Efforts

¶ 11 Although intertwined with her ADA argument, mother also

argues separately that the Department failed to make reasonable

efforts because it did not provide her a psychological evaluation.

She also asserts that the Department did not make reasonable

efforts to arrange family time with the child after her incarceration.

We are not persuaded.

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A. Applicable Law

¶ 12 When a court decides whether a parent is unfit or whether her

conduct or condition will change, the court must evaluate whether

the Department’s reasonable efforts have been unable to

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

P3d 911, 915 (Colo. App. 2011). “‘Reasonable efforts’ . . . means the

exercise of diligence and care . . . for children who are in out-of-

home placement . . . .” § 19-1-103(114), C.R.S. 2024.

¶ 13 The Department makes reasonable efforts if services are

provided in accordance with section 19-3-208, C.R.S. 2024. See

People in Interest of J.A.S., 160 P.3d 257, 262 (Colo. App. 2007).

Such reasonable efforts include screening, assessments, 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). Additional services should be made available if

they are determined to be necessary and appropriate by the case

plan and adequate funding exists. § 19-3-208(2)(d). Examples of

these additional efforts include providing transportation to required

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services when other transportation is not available, mental health

services, and drug and alcohol treatment services. Id.

¶ 14 The parent is responsible for using those services 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).

B. Analysis

¶ 15 With respect to the psychological evaluation, the caseworker

testified that the Department had concerns about mother’s mental

health and that mother’s treatment plan included a requirement

that she complete a psychological evaluation because of those

concerns. The Department placed a referral and the provider

agreed to perform the evaluation, but mother needed ninety days of

sobriety to ensure reliable results. When mother reported to the

caseworker that she was sober, the caseworker asked for a hair

sample to verify that. Mother declined. Mother also did not

establish ninety days of sobriety by ongoing urinalysis testing.

¶ 16 On appeal, mother does not assert that the ninety-day sobriety

requirement was unreasonable or amounted to a lack of reasonable

efforts. She simply asserts that the Department did not perform a

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psychological evaluation and, accordingly, it did not know what

reasonable efforts she needed. But it is the parent’s responsibility

to ensure compliance with the treatment plan. Id. at 1285. Mother

does not explain what the Department could or should have done

when it was her own lack of sobriety that prevented the

psychological evaluation from being performed.

¶ 17 That is not to say the Department stopped making reasonable

efforts when mother could not establish sobriety. Instead, it

referred mother for a substance dependence evaluation, which took

her a year to complete even with the assistance of “more intense

hours” and a “higher level” of services from a life skills professional.

The evaluation recommended intensive outpatient treatment, and

the Department was in the process of arranging such treatment,

and even discussed a possible higher level of care, when mother

was incarcerated. Moreover, the caseworker testified that mother’s

life skills worker “knew [mother] needed more assistance” —

although she did not identify the basis for this belief — and

therefore mother received additional help “to get her places” and to

“help her schedule things.”

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¶ 18 Lastly, mother argues that the Department failed to make

reasonable efforts to ensure that she maintained family time once

she was incarcerated. The caseworker testified that she reached

out to the facility where mother was incarcerated, and it informed

her that it did not accommodate in-person visits. Contact with

inmates had to be through a specific application and phone calls.

The caseworker put money in mother’s account so she could make

outgoing calls to the Department. But because she could not

receive calls, the caseworker testified, arranging a supervised phone

visit with the child would have been difficult. Although the

caseworker acknowledged that she “could have” supervised a phone

visit by being in the same room with the child and waiting for

mother to place a phone call, nothing suggests that mother

requested family time by phone or that such an arrangement would

have been appropriate given the child’s issues with delayed speech.

And, at the time of the termination hearing, mother testified that

her phone privileges had been suspended.

¶ 19 Moreover, given mother’s lack of engagement with the child —

she had attended only six visits in thirteen months before her

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incarceration — we cannot say that the Department failed to engage

in reasonable efforts with respect to family time.

V. Less Drastic Alternatives

¶ 20 Mother also asserts that the juvenile court erred when it found

no available less drastic alternative to termination. We disagree.

A. Applicable Law

¶ 21 The juvenile court must consider and eliminate less drastic

alternatives before it terminates the parent-child legal relationship.

People in Interest of L.M., 2018 COA 57M, ¶ 24. When considering

less drastic alternatives, the court bases its decision on the best

interests of the child, giving primary consideration to the child’s

physical, mental, and emotional conditions and needs. § 19-3-

604(3).

¶ 22 Ultimately, 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. People in Interest

of A.M. v. T.M., 2021 CO 14, ¶ 27. Therefore, if the court considers

a less drastic alternative but finds instead that termination is in the

child’s best interests, it must reject the less drastic alternative and

order termination. Id. at ¶ 32. And under those circumstances, we

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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. Analysis

¶ 23 The court found that no individuals could take the child

pursuant to an allocation of parental responsibilities (APR). The

court also found it was in the child’s best interest to have the

permanency that only adoption could provide. Accordingly, the

court determined that there was no less drastic alternative to

termination. These findings have support in the record.

¶ 24 The caseworker testified that the parents did not identify any

possible placements. Therefore, the Department conducted a

search and the caseworker talked to paternal grandmother about

placement, but she was not willing to take the child. The

caseworker also talked to D.J.S. about maternal grandfather, but

D.J.S. explained that maternal grandfather was not able to take

care of a child. The caseworker also considered S.S.O., the child’s

sibling’s father, but did not believe he could take care of two

children and was struggling just to have K.G.S. returned to his

care.

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¶ 25 The caseworker further testified that termination was in the

child’s best interests because he had been in out-of-home

placement for two years, was only three years old, and needed

permanency because of his young age. She testified that the child

had some additional needs requiring ongoing therapy and that his

current foster home was a potentially permanent home. And she

testified that the child had no relationship with mother.

¶ 26 Mother asserts that the caseworker’s investigation into

maternal grandfather and S.S.O. was inadequate and, accordingly

the juvenile court did not have enough information to make a

decision about whether a less drastic alternative was available. And

she contends that the court erred when it found the foster family

“only wanted adoption” when the caseworker testified only that they

“preferred” adoption. But mother’s argument overlooks the court’s

factual finding that it was in the child’s best interests that mother’s

rights be terminated because he needed the permanency that only

adoption could provide. In other words, even if the Department had

thoroughly investigated multiple suitable options willing to take

placement of the child, an APR was not in the child’s best interests.

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Because the record supports this finding, we may not disturb it. Id.

at ¶ 80.

VI. Disposition

¶ 27 The judgment is affirmed.

JUDGE DUNN and JUDGE TAUBMAN concur.

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