Peo in Interest of ZH

24CA2165 Peo in Interest of ZH 06-05-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA2165
Mesa County District Court No. 22JV117
Honorable Matthew D. Barrett, Judge

The People of the State of Colorado,

Appellee,

In the Interest of Z.H., a Child,

and Concerning D.M.,

Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE MOULTRIE
Lipinsky and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 5, 2025

Todd M. Starr, County Attorney, Brad Junge, Assistant County Attorney,
Grand Junction, Colorado, for Appellee

Josie Burt, Guardian Ad Litem

Beth Padilla, Office of Respondent Parents’ Counsel, Durango, Colorado, for
Appellant
¶1 D.M. (mother) appeals the judgment terminating her

parent-child legal relationship with Z.H. (the child). We affirm.

I. Background

¶2 The Mesa County Department of Human Services (the

Department) filed a petition in dependency or neglect based on

concerns about mother’s substance use and the child lacking

proper parental care. The then-one-year-old child was placed into

foster care, where she remained throughout the case.

¶3 The juvenile court entered a deferred adjudication and mother

agreed to engage in a treatment plan. One year later, the court

adjudicated the child dependent or neglected. The court adopted a

treatment plan that required mother to (1) engage in parenting time

and take parenting classes; (2) complete a combined mental health

and substance abuse assessment and follow any recommendations,

including substance abuse treatment and testing; (3) develop life

skills; (4) maintain housing and employment; and (5) engage in case

management.

¶4 Five months after adjudication, the Department moved to

terminate mother’s parental rights. Mother was arrested three

1
months before the termination hearing and spent a little over a

month in the Mesa County jail before being extradited to Texas.

¶5 Following a hearing, the court granted the motion and

terminated mother’s parental rights.

II. Termination Criteria and Standard of Review

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

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

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

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

plan has not been successful; (3) the parent is unfit; and (4) the

conduct or condition of the parent is unlikely to change within a

reasonable time. § 19-3-604(1)(c), C.R.S. 2024.

¶7 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. We review de novo the juvenile court’s legal conclusions,

2
including its determination as to whether the Department satisfied

its reasonable efforts obligation. See id.; People in Interest of A.S.L.,

2022 COA 146, ¶ 8.

¶8 It is for the juvenile court, as the trier of fact, to determine the

sufficiency, probative effect, and weight of the evidence and to

assess witness credibility. People in Interest of A.J.L., 243 P.3d 244,

249-50 (Colo. 2010).

III. Reasonable Efforts

A. Applicable Law

¶9 Before a court may terminate parental rights under section

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

make reasonable efforts to rehabilitate parents and reunite families.

§§ 19-3-100.5(1), 19-3-208(1), 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), C.R.S. 2024.

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

the reasonable efforts requirement. § 19-1-103(114). The services

that “must be available and provided” as determined by individual

case planning include, among others, screening, assessments,

home-based family and crisis counseling, information and referral

3
services to assistance resources, family time, and placement

services. § 19-3-208(2)(b). Additional services may be required if

funding is available, including transportation, child care, diagnostic

and mental health services, drug and alcohol treatment services,

and family support services. § 19-3-208(2)(d).

¶ 11 A parent’s incarceration, in and of itself, does not excuse a

department from making reasonable efforts. See

§§ 19-3-507(1)(f)(I), 19-3-508(1)(e)(III), C.R.S. 2024.

¶ 12 To evaluate whether a department made reasonable efforts,

the court should consider whether the services provided were

appropriate to support the parent’s treatment plan. People in

Interest of S.N-V., 300 P.3d 911, 915 (Colo. App. 2011). Whether a

department made reasonable efforts “must be measured holistically

rather than in isolation with respect to specific treatment plan

objectives.” People in Interest of My.K.M. v. V.K.L., 2022 CO 35,

¶ 35. The parent is ultimately responsible for using the services

provided to obtain the assistance needed to comply with the

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

(Colo. App. 2011). The court may therefore consider a parent’s

unwillingness to participate in treatment when determining whether

4
a department made reasonable efforts. People in Interest of A.V.,

2012 COA 210, ¶ 12.

B. Analysis

¶ 13 Mother asserts that the Department did not make reasonable

efforts because it failed to provide (1) family time while she was

incarcerated and in inpatient treatment or (2) life skills services,

parenting classes, or treatment aftercare throughout the case. We

disagree.

¶ 14 The juvenile court concluded that the Department “made

reasonable efforts to rehabilitate” mother and “to reunite this

family.” The court found that the Department provided mother

“with multiple ways to contact the caseworkers, provided multiple

options for services, helped reduce barriers to services, and set up

regular meetings.” Despite these efforts, mother was unsuccessful

because “[f]or a substantial portion of the case, she was

unreachable and uninvolved” and “never really tried.”

¶ 15 The record supports the court’s findings. The evidence

established that:

• During the two years this case was open, three

caseworkers attempted to contact mother via phone calls,

5
text messages, emails, and “face to face visits.” But

mother’s communication was inconsistent, and the

caseworkers were unable to locate her for most of the

case. The only reliable form of communication for

mother was email, but it would take a “very lengthy

amount of time” before mother responded and she “never

showed up to any . . . scheduled meetings” with the

caseworkers.

• Caseworkers repeatedly authorized family time services

at various agencies, but visits were often paused because

mother could not be reached. The Department provided

gas cards and bus passes to assist mother in attending

family time and other appointments, but mother did not

use them. At the time of the termination hearing, mother

had not seen the child in over twenty months.

• The Department authorized substance abuse treatment,

urinalysis testing, and an evaluation to assess mother’s

mental health and substance use. But mother did not

complete the evaluation or any urinalysis testing. After

failing twice to attend treatment arranged by the

6
Department, mother eventually completed a thirty-day

program that she identified on her own. However after

mother’s discharge, the caseworker was unable to

contact mother to arrange continuing treatment and

mother relapsed.

• Mother testified that, in the three to four months leading

up to her arrest, she “was living out in the desert, . . .

was really bad in [her] addiction, and . . . completely

stopped contact with everybody.”

• The caseworker visited mother at the jail and encouraged

mother to participate in jail-based behavioral treatment

services.

¶ 16 True, the Department did not authorize family time for mother

while she was in jail. But mother was arrested three months before

the termination hearing, nearly two years after the case opened and

a year-and-a-half since she had last seen the child. The third

caseworker testified that, during a conversation at the jail, mother

said that she “would like to be able to have some contact as far as

sending letters, things of [that] nature throughout [the child’s] life”

but she did not ask for family time. Although mother testified that

7
she asked for family time, the court found that mother’s “testimony

was not particularly credible,” and it is exclusively within the

court’s purview to resolve conflicting evidence. See In re Parental

Responsibilities Concerning B.R.D., 2012 COA 63, ¶ 15; A.J.L., 243

P.3d at 249-50.

¶ 17 Regarding family time during mother’s inpatient treatment, the

record shows that her stay occurred early in the case. At that time,

the caseworker met with mother at the treatment facility and

reauthorized family time. But the family time supervisor was

subsequently unable to contact mother to schedule visits.

¶ 18 Although the Department did not make referrals for life skills,

parenting classes, or treatment after mother’s inpatient stay,

nothing in the record suggests that had the caseworkers made

referrals for these additional services, they would have made a

difference in the outcome of the case given mother’s lack of contact

and participation. To that effect, the court found, with record

support, that mother “was never really involved in the matter (and

without her buy in there is only so much [the Department] can do)”

and although “more could have been” done, it was nonetheless

8
“apparent that the failures of [mother] would have occurred

regardless of any additional efforts of [the Department].”

¶ 19 In sum, the record supports the juvenile court’s finding that

the Department provided mother with the necessary resources to

engage with her treatment plan when she could be located and

maintained contact with the caseworkers, but that she did not take

advantage of those resources. See A.V., ¶ 12 (stating that, even

under a heightened “active efforts” standard, futile efforts are not

required).

IV. Less Drastic Alternatives

A. Applicable Law

¶ 20 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 L.M., 2018 COA 57M, ¶ 24.

In considering less drastic alternatives, a court must give primary

consideration to the child’s physical, mental, and emotional

conditions and needs. § 19-3-604(3); see L.M., ¶ 29. The court may

also consider other factors, including the child’s need for

permanency. L.M., ¶ 29.

9
¶ 21 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. 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 must affirm the court’s decision if its

findings are supported by the record. People in Interest of B.H.,

2021 CO 39, ¶ 80.

¶ 22 Additionally, when a child is under six years old, as here, the

juvenile court must consider the expedited permanency planning

provisions, which require that the child be placed in a permanent

home as expeditiously as possible. See §§ 19-1-102(1.6), 19-1-123,

19-3-702(5)(c), C.R.S. 2024.

B. Analysis

¶ 23 Mother contends that the juvenile court erred by determining

that no less drastic alternative to termination, such as placement

with maternal grandfather, existed. We disagree.

¶ 24 The juvenile court considered less drastic alternatives to

termination but found that “the family members who were identified

10
as placement either didn’t respond to inquiries from [the

Department], didn’t pursue being placement for [the child] because

they knew she was in a good place, or both.” As to maternal

grandfather, the court found that there was no indication “that he

continued to be invested in the matter (as a placement) after he

noticed the bond [the child] had developed with placement.” The

record supports the court’s findings.

¶ 25 Early in the case, the Department’s family search identified

maternal grandfather, who lived in Nevada, as a potential

placement provider. He was approved through the Interstate

Compact on the Placement of Children; he attended five or six

family engagement meetings; and he traveled to Grand Junction to

visit the child. The caseworker testified that, after paternal

grandfather and his wife observed the child’s bond with her foster

placement, “they withdrew their want to be placement because they

didn’t want to disrupt [the child’s] attachment and bond that she

had with placement.” Paternal grandfather then stopped attending

family engagement meetings and reached out to the Department

only one more time.

11
¶ 26 Mother argues that paternal grandfather remained willing to

be a placement provider throughout the case. True, paternal

grandfather testified that he “never stated [he] never . . . wanted to

be placement,” and was still willing to be a placement provider at

the time of the termination hearing. But the juvenile court found

him “to be lacking in credibility.” See A.J.L., 243 P.3d at 249-50 (as

the trier of fact, it is for the juvenile court to assess the credibility of

witnesses).

¶ 27 The juvenile court also recognized mother’s estrangement from

her father as a barrier to placement, finding that mother “has a very

broken relationship with her father (the person she would like the

child placed with).” Paternal grandfather testified that mother did

not “like to talk to me because me and her don’t see eye to eye . . .

she will not answer the phone . . . and she will not call me back . . .

I still haven’t got her address, and she still has not called me.”

Notably, paternal grandfather had no relationship with the child,

having visited once.

¶ 28 The juvenile court found that the child “is extremely young”

and “that permanency for [the child] is paramount.” One of the

caseworkers testified that the child had been in the same foster

12
placement for two years and needed permanency. And two

caseworkers testified that termination was in the child’s best

interest.

¶ 29 The record supports the juvenile court’s conclusion that

further exploring maternal grandfather “as an option goes directly

against [the child’s] best interests, the legislative mandates, and

would plainly be harmful to her.” Because the record supports the

court’s findings, we must affirm its judgment. See B.H., ¶ 81.

V. Disposition

¶ 30 We affirm the judgment.

JUDGE LIPINSKY and JUDGE JOHNSON concur.

13