Peo in Interest of SiOG

21CA0023 Peo in Interest of SiOG 10-21-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA0023

City and County of Denver Juvenile Court No. 19JV894

Honorable D. Brett Woods, Judge

The People of the State of Colorado,

Appellee,

In the Interest of Si.O.G. and S.M.G., Children,

and Concerning M.M.V. and S.O.G.,

Appellants.

JUDGMENT AFFIRMED

Division VII

Opinion by JUDGE NAVARRO

Grove and Pawar, JJ., concur

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

Announced October 21, 2021

Kristin M. Bronson, City Attorney, Laura Grzetic Eibsen, Assistant City

Attorney, Denver, Colorado, for Appellee

Barry Meinster, Guardian Ad Litem

Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr,

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

Pamela K. Streng, Office of Respondent Parents’ Counsel, Georgetown,

Colorado, for Appellant S.O.G.

1

¶ 1

In this dependency and neglect proceeding, S.O.G. (father)

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

legal relationship with S.M.G., and M.M.V. (mother) appeals the

juvenile court’s judgment terminating her parent-child legal

relationship with S.M.G. and Si.O.G (the children). The parents

contend that the juvenile court erred by determining that

termination was in the children’s best interests, as opposed to a

less drastic alternative. We disagree and affirm.

I. Background

¶ 2

In May 2019, the Denver Department of Human Services

received a report that S.M.G. tested positive for methamphetamine

at birth. The child was also born premature and required treatment

in a neo-natal care unit. Mother admitted to using

methamphetamine and to having a relapse while pregnant. She

asserted that she relapsed after father shot her in the hand. Father

was arrested on criminal charges related to the shooting and

remained incarcerated throughout the case.

¶ 3

In June 2019, after S.M.G. was discharged from the hospital,

a Department caseworker attempted many home visits to check on

2

the children, without success.1 The Department filed a motion for

temporary protective custody of the children, which the juvenile

court granted.

¶ 4

The Department later filed a petition in dependency and

neglect alleging, among other things, that the children were

homeless, without proper care, or not living with either parent

through no fault of the parents. Father and mother admitted the

allegations, and the court adjudicated the children dependent or

neglected. The court adopted treatment plans for both parents.

¶ 5

The children were placed together in foster care, where they

remained throughout the case. The record indicates that father’s

fiancée asked to be considered a placement for the children in

October 2019, but she did not have stable housing. The

Department approved the paternal grandmother’s home for

placement in January 2020. At that time, however, the paternal

grandmother “said that she was not able to take care of the two

kids.” The Department and guardian ad litem objected to moving

the children to the fiancée or paternal grandmother.

1 Although father’s name appears on Si.O.G.’s birth certificate,

Si.O.G. is not father’s biological child.

3

¶ 6

The court set a contested placement hearing for January

2020, but father agreed to “continue [the] matter until after his

criminal trial [was] completed . . . [in] March.” Mother, via her

counsel, agreed with this plan. By February 2020, the fiancée had

moved in with the paternal grandmother, and the paternal

grandmother told the Department she now wanted to be considered

as a placement for the children. The paternal grandmother started

participating in supervised visitation with the fiancée. Later,

however, the paternal grandmother requested separate visits from

the fiancée.

¶ 7

The record does not indicate that the contested placement

hearing occurred in March. In May, father’s counsel asked that the

hearing be continued to August 2020, stating that “the proposed

placement has not really had an opportunity to get to know the kids

or to really visit them.” The court granted the continuance.

¶ 8

Meanwhile, in June 2020, the Department filed a forthwith

motion to discontinue the children’s visits with the paternal

grandmother and fiancée. The court suspended visits temporarily

and set a contested visitation hearing. After that hearing, the court

concluded that the paternal grandmother and fiancée should be

4

allowed in-person visitation, with a parent-coach present, in

advance of the contested placement hearing.

¶ 9

The contested placement hearing was held in September 2020.

The juvenile court, considering the children’s “medical, physical,

emotional and other specific needs,” denied the request to move the

children. The court also ordered that visitation continue with the

fiancée and paternal grandmother.

¶ 10

Also in September 2020, the Department filed motion to

terminate the parents’ parental rights, alleging that their treatment

plans were not successful. After a hearing, the court granted the

motion.

II. Less Drastic Alternatives

¶ 11

Neither parent disputes that the Department proved each of

the statutory elements for termination of their parental rights. See

19-3-604(1)(c), C.R.S. 2020. Instead, both parents contend that the

juvenile court did not properly consider less drastic alternatives.

¶ 12

Mother asserts that the court erroneously relied on a previous

finding made pursuant to section 19-3-702, C.R.S. 2020, in lieu of

a finding pursuant to section 19-3-604(3). Father asserts that

approved placements existed that “would maintain family ties and

5

foster the child’s culture, heritage, and sibling relationships.” We

perceive no error on the court’s part.

A. Relevant Law and Standard of Review

¶ 13

When considering termination under section 19-3-604(1)(c),

the juvenile court must also consider and eliminate less drastic

alternatives to termination. People in Interest of M.M., 726 P.2d

1108, 1122 (Colo. 1986). This determination is implicit in, and

thus intertwined with, the statutory criteria for termination. People

in Interest of L.M., 2018 COA 57M, ¶ 24. If the juvenile court’s

findings “conform to the statutory criteria for termination and are

adequately supported by evidence in the record, a reviewing court

may reasonably presume that, in the absence of any indication in

the record to the contrary, the [juvenile] court considered and

eliminated less drastic alternatives.” People in Interest of A.M. v.

T.M., 2021 CO 14, ¶ 41.

¶ 14

The court must give primary consideration to the child’s

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

604(3); A.M., ¶ 20. Thus, the court may consider whether an

ongoing relationship with the parent would be beneficial or

detrimental to the child and the child’s need for permanency when

6

determining whether there is a viable alternative to termination.

L.M., ¶ 29. Indeed, the primary and controlling issue in termination

proceedings is the determination of what will serve the child’s

interests and welfare. A.M., ¶ 20.

¶ 15

Moreover, even where a less drastic alternative exists and

would be adequate, if the court considers the alternative “in

connection with its overall consideration of the statutory criteria for

termination and finds that termination is in the child’s best

interests, it must reject the alternative and order termination.” Id.

at ¶ 32; see also id. at ¶ 1.

¶ 16

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. See id. at

¶ 15. A determination of the proper legal standard to be applied in

a case and the application of 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.

¶ 17

We will not disturb the court’s factual findings and

conclusions when they are supported by the record. Id. at ¶ 32; see

also A.M., ¶ 15. The credibility of the witnesses as well as the

7

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

inferences and conclusions to be drawn from it are within the

juvenile court’s discretion. People in Interest of C.A.K., 652 P.2d

603, 613 (Colo. 1982). Our supreme court has emphasized that a

juvenile court’s “determinations regarding permanent placement

and its determination that termination was in the child’s best

interests” are factual findings entitled to deference, unless

unsupported by the record. A.M., ¶ 48.

B. Analysis

¶ 18

The juvenile court concluded that there were no less drastic

alternatives to termination that were in the children’s best interest.

In its oral findings, the juvenile court gave the following reasons for

this conclusion: (1) information received at the September 2020

contested placement hearing indicated that the children’s

placement with the paternal grandmother and fiancée was not in

the children’s best interest (2) father’s potential return home to the

fiancée and paternal grandmother was a concern because of how

father’s unresolved domestic violence issues could negatively affect

the children; and (3) there were legitimate concerns about father’s

motivations for placing the children with the fiancée and paternal

8

grandmother; specifically, that this placement would assist father in

resolving his criminal case. The evidence amply supports the

court’s determination.

¶ 19

First, we do not agree with mother that the juvenile court

erred by incorporating its findings from the placement hearing into

its factual findings at the termination hearing. The court took

proper judicial notice of its prior findings and orders. See People in

Interest of O.J.S., 844 P.2d 1230, 1233 (Colo. App. 1992) (a court

may take judicial notice of its own file, its findings of fact, and its

conclusions of law). Furthermore, the court differentiated between

the findings required at the contested placement hearing and those

related to a less drastic alternatives determination.

¶ 20

Second, at the contested placement hearing, the court

considered the fact that the children “haven’t been placed with [the

fiancée and paternal grandmother] throughout the case” when it

determined that the fiancée and paternal grandmother were not

appropriate placements for the child. The Department previously

determined that the fiancée, on her own, could not be an

appropriate placement for the child because “her housing was an

issue.” Similarly, although the Department approved the paternal

9

grandmother as a placement, she repeatedly insisted that she could

not physically care for the children on her own. Neither father nor

mother points to any evidence indicating that the paternal

grandmother’s situation had changed at the time of the termination

hearing, nor do they provide any legal argument indicating that the

juvenile court could not consider the paternal grandmother’s

previous testimony that she could not care for the children alone.

Cf. People v. Rios, 43 P.3d 726, 732 (Colo. App. 2001) (a court has

discretion to take into consideration its own observations).

¶ 21

Department counsel informed the court that the Department

“seriously look[ed]” at the fiancée and paternal grandmother as a

placement option where they would reside together with the

children in paternal grandmother’s home. At the contested

placement hearing, however, the caseworker testified that having

two adults and two children in the paternal grandmother’s one-

bedroom home made it “quite snug.” Furthermore, when the

fiancée worked, the paternal grandmother would be caring for the

children alone, something that she could not physically

accommodate. The paternal grandmother previously testified that

she did not want the children in daycare. But if the fiancée stopped

10

working to care for the children full time, the caseworker testified

that she would “worry about . . . how they [would] financially

provide for the children . . . [and] themselves.”

¶ 22

We note that, while father asserts that the fiancée and

paternal grandmother could provide “ties to the child’s culture,

heritage, and sibling relationships,” the record supports a finding

that the foster parents could adequately provide such ties. The

record indicates that the foster parents supported the children’s

“black and Spanish roots.” The foster mother testified at the

contested placement hearing that the children have “dolls and toys

and books that are culturally diverse” and that the family attends a

“culturally diverse” church. The foster mother testified that she

wanted to make sure that she was “engaging [the children] in being

around people of different cultures and ethnicities, especially their

own.” She was also open to allowing mother and father to remain

in contact with the children. Finally, during the course of the case,

mother had another child, who was to be placed in the same foster

family.

¶ 23

Third, the juvenile court did not consider placement with the

fiancée and paternal grandmother a viable less drastic alternative to

11

termination because of father’s domestic violence “issues.”

Although father had no convictions for domestic violence at the time

of the termination hearing, his treatment plan included a domestic

violence treatment component. Father was unable to participate in

domestic violence therapy while he was incarcerated. Nevertheless,

the fiancée testified that she planned to invite father into the home

with the paternal grandmother once he was no longer incarcerated.

She testified, “once [father] gets out of prison . . . we’re going to be a

family.” The caseworker testified, at the contested placement

hearing, that she was worried about the fiancée’s safety “and of

course if the children were placed with [the fiancée,] the children’s

safety” if father were released from jail and lived with the fiancée

and paternal grandmother. At termination, no evidence was offered

to controvert this testimony.

¶ 24

Finally, the court expressed concern about “possible issues of

witness tampering.” Specifically, the court noted that “if the father

or the fiancée had the children, that [father] might do better in his

criminal case.” The record shows that, at the time of the contested

placement hearing, father faced witness tampering charges. The

court’s concern was supported by the caseworker’s testimony that

12

those charges were “part of the reason” that she “did not want to

place the children with [the fiancée] and [paternal grandmother].”

¶ 25

In light of the evidence discussed above, the record supports

the juvenile court’s finding that termination of mother’s and father’s

parental rights, not a less drastic alternative, was in the children’s

best interests. Therefore, we do not disturb the court’s

determination.

III. Conclusion

¶ 26

The judgment is affirmed.

JUDGE GROVE and JUDGE PAWAR concur.