CourtListener 10599298•Peo in Interest of ZH
Full text
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
Continue your research in ChatGPT or Claude
Connect Omnilex to search the legal corpus from your AI assistant.