Peo in Interest of PA

24CA1278 Peo in Interest of PA 06-05-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1278
Adams County District Court No. 23JV30071
Honorable Caryn A. Datz, Judge

The People of the State of Colorado,

Appellee,

In the Interest of P.A., a Child,

and Concerning K.C.S.,

Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE KUHN
Welling and Schutz, JJ., concur

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

Heidi M. Miller, County Attorney, Katherine Gregg, Assistant County Attorney,
Westminster, Colorado, for Appellee

Jenna L. Mazzucca, Guardian Ad Litem

Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant
¶1 In this dependency and neglect proceeding, K.C.S. (mother)

appeals the judgment terminating her parent-child legal

relationship with P.A. (the child). We affirm.

I. Background

¶2 In April 2023, the Adams County Human Services Department

filed a petition in dependency and neglect after mother exhibited

concerning behaviors, including apparent delusions, and was

placed on a mental health hold following the birth of the child.

¶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. The court appointed

legal counsel for mother, and it also appointed a guardian ad litem

to assist her in view of her extensive mental health history.

¶4 The Department later moved to terminate mother’s rights. The

juvenile court held an evidentiary hearing in June 2024. The next

day, it granted the motion and terminated mother’s parental rights.

II. Analysis

¶5 Mother contends that the juvenile court erred by terminating

her parental rights because (1) the Department did not provide her

with reasonable accommodations under the Americans with

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Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, and thus it failed

to make reasonable efforts to rehabilitate her and reunify her with

the child; (2) she received ineffective assistance of counsel before

and during the termination hearing; and (3) the record does not

support the court’s finding that there were no less drastic

alternatives to termination. We consider each of these contentions

in turn.

A. Mother’s ADA Reasonable Efforts Claim

¶6 Mother first contends that the juvenile court erred by finding

that the Department made reasonable efforts to rehabilitate her

when it failed to accommodate her mental health concerns in

violation of the ADA.

¶7 The Department and the guardian ad litem assert, and we

agree, that this argument is not properly before us because mother

failed to preserve it in the juvenile court. See People in Interest of

M.B., 2020 COA 13, ¶ 14 (“[G]enerally, appellate courts review only

issues presented to and ruled on by the lower court.”).

¶8 It is undisputed that mother never asserted to either the

Department or the juvenile court that she had a qualifying disability

within the meaning of the ADA. Nor did she suggest any

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modifications to her treatment plan or request any accommodations

for her disability that would allow her to better engage with the plan

or the case. See id. Because she failed to raise this issue during

the case, the juvenile court did not have an opportunity to

determine whether mother had a disability, to evaluate any

requested accommodations, or to order the Department to provide

her with reasonable accommodations. See People in Interest of

S.Z.S., 2022 COA 133, ¶¶ 16-17; see also People in Interest of S.K.,

2019 COA 36, ¶ 35 (“What constitutes a reasonable accommodation

will be based on an individual assessment.”). And the parties did

not have the opportunity to develop a factual record for our review.

See S.K., ¶ 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).

¶9 Still, mother argues that we should address her unpreserved

ADA argument under the miscarriage of justice exception to the

preservation rule. See People in Interest of E.S., 2021 COA 79, ¶ 14

(noting that, in very limited situations, an appellate court may

address unpreserved issues in dependency and neglect cases to

avoid a “miscarriage of justice”). In support of her argument,

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mother points out that, because she had previously been reported

to have bipolar disorder and her mental health was a consistent

concern in the case, she “clearly” suffered from a disability of which

the case professionals were aware. See S.K., ¶ 22 (noting that, if a

disability is “obvious,” a department may be required to

accommodate the disability, even if the parent does not inform the

department about the disability).

¶ 10 We agree with mother that if a department knows or has

reason to know that a parent has a qualifying disability under the

ADA, then the department is obligated to provide that parent with

reasonable accommodations. Id. However, under these facts we

disagree with mother’s contention that the Department had reason

to know that she had a qualifying disability.

¶ 11 It’s true that the caseworker, who was qualified as an expert in

social work with an emphasis on child protection, testified that

mother’s mental health was an ongoing concern and that mother

frequently lacked focus or appeared paranoid. Hospital staff also

reported to the caseworker that mother had been diagnosed with

bipolar disorder, mild postpartum depression, mixed mood

regulation, and recommended ongoing treatment. And the

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caseworker further opined that mother’s untreated mental health

made her an unsafe parent for the child.

¶ 12 However, the record also shows that the caseworker provided

mother with at least three referrals for a dual diagnosis that would

have evaluated her mental health issues, but she never completed

one. And the caseworker opined that, given her lack of expertise in

mental health, it was difficult without a full assessment to say

exactly what mother’s mental health concerns were. Indeed, the

caseworker testified that even though mother exhibited some

mental health problems, she was resourceful and able to identify

and access certain benefits.

¶ 13 Further, mother’s counsel never asserted that mother had a

qualifying disability under the ADA throughout the course of this

case. And mother’s counsel never identified or requested any

reasonable accommodations from either the Department or the

court. Critically, mother continually denied having any mental

health concerns. Mother also never asserted that she had a

disability or made a request for any type of accommodation.

Indeed, even on appeal mother fails to articulate what kind of

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accommodation would have allowed her to meet the terms of her

treatment plan.

¶ 14 Under these circumstances, we can’t conclude that the

Department should have known that mother had a disability under

the ADA. And given that conclusion, we don’t see how the

Department could have unilaterally discerned what type of

accommodations mother might have needed given this record. We

therefore conclude that reviewing mother’s unpreserved ADA claim

isn’t necessary to avoid a miscarriage of justice under these

circumstances.

B. Ineffective Assistance of Counsel

¶ 15 Mother next contends that she received ineffective assistance

of counsel because her counsel was aware of her mental health-

related disabilities but failed to provide ADA notice or seek

amendments to the treatment plan. We disagree.

1. Applicable Law

¶ 16 A parent has a statutory right to appointed counsel in

dependency and neglect proceedings. § 19-3-202(1), C.R.S. 2024;

see also §§ 19-1-105(2), 19-3-602(2), C.R.S. 2024. A parent’s

statutory right to counsel includes the right to effective assistance

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of counsel. See A.R. v. D.R., 2020 CO 10, ¶ 47; see also People in

Interest of C.H., 166 P.3d 288, 290 (Colo. App. 2007).

¶ 17 In evaluating a claim of ineffective assistance of counsel in a

termination proceeding, we apply the same test that we would when

evaluating an ineffective assistance of counsel claim in a criminal

case. See A.R., ¶¶ 48, 60 (citing Strickland v. Washington, 466 U.S.

668 (1984)). Under this test, the parent must establish that

(1) counsel’s performance was outside the wide range of

professionally competent assistance and (2) the parent was

prejudiced by counsel’s deficient performance — that is, there is a

reasonable probability that but for counsel’s unprofessional errors,

the outcome of the proceeding would have been different. Id. at

¶ 60. “If the parent fails to establish either prong of this test, the

claim fails.” People in Interest of C.B., 2019 COA 168, ¶ 26.

¶ 18 Under this approach, an appellate court ordinarily must

remand for an evidentiary hearing if the parent’s allegations are

sufficiently specific to constitute a prima facie showing of ineffective

assistance of counsel. A.R., ¶ 63. However, if the parent’s

allegations lack sufficient specificity, we may summarily deny the

ineffective assistance of counsel claim. Id.

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2. Mother Doesn’t Demonstrate Prejudice For Her
Ineffective Assistance of Counsel Claim

¶ 19 Even if we were to assume without deciding that counsel’s

performance fell below the range of professionally competent

assistance, mother has not shown that she was prejudiced by the

alleged error. Her assertions do not specifically show that, but for

her counsel’s failure to raise the ADA or to request

accommodations, the result of the termination hearing would have

been different.

¶ 20 For example, mother contends that if her counsel had filed

notice of a qualifying disability and requested amendments to the

treatment plan to ensure the plan “appropriately centered [on her]

mental health and provided for adequate support to facilitate [her]

engagement, there is a reasonable probability that [she] would have

obtained mental health treatment,” which in turn would have

enabled her to address the remaining child protection concerns that

led to the Department’s involvement. But mother does not explain

how her treatment plan could have been designed differently, does

not identify reasonable accommodations she needed, and does not

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argue how those accommodations would have rendered her a fit

parent in a reasonable time for the child.

¶ 21 In short, mother’s allegations lack specificity to demonstrate

prejudice, and thus, she has not made a prima facie showing of

ineffective assistance of counsel. Id. at ¶ 60 (“If the parent’s

allegations lack sufficient specificity, then the ineffective assistance

of counsel claim may be summarily denied.”). Consequently, this

claim fails to satisfy the second prong of the Strickland test, and

mother has failed to show a reasonable probability that the result of

the proceeding would have been different. Id.

C. Less Drastic Alternatives

¶ 22 Lastly, mother contends that the juvenile court erred by

finding there were no less drastic alternatives to termination of her

parental rights. Specifically, she argues that the Department failed

to adequately investigate placement options she had provided to the

supervising caseworker and inappropriately placed the burden of

contacting those placements on mother. We discern no basis for

reversal.

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1. Standard of Review and Applicable Law

¶ 23 Whether a juvenile court properly terminated parental rights

presents a mixed question of law and fact because it involves the

application of the termination statute to evidentiary facts. People in

Interest of A.M. v. T.M., 2021 CO 14, ¶ 15. We review de novo the

proper legal standard that applies in the case and the application of

that standard to the particular facts. M.A.W. v. People in the

Interest of A.L.W., 2020 CO 11, ¶ 31. However, we review the

court’s factual findings for clear error and will not disturb them

when they are supported by the record. Id. at ¶ 32; see also A.M.,

¶ 15.

¶ 24 A 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

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. 2024.

¶ 25 Implicit in the statutory scheme for termination is a

requirement that the juvenile court consider and eliminate less

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drastic alternatives before entering an order of termination. People

in Interest of B.H., 2021 CO 39, ¶ 51; A.M., ¶ 19. 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).

¶ 26 Ultimately, for a less drastic alternative to be viable, it must do

more than “adequate[ly]” meet a child’s needs; rather, the less

drastic alternative must be in the child’s best interest. A.M., ¶ 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 must affirm the court’s decision

if its findings are supported by the record. B.H., ¶ 80.

2. The Record Supports the Juvenile Court’s
Less Drastic Alternatives Findings

¶ 27 The juvenile court noted in its findings that there was evidence

to suggest that mother had provided additional potential placement

names shortly before the termination hearing and, “for unknown

reasons,” the caseworker’s supervisor directed mother to work with

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those placement options to complete the kinship information on her

own.

¶ 28 However, the court also observed that at the time of the

termination hearing “there was no evidence of any identified family

members that were appropriate and available for placement of the

child.” The court also stated that because mother had made

serious accusations against the child’s caregivers in the past, it was

not convinced that mother would adhere to court orders on

parenting time. It therefore found that “any APR agreement would

likely result in conflict between the child’s caregivers and her parent

in a manner that would be emotionally unsafe and damaging and

could disrupt her permanency.”

¶ 29 Ultimately, the juvenile court concluded that “[u]nder the

totality of the circumstances, including the child’s age, her

developmental needs, and the length of time the child has been

placed outside of the home,” there were no available less drastic

alternatives and termination was in the child’s best interests.

¶ 30 It is concerning that the caseworker’s supervisor apparently

asked mother to work with the individual placement options to

complete the kinship paperwork, and nothing in this opinion should

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be read as approving of that practice. Nonetheless, the record

supports the court’s findings.

¶ 31 The caseworker testified that she completed two searches for

family members, inquired with mother about potential placement

options, and reached out to numerous family members who either

declined placement or did not respond. Additionally, the

caseworker testified that, even if there was an available relative, the

child needed the permanency of adoption. And the caseworker

testified about her concerns that if a less drastic alternative was

granted, mother could cause disruption in the child’s placement as

she had a history of making serious and unsubstantiated

accusations against the child’s caregivers.

¶ 32 Because the record supports the court’s finding that

termination, and not a less drastic alternative, was in the child’s

best interests, we cannot disturb it. See A.M., ¶ 32; B.H., ¶ 80.

III. Disposition

¶ 33 The judgment is affirmed.

JUDGE WELLING and JUDGE SCHUTZ concur.

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