Peo in Interest of LSM

24CA1971 Peo in Interest of LSM 07-03-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1971
City and County of Denver Juvenile Court No. 23JV30343
Honorable Lisa Gomez, Judge

The People of the State of Colorado,

Appellee,

In the Interest of L.S.M., a Child,

and Concerning J.A.R.,

Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE BROWN
J. Jones and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 3, 2025

Katie McLoughlin, Acting City Attorney, Christina R. Kinsella, Assistant City
Attorney, Denver, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem

Robin Tieman, Office of Respondent Parents’ Counsel, Boulder, Colorado, for
Appellant
¶1 J.R. (father) appeals the judgment terminating his parent-child

legal relationship with L.S.M. (the child). We affirm.

I. Background

¶2 The Denver Department of Human Services (the Department)

filed a petition in dependency or neglect after the then-one-year-old

child ingested fentanyl. The juvenile court adjudicated the child

dependent and neglected and adopted a treatment plan for father.

The treatment plan required father to, among other things,

(1) address substance use; (2) develop a supportive and safe

relationship with the child; (3) cooperate with the Department;

(4) obtain a stable home environment; and (5) demonstrate legal

stability.

¶3 Father was in custody for much of the case. Approximately

two months after the petition was filed, he was incarcerated in

Denver County on a child abuse charge and later transferred to

Broomfield County. Father was sentenced and released to

community corrections but absconded from the facility shortly

thereafter. Three weeks later, he was arrested and placed in the

Denver City jail, where he remained for the duration of the case.

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¶4 The Department moved to terminate father’s parent-child legal

relationship with the child. Following a hearing, the juvenile court

granted the motion and terminated father’s parental rights.

II. Termination of Parental Rights

A. Termination Criteria and Standard of Review

¶5 The 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) an appropriate treatment

plan has not been reasonably complied with or 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.

¶6 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 L.M., 2018 COA 57M, ¶ 17. We review the court’s factual

findings for clear error, but we review its legal conclusions based on

those facts de novo. People in Interest of S.R.N.J-S., 2020 COA 12,

¶ 10. The credibility of witnesses, sufficiency, probative value, and

weight of the evidence, as well as the inferences and conclusions

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drawn from the evidence are matters within the discretion of the

juvenile court. People in Interest of A.M. v. T.M., 2021 CO 14, ¶ 15.

B. Reasonable Efforts

¶7 Father argues that the juvenile court erred by concluding that

the Department made reasonable efforts to reunify the family. We

disagree.

1. Preservation

¶8 The Department and the guardian ad litem dispute

preservation because father did not challenge the reasonableness of

the Department’s efforts before the termination hearing. Compare

People in Interest of D.P., 160 P.3d 351, 355-56 (Colo. App. 2007)

(declining to review a reasonable efforts finding because the parent

failed to object to services before the termination hearing), with

People in Interest of S.N-V., 300 P.3d 911, 914-18 (Colo. App. 2011)

(holding that a parent’s failure to object to services does not bar

appellate review of a reasonable efforts finding). But we need not

determine whether father was required to preserve his argument

because even if we assume he preserved it, or was not required to,

we discern no basis for reversal.

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2. Applicable Law

¶9 In deciding whether to terminate parental rights under section

19-3-604(1)(c), the juvenile court must consider whether the county

department of human services made reasonable efforts to

rehabilitate the parent and reunify them with the child.

§ 19-3-604(2)(h). A parent’s incarceration does not excuse a

department from making reasonable efforts. See § 19-3-508(1)(e),

C.R.S. 2024 (effective January 1, 2024). When the department

learns of a parent’s incarceration, it must communicate with the

facility where the parent is held regarding the requirements of the

parent’s treatment plan and provide information to the court

detailing the services and treatment available to the parent at that

facility. § 19-3-508(1)(e)(I)-(III). If the caseworker is unable to

determine any treatment or services available to the parent, they

must still report their efforts to obtain such information.

§ 19-3-508(1)(e)(III).

3. Analysis

¶ 10 First, father argues that the Department failed to comply with

section 19-3-508(1)(e)(III) by not detailing the services and

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treatment available to him in each of its submitted court reports.

That provision provides as follows:

If, after the dispositional hearing, the child’s
parent becomes continuously incarcerated in
. . . a jail for more than thirty-five days, then
the caseworker assigned to the case, upon
knowledge of incarceration, shall provide
information that details the services and
treatment available to a parent at the facility or
jail where the parent is incarcerated or the
caseworker’s efforts to obtain the information
at the next scheduled court hearing.

§ 19-3-508(1)(e)(III) (emphasis added).

¶ 11 Father became continuously incarcerated in July 2023, before

the dispositional hearing was held the following November and

before the statute went into effect on January 1, 2024. Given this

timing and the plain language of the provision, it does not appear

that the caseworker was obligated to provide information about the

services available to father while he was in jail in the early months

of 2024. But then father was released to community corrections in

April 2024 and reincarcerated in late May. Arguably, the

caseworker had to comply with the statute at that time because

father became “continuously incarcerated” again and that

incarceration occurred “after the dispositional hearing.” Id. Still, it

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is unclear when the caseworker had “knowledge of [that

re]incarceration” to trigger an obligation to comply. Id.

¶ 12 Even assuming section 19-3-508(1)(e)(III) applies to this case,

it makes no reference to written reports as father asserts. See UMB

Bank, N.A. v. Landmark Towers Ass’n, Inc., 2017 CO 107, ¶ 22 (In

construing a statute, “we apply words and phrases in accordance

with their plain and ordinary meanings.”). Rather, it requires a

caseworker to “provide information that details the services and

treatment available to a parent at the facility or jail where the

parent is incarcerated or the caseworker’s efforts to obtain the

information at the next scheduled court hearing.”

§ 19-3-508(1)(e)(III) (emphasis added).

¶ 13 We acknowledge that the caseworker did not provide

information regarding the services and treatment available to

father, nor did he report his efforts to obtain that information, at

the first hearing after the statute took effect. But father was

arrested again on May 28, 2024, and although the juvenile court

held a permanency planning hearing later that same morning, it is

not reasonable to expect the caseworker to have known of father’s

arrest, communicated with the facility where he was being detained,

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and reported to the court at that hearing. The next hearing was the

termination hearing, at which the caseworker reported the required

information to the court. So it appears the caseworker complied

with the statute.

¶ 14 Even assuming that the caseworker failed to timely provide the

information, we perceive no error in the court’s reasonable efforts

finding because the caseworker engaged in efforts to discover

services available to father during his incarceration and ultimately

reported that information to the court. Father does not articulate

any prejudice from the allegedly delayed report. The caseworker’s

efforts included (1) communicating with the Denver jail liaison;

(2) visiting father during his incarceration; (3) establishing virtual

family time; and (4) attempting to contact the liaison for the

Broomfield jail and father’s community corrections case manager.

Father’s assertion that the caseworker’s efforts were insufficient

because he only made “a single attempt” to talk to the jail liaison is

unsupported by the record. The caseworker testified that he was

“in contact” with the Denver jail liaison regarding programming

available to father and that they were working to set up a family

meeting before father was transferred to another facility.

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¶ 15 Second, father argues that, aside from family time services,

the caseworker made no efforts to provide services to him during

his incarceration. But as mentioned above, the caseworker testified

about his attempts to engage with the jails for the provision of

services to father, as well as father’s engagement in some services.

The record also shows that there were limitations to the

caseworker’s ability to arrange services for father during his

incarceration, including (1) an inability to identify the Broomfield

liaison; (2) a lack of information from the Denver liaison regarding

available programs; and (3) the substance abuse evaluator’s

inability to go to the jail to complete the evaluation.

¶ 16 Third, father argues that section 19-3-508(1)(e)(I) required the

Department to communicate with the jail regarding his treatment

plan objectives. True, the record does not reflect that the

caseworker specifically communicated with the facilities regarding

father’s treatment plan objectives. But as discussed above, the

record reflects the caseworker’s efforts to ascertain any treatment or

services available to father during his incarceration. And father

testified regarding the programs and classes he completed while

incarcerated. Father has not established that had the caseworker

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informed the facilities of father’s treatment plan objectives, any

additional treatment or services would have become available to

him.

¶ 17 For these reasons, we discern no error in the juvenile court’s

determination that the Department made reasonable efforts to

rehabilitate father and reunite him with the child.

C. Treatment Plan Compliance and Fitness

¶ 18 Father also asserts that the juvenile court erred by finding

that he had not reasonably complied with his treatment plan and

remained unfit. We discern no basis for reversal.

1. Applicable Law

¶ 19 The purpose of a treatment plan is to preserve the parent-child

legal relationship by assisting the parent in overcoming the

problems that required the government’s intervention. K.D. v.

People, 139 P.3d 695, 699 (Colo. 2006). A treatment plan is

successful if it either renders a parent fit or corrects the conduct or

condition that led to state intervention. People in Interest of C.A.K.,

652 P.2d 603, 611 (Colo. 1982).

¶ 20 An unfit parent is one whose conduct or condition renders the

parent unable or unwilling to give a child reasonable parental care.

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D.P., 160 P.3d at 353. Reasonable parental care requires, at a

minimum, that the parent provide nurturing and safe parenting

sufficiently adequate to meet the child’s physical, emotional, and

mental health needs and conditions. People in Interest of A.J., 143

P.3d 1143, 1152 (Colo. App. 2006).

¶ 21 If a child is under six years old at the time the petition in

dependency or neglect is filed, the court “shall not find” that a

parent has reasonably complied with a court-approved treatment

plan if the parent (1) exhibits the same problems addressed in the

treatment plan without adequate improvement and (2) is unable or

unwilling to provide nurturing and safe parenting adequate to meet

the child’s physical, emotional, and mental health needs and

conditions. § 19-3-604(1)(c)(I)(B).

2. Analysis

¶ 22 The juvenile court found that father “failed to reasonably

comply with [his] . . . court-ordered treatment plan[],” was not “a fit

parent,” and was not “likely to become fit in a reasonable time

period.” We conclude that the record supports these findings.

¶ 23 As described above, father’s treatment plan contained

provisions regarding his substance use, relationship with the child,

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communication with the Department, and stability in housing and

legal matters. The caseworker testified that father (1) did not

complete a substance abuse evaluation or any sobriety monitoring;

(2) only had four, half-hour visits with the child during the case;

(3) lacked a source of income; (4) did not have any available housing

options; and (5) was reincarcerated after absconding from

community corrections. Although father maintained contact with

the caseworker and attended some family time visits, those efforts

did not render him a fit parent. See People in Interest of D.M.W.,

752 P.2d 587, 588 (Colo. App. 1987) (partial, or even substantial,

compliance may not result in a successful plan that renders the

parent fit). Ultimately the caseworker opined that father’s

circumstances were worse at the time of the termination hearing

than when the petition was filed. See § 19-3-604(1)(c)(I)(B).

¶ 24 Father argues that he was reasonably compliant with his

treatment plan because he (1) maintained communication with the

Department, as discussed above; (2) completed courses and

programs in jail; and (3) consistently attended family time. We are

not persuaded.

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¶ 25 Father’s assertion that he complied with his treatment plan by

completing a substance use recovery program and a parenting

course lacks support in the record. Specifically, the caseworker

explained that the substance use evaluation required by father’s

treatment plan typically recommended sobriety monitoring and

longer treatment than what father received from the program he

completed. And there was no evidence that father completed any

sobriety monitoring either through the program or otherwise during

the case. Regarding the parenting course, while the caseworker

noted that it might have benefited father, until he could

demonstrate the learned skills in caring for the child, “it [didn’t]

contribute to the completion of [his] treatment plan.”

¶ 26 Furthermore, the record does not support father’s claim that

he engaged in “consistent” family time. A mandatory protection

order prevented contact between father and the child for the first

ten months of the case. A modification of the order allowed contact

shortly before father’s transfer to community corrections where

in-person visits likely would have been possible. But father lost

that opportunity when he absconded from the community

corrections facility for three weeks and was subsequently

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reincarcerated. This series of events greatly complicated the

caseworker’s ability to arrange family time for father. By the

termination hearing, father had only had four virtual visits with the

child.

¶ 27 Finally, father argues that the juvenile court should have

considered his treatment plan compliance “in light of his

incarcerated status” and that it improperly based its fitness finding

on his incarceration. True, the juvenile court said that father was

unlikely to become fit within a reasonable time “because [he was]

facing another five years . . . in the justice system.” But the court

also focused on the “period of time . . . where he . . . went to a

halfway house in the community correction system.” Had father

remained there, the caseworker believed father would have had

greater access to services to help him meet the treatment plan

objectives. But father left the halfway house without permission

and was returned to jail as a result. See People in Interest of A.H.,

736 P.2d 425, 428 (Colo. App. 1987) (it is the parent’s responsibility

to assure compliance with, and the success of, treatment plan

objectives); see also People in Interest of D.P., 181 P.3d 403, 408

(Colo. App. 2008) (A parent’s noncompliance with a treatment plan

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generally “demonstrates a lack of commitment to meeting the

child’s needs and, therefore, may also be considered in determining

unfitness.”). The caseworker opined that the concerns regarding

father’s fitness were not solely due to his incarceration but also

related to his ongoing criminal activity, instability, and history of

substance use. Thus, although the record shows that father’s

incarceration during the case informed the court’s decision, it was

not the sole reason for the court’s finding of unfitness. See K.D.,

139 P.3d at 703 (The court did not err when it “carefully considered

how [the parent’s] continued incarceration affected his fitness and

his corresponding ability to meet [the child’s] needs within a

reasonable time.”).

¶ 28 Because the record supports the juvenile court’s

determinations regarding father’s treatment plan compliance and

unfitness, we discern no error.

III. Disposition

¶ 29 The judgment is affirmed.

JUDGE J. JONES and JUDGE YUN concur.

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