Peo in Int of SZS

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
November 17, 2022

2022COA133

No. 22CA0305, People in the Interest of S.Z.S. — Juvenile
Court — Dependency and Neglect — Termination of the Parent-
Child Legal Relationship; Health and Welfare — Disability —
Americans with Disabilities Act — Reasonable Accommodations

A division of the court of appeals holds that a parent

challenging termination of her parental rights cannot claim for the

first time on appeal that she has a qualifying disability under the

Americans with Disabilities Act of 1990 that the department of

human or social services or the court failed to accommodate. The

division also holds that when a court terminates parental rights for

abandonment under section 19-3-604(1)(a), C.R.S. 2022, it does not

need to consider whether the parent had a reasonable amount of

time to comply with a treatment plan or whether the department

made reasonable efforts to rehabilitate the parent.
COLORADO COURT OF APPEALS 2022COA133

Court of Appeals No. 22CA0305
Boulder County District Court No. 20JV235
Honorable Norma A. Sierra, Judge

The People of the State of Colorado,

Appellee,

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

and Concerning T.Z.D.M. and T.G.,

Appellants.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE J. JONES
Brown and Kuhn, JJ., concur

Announced November 17, 2022

Benjamin Pearlman, County Attorney, Debra W. Dodd, Special County
Attorney, Jeanne Banghart, Deputy County Attorney, Boulder, Colorado, for
Appellee

Josi McCauley, Guardian Ad Litem

Patrick R. Henson, Office of Respondent Parents’ Counsel, Andrew Gargano,
Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant
T.Z.D.M.

Steven Baum, Office of Respondent Parents’ Counsel, Denver, Colorado, for
Appellant T.G.
¶1 T.Z.D.M. (mother) and T.G. (father) appeal the judgment

terminating the parent-child legal relationship between them and

S.Z.S. (the child). We affirm.

I. Background

¶2 In April 2020, the Boulder County Department of Housing and

Human Services initiated an action in dependency and neglect and

assumed temporary legal custody of the newborn child. The

Department alleged, among other things, that the child had been

born at home without proper medical care and had tested positive

for marijuana after mother took her to the hospital. When the

Department filed the petition, it didn’t have any information about

the identity of the child’s father.

¶3 About a month later, the Department asked to amend the

petition to add father as the child’s alleged father. The juvenile

court granted the Department’s request to serve father by

publication. Father didn’t appear, and the juvenile court

adjudicated the child dependent and neglected as to father by

default judgment. The court then adopted a treatment plan for

father.

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¶4 Meanwhile, mother denied the allegations in the petition and

asked for a jury trial. The jury found in favor of the Department,

and the juvenile court adjudicated the child dependent and

neglected as to mother based on the jury’s verdict. The court

adopted a treatment plan for mother.

¶5 In April and May 2021, a psychologist performed a

psychological evaluation of mother. The psychologist forwarded her

report to the Department in late June 2021. The report included

several recommendations for treatment and further consultation.

But the psychologist didn’t diagnose mother as suffering from any

mental impairment rising to the level of a disorder under the DSM-

V.

¶6 In September 2021, the Department moved to terminate

mother’s and father’s parental rights. Shortly thereafter, father

contacted the caseworker for the first time and requested genetic

testing. However, he didn’t comply with testing for several months.

Genetic testing confirmed father’s paternity in December 2021. The

court adopted an amended treatment plan for father in January

2022.

2
¶7 The juvenile court held an evidentiary hearing on the

Department’s termination motion in February 2022. After hearing

the evidence, the juvenile court terminated mother’s parental rights

under section 19-3-604(1)(c), C.R.S. 2022, and father’s parental

rights under section 19-3-604(1)(a).

II. Mother’s Appeal

¶8 Mother contends that the juvenile court erred by finding that

(1) the Department made reasonable efforts to rehabilitate her and

reunify her with the child when she had a disability that the

Department didn’t reasonably accommodate, and (2) she couldn’t

become fit in a reasonable time. We disagree with both contentions.

A. Termination Criteria and Standard of Review

¶9 Under 19-3-604(1)(c), the 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 hasn’t complied with an appropriate, court-approved

treatment plan or the plan hasn’t been successful; (3) the parent is

unfit; and (4) the parent’s conduct or condition is unlikely to change

within a reasonable time.

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¶ 10 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 won’t disturb the

court’s factual findings if evidence in the record supports them. Id.

The credibility of the witnesses — as well as the sufficiency,

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

conclusions to be drawn from it — is within the juvenile court’s

province. People in Interest of A.J.L., 243 P.3d 244, 249-50 (Colo.

2010). 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.

B. Reasonable Efforts

¶ 11 Mother first contends that the Department failed to make

reasonable accommodations for her disability, as required by the

Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-

12213, when it didn’t implement the recommendations in her

psychological evaluation. In response, the Department argues that

mother didn’t preserve an ADA claim for appellate review, and

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therefore we shouldn’t address it. See People in Interest of M.B.,

2020 COA 13, ¶ 14 (“[A]ppellate courts review only issues presented

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

¶ 12 For the reasons discussed below, we agree with the

Department that mother didn’t preserve her ADA claim, and we

therefore decline to review it.

1. Law

¶ 13 Before the court may terminate parental rights under section

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

must make reasonable efforts to rehabilitate the parent and reunite

the family. §§ 19-1-103(114), 19-3-100.5(1), 19-3-208, 19-3-

604(2)(h), C.R.S. 2022. Reasonable efforts means the “exercise of

diligence and care” for a child who is in out-of-home placement, and

the reasonable efforts standard is satisfied when services are

provided in accordance with section 19-3-208. § 19-1-103(114).

¶ 14 A parent may not assert the ADA as a defense in a termination

of parental rights proceeding. People in Interest of T.B., 12 P.3d

1221, 1223 (Colo. App. 2000). Nonetheless, the department has an

affirmative duty to make reasonable accommodations for a parent

with a qualifying disability when providing rehabilitative services to

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that parent. People in Interest of S.K., 2019 COA 36, ¶¶ 25, 34; see

42 U.S.C. § 12102 (defining “disability” under the ADA); 42 U.S.C.

12111(8) (defining “qualified individual” under the ADA). And the

juvenile court must consider whether the department made

reasonable accommodations for a parent’s disability when

determining whether it made reasonable efforts. S.K., ¶ 34; § 19-3-

208(2)(g) (services provided under this section must meet the

provisions of the ADA). Absent reasonable modifications to

rehabilitative services offered to a parent with a disability, the

department fails to perform both its duty under the ADA to

reasonably accommodate a disability and its obligation to make

reasonable efforts to rehabilitate the parent, and thus it does not

satisfy the criteria for terminating parental rights under section 19-

3-604(1)(c). S.K., ¶ 33.

2. ADA

¶ 15 Mother contends that her ADA claim is preserved because her

attorney argued in closing that mother had “psychological issues”

and “there were a number of modalities recommended in the

psychological evaluation that were never referred.” We aren’t

persuaded.

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¶ 16 For a parent to benefit from a reasonable accommodation, the

parent must raise the issue of the ADA’s applicability in a timely

manner. See In re Terry, 610 N.W.2d 563, 570 (Mich. Ct. App.

2000). “The [d]epartment can accommodate, and the juvenile court

can address, only disabilities that are known to them.” S.K., ¶ 22.

Preferably, if the parent knows or has reason to know she has an

ADA-cognizable disability, the issue should be raised before the

court adopts a treatment plan and enters a dispositional order, so

the department can include the requested accommodations in the

treatment plan for court approval and can provide services

accommodating the disability throughout the case. See In re

Adoption of Gregory, 747 N.E.2d 120, 127 (Mass. 2001); see also

§ 19-3-507(1)(c), C.R.S. 2022 (where a parent has a disability, the

department must identify accommodations and modifications in the

report prepared for the dispositional hearing). “A parent who waits

until the eleventh hour to request a modification under the ADA

may thoroughly undermine her ability to establish that such

modification is reasonable, particularly once the best interests of

the child are taken into account.” State in Interest of K.C., 2015 UT

92, ¶ 27.

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¶ 17 In some jurisdictions, courts have held that a parent may not

raise the ADA issue for the first time at the termination hearing.

See Gregory, 747 N.E.2d at 127; Terry, 610 N.W.2d at 570-71. But

in Colorado, at least one division of this court has determined that

a parent can preserve an ADA claim by raising it for the first time in

closing argument at the termination hearing. People in Interest of

C.Z., 2015 COA 87, ¶ 9. At any rate, waiting until the termination

hearing to raise the ADA issue is problematic because when the

department and the juvenile court don’t know that the parent has a

disability, the department can’t provide, and the court can’t order

the department to provide, reasonable accommodations to

rehabilitate the parent during the case. S.K., ¶ 22.

¶ 18 However, even if we assume that a parent can preserve an

appellate claim by raising the ADA for the first time in closing

argument at a termination hearing, we still conclude that mother’s

counsel didn’t do so. We acknowledge that mother’s counsel noted

in closing that mother had some “psychological issues” and that the

Department should have made additional referrals based on the

recommendations in the psychological evaluation. But neither

mother nor her attorney ever specifically mentioned the ADA,

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asserted that she had a qualifying disability within the meaning of

the ADA, or argued that the recommendations in the psychological

evaluation amounted to reasonable accommodations for that

disability. While we agree with mother that her attorney wasn’t

required to use “talismanic language” to preserve her appellate

claim, she still needed to present the court with an adequate

opportunity to make findings of fact and legal conclusions on the

ADA issue. People v. Melendez, 102 P.3d 315, 322 (Colo. 2004)

(quoting People v. Syrie, 101 P.3d 219, 223 n.7 (Colo. 2004)).

Mother’s counsel didn’t do so.

¶ 19 Still, mother insists that her disability, which she describes

generally as a “mental impairment,” was obvious. See 42 U.S.C.

§ 12102(1)(A) (a disability includes a mental impairment); 28 C.F.R.

§ 35.108(b)(1)(ii) (2021) (mental impairment includes an

“intellectual disability, organic brain syndrome, emotional or mental

illness, and specific learning disability”). If the parent’s disability is

obvious, the department should know that an individual is disabled

and would thus be required under the ADA to provide reasonable

accommodations. S.K., ¶ 22; see also In re Hicks/Brown, 893

9
N.W.2d 637, 640 (Mich. 2007). But, in this case, no ADA-

cognizable disability was obvious.

¶ 20 Mother relies on the caseworker’s testimony at a temporary

custody hearing before a magistrate that mother had difficulty

paying attention to the child’s cues and “she’s diagnosed herself

with [post-traumatic stress disorder (PTSD)],” and on her own

testimony at that hearing that she was taking prescription

medication for her anxiety. But mother’s counsel did not then (or

at any time later) indicate that this condition constituted an ADA-

cognizable disability. And even the psychological evaluation, on

which mother also relies, and which was provided to the

Department more than a year later, concluded that she doesn’t

have a specific learning disorder, obsessive compulsive disorder, or

borderline personality disorder. Although the evaluation identified

some issues with anxiety, the evaluator noted that mother’s

symptoms didn’t “reach the level of clinical paranoia.” And while

the evaluation notes that mother may have been “significantly

traumatized” in the past, she “endorsed only two of the three

required symptom clusters” for a PTSD diagnosis.

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¶ 21 Considering all this, we aren’t convinced that the court was on

notice that mother had a disability under the ADA. If mother’s

counsel believed that she did, given the Department’s failure to

recognize any such disability, it was incumbent on mother’s counsel

to raise the issue with the court so that it could resolve that factual

question. See S.K., ¶ 21 n.2 (whether a parent is a qualified

individual with a disability under the ADA requires a fact-specific

determination that, if disputed, the court should resolve). But

because mother never raised the ADA issue, even by implication,

either before or during the termination hearing, the juvenile court

didn’t make any specific findings about the applicability of the ADA

for us to review. And we “don’t (and, indeed, can’t) make findings of

fact.” Carousel Farms Metro. Dist. v. Woodcrest Homes, Inc., 2019

CO 51, ¶ 19.1

1 In her reply brief, mother urges us to review her ADA argument
under the miscarriage of justice exception to preservation,
sometimes applied in dependency and neglect cases, if we conclude
that the argument isn’t preserved. See People in Interest of E.S.,
2021 COA 79, ¶ 14. We decline to do so. As discussed, this issue
is inherently fact-dependent, People in Interest of S.K., 2019 COA
36, ¶¶ 21 & n.2, 35 & n.4, and we don’t make factual
determinations. Moreover, mother didn’t develop a factual record
on the issue in the juvenile court sufficient to enable the juvenile
court to make the relevant factual findings.

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C. Fit Within a Reasonable Time

¶ 22 Mother next contends that the juvenile court erred by finding

that she couldn’t become fit within a reasonable time.

¶ 23 An unfit parent is one whose conduct or condition renders her

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

in Interest of D.P., 160 P.3d 351, 353 (Colo. App. 2007). 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 needs and conditions.

People in Interest of A.J., 143 P.3d 1143, 1152 (Colo. App. 2006).

¶ 24 In determining whether a parent’s conduct or condition is

likely to change within a reasonable time, the court may consider

whether any change has occurred during the proceeding, the

parent’s social history, and the chronic or long-term nature of the

parent’s conduct or condition. People in Interest of D.L.C., 70 P.3d

584, 588-89 (Colo. App. 2003). Where a parent has made little to

no progress on a treatment plan, the juvenile court need not give

the parent additional time to comply. See People in Interest of

R.B.S., 717 P.2d 1004, 1006 (Colo. App. 1986); see also People in

Interest of V.W., 958 P.2d 1132, 1134-35 (Colo. App. 1998) (even

12
“increased compliance” over the course of a case may not justify

additional time).

¶ 25 A “reasonable time” isn’t an indefinite time and must be

determined by considering the child’s physical, mental, and

emotional conditions and needs. A.J., 143 P.3d at 1152. What

constitutes a reasonable time is fact-specific and varies from case to

case. People in Interest of D.Y., 176 P.3d 874, 876 (Colo. App.

2007). However, when, as in this case, the child is under six years

old, the court must also consider the expedited permanency

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

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

19-1-123, C.R.S. 2022.

¶ 26 The juvenile court determined that mother was unfit based on

her continuing mental health problems; lack of demonstrated

sobriety; “history of engagement in domestic violence, both as a

perpetrator and as a victim,” for which she hadn’t participated in

treatment; and inability to integrate feedback from her parenting

coaches. See § 19-3-604(2)(e) (a parent may be unfit based on

“[e]xcessive use of intoxicating liquors or controlled substances”);

People in Interest of K.T., 129 P.3d 1080, 1082 (Colo. App. 2005)

13
(substance abuse); People in Interest of C.T.S., 140 P.3d 332, 334

(Colo. App. 2006) (domestic violence). While the court recognized

that mother had made some improvements during the case, it didn’t

believe that she could become fit within a reasonable time. See

V.W., 958 P.2d at 1134-35. The court noted that the child was very

young, had been in foster care most of her life, and needed stability

as soon as possible.

¶ 27 The record supports the court’s findings. The caseworker

testified at the termination hearing that mother “uses high levels of

marijuana that aren’t managed,” stopped participating in individual

treatment, didn’t engage in domestic violence treatment at all, and

wasn’t able to integrate feedback from her parenting coaches during

parenting time. The caseworker opined that, given mother’s

inability to address the major concerns in the case, mother couldn’t

provide the child with reasonable parental care. The caseworker

also opined that mother couldn’t become fit within a reasonable

time, given the length of time that the child had been in foster care,

as well as the length of time that mother had been given to

demonstrate improvement. See A.J.L., 243 P.3d at 256 (“[T]he trial

court could reasonably find and conclude that the children’s age

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and need for permanency precluded giving mother more time to

address her mental health needs.”).

¶ 28 Mother argues that she could become fit within a reasonable

time because she substantially complied with her treatment plan.

Specifically, she notes that she maintained regular contact with the

Department, attended about eighty percent of her visits, had

housing and income from legal sources, participated in therapy,

and completed the required evaluations. Coupled with her

compliance, mother further asserts that, had the Department made

reasonable accommodations for her disability, she could have

become fit in a reasonable time.

¶ 29 We aren’t persuaded by mother’s argument, for two reasons.

First, while there is record support for mother’s assertion that she

complied with parts of her treatment plan, we can’t reweigh the

evidence or substitute our judgment for that of the juvenile court.

See People in Interest of K.L.W., 2021 COA 56, ¶ 62. The record

shows that the court properly considered evidence supporting

mother’s compliance, weighed it against contrary evidence and the

needs of the child, and determined that mother couldn’t become fit

within a reasonable time. Because there is record support for the

15
court’s finding, we can’t disturb it. See A.M., ¶¶ 15, 48. Second,

because we have already determined that mother didn’t preserve

her ADA argument, her assertion that she could become fit within a

reasonable time if she had reasonable accommodations necessarily

fails.

III. Father’s Appeal

¶ 30 Father contends that the juvenile court erred by terminating

his parental rights because (1) he didn’t have a reasonable amount

of time to comply with his treatment plan, and (2) the Department

didn’t make reasonable efforts. The Department contends that,

because the juvenile court terminated father’s parental rights under

section 19-3-604(1)(a), the court didn’t need to consider whether

father had a reasonable amount of time to comply with his

treatment plan or whether the Department made reasonable efforts.

We agree with the Department.2

A. Reasonable Time to Comply with the Treatment Plan

¶ 31 The juvenile court adopted a treatment plan for father in June

2020, following the entry of a default adjudication. This treatment

2 Father doesn’t challenge the sufficiency of the evidence supporting
termination under subsection (1)(a).

16
plan only required that father contact and cooperate with the

Department. But after father contacted the Department over a year

later, the court adopted an amended treatment plan that was more

comprehensive in January 2022. This was only a few weeks before

the termination hearing.

¶ 32 Unlike mother, however, the juvenile court terminated father’s

parental rights under subsection (1)(a), which required the

Department to prove, by clear and convincing evidence, that the

parent (1) surrendered physical custody of the child for a period of

six months or more and (2) didn’t manifest during such period the

firm intention to resume physical custody of the child or make

permanent legal arrangement for the care of the child. In contrast

to subsection (1)(c), subsection (1)(a) doesn’t require that a parent

be provided with a treatment plan before the court may terminate

parental rights. See People in Interest of L.M., 2018 COA 57M, ¶ 19;

see also § 19-3-508(1)(e)(I), C.R.S. 2022 (the court may find that an

appropriate treatment plan can’t be devised as to a particular

parent because the child has been abandoned as set forth in

section 19-3-604(1)(a)).

17
¶ 33 Under subsection (1)(c), once a reasonable treatment plan is

approved by the juvenile court, the parent must be given a

reasonable amount of time to comply with its provisions. D.Y., 176

P.3d at 876. But subsection (1)(c) is the only basis for termination

in section 19-3-604 that requires the juvenile court to have first

approved an appropriate treatment plan. L.M., ¶ 23. Thus, the

requirement that a court allow a parent a reasonable time to comply

with a treatment plan only applies in cases in which parental rights

are terminated under subsection (1)(c). See D.Y., 176 P.3d at 876

(under section 19-3-604(1)(c), “the General Assembly intended that

a parent would be afforded a reasonable time to comply with an

appropriate treatment plan before parental rights could be

terminated”).

¶ 34 Because the juvenile court terminated father’s parental rights

under section 19-3-604(1)(a), his reliance on subsection (1)(c) and

D.Y. is misplaced. Under subsection (1)(a), the juvenile court isn’t

required to provide a parent with a treatment plan and allow a

reasonable time for compliance with the plan before it can

terminate parental rights. We therefore reject father’s contention.

18
B. Reasonable Efforts

¶ 35 Father next contends that the Department failed to make

reasonable efforts because it did not seek to engage him after

paternity was established and instead immediately pursued

termination. We disagree.

¶ 36 As noted, when a juvenile court terminates parental rights

under section 19-3-604(1)(c), it must consider whether reasonable

efforts have been unable to rehabilitate the parent. See § 19-3-

604(2)(h). However, because the court isn’t required to adopt a

treatment plan under subsection (1)(a), the court isn’t required to

make a finding of reasonable efforts when it terminates parental

rights under that subsection. See C.Z., ¶ 57 (when a juvenile court

finds that no appropriate treatment plan can be devised pursuant

to section 19-3-604(1)(b), “the Department is relieved of its

obligation to provide reasonable efforts”).

¶ 37 Nonetheless, we recognize that the court did, in fact, adopt a

treatment plan for father. Of course, the Department is obligated to

provide the services envisioned in the plan while the plan remains

in effect. See id. at ¶ 58. But a court can make an abandonment

finding under subsection (1)(a) regardless of whether a treatment

19
plan was adopted or services were provided. See People in Interest

of Z.P.S., 2016 COA 20, ¶ 29 (“[T]he court may proceed to terminate

a parent’s rights based on no appropriate treatment plan even when

the existing dispositional order includes the provision of a

treatment plan for the parent.”). And under those circumstances,

the court isn’t required to consider whether the Department made

reasonable efforts before entering its termination order. See C.Z.,

¶ 59. Thus, because the juvenile court ultimately terminated

parental rights under section 19-3-604(1)(a), it wasn’t required to

consider whether the Department had made reasonable efforts. See

id.

IV. Conclusion

¶ 38 The judgment is affirmed.

JUDGE BROWN and JUDGE KUHN concur.

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