Peo in Interest of BJ

21CA0306 Peo in Interest of BJ 10-21-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA0306

Jefferson County District Court No. 20JV84

Honorable Ann Gail Meinster, Judge

The People of the State of Colorado,

Appellee,

In the Interest of B.J., a Child,

and Concerning G.J.,

Appellant.

JUDGMENT AFFIRMED

Division VII

Opinion by JUDGE GROVE

Navarro and Pawar, JJ., concur

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

Announced October 21, 2021

Kimberly Sorrells, County Attorney, Sarah Oviatt, Assistant County Attorney,

Golden, Colorado, for Appellee

Gina G. Bischofs, Guardian Ad Litem

Brad Junge, Office of Respondent Parents’ Counsel, Grand Junction, Colorado,

for Appellant

1

¶ 1

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

appeals the juvenile court judgment terminating his parent-child

legal relationship with B.J. (the child). We affirm.

I. Background

¶ 2

In February 2020, the Jefferson County Division of Children,

Youth and Families filed a dependency and neglect petition and

assumed temporary custody of the four-month-old child. The

Division asserted that father, the child’s mother, and father’s

seventeen-year-old daughter were all using methamphetamine in

the hotel room that they shared with the child. In addition, the

child had cigarette ashes on her clothing, appeared to be very

hungry, and tested positive for methamphetamine.

¶ 3

The juvenile court initially allowed the child to remain in the

care of mother’s friend and her husband. However, a couple of

months later, the court authorized the Division to move the child to

the home of a paternal cousin and his wife. After the cousin and

his wife were unwilling to continue caring for the child, the Division

placed the child in a foster home.

2

¶ 4

Meanwhile, based on father’s admission, the court adjudicated

the child dependent and neglected. It also adopted a treatment

plan for father.

¶ 5

Later, the Division moved to terminate the legal relationship

between father and the child. Following a hearing in January 2021,

the juvenile court terminated father’s parental rights.

II. Termination Criteria and Standard of Review

¶ 6

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 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 in a reasonable time. § 19-3-

604(1)(c), C.R.S. 2021; People in Interest of C.H., 166 P.3d 288, 289

(Colo. App. 2007).

¶ 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. A determination of the

proper legal standard to be applied in a case and the application of

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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.

¶ 8

However, 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. Indeed, 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 are within the

discretion of the juvenile court. People in Interest of C.A.K., 652

P.2d 603, 613 (Colo. 1982).

III. Less Drastic Alternative

¶ 9

Father contends that the juvenile court erred by rejecting the

less drastic alternative of granting an allocation of parental

responsibilities (APR) to the family friend who initially cared for the

child. In support of his contention, father asserts that the court

declined to hear evidence concerning the APR and failed to make

findings as to whether it was a viable less drastic alternative. He

also argues that the APR would meet the child’s needs and preserve

his bond with the child while allowing him to continue to engage in

substance abuse treatment. We are not persuaded.

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A. The Legal Framework

¶ 10

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

the court must 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. As a result, it is influenced by a parent’s

fitness to care for his or her child’s needs. People in Interest of A.R.,

2012 COA 195M, ¶ 38.

¶ 11

And, as with all termination criteria, 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 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.

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B. The Court’s Ruling

¶ 12

To start, father correctly points out that the juvenile court

declined to hear evidence concerning the possibility of an APR to

the family friend. The caseworker testified that the Division had

considered the family friend as a placement option at the beginning

of the case. But, the court did not allow father to ask the

caseworker why the Division was no longer considering an APR to

the family friend and, instead, directed father to raise that issue in

argument.

¶ 13

Father then raised the possibility of granting an APR to the

family friend in his closing argument. Despite father’s argument,

the court did not expressly address an APR to the family friend

when determining that there was no less drastic alternative to

termination.

¶ 14

Even so, we discern no basis for reversal. The less drastic

alternative analysis considers whether any placement, short of

termination, would be in the child’s best interest. A.R., ¶ 44. And,

here, the court determined that an APR would not be an

appropriate alternative to termination because father had no

relationship with the child.

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C. The Record

¶ 15

The record supports the court’s determination that father had

failed to maintain a relationship with the child. The caseworker

made a referral for father to have parenting time with the child at

the beginning of the case, but father failed to follow through with

that referral. After the caseworker made a second referral, father

did not stay in contact with the agency supervising parenting time.

As a result, father did not see the child until May 2020.

¶ 16

Once father began participating in parenting time — via video

visits — he often failed to engage the child and instead would just

walk around in the background. And father had not attended any

parenting time after the end of June 2020 — more than six months

before the termination hearing.

¶ 17

The record further reveals that father admitted that he had

been using methamphetamine for twenty years and had recently

started using heroin. Although father completed the paperwork to

have an intake appointment for a substance abuse evaluation, he

did not follow through with the appointment. And he did not

otherwise engage in substance abuse treatment. Nor did father

provide any urinalysis tests throughout the case.

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¶ 18

Finally, the caseworker opined that termination was in the

child’s best interests. She explained that the child was very young

and needed the stability of a permanent home. The caseworker also

testified that the child would not benefit from having an ongoing

relationship with father.

¶ 19

Given this record, we will not disturb the court’s determination

that there was no less drastic alternative to termination.

IV. Conclusion

¶ 20

The judgment is affirmed.

JUDGE NAVARRO and JUDGE PAWAR concur.