Peo in Interest of JRN

21CA0273 Peo in Interest of JRN 01-27-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA0273

Douglas County District Court No. 19JV109

Honorable H. Clay Hurst, Judge

The People of the State of Colorado,

Appellee,

In the Interest of J.R.N., Jr., a Child,

and Concerning J.R.N.,

Appellant,

and

S.D.N.,

Appellee.

JUDGMENT AFFIRMED

Division III

Opinion by JUDGE FURMAN

Lipinsky and Brown, JJ., concur

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

Announced January 27, 2022

Lance J. Ingalls, County Attorney, R. LeeAnn Reigrut, Assistant County

Attorney, Lori Kennedy, Assistant County Attorney, Castle Rock, Colorado, for

Appellee

Debra W. Dodd, Guardian Ad Litem

Peak Family Law, L.L.C, Sean S. Peek, Ricardo Vasquez, Denver, Colorado, for

Appellant

Griffiths Law PC, Leslie Hansen, Lone Tree, Colorado, for Appellee S.D.N.

1

¶ 1

In this dependency and neglect case, J.R.N. (father) appeals a

juvenile court judge’s allocation of parental responsibilities (APR) for

J.R.N., Jr. (the child), to S.N. (mother). He contends that we should

reverse the APR for two primary reasons: (1) the judge erroneously

upheld a magistrate’s decision that the child was not required to

participate in reintegration therapy with him, and (2) the Douglas

County Department of Human Services (Department) did not make

diligent efforts to reunify him with his child. We disagree with each

of father’s contentions and affirm the APR.

I. The APR

¶ 2

In the answer brief, the child’s guardian ad litem (GAL) aptly

summarizes this case as follows. “For years [the child] has been

caught in the middle of his parents’ bitter custody battle; a fight

which began as a domestic relations case, morphed into a

dependency and neglect case, and stands now as an appellate case.

In fact, it was ‘one of the most atrocious divorce cases’ the court

had witnessed.”

¶ 3

Father’s case on appeal requires us to address orders entered

by a magistrate and juvenile court judge in this dependency and

neglect case. We put these orders in context.

2

¶ 4

In April 2019, the Department received a report that the then

twelve-year-old child had been hospitalized for mental health

concerns. The Department filed a petition alleging that the child

was dependent or neglected.

¶ 5

The parents were involved in a dissolution of marriage case in

Arapahoe County that included post-decree litigation. As part of

the Arapahoe County case, the child and father participated in

reintegration therapy. The Department received a report that the

child was “refusing to have contact with his father [and] that

reintegration sessions had not been going well.”

¶ 6

A magistrate initially gave the Department temporary

protective custody of the child, and later ordered the child into

mother’s legal custody with the Department’s supervision. Later

still, the Department placed the child with maternal grandmother

due to “concerns that [mother] was not ensuring that [the child] was

attending school . . . [and] that she was possibly not meeting his

mental health needs or his medical needs.”

¶ 7

But, in May 2019, on the recommendation of the child’s then-

therapist, the magistrate returned custody of the child to mother.

The child remained at home with mother for the rest of the case.

3

That same month, the domestic relations court certified the

parenting time and custody issues from the dissolution case into

the dependency and neglect case.

¶ 8

In June 2019, a magistrate ordered that reintegration therapy

be stopped. About six months later, both parents stipulated to the

allegations in the petition, and the court adjudicated the child

dependent or neglected. Father’s signed stipulation included:

[Father] is in agreement with the attached

treatment plan, provided that all parties

recognize that time is of the essence with

respect to [father and child] engaging in

reintegration therapy so that parenting-time

between [f]ather and [the child] can be re-

established as soon as practical and in the

best interests of the child.

¶ 9

The court adopted treatment plans for both parents. Father’s

treatment plan required him to participate in reintegration therapy

with the child. This would become a central issue in this case.

¶ 10

It was undisputed that, after the adoption of father’s treatment

plan, the magistrate twice interviewed the child (on June 25, 2019,

and August 23, 2019). In these interviews, the child expressed that

he did not want to have contact with father.

4

¶ 11

In October 2019 and in December 2019, father filed forthwith

motions regarding discovery and placement.

¶ 12

In December 2019, the magistrate held a hearing to address

father’s forthwith motions. At this hearing, the parties also

discussed (1) their inability to agree on a new reintegration

therapist for the child; (2) whether the child should begin trauma

therapy; and (3) whether father should begin reintegration therapy

on his own. The magistrate concluded that the previous

reintegration therapist should separately work with father, and that

the child should begin trauma therapy with a therapist selected by

the GAL. Father’s placement motions were set for a contested

hearing in June 2020.

¶ 13

In January 2020, father filed a “Forthwith Motion of Lack of

Reasonable Efforts and for Selection of Therapist,” contending that

the parties could not agree on a trauma therapist for the child. The

magistrate set a hearing on this matter for February 2020. At this

hearing — which proceeded without taking testimony or entering

evidence — the GAL reported that the child did not want to

participate in reintegration therapy.

5

The more I’ve thought about it, Your

Honor, and the more -- having gone

through this process of trying to select a

therapist for him, I had to question myself

why we are forcing this child to do

something that he has been so adamantly

against. He is doing quite well at this

point. He is attending school; he loves his

school. His attendance is not perfect by

any means, but I think you look back a

year ago, he was hospitalized at Denver

Springs after having a Skype session in

reintegration therapy with his dad.

As the Court knows, I mean, it’s been up

and down as far [as] him having self-

harming behaviors, and he is very stable

right now. He reported to me on Thursday

that he has not had any thoughts of self-

harming . . ., and that was towards the

end of the summer. He is engaging with

friends. His social-emotional skills at

school, according to the principal and to

the school psychologist, are very strong.

He’s actually seen as a leader.

He himself has set a goal that he wants to

get a 4.0. So he has really good goals for

himself and he’s following through on

them. He’s also making friends at school,

which is new. He’s having friends over for

play dates. He’s going to friends’ homes,

that’s also new for him.

So he’s doing really well. The only reason

that we would put him into trauma

therapy at this point is to address the

issues with his dad.

6

We’ve been at this for ten months as far as

trying different approaches to the

reintegration therapy, and quite honestly,

the only time that [the child] has really

been able to stabilize is when the Court

put reintegration on hold. And I think it’s

the fact that he didn’t have that weighing

on him. So my concern is, if we push him

and force him to do trauma therapy at this

point -- and he knows that if he does

trauma therapy the goal is to get him into

reintegration therapy. He’s a smart kid;

it’s going to be weighing him again, and I

think there’s a very good chance that it’s

going to derail the progress that he has

made.

After hearing this report from the GAL, the magistrate determined

that she was not going to order “the child to be forced into

reintegration therapy.”

¶ 14

One month later, the magistrate filed a written order from the

February 2020 hearing. In this order, the magistrate again denied

father’s request to start reintegration therapy with the child, finding

that the Department had made reasonable efforts to find a suitable

therapist and that it was not in the child’s best interests to see his

father.

¶ 15

Father petitioned for judicial review, claiming the magistrate’s

decision to not compel the child into reintegration therapy was

7

unsupported and an improper delegation of parenting time. The

judge affirmed, concluding that “it is not in the best interest of the

minor child . . . to be forced to see [father].” The court pointed out

that the magistrate was familiar with “the child, the child’s record,

[and] the facts.”

¶ 16

The GAL later moved to allocate parental responsibilities for

the child to mother. Mother filed a response and asked that she be

allowed to relocate with the child to Texas. Father objected,

contending that an APR would not be in the child’s best interests.

He also asked that the matter be heard by a judge.

¶ 17

The judge held a hearing on the APR motion in October 2020.

After the hearing, the judge made an APR, ordering that mother be

the child’s primary residential custodian and giving her authority to

make the day-to-day decisions for the child.

¶ 18

Father’s appeal challenges the judge’s review of the

magistrate’s order from the February 2020 hearing and the judge’s

October 2020 APR. We address each challenge in turn.

8

II. Review of the Magistrate’s Order from the February 2020

Hearing

¶ 19

Father contends that the judge erred by affirming the

magistrate’s decision to not require the child to participate in

reintegration therapy. We disagree.

A. Standard of Review

¶ 20

Section 19-1-108(5.5), C.R.S. 2021, provides for judicial review

of a magistrate’s order in a dependency and neglect case. Because

the judge reviews only the record of the hearing before the

magistrate, its review is similar to an appellate review of the

magistrate’s decision. People in the Interest of J.G., 97 P.3d 300,

302 (Colo. App. 2004). Our review, therefore, is like a second level

of appellate review. Id.

¶ 21

But the parties disagree on our standard of review. On the

one hand, father contends that we should apply de novo review

because resolution of this issue requires us to apply the Children’s

Code to evidentiary facts. On the other hand, the remaining parties

contend that we should apply a clearly erroneous standard of

review. We disagree with father because the magistrate’s decision

of whether to require the child to participate in reintegration

9

therapy is a factual question. And factual questions “shall not be

set aside unless clearly erroneous.” People in the Interest of A.J.L.,

243 P.3d 244, 249 (Colo. 2010).

B. Analysis

¶ 22

We conclude that the record supports the judge’s order

affirming the magistrate’s decision from the February 2020 hearing.

Id. We reach this conclusion for two reasons.

¶ 23

First, the record reveals that father had not had any visits with

the child for over eight months before the dependency and neglect

case began and that the child had a serious trauma response

brought on by contact with father.

¶ 24

Second, the magistrate properly considered the position of the

child, who was thirteen years old and gave input to the

professionals involved, when declining to order reintegration

therapy. See People in the Interest of H.K.W., 2017 COA 70, ¶ 3.

Father does not point to any authority — nor are we aware of any —

that would suggest the magistrate erred by relying on in camera

interviews with a child to inform her decision. See § 19-1-106(5),

C.R.S. 2021 (providing that a child “may be heard separately when

deemed necessary” by the court). And father didn’t designate

10

transcripts of these interviews, so we presume the record supports

the magistrate’s decision. See Colo. Dep’t of Pub. Health & Env’t v.

Bethell, 60 P.3d 779, 787 (Colo. App. 2002) (when appellant does

not provide a complete record on appeal, we presume the record

supports the trial court’s conclusions).

¶ 25

Father’s reliance on People in Interest of D.G., 140 P.3d 299

(Colo. App. 2006), for the proposition that the magistrate erred by

not ordering the child to engage in reintegration therapy is

misplaced. In D.G., the division concluded that a juvenile court

erred by terminating parental rights because the parent’s treatment

plan did not include face-to-face visitation and was, thus,

inappropriate. The division reasoned that “absent safety concerns,

a parent is entitled to face-to-face visitation” with the child. Id. at

302. But this case does not involve a termination of parental

rights, and the magistrate knew of the child’s trauma response

brought on by contact with father.

¶ 26

Father also contends that the magistrate’s decision included

an improper “delegation to the child of the decision regarding

parenting-time/visitation.” We disagree because the magistrate’s

11

order did not include such delegation. Parenting time was

addressed in the judge’s APR.

¶ 27

But wait, says father. The magistrate did not take any

evidence at the February 2020 hearing. Father misses the point.

The judge determined and the record reveals that “the magistrate

was familiar with the child, the child’s record, [and] the facts.” And

father does not contest this determination.

III. The Judge’s October 2020 APR

¶ 28

Father next contends that we should reverse the APR because

the Department did not make diligent efforts to reunify him with his

child. We disagree.

A. Law

¶ 29

When entering an APR, the juvenile court must “be guided by

the underlying purposes of the [Children’s] Code.” L.A.G. v. People

in Interest of A.A.G., 912 P.2d 1385, 1391 (Colo. 1996). But the

Children’s Code does not define factors the juvenile court must

consider in allocating parental responsibilities. People in Interest of

C.M., 116 P.3d 1278, 1281 (Colo. App. 2005). Instead, the juvenile

court “must allocate parental responsibilities based on the best

12

interests of the child and the public.” H.K.W., ¶ 13; see § 19-3-

508(1)(a), C.R.S. 2021.

¶ 30

The juvenile court may consider the best interest factors listed

in the Uniform Dissolution of Marriage Act, § 14-10-124(1.5)(a),

C.R.S. 2021, if the focus is on the protection and safety of the child

and not on the “custodial interests” of the parents. L.A.G., 912 P.2d

at 1391-92; People in Interest of M.D., 2014 COA 121, ¶ 12; C.M.,

116 P.3d at 1282. And the court may consider the “wishes of the

child if he or she is sufficiently mature to express reasoned and

independent preferences as to the parenting time schedule.”

H.K.W., ¶ 13.

B. Standard of Review

¶ 31

We will not disturb a juvenile court’s factual findings when

they are supported by the record. People in Interest of J.G., 2021

COA 47, ¶ 17 (examining whether the juvenile court erred in

allocating parental responsibilities in a dependency and neglect

case). But whether the juvenile court applied the correct legal

standard in making its findings is a question of law we review de

novo. Id.

13

C. Analysis

¶ 32

Father contends that the Department did not make diligent

efforts to reunify him with his child for three broad reasons. He

contends that (1) his treatment plan required “progress toward

reintegration therapy” and this did not happen; (2) his treatment

plan should have included, and the Department did not include in

its services, an assessment for parental alienation; and (3) his

treatment plan should have provided for face-to-face visitation. We

conclude the record supports the judge’s APR.

1. Reintegration Therapy

¶ 33

In allocating parental responsibilities, the judge found as

follows.

 “[T]his is [a] dependency and neglect case with the goal of

returning the child home, which has been accomplished.”

 The expert testimony of the caseworker, psychotherapist, and

trauma therapist “accurately portray[ed] [the child’s] mental

health conditions and fear of [father] [which] support[s] the

finding that [the child] continues to have anxiety and fear of

[father].”

14

 “[R]eintegration therapy is traumatic” for the child, and that,

“if he were required to participate [in it] prior to completing

trauma therapy . . . he could self-harm.”

¶ 34

We conclude that the record supports the juvenile court’s

findings. See J.G., ¶ 17.

¶ 35

The record contains the following evidence.

 A psychotherapist testified that he observed the child to show

“hesitance [and] expressed a desire to not want to do

[reintegration] therapy.” “There were times,” according to the

psychotherapist’s testimony, that the child would “put a

blanket over his head and not want to . . . talk about

[reintegration therapy].”

 The caseworker testified that, as of the APR hearing, the child

“remained clear that he does not wish to have contact with his

father” and that the child “continues to be very clear that he

does not wish to participate in any reintegration therapy.”

 The child’s trauma therapist, who was qualified as an expert

in child therapy with a specialization in trauma therapy,

testified that she was asked to work with the child to see “if we

could get him to a point where he would one day be ready for

15

reintegration therapy.” But she concluded that the child was

not ready for trauma therapy.

 The trauma therapist also opined, “I do not recommend that

he be forced to do reintegration therapy until trauma therapy

is completed. Because I think it will cause decompensation.”

She clarified that “decompensate[ion] means that he could

become suicidal again.”

¶ 36

And the caseworker testified that father could have

participated in reintegration therapy, even without the child’s

participation.

2. Parental Alienation

¶ 37

We note first that the record shows that parental alienation

and enmeshment are related. The trauma therapist testified that

enmeshment was a symptom of parental alienation.

¶ 38

The judge found as follows:

 The Department recognized that enmeshment between mother

and the child was a possibility.

 The Department hired a psychoanalyst to assess whether

enmeshment was an issue.

16

 One of father’s experts — a Child and Family Investigator (CFI)

from the parent’s dissolution of marriage case, qualified as an

expert in child family psychology and child family investigation

— could not “draw conclusions there is enmeshment because

of his limited ability to assess the parties.”

 The CFI “was not convinced that enmeshment or parental

alienation exists in their relationship” and characterized

mother and child’s bond as “healthy” and “strong.” “Mother

has demonstrated her ability to meet [the child’s] physical,

mental, and emotional needs and to place his needs above her

own.”

¶ 39

We conclude that the record supports the juvenile court’s

findings about parental alienation and parental enmeshment. See

J.G., ¶ 17. We come to this conclusion for four reasons:

¶ 40

First, the record contains the following evidence.

 The caseworker testified that “there might be enmeshment.”

 The Department tasked a psychotherapist — qualified as an

expert in in-home cognitive behavioral therapy — to assess the

relationship between mother and the child and to determine

whether he saw any “enmeshment qualities.”

17

 The psychotherapist opined that enmeshment qualities

included (1) “whether or not the emotional states of the

parents and children mimic each other”; (2) whether adults

talk over children when questions are presented; and (3)

whether the adults allow the children to share what they are

feeling. He testified that he had observed no such qualities

between mother and son.

¶ 41

Second, although father contends that the juvenile court

mischaracterized the CFI’s testimony, the record supports the

court’s description of the CFI’s inability to reach a conclusion about

alienation. The CFI opined that when he was involved in the case a

year and half earlier, there “were very porous boundaries between

[mother] and [the child].” He testified he was not asked, in the

Arapahoe County case, to report on alienation, but that “he would

have put [a discussion of alienation] into [his] final report.”

¶ 42

Despite this, the CFI could not conclude that alienation

existed when he worked with the family because he did not have

enough information about the case. The CFI never made a final

report, let alone one that concluded alienation existed, in the

Arapahoe County case before that case was certified into the

18

dependency and neglect case. And, at the time of the APR hearing,

the CFI did not have enough information to make conclusions

about alienation.

¶ 43

Third, to the extent father asks us to consider his expert’s

alienation factors, we decline to do so. This is a matter properly

reserved for the juvenile court judge. See People in Interest of

S.M.A.M.A., 172 P.3d 958, 962 (Colo. App. 2007) (we defer to the

juvenile court’s resolution of any conflicts in the evidence). And we

have concluded that there is record support for the judge’s findings.

¶ 44

Fourth, although father also contends that the judge made

inaccurate findings about the child’s relationship to mother, there

is record evidence to support the judge’s characterization of the

mother-child relationship. The caseworker testified that she saw

mother and the child together monthly and that “their relationship

is very comfortable for [the child].” And she had no concerns “from

a child protection standpoint” with the relationship’s dynamics.

3. Face-to-Face Visitation

¶ 45

The judge found that it was in “the best interests of the child

that parenting time” for father “shall not occur until further order of

19

the court and once [the child] has successfully completed trauma

therapy.”

¶ 46

We conclude that the record supports the court’s finding. See

J.G., ¶ 17.

¶ 47

At the APR hearing, multiple experts testified that the child’s

safety was affected by contact with father. For example, the

caseworker testified that the child had been hospitalized after

threatening suicide because “he felt forced to have communication

with his father.” Similarly, the child’s trauma therapist opined, “I

do not recommend that he be forced to do reintegration therapy

until trauma therapy is completed. Because I think it will cause

decompensation.” She clarified that “decompensate means that he

could become suicidal again.”

¶ 48

True, section 19-3-208 requires the Department to provide

visitation in out-of-home placement in every dependency and

neglect proceeding. See People in Interest of A.A., 2020 COA 154, ¶

17. But the child was not in out-of-home care, having been placed

with mother. And even if we concluded that the requirement of

face-to-face visitation nevertheless applies, the child’s health and

safety are the paramount concerns in determining whether

20

visitation services are necessary and appropriate. See id. The judge

considered these concerns in its order.

¶ 49

Father’s reliance on People in Interest of E.S., 2021 COA 79, ¶

23, for the proposition that a juvenile court commits error when it

denies face-to-face visitation for a parent is also misplaced. In E.S.,

the division held that the Department may not bar visitation with a

parent simply because a parent has an outstanding warrant,

without considering child safety. Id. Whereas, here, the record is

clear that contact with father created a safety concern for the child.

¶ 50

Father’s reliance on A.A. for the proposition that the

Department does not provide reasonable efforts when it does not

provide referrals for therapy or therapeutic visitation between a

parent and a child reluctant to visit is also misplaced. Unlike in

A.A., here, the Department provided therapy and reintegration

services to father on his own; father refused these services.

¶ 51

To the extent father contends that his due process rights were

violated by the judge’s APR, we conclude father was afforded

sufficient protections. Although a termination of parental rights

implicates a parent’s fundamental liberty interest in the care,

custody, and control of their children, see Troxel v. Granville, 530

21

U.S. 57, 66 (2000), a parent’s due process rights in an APR to

another parent is circumscribed, at best. See People in Interest of

L.B., 254 P.3d 1203, 1206 (Colo. App. 2011) (parent has no due

process right to counsel when the state seeks to award custody of

the children to another parent).

¶ 52

Father’s reliance on People in Interest of B.J.D., 626 P.2d 727,

730 (Colo. App. 1981) is misplaced. In B.J.D., the division

concluded that the parent’s treatment plan was not appropriate

because it had unrealistic requirements. See id. at 729-30. But,

here, the Children’s Code contains no provision requiring a court to

consider the appropriateness of the parent’s treatment plan before

ordering an APR. See C.M., 116 P.3d at 1281. And the court

appropriately considered the best interests of the child in allocating

parenting responsibilities for the child to mother. H.K.W., ¶ 13.

IV. Conclusion

¶ 53

The APR judgment is affirmed.

JUDGE LIPINSKY and JUDGE BROWN concur.