Peo in Interest of CP

21CA0662 Peo in Interest of CP 01-27-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA0662

Delta County District Court No. 19JV34

Honorable Steven L. Schultz, Judge

The People of the State of Colorado,

Appellee,

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

and Concerning T.P.,

Appellant.

JUDGMENT AFFIRMED

Division VII

Opinion by JUDGE BERGER

Brown and Johnson, JJ., concur

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

Announced January 27, 2022

John F. Baier, County Attorney, Adriana Hartley, Assistant County Attorney,

Delta, Colorado, for Appellee

Robert G. Tweedell, Guardian Ad Litem

Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant

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¶ 1 In this dependency and neglect proceeding, T.P. (mother)

appeals the juvenile court’s judgment terminating her parent-child

legal relationship with C.P. (the child). We affirm the judgment.

Relevant Facts and Procedural History

¶ 2 The Delta County Department of Human Services filed a

petition in dependency and neglect regarding fifteen-year-old L.Z.,

thirteen-year-old E.Z., and newborn C.P. The petition alleged that

mother used methamphetamine and heroin during pregnancy and

that both mother and the child tested positive for opiates at birth.

The child was transferred to a different hospital’s neonatal intensive

care unit to manage her withdrawal symptoms.

¶ 3 The juvenile court accepted mother’s admission to the petition

and adjudicated the children dependent and neglected. The court

adopted a treatment plan for mother requiring that she (1)

participate in substance abuse and mental health evaluations and

follow any recommendations; (2) submit random urinalysis tests

(UAs) each week; (3) complete a parenting class; and (4) regularly

visit the child.

¶ 4 The Department later moved to terminate mother’s parental

rights to C.P. The court entered an allocation of parental

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responsibilities (APR) for L.Z. and E.Z. with maternal grandmother,

and they are not the subjects of this appeal. After a hearing, the

court terminated mother’s parent-child legal relationship with C.P.

The court also terminated the parental rights of C.P.’s father. He

does not appeal.

ICWA Compliance

¶ 5 Mother contends that the juvenile court failed to comply with

the Indian Child Welfare Act of 1978 (ICWA).

A. Additional Facts

¶ 6 Father appeared at only one court hearing during the entirety

of the proceeding. During that hearing, the juvenile court

recognized father from a different proceeding involving another

child. Toward the end of the hearing the court addressed father as

follows:

[Father], remember the ICWA form and the

relative placement affidavit that you filled out

the last time? My recollection is you do not

have any Native America [sic] heritage, right?

I’m going to ask you to fill those forms out

again and mail them back to the Court. All

right? And then the Court will endeavor to

disseminate copies at the next proceeding.

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Father either made no response or did not respond verbally to the

court’s questions. Father never again appeared in court and he did

not return the ICWA form to the court.

¶ 7 At the termination hearing, the court inquired of all parties

who were present, including the caseworker who had some ongoing

but sporadic communication with father, whether they were aware

of any Native American heritage for the child. No one presented any

information to give reason to believe the child was an Indian child.

B. Relevant Law

¶ 8 ICWA aims to protect and to preserve Indian tribes and their

resources and to protect Indian children who are members or

eligible for membership in an Indian tribe. 25 U.S.C. § 1901(2), (3).

Indian tribes have an interest in Indian children that is distinct

from, but equivalent to, parental interests. B.H. v. People in Interest

of X.H., 138 P.3d 299, 303 (Colo. 2006); see also Mississippi Band of

Choctaw Indians v. Holyfield, 490 U.S. 30, 52 (1989). Accordingly,

in a proceeding in which ICWA may apply, tribes must have a

meaningful opportunity to participate in determining whether a

child is an Indian child and to be heard on the issue of ICWA’s

applicability. B.H., 138 P.3d at 303.

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¶ 9 To ensure tribes have an opportunity to be heard, Colorado’s

ICWA-implementing legislation provides that in dependency and

neglect proceedings, the petitioning party must make continuing

inquiries to determine whether the child is an Indian child.

§ 19-1-126(1)(a), C.R.S. 2021; see also B.H., 138 P.3d at 302.

¶ 10 In 2016, the Bureau of Indian Affairs also issued regulations

and guidelines implementing ICWA. People in Interest of L.L., 2017

COA 38, ¶ 15; Indian Child Welfare Act Proceedings, 81 Fed. Reg.

38,778 (June 14, 2016); Bureau of Indian Affairs, Guidelines for

Implementing the Indian Child Welfare Act (Dec. 2016),

https://perma.cc/3TCH-8HQM (2016 Guidelines); see also Notice

of Guidelines, 81 Fed. Reg. 96,476 (Dec. 30, 2016). The 2016

Guidelines and regulations impose a duty of inquiry and notice on

trial courts.

¶ 11 The trial court must ask each participant on the record at the

beginning of every emergency, voluntary, or involuntary child

custody proceeding whether the participant knows or has reason to

know that the child is an Indian child. 25 C.F.R. § 23.107(a)

(2020); see also L.L., ¶ 19. The inquiry must be made at the

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commencement of the proceeding and all responses should be on

the record. 25 C.F.R. § 23.107(a).

¶ 12 If the court knows or has reason to know or believe that an

Indian child is involved in a child custody proceeding, including

termination of parental rights, the party seeking termination must

provide notice to any identified Indian tribes. 25 U.S.C. § 1912(a);

§ 19-1-126(1)(b). When doing so, the Department must directly

notify the identified tribes of the child custody proceeding and their

right to intervene by registered mail with return receipt requested.

L.L., ¶¶ 24-25. 

¶ 13 Whether ICWA’s inquiry and notice requirements were

satisfied is a question of law that we review de novo. People in

Interest of T.M.W., 208 P.3d 272, 274 (Colo. App. 2009).

C. Analysis

¶ 14 The juvenile court could (and should) have made a clearer

record regarding father’s lack of Native American heritage by asking

father to verbally respond to the court’s questions.

¶ 15 Nonetheless, an appellate court “may disregard any error or

defect not affecting the substantial rights of the parties.” C.A.R.

35(c). As relevant here, defects in ICWA inquiry may be harmless if

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no party has any information suggesting that a child is an Indian

child. See People in Interest of S.R.M., 153 P.3d 438, 441-42 (Colo.

App. 2006).

¶ 16 The context of the hearing at which father appeared makes

clear that the court gave father the opportunity to provide

additional information about any Native American heritage and that

father had no such information. Additionally, neither mother nor

any other party argues on appeal that father had Native American

heritage.

¶ 17 Based on this record, any error in finding that the child was

not an Indian child and that ICWA did not apply to the dependency

and neglect proceeding was harmless.

Statutory Criteria and Standard of Review

¶ 18 To terminate parental rights, clear and convincing evidence

must establish that (1) the child has been adjudicated dependent or

neglected; (2) the parent did not comply with or was not

successfully rehabilitated by an appropriate, court-approved

treatment plan; (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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§ 19-3-604(1)(c), C.R.S. 2021; People in Interest of C.H., 166 P.3d

288, 289 (Colo. App. 2007).

¶ 19 Where resolution of an issue necessitates application of the

termination statute to evidentiary facts, it presents a mixed

question of fact and law. People in Interest of A.M. v. T.M., 2021 CO

14, ¶ 15. We review the juvenile court’s factual findings for clear

error. C.R.C.P. 52. The “credibility of witnesses, the sufficiency,

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

conclusions to be drawn therefrom are all within the province of the

[juvenile] court.” People in Interest of C.A.K., 652 P.2d 603, 613

(Colo. 1982). But 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.

Reasonable Efforts

¶ 20 Mother argues that the juvenile court erred in finding that she

was unfit because the Department did not make reasonable efforts

to rehabilitate her.

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A. Relevant Law

¶ 21 To determine whether a parent is unfit, the juvenile court

must consider whether “[r]easonable efforts by child-caring agencies

. . . have been unable to rehabilitate the parent.” § 19-3-604(2)(h);

accord People in Interest of S.N-V., 300 P.3d 911, 915 (Colo. App.

2011). “‘Reasonable efforts’ . . . means the exercise of diligence and

care” to reunify a parent with her child who is in out-of-home

placement. § 19-1-103(114), C.R.S. 2021; see S.N-V., 300 P.3d at

915.

¶ 22 The Department satisfies the reasonable efforts standard by

providing services in accordance with section 19-3-208, C.R.S.

2021. See People in Interest of J.A.S., 160 P.3d 257, 262 (Colo. App.

2007). Such reasonable efforts include screening, assessments,

home-based family and crisis counseling, information and referral

services to available public and private assistance resources,

visitation services for parents with children in out-of-home

placement, and placement services including foster care and

emergency shelter. § 19-3-208(2)(b). Additional services should be

made available if they are determined to be necessary and

appropriate by the case plan and if adequate funding exists.

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§ 19-3-208(2)(d). Examples include providing transportation to

required services when other transportation is not available, mental

health services, and drug and alcohol treatment services. Id.

¶ 23 “The parent is responsible for assuring compliance with and

success of the treatment plan.” People in Interest of A.N-B., 2019

COA 46, ¶ 28.

B. Analysis

¶ 24 The record supports the juvenile court’s finding that the

Department made reasonable efforts to rehabilitate mother. The

caseworker testified that the Department made referrals for

substance abuse counseling and drug testing, and provided a gas

card for mother to go to UAs, appointments, and visits. The

Department referred mother to a parenting class, and it set up

visits with the child. It also arranged for visits to be supervised by a

different provider after mother complained that the child was

bruised, dirty, and injured and that the first visitation provider was

not taking her concerns seriously.

¶ 25 Mother contends that only inpatient treatment was sufficient

to address her addiction and that the Department failed to provide

such services. She also contends that the juvenile court erred when

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it attributed her failure to attend inpatient treatment to not signing

releases or otherwise taking the steps necessary to be admitted.

The juvenile court rejected these arguments, and so do we.

¶ 26 Mother’s therapist testified that she left a release of

information at the front desk of the outpatient treatment facility,

which mother signed. But both mother’s therapist and the

caseworker testified that mother did not follow through with

attending inpatient treatment. Mother does not explain what

additional steps the Department failed to take. In fact, the record

shows that mother stopped communicating with the Department

approximately four months before the termination hearing.

¶ 27 For all these reasons, we conclude that the juvenile court did

not err in finding that the Department made reasonable efforts to

rehabilitate mother and reunify the family.

¶ 28 Nevertheless, mother argues that the juvenile court erred by

finding that she was unfit as a matter of law under section

19-3-604(2)(k). She argues that section 19-3-604(2) does not

require a juvenile court to find a parent unfit as a matter of law if

the child has been in foster care for fifteen of the most recent

twenty-two months.

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¶ 29 Section 19-3-604(2) provides that a juvenile court “shall

consider” whether the child has been in foster care for fifteen of the

most recent twenty-two months along with other relevant factors to

determine whether a parent is unfit. The juvenile court found, with

record support, that mother was unfit after considering that the

child had been in foster care for fifteen of the most recent

twenty-two months, in addition to other factors including her

continuing use of controlled substances and neglect of the child.

See § 19-3-604(2)(e), (f). Testimony at the termination hearing

permitted the juvenile court to find that during the course of the

proceeding mother provided only nine total UAs, most of which were

positive for opiates, and that mother attended only about half of her

scheduled visits with the child before ceasing visits entirely about

four months before the termination hearing.

¶ 30 Mother also argues that whether the child had been in foster

care for fifteen of the most recent twenty-two months is not a

relevant consideration when the Department fails to make

reasonable efforts to reunify the family. See § 19-3-604(2)(k)(III).

We have concluded that the juvenile court did not err by finding

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that the Department made reasonable efforts to rehabilitate mother

and reunify the family. Accordingly, this argument fails.

¶ 31 Mother next argues that we should “take extra care before

upholding decisions to terminate parental rights” in light of the

COVID-19 pandemic. We acknowledge that the health and safety

protocols instituted to slow the spread of COVID-19 affected many

parents’ ability to visit their children in person and to engage in

certain services. But mother presents no authority for this

proposed heightened standard of review (whatever it might be).

¶ 32 The caseworker testified that mother, who was provided

in-person visits throughout the proceeding, did not attend visits

recently because mother said that “she had a warrant for her arrest

and she was afraid that if she went to visits that she would get

arrested.” Mother has not identified any record evidence suggesting

that she was unable to participate in drug testing, treatment,

parenting classes, or other services because of the pandemic.

Unlikely to Change Within a Reasonable Time

¶ 33 The juvenile court found that mother’s conduct or condition

was unlikely to change within a reasonable time. Mother contends

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that the juvenile court erred by not allowing her additional time to

complete her treatment.

A. Relevant Law

¶ 34 When determining whether the conduct or condition that

renders a parent unfit will change within a reasonable time, the

court may consider whether any change has occurred during the

pendency of the proceeding, as well as the parent’s social history

and the chronic or long-term nature of the parent’s conduct or

condition. People in Interest of K.B., 2016 COA 21, ¶ 31.

¶ 35 A reasonable time is not indefinite and must be determined by

considering the child’s conditions and needs. People in Interest of

A.J., 143 P.3d 1143, 1152 (Colo. App. 2006). The determination of

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).

¶ 36 When, as here, a child is less than six years old when a

petition in dependency and neglect is filed, the expedited

permanency planning (EPP) provisions apply. See §§ 19-1-102(1.6),

19-1-123, C.R.S. 2021; People in Interest of M.T., 121 P.3d 309, 313

(Colo. App. 2005). These provisions require that the child be placed

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

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B. Analysis

¶ 37 Nothing in the record suggests that mother would have

become fit if given additional time. Instead, testimony at the

termination hearing permitted the juvenile court to find that the

proceeding had been open for seventeen months and that in that

time mother (1) was discharged from integrated mental health and

substance abuse treatment twice; (2) provided only nine total UAs,

most of which were positive for opiates; (3) failed to complete the

required parenting class; and (4) attended only about half of her

scheduled visits with the child before ceasing visits entirely about

four months before the termination hearing.

¶ 38 The caseworker also testified that she was familiar with

mother based on a case several years ago, where mother

successfully completed an adult treatment court program, but that

during the present dependency and neglect proceeding mother had

not indicated a willingness to engage with the treatment plan.

Accordingly, the caseworker opined that mother would not become

fit in a reasonable time. Based on this record evidence and the EPP

guidelines, the juvenile court did not err by finding that mother’s

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conduct or condition was unlikely to change within a reasonable

time.

¶ 39 On appeal, mother does not suggest how much additional time

she would need to become fit. And she does not dispute the

juvenile court’s finding that she made no progress in the last

months of the case, instead appearing to regress. Accordingly, the

juvenile court did not err by not allowing mother additional time to

complete her treatment.

No Less Drastic Alternative

¶ 40 Lastly, mother argues that the juvenile court erred by finding

that no less drastic alternative to termination existed.

A. Relevant Law

¶ 41 The juvenile court must consider and eliminate less drastic

alternatives before it terminates the parent-child legal relationship.

C.S. v. People in Interest of I.S., 83 P.3d 627, 640-41 (Colo. 2004).

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).

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¶ 42 When determining whether placement with a relative or other

person is a viable alternative to termination, the juvenile court may

consider various factors, including whether an ongoing relationship

with the parent would be beneficial or detrimental to the child.

People in Interest of A.R., 2012 COA 195M, ¶ 38. This

determination will be influenced by a parent’s fitness to care for her

child’s needs. See § 19-3-604(2); A.R., ¶ 38. Long-term placement

with a relative is not a viable less drastic alternative to termination if

the child needs a stable, permanent home that can only be assured

by adoption. People in Interest of M.B., 70 P.3d 618, 627 (Colo. App.

2003).

B. Analysis

¶ 43 The record supports the juvenile court’s finding that no less

drastic alternative to termination existed. The caseworker testified

as an expert in child protection that termination and adoption were

in the child’s best interests. The caseworker further testified that

the child had been in the same foster home since her release from

the hospital at birth and that the foster family wanted to adopt her.

She testified that the Department investigated other placement

options such as family friends and mother’s aunt but that none of

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those individuals were appropriate for long-term placement.

Maternal grandmother had placement of mother’s older children,

but the caseworker testified that because of her age and medical

limitations maternal grandmother was not physically able to care

for C.P.

¶ 44 Mother suggests that the juvenile court should have ordered

an APR with the foster family, but the caseworker testified that the

foster family was unwilling to accept an APR, and no record

evidence suggests that an APR with the foster family was an

available option.

¶ 45 Based on this evidence in the record, the juvenile court did not

err in finding that no less drastic alternative to termination existed.

Disposition

¶ 46 The judgment is affirmed.

JUDGE BROWN and JUDGE JOHNSON concur.