People in Interest of E.D.

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
January 30, 2025

2025COA11

No. 24CA0119, People in Interest of E.D. — Dependency and

Neglect — Termination of the Parent-Child Legal Relationship

— Family Time Services — Family Time Upon Removal

Applying sections 19-3-208(2)(b)(IV) and 19-3-217, C.R.S.

2024, of the Children’s Code, a division of the court of appeals

concludes as a matter of first impression that, when a juvenile

court appropriately restricts parenting time to a therapeutic setting,

a human services department can still satisfy its reasonable efforts

obligation to provide family time services by making available and

providing appropriate therapeutic services — in this case

reintegration therapy — even if those services don’t successfully

result in face-to-face contact because of continuing risks to the

child’s or youth’s health and safety from such contact.
Because the division concludes that the record supports the

juvenile court’s findings that the department made reasonable

efforts to provide family time services to the mother in this

dependency and neglect case, the division rejects her challenge to

the juvenile court’s reasonable efforts findings. And because the

division also rejects mother’s ineffective assistance of counsel

claims, the division affirms the juvenile court’s judgment

terminating mother’s parental rights.
COLORADO COURT OF APPEALS 2025COA11

Court of Appeals No. 24CA0119
Jefferson County District Court No. 21JV131
Honorable Ann Gail Meinster, Judge

The People of the State of Colorado,

Appellee,

In the Interest of E.D., a Child,

and Concerning A.P.D.,

Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE WELLING
Brown and Graham*, JJ., concur

Announced January 30, 2025

Kimberly Sorrells, County Attorney, Sarah Oviatt, Assistant County Attorney,
Golden, Colorado, for Appellee

Debra W. Dodd, Counsel for Youth, Berthoud, Colorado, for E.D.

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

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 In this dependency and neglect action, A.P.D. (mother) appeals

the judgment terminating her parent-child legal relationship with

E.D. (the youth).

¶2 Section 19-3-208(2)(b)(IV), C.R.S. 2024, of the Children’s Code

requires a department of human services to make available and

provide, “as determined necessary and appropriate by individual

case plans,” “[f]amily time services for parents with children or

youth in out-of-home placement.” Section 19-3-217, C.R.S. 2024,

in turn, sets forth the requirements for family time when a child or

youth has been removed from their home, including substantive

and procedural limitations on a juvenile court’s ability to restrict or

suspend family time.

¶3 We conclude as a matter of first impression that, when a

juvenile court appropriately restricts parenting time to a therapeutic

setting, a human services department can still satisfy its reasonable

efforts obligation by making available and providing appropriate

therapeutic family time services — in this case reintegration

therapy — even if those services don’t successfully result in face-to-

face contact because of continuing risks to the child’s or youth’s

health and safety from such contact.

1
¶4 Because the record supports the juvenile court’s findings that

reasonable efforts were made, we reject mother’s challenge to the

juvenile court’s reasonable efforts findings. And because mother’s

ineffective assistance of counsel claims also fail, we affirm the

judgment terminating mother’s parental rights.

I. Background

¶5 The Jefferson County Division of Children, Youth and Families

(the Division) filed a petition in dependency and neglect in April

2021, after multiple reports of concern about the family, including

concerns about mother’s mental health and arrest, which the

petition alleged left no appropriate caregiver for the then-nine-year-

old youth.

¶6 Following a contested shelter hearing, the juvenile court

granted temporary custody of the youth to the Division and ordered

mother to participate in therapeutic family time. After another

contested hearing, the juvenile court adjudicated the youth

dependent and neglected and adopted a treatment plan for mother.

¶7 More than two years after the youth was adjudicated, the

Division moved to terminate mother’s parental rights. In December

2
2023, the juvenile court terminated mother’s parental rights

following a contested hearing.

¶8 On appeal, mother contends that the juvenile court erred by

finding that the Division made reasonable efforts to reunify the

family and, in the alternative, that she received ineffective

assistance of counsel. We first consider mother’s reasonable efforts

challenges, then turn to her ineffective assistance of counsel claims.

II. Reasonable Efforts

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

the Division made reasonable efforts because the Division failed to

(1) provide appropriate family time services as required by the

Children’s Code; (2) make a timely referral for a psychological

evaluation; and (3) make timely accommodations under the

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

12213. We consider, and reject, each contention in turn below.

A. Applicable Law and Standard of Review

¶ 10 A human services department must make reasonable efforts to

rehabilitate parents and reunite families following the out-of-home

placement of abused or neglected children. §§ 19-1-103(114), 19-3-

100.5, 19-3-604(2)(h), C.R.S. 2024. Reasonable efforts means the

3
“exercise of diligence and care” for a child or youth 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).

¶ 11 To evaluate whether a human services department made

reasonable efforts, the juvenile court should consider whether the

services provided were appropriate to support the parent’s

treatment plan. People in Interest of S.N-V., 300 P.3d 911, 915

(Colo. App. 2011). But a department has “discretion to prioritize

certain services or resources to address a family’s most pressing

needs in a way that will assist the family’s overall completion of the

treatment plan.” People in Interest of My.K.M. v. V.K.L., 2022 CO

35, ¶ 33. So whether a department made reasonable efforts “must

be measured holistically rather than in isolation with respect to

specific treatment plan objectives.” Id. at ¶ 35.

¶ 12 The parent is ultimately responsible for using the services

provided to obtain the assistance needed to comply with the

treatment plan. People in Interest of J.C.R., 259 P.3d 1279, 1285

(Colo. App. 2011). The court may therefore consider a parent’s

unwillingness to participate in treatment when determining whether

4
a department made reasonable efforts. See People in Interest of

A.V., 2012 COA 210, ¶ 12.

¶ 13 Whether a human services department satisfied its obligation

to make reasonable efforts is a mixed question of fact and law.

People in Interest of A.S.L., 2022 COA 146, ¶ 8. We review the

juvenile court’s factual findings for clear error but review de novo its

legal determination, based on those findings, as to whether the

department satisfied its reasonable efforts obligation. Id.

B. Reasonable Efforts to Provide Family Time Services

¶ 14 To satisfy the reasonable efforts requirement, a human

services department must make available and provide “[f]amily time

services for parents with children or youth in out-of-home

placement.” § 19-3-208(2)(b)(IV). Family time services, in turn,

must be provided “as determined necessary and appropriate by

individual case plans” and must “be designed to . . . [p]romote the

immediate health, safety, and well-being” of children and youth in

out-of-home placement. § 19-3-208(2)(a), (b); see also § 19-3-209,

C.R.S. 2024 (requiring an individual case plan). A department may

not restrict family time services without the juvenile court’s

oversight, and while the court may not delegate decisions to restrict

5
family time, it may “utilize the services of experts, such as

therapists, and rely on their recommendations . . . subject to the

continuing supervision and review” of the juvenile court. People in

Interest of B.C., 122 P.3d 1067, 1070-71 (Colo. App. 2005).

1. Additional Background

¶ 15 At the shelter hearing, the juvenile court ordered mother to

participate in therapeutic family time but also ordered “quick

contact between mom and [the youth].” To that end, the

caseworker supervised an in-person visit between mother and the

youth the next day. The visit ended after no more than ten

minutes. The caseworker supervising the visit testified that both

she and the youth felt unsafe and “the majority of that visit was

traumatic” due to mother’s conduct during the visit.

¶ 16 The next week, mother set up — but didn’t attend — three

separate intakes with Family Intervention Services (FIS) for a

therapeutic visitation assessment. Several months later, mother

was located in custody but refused the caseworker’s attempts to

coordinate contact with the youth, including through a new FIS

referral. While mother was in custody, the juvenile court adopted a

treatment plan for mother. The treatment plan required mother to

6
“complete an intake with [FIS] in order to begin therapeutic

visitation with [the youth]” and “develop[] goals for parenting time.”

¶ 17 At the end of December 2021, eight months after the Division

filed the petition, mother requested contact with the youth for the

first time since the case began. In response, the Division renewed

the referral for FIS.

¶ 18 When the FIS therapist met with the youth, however, the

youth indicated that he didn’t want to see mother. The FIS

therapist reported that forcing contact when the youth didn’t feel

safe was an ethical issue and closed the referral at the end of

January 2022. The caseworker, guardian ad litem (GAL),1

placement provider, and youth’s therapist all began encouraging the

youth to agree to some kind of contact with mother.

¶ 19 In February 2022, mother asked that more be done to

facilitate contact. The parties agreed to facilitate communication

between mother’s therapist and the youth’s therapist as an

appropriate next step toward contact. The court ordered the parties

1 In November 2023, the youth turned twelve years old and the

GAL’s appointment was converted to counsel for youth pursuant to
section 19-3-203(3), C.R.S. 2024.

7
to stay in frequent contact and to keep monitoring what more could

be done to move forward with therapeutic contact.

¶ 20 A few days later, the court held an in camera interview with

the youth. The court reported to the parties that the youth was

“very firm right now that he doesn’t want to have contact with

anyone in the family.”

¶ 21 In April 2022, the GAL reported that the youth was “adamant

that he does not want to see his mom.” Mother asked for “third

party visitation services” instead of those offered by FIS. After

hearing argument from the parties, the court ordered mother and

the youth to continue working with their individual therapists and

the two individual therapists to communicate with each other. The

court also ordered the Division to hold a family meeting to consider

bringing in an additional therapist; it set the matter for review the

next month.

¶ 22 For the next twenty months, the juvenile court brought the

matter back for review every thirty to sixty days to monitor

therapeutic services that supported contact between mother and

the youth.

8
¶ 23 Within a month after the April 2022 hearing, the Division

referred the family to a reintegration specialist for therapeutic

family time. The reintegration specialist met with the youth, who

“was fearful of [mother] and recounted experiences of abuse or

trauma that were related to being with his mother.” In response to

the youth’s disclosures, the reintegration specialist worked with

mother and mother’s individual therapist to create a clarification

letter, what the reintegration specialist called the “first step” in the

reintegration process. The reintegration specialist read the letter to

the youth and offered him several options to continue contact with

mother.

¶ 24 According to the reintegration specialist, the youth “was very

adamant that he was not going to . . . have contact” with mother.

The reintegration specialist further testified that the youth “was

very clear. He . . . felt very afraid of her.” The reintegration

specialist opined that neither the youth nor mother was in a place

where they could have direct therapeutic contact and recommended

that they each work separately with their individual therapists. The

reintegration specialist intended to monitor progress and move into

reintegration work when both mother and the youth were ready.

9
Mother, however, filed a grievance against the reintegration

specialist, who was then unable to continue working with the

family.

¶ 25 Less than a month later, the Division made a referral to

another specialist — one whom mother requested — to complete an

assessment and, “if appropriate, create a plan for . . . contact to

occur.” The assessment specialist required mother to complete the

psychological evaluation that had been ordered as part of her

dispositional treatment plan and requested other collateral

information before making her recommendations. The assessment

specialist provided written recommendations in April 2023, and the

court received detailed updates about the recommendations and

progress that same month.

¶ 26 Based on those recommendations, the Division made referrals

for additional services, including Trust Based Relational

Intervention training for mother, a different individual therapist for

the youth, and a second reintegration therapist. When mother

didn’t respond to the second reintegration therapist’s attempts at

outreach, the Division advocated for the referral to stay open longer.

The second reintegration therapist eventually met with mother and

10
continued to meet with her until she was able to engage in the

reintegration process.

¶ 27 In November 2023, the youth experienced a flashback while

meeting with the second reintegration therapist, during which he

had a “full neurological response” to a memory of his mother

harming him with knives. The reintegration therapist

recommended taking a return to mother’s home “off the table” so

that the youth could focus on his own trauma work. At the

termination hearing, the second reintegration therapist testified

that “reintegration is not the appropriate next step. The

appropriate next step is for [the youth] now to do his trauma work

. . . get stronger and face some of that before he’s able to come back

and do the work with his mom.” The second reintegration therapist

proposed staying involved to assist with further therapeutic

reintegration work once the youth was ready.

2. Analysis

¶ 28 Mother advances five related arguments in support of her

contention that the juvenile court erred by finding that the Division

made reasonable efforts with respect to family time. Specifically,

mother argues that the court erred by (1) violating section 19-3-217

11
by restricting her family time without first conducting a hearing;

(2) authorizing “a de facto total suspension” or deprivation of family

time; (3) improperly delegating to others its authority to restrict

family time; (4) failing to expand mother’s family time beyond the

therapeutic setting; and (5) failing to ensure the Division provided

the youth with appropriate therapeutic services necessary to

support face-to-face family time. For the reasons set forth below,

we aren’t persuaded that any of mother’s contentions are a basis for

reversing the juvenile court’s finding that the Division made

reasonable efforts with respect to the provision of family time

services.

a. Section 19-3-217

¶ 29 Mother argues that the juvenile court failed to comply with

section 19-3-217 by restricting her family time without first

conducting a hearing. We disagree that the juvenile court erred.

¶ 30 Section 19-3-217 took effect and began applying to this case

on September 1, 2021, five months after the juvenile court first

limited mother’s family time services to a therapeutic setting. See

Ch. 481, secs. 1, 7, § 19-3-217, 2021 Colo. Sess. Laws 3426, 3435.

The statute provides that “a parent granted family time is entitled to

12
a hearing prior to an ongoing reduction in, suspension of, or

increase in the level of supervision” of family time, unless there is

agreement by the parties. § 19-3-217(3).

¶ 31 We disagree with mother’s arguments about the application of

section 19-3-217 to her case for two related reasons.

¶ 32 First, the juvenile court’s orders for therapeutic family time

never changed — so there was never a “reduction in, suspension of,

or increase in the level of supervision” of family time, as

contemplated by section 19-3-217(3). As discussed, throughout its

frequent oversight of the case, the court reaffirmed that the

therapeutic level of family time was necessary for the youth’s safety

and emotional and mental health.

¶ 33 Second, mother’s contention that a separate evidentiary

hearing on the issue of family time was required isn’t borne out by

the statute or the facts. By the time section 19-3-217 was enacted,

the youth’s family time with mother had been limited to the

therapeutic setting for five months. Mother appeared with the

assistance of counsel at both the shelter and first appearance

hearings and didn’t object to the court’s orders limiting her family

time to a therapeutic setting. The Division maintained services

13
consistent with the order for therapeutic family time throughout the

case. Although services were sometimes delayed or rendered

ineffective by mother’s lack of participation, they were never

suspended. Instead, mother’s family time remained at the

therapeutic level because safety concerns were never sufficiently

alleviated. Thus, the conditions set out in section 19-3-217

triggering a hearing requirement — namely, “an ongoing reduction

in, suspension of, or increase in the level of supervision” of family

time, § 19-3-217(3) — were never met. Instead, the court was

required to — and consistently did — provide oversight of the

ongoing restrictions. See B.C., 122 P.3d at 1070-71.2

2 To the extent that mother contends the failure to hold a hearing

under section 19-3-217, C.R.S. 2024, was due in part to ineffective
assistance of counsel, we disagree. As discussed below in Part III.A,
in order to establish ineffective assistance of counsel, a parent must
establish that “(1) counsel’s performance was outside the wide
range of professionally competent assistance; and (2) the parent
was prejudiced by counsel’s errors.” People in Interest of C.H., 166
P.3d 288, 291-92 (Colo. App. 2007) (first citing Strickland v.
Washington, 466 U.S. 668, 687 (1984); and then citing Ardolino v.
People, 69 P.3d 73, 76 (Colo. 2003)). Given the circumstances and
the lack of argument on appeal as to how a hearing might have
impacted the extent of family time ordered by the court, we aren’t
persuaded either that counsel’s performance fell below the range of
professionally competent assistance or that mother was prejudiced
by counsel’s decision to not request a hearing under section 19-3-
217.

14
b. Therapeutic Family Time Services Didn’t Constitute a Total
Deprivation or Suspension of Family Time

¶ 34 As discussed, after a contested shelter hearing, the juvenile

court ordered mother to “engage in a therapeutic visitation

assessment and visitation will be based on the recommendations of

the assessment.” The court also authorized one in-person contact

supervised by the caseworker rather than the therapeutic visitation

team. That visit occurred.

¶ 35 By the next hearing, mother was scheduled for the therapeutic

visitation assessment as ordered, and the court found that

“therapeutic parenting time is progressing, . . . we have a process

and a plan for safe parenting time, both safe for [the youth] and

safe for [mother], and that hopefully will be occurring in the very

near future.” Mother didn’t contend either at that hearing or at any

subsequent hearing that the initial restriction of her family time to

the therapeutic level wasn’t necessary for the health and safety of

the youth. Although mother didn’t attend the therapeutic visitation

assessment, the court reviewed the status of family time services

regularly — every thirty to sixty days — and reaffirmed its order for

therapeutic family time on several occasions.

15
¶ 36 Although mother now appears to suggest that the Division

should have provided her with face-to-face family time, her

reasonable efforts arguments before the juvenile court centered on

the adequacy of the Division’s provision of therapeutic reintegration

services that might support movement toward face-to-face family

time. To this end, the Division made multiple referrals for

“therapeutic visitation” as the court ordered. As the first

reintegration specialist testified, “[T]herapeutic visitation kind of

encompasses reintegration, reunification, family therapy. It kind of

depends upon where you are in the process.” The first reintegration

therapist went on to explain that “assessing for therapeutic contact”

was also part of this continuum of therapeutic family time services.

The Division consistently provided these services in compliance

with its reasonable efforts obligations.

¶ 37 At the termination hearing, the juvenile court found that “an

impressive treatment group . . . was put together . . . [and] every

effort was made to take [mother’s] wishes into account in choosing

these” professionals. The court found that “despite every effort

having been made to repair [her] relationship [with the youth], there

has not been any significant progress in that regard.”

16
¶ 38 The record supports these findings. The Division provided

family time services the day after the shelter hearing and made a

timely referral for therapeutic family time. When mother resurfaced

in custody, the Division reopened the FIS referral. When mother

reengaged in services eight months into the action, the Division

again reopened the referral for therapeutic family time through FIS.

When FIS recommended that family time not occur, the juvenile

court assumed intensive judicial supervision over therapeutic

family time services.

¶ 39 The Division contracted with no fewer than five specialists

requested or approved by mother to therapeutically support the

family’s progress toward reintegration. To secure providers chosen

by mother, the Division engaged in single-case contracts with at

least two of her requested specialists. At the termination hearing,

the juvenile court heard directly from three of these specialists, all

qualified as experts in their fields, and found each of them “to be

very credible.”

¶ 40 Given this evidence, we reject mother’s contention that the

Division imposed a de facto total deprivation or suspension of

family time or that it failed to make reasonable efforts to provide

17
family time services as section 19-3-208(2)(b)(IV) required. Instead,

we conclude that when a juvenile court appropriately restricts

parenting time to a therapeutic setting, as it did here, a human

services department can still satisfy its section 19-3-208(2)(b)(IV)

family time services obligations by making available and providing

appropriate therapeutic family time services — in this case

reintegration therapy — even if those services don’t successfully

result in face-to-face contact because of continuing risks to the

child’s or youth’s health and safety from such contact. And

because the record supports the conclusion that the Division made

reasonable efforts to provide family time services, we won’t disturb

the juvenile court’s findings and legal conclusions in this regard,

notwithstanding the fact that those efforts didn’t result in face-to-

face contact between mother and the youth.

c. No Improper Delegation of Authority to Restrict Family Time

¶ 41 Next, mother appears to contend that the juvenile court

improperly delegated the authority to restrict or suspend her family

time to the Division or other professionals in the case. The record

doesn’t bear this out.

18
¶ 42 Contrary to mother’s argument, the Division never restricted

family time — the court did. At the shelter hearing, the juvenile

court heard sworn testimony from the caseworker that mother was

erratic, was not able to self-regulate or manage her mental health,

and wasn’t meeting either her or the youth’s basic needs. Based on

concerns for the youth’s health and safety, the juvenile court

ordered mother to complete a therapeutic visitation assessment.

The Division made a referral for the assessment that same day. At

the shelter hearing, the court also ordered “quick contact,” and a

caseworker supervised a visit the next day, though it was short and

“traumatic.” Orders for both levels of family time may have created

ambiguity about the level of supervision the court ordered after the

shelter hearing. However, at the first appearance, just twelve days

later, the court made clear, without objection from mother, that the

“plan for safe parenting time” for both the youth and mother

required movement through the therapeutic parenting time process.

¶ 43 Thus, the juvenile court didn’t improperly delegate the

authority to restrict or suspend family time.

19
d. No Failure to Expand Family Time

¶ 44 To the extent that mother contends family time should have

been expanded or moved to a less restrictive level, we discern no

error.

¶ 45 The juvenile court properly granted the Division and GAL the

ability to expand family time beginning with the shelter hearing

order. See § 19-3-217(2) (allowing a court to grant “discretionary

authority to the department and guardian ad litem to increase

opportunities for additional parent-child contacts . . . without

further court order”). Although there was consistent work by all

parties to move family time forward, it was never expanded to

include in-person contact because the youth’s health and safety

never allowed it.

¶ 46 The record supports that limiting mother’s family time to a

therapeutic setting was necessary for the youth’s safety and mental,

emotional, and physical health. And this necessity remained

unchanged throughout the course this case. Therefore, we discern

no error.

20
e. The Youth’s Therapeutic Services

¶ 47 Mother next contends that the Division failed to provide

appropriate services to the youth to address the trauma that

prevented her contact with him from happening.

¶ 48 The juvenile court found that “extraordinary efforts were made

in this case by everybody, really, to try and achieve a reunification.”

The record supports these findings as they relate to the youth’s

therapeutic services.

¶ 49 The recommendations from reintegration professionals who

met with the youth were consistent: the youth couldn’t safely move

forward in the process of therapeutic family time until he made

progress in addressing his trauma through individual therapeutic

services.

¶ 50 Mother argues there was “considerable delay in even

attempting to therapeutically address and mitigate” the youth’s

trauma. But the record makes clear that the initial delay was due,

at least in part, to mother’s own refusal to authorize the youth to

participate in therapeutic services. Additionally, the caseworker

testified that other referrals were delayed until mother and the GAL

could vet and approve possible therapeutic providers.

21
¶ 51 Once therapeutic services began, the youth’s therapeutic

progress was, as expected, slow. The first reintegration specialist

testified that, because the youth had experienced unpredictability

for the entirety of his childhood, “it shouldn’t be expected to be a

quick repair.” The youth’s individual therapist testified that the

youth couldn’t be expected to work through trauma on mother’s

timeline. The second reintegration therapist testified that “being in

limbo . . . impact[ed] his ability to move forward in a therapeutic

way. . . . [B]eing unsafe does not make it easy to do trauma work or

any kind of therapy work.” And because the youth “has to be ready

to engage in trauma specific therapy,” the second reintegration

therapist testified that even trauma-specific work with a youth isn’t

necessarily very effective if the youth isn’t ready.

¶ 52 The juvenile court found that, despite these barriers, the

Division provided appropriate services to the youth to address the

trauma he had experienced while in mother’s care. The record

supports this finding. Multiple experts opined that the youth was

engaged in effective, trauma-focused individual therapy for two and

a half years before the termination hearing. When the youth

refused to participate in talk therapy, the Division made a referral

22
for animal assisted therapy. The caseworker testified that the

youth “made a lot of progress” in animal-assisted therapy. The

youth became more comfortable, started to disclose some areas of

abuse, and completed a trauma timeline.

¶ 53 At the recommendation of mother’s chosen assessment

specialist, the Division changed the youth’s therapist in May 2023.

The second individual therapist was approved as an appropriate

provider by both mother and the assessment specialist. The second

individual therapist attempted to address the youth’s trauma and

was making “gradual” progress. The second reintegration therapist

opined that, after the flashback was triggered in her office, the

youth was finally “willing to move into that space with [his

individual therapist]. So sometimes it’s timing. Sometimes it is . . .

he is just ready.”

¶ 54 The caseworker testified that she observed changes in the

youth as he progressed in his own therapy. He became more aware

of his body and his feelings and more confident in expressing his

thoughts and wants, rather than what he thought the adults

around him wanted to hear. And as he progressed in therapy, he

continued to make disclosures of abuse that occurred while in

23
mother’s care. All of this, taken together, resulted in the juvenile

court never ordering face-to-face family time between mother and

the youth.

¶ 55 We aren’t persuaded that the fact that the youth didn’t make

sufficient progress in his therapeutic services to enable him to

engage in direct contact with mother precludes a finding that the

services the Division provided to the youth were appropriate. Cf.

People in Interest of M.M., 726 P.2d 1108, 1121 (Colo. 1986) (holding

that a treatment plan ultimately being unsuccessful doesn’t mean

that it was inappropriate). Instead, consistent with our holding in

Part II.B.2.b above, we conclude a human services department can

still satisfy its reasonable efforts obligation by making available and

providing appropriate therapeutic family time services — including

therapeutic services for the youth — even if those services don’t

successfully result in face-to-face contact because of continuing

risks to the child’s or youth’s health and safety from such contact.

¶ 56 Based on this standard and the facts the juvenile court found,

we conclude that the record supports the juvenile court’s

conclusion that the Division made reasonable efforts as they pertain

to providing the youth with appropriate therapeutic services.

24
C. Mother’s Psychological Evaluation

¶ 57 Mother next contends that the Division failed to make

reasonable efforts because it didn’t refer her for a psychological

evaluation until late 2022. But mother didn’t raise this argument

before the juvenile court, and there are no specific findings about

her psychological evaluation. More broadly, however, the court

found that the Division made reasonable efforts, in relevant part,

because “services were modified in this case to fit the needs of the

family.” To the extent mother’s argument about a delay in her

psychological evaluation can be understood as a challenge to this

finding, we conclude that the record supports the court’s finding.

¶ 58 The Division included a psychological evaluation in the

treatment plan the court adopted in July 2021. When mother

began engaging in her treatment plan in early 2022, her individual

therapist reported to the caseworker that the therapist’s

organization had already completed a psychological evaluation with

mother. In October 2022, however, mother’s individual therapist

“sent a one-page document that she claimed was a psychological

evaluation. Clearly, it was not. It was a behavioral health

assessment.” Having become aware for the first time that mother

25
hadn’t completed a psychological evaluation, the Division made a

referral for a psychological evaluation within a month. The Division

didn’t make the referral until November 2022 because it didn’t want

to duplicate a service that mother’s therapeutic provider insisted

had been completed.

¶ 59 We aren’t persuaded that this reasonable delay undermines

the court’s finding regarding reasonable efforts. See My.K.M., ¶ 33

(the Division has “discretion to prioritize certain services or

resources to address a family’s most pressing needs in a way that

will assist the family’s overall completion of the treatment plan”).

D. Reasonable Accommodations

¶ 60 Mother next contends that the Division’s delay in making the

referral for the psychological evaluation resulted in a delay in

providing appropriate accommodations as the ADA required. We

aren’t persuaded.

1. Applicable Law

¶ 61 When a human services department knows or should know

that a parent has a qualifying disability, it has an affirmative duty

to make reasonable accommodations for that parent when providing

rehabilitative services to that parent. People in Interest of S.K.,

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2019 COA 36, ¶¶ 22, 25, 34; see 42 U.S.C. § 12102 (defining

“disability” under the ADA); 42 U.S.C. § 12131(2) (defining

“qualified individual” under the ADA). When a parent is found to be

a qualified individual, the juvenile court must consider whether the

department made reasonable accommodations for the parent’s

disability when determining whether it made reasonable efforts.

S.K., ¶ 34. What constitutes a reasonable accommodation varies

from case to case based on the youth’s health and safety needs, the

nature of the parent’s disability, and the available resources. Id. at

¶ 39.

¶ 62 A parent is responsible for disclosing to the human services

department and the juvenile court information regarding a disability

and any reasonable accommodations that are needed in light of the

disability. See People in Interest of S.Z.S., 2022 COA 133, ¶ 16. A

department can accommodate, and the court can address, only

disabilities that are known to them. S.K., ¶ 22.

2. Analysis

¶ 63 The record doesn’t support mother’s contention that the

Division failed to provide accommodations until after the

psychological evaluation was complete. The caseworker testified

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that she reached out to mother’s legal team when mother was

located in custody to ask about accommodations, but the

caseworker was told that mother’s team was trying to get records

and then didn’t receive any further information. The caseworker

independently requested records from mother’s hospitalizations and

evaluations, but the caseworker was provided with conflicting

diagnoses, leaving her unsure of mother’s precise mental health

diagnosis. The caseworker testified that, throughout the case, it

was difficult for her to get information about mother’s status or

needs from her legal team and her service providers, even though

mother had signed requested releases of information.

¶ 64 In February 2023, mother filed a notice that she was

requesting accommodations under the ADA. Mother’s counsel

agreed that the notice “was relatively general, so it was not a

specific list of accommodations.” The Division requested specifics

at family engagement meetings and court hearings. Although it

appears that a variety of accommodations were already being made

and discussed by then, the lack of specific requests for

accommodations continued to be an issue.

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¶ 65 Based on mother’s psychological evaluation, the court ordered,

with mother’s concurrence, that meetings with mother should be

held in person. In-person meetings would support mother’s

attention and focus and allow the parties to make sure that she

understood what was happening. But at later hearings, the parties

disagreed on whether holding in-person meetings was a necessary

or appropriate accommodation. Ultimately, the parties set the

matter for a hearing in October 2023, mother filed a list of specific

proposed accommodations just before the hearing, and the parties

stipulated to the proposed accommodations. Mother doesn’t claim

that these accommodations weren’t provided.3

¶ 66 To the extent that mother argues the delayed referral for the

psychological evaluation itself amounted to a failure to provide

3 Rather, mother claims on appeal that the accommodation for in-

person meetings that was briefly in play “exacerbated mother’s
disabilities.” But this isn’t what she argued before the juvenile
court. Instead, in August 2023 mother argued that “new things
that came to light since the family engagement meeting in June”
2023 gave rise to a new request for virtual meetings as a more
appropriate accommodation, this time for mother’s mental health
concerns. Thus, we decline to address this portion of her
argument, made for the first time on appeal. People in Interest of
T.E.R., 2013 COA 73, ¶ 30 (generally, issues not raised before the
juvenile court won’t be considered on appeal).

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reasonable accommodations, we disagree. As discussed above, the

delay was reasonable under the circumstances, where all parties

believed mother had already completed a psychological evaluation.

See U.S. Dep’t of Health & Human Servs. & U.S. Dep’t of Justice,

Protecting the Rights of Parents and Prospective Parents with

Disabilities: Technical Assistance for State and Local Child Welfare

Agencies and Courts under Title II of the Americans with

Disabilities Act and Section 504 of the Rehabilitation Act (Aug.

2015), https://perma.cc/4JHL-B3GR (explaining that to comply

with the ADA, treatment plans for parents with disabilities

shouldn’t require unnecessary services or tasks).

¶ 67 Given this record, we conclude that the Division provided the

accommodations mother requested as it became aware of mother’s

needs under the ADA.

III. Ineffective Assistance of Counsel

¶ 68 Mother also contends that she received ineffective assistance

of counsel before and during the termination hearing. Again, we

disagree.

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A. Applicable Law

¶ 69 Divisions of this court have recognized that a parent’s

statutory right to counsel includes the right to effective assistance

of counsel. See People in Interest of A.R., 2018 COA 177, ¶ 37

(A.R. I), aff’d on other grounds sub nom. A.R. v. D.R., 2020 CO 10

(A.R. II); People in Interest of S.L., 2017 COA 160, ¶ 58; People in

Interest of C.H., 166 P.3d 288, 290 (Colo. App. 2007).

¶ 70 To successfully make an ineffective assistance of counsel

claim, a parent must show that (1) counsel’s performance was

outside the wide range of professionally competent assistance, and

(2) counsel’s errors prejudiced the parent. A.R. II, ¶ 48; C.H., 166

P.3d at 291-92 (first citing Strickland v. Washington, 466 U.S. 668,

687 (1984); and then citing Ardolino v. People, 69 P.3d 73, 76 (Colo.

2003)).

¶ 71 To state a prima facie ineffective assistance of counsel claim, a

respondent must allege facts with sufficient specificity to

demonstrate an entitlement to relief, including, for example, the

expected names of witnesses to be called, the expected substance of

testimony, and a clear explanation of how that testimony would

demonstrate that trial counsel’s performance was outside the wide

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range of professionally competent assistance. See C.H., 166 P.3d at

291.

¶ 72 To demonstrate prejudice, the parent must show a reasonable

probability that, but for counsel’s deficient performance or

unprofessional errors, the outcome of the proceeding would have

been different. A.R. II, ¶ 60.

¶ 73 If the parent’s allegations lack sufficient specificity, we may

summarily deny the ineffective assistance claim. See C.H., 166

P.3d at 291. In other words, a remand for an evidentiary hearing is

only required if the parent’s allegations are sufficiently specific and

compelling to constitute a prima facie showing of ineffective

assistance of counsel. Id.

B. Advocacy for Reasonable Efforts

¶ 74 Mother contends that her trial counsel provided ineffective

assistance because, before the termination hearing, counsel didn’t

file a reasonable efforts motion challenging the Division’s alleged

failure to facilitate family time. Mother claims that “the issue [of

family time] was allowed to languish” because there was no

“contested hearing in which the shortcomings in the [Division]’s

approach could have been exposed and solutions discovered.”

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¶ 75 But the record reveals that mother’s trial counsel repeatedly

raised reasonable efforts throughout the pendency of the case. The

youth first reported he wouldn’t feel safe having contact with

mother in December 2021. The Division first reported that “they

want to work towards contact but don’t want to drag [the youth]” to

family time in February 2022. At that same hearing, mother’s

counsel began expressing “concern [that] not enough was being

done to get contact” going. Counsel then raised concerns about

reasonable efforts for family time at nearly every hearing thereafter:

in April, May, and June 2022; and in February, April, August, and

November 2023. In addition, counsel formally objected to

reasonable efforts findings at permanency planning hearings in

August 2022, October 2022, April 2023, and June 2023.

¶ 76 Mother’s trial counsel’s efforts resulted in the juvenile court

exercising close supervision over family time issues. As discussed

above, the court heard updates about therapeutic family time every

thirty to sixty days between the youth’s refusal and the termination

hearing. Importantly, mother doesn’t suggest what additional

“shortcomings in the [Division]’s approach” or potential solutions

might have been revealed had counsel requested and the court held

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a full evidentiary hearing on reasonable efforts rather than the

frequent and often extensive oral reports it received.

¶ 77 Therefore, we conclude that mother hasn’t raised sufficiently

specific or compelling allegations to constitute a prima facie

showing of ineffective assistance of counsel as it relates to the

litigation of reasonable efforts.

C. Management of Mother’s Disabilities

¶ 78 Mother next contends that her trial counsel was “ineffective

with respect to the management of mother’s disabilities” because

counsel “failed to ensure that mother received a formal

psychological evaluation” until more than a year after mother’s

treatment plan was adopted.

¶ 79 But mother doesn’t provide any authority, and we are aware of

none, that requires a parent’s counsel to ensure that a parent

participates in services. Rather, a parent is ultimately responsible

for using available services that may be necessary for complying

with a treatment plan’s requirements. J.C.R., 259 P.3d at 1285.

Here, the psychological evaluation was included in mother’s

treatment plan. Mother’s therapeutic provider — not counsel — led

all the parties to mistakenly believe that mother had completed a

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psychological evaluation. This misunderstanding persisted until

October 2022. Mother doesn’t allege with any specificity how,

under these circumstances, this misapprehension was her

counsel’s fault such that her “counsel’s performance was outside

the wide range of professionally competent assistance.” A.R. II,

¶ 48.

D. Timely Issuing Subpoenas and Retaining Experts

¶ 80 Mother contends that her trial counsel provided ineffective

assistance by “fail[ing] to issue subpoenas or retain expert

witnesses in a timely manner.” In particular, mother contends that,

had her expert been retained earlier, the expert could have testified

to the ways “that the D[ivision] should have approached

reunification differently.”

¶ 81 But there’s no indication, either in mother’s appeal or in the

record, that mother’s expert would have been able to provide the

suggested testimony regardless of when she was retained. In her

affidavit, mother’s expert explained that mother’s legal team

contacted her in June 2023 and again in November 2023. Although

the affidavit goes into some detail about the protocols for and

benefits of trauma assessments and parent-child interactional

35
assessments, there’s no mention of any proposed case review or any

criticism of the Division’s approach to reunification.

¶ 82 Therefore, mother hasn’t asserted sufficiently specific or

compelling allegations of prejudice to constitute a prima facie

showing of ineffective assistance of counsel as it relates to timely

retaining her expert witness.

E. Adequacy of Expert Disclosure

¶ 83 Finally, mother contends that, “because of the inadequacy of

counsel’s expert disclosures, the court precluded [mother’s expert]

from testifying about the specialized training necessary to conduct

specialized trauma-focused [cognitive behavioral] therapy [TFCBT].”

Mother argues that, had TFCBT been included in the disclosure,

mother’s expert could have testified that “the therapists furnished

by the [Division] were not qualified” to provide the therapy that the

youth needed.

¶ 84 The Friday before trial, mother’s counsel filed witness

disclosures for eight proposed expert witnesses. The Division and

the youth objected. At trial, however, the parties agreed that a

portion of the affidavit from mother’s expert could be used in place

36
of the deficient disclosures, and the juvenile court ruled that

mother’s expert could testify.

¶ 85 During mother’s expert’s testimony, the Division’s counsel

objected to testimony about TFCBT because it was beyond the

scope of the agreed-upon disclosure. In response, mother’s counsel

argued that TFCBT wasn’t — and didn’t need to be — included in

any disclosure because the testimony was being solicited to rebut

testimony provided by the youth’s individual therapist. Noting that

mother’s expert wasn’t called as a rebuttal witness, the court found

that the proposed testimony did “not comply with our rules here in

Jeffco, our case management order, or with the rules of discovery.”

¶ 86 Even if we assume without deciding that counsel’s late

disclosure of the expert witness fell below the range of

professionally competent assistance, mother has failed to

demonstrate prejudice. Indeed, even mother’s offer of proof at trial

didn’t criticize the Division for not providing TFCBT earlier, nor has

she explained how there’s a reasonable probability that the lack of

TFCBT altered the outcome of the proceeding. Accordingly, we

reject mother’s ineffective assistance of counsel claim.

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IV. Disposition

¶ 87 The judgment is affirmed.

JUDGE BROWN and JUDGE GRAHAM concur.

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