in Interest of A.A

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

SUMMARY
November 5, 2020

2020COA154

No. 19CA0328, People in Interest of A.A. — Juvenile Court —
Dependency and Neglect — Termination of the Parent-Child
Legal Relationship

A division of the court of appeals holds that where the juvenile

court completely cuts off visitation between the parents and the

children, without any showing that entirely prohibiting such

visitation is necessary to protect the children, there have not been

reasonable efforts to reunify the family. The division further notes a

potential conflict in the standard of review language found in two

supreme court cases — Interest of S.N. v. S.N., 2014 CO 64, and

People in Interest of C.A.K., 652 P.2d 603 (Colo. 1982) — and urges

the supreme court to clarify the standard to be applied in reviewing

termination of parental rights cases.
COLORADO COURT OF APPEALS 2020COA154

Court of Appeals No. 19CA0328
Adams County District Court No. 17JV209
Honorable Priscilla J. Loew, Judge

The People of the State of Colorado,

Appellee,

In the Interest of A.A. and E.A., Children,

and Concerning M.A. and J.A.,

Appellants.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE TOW
Navarro and Lipinsky, JJ., concur

Announced November 5, 2020

Heidi M. Miller, County Attorney, Deborah Kreshner, Assistant County
Attorney, Westminster, Colorado, for Appellee

Barry Meinster, Guardian Ad Litem

Antony Noble, Office of Respondent Parents’ Counsel, Lakewood, Colorado, for
Appellant M.A.

The Saroyan Law Firm, L.L.C., Zaven T. Saroyan, Colorado Springs, Colorado,
for Appellant J.A.
¶1 Mother, J.A., and father, M.A., appeal the juvenile court’s

judgment terminating their parent-child legal relationships with

A.A. and E.A. We conclude that the Adams County Human Services

Department (Department) did not exercise reasonable efforts to

reunify the family. In particular, we agree with both parents that

the court completely cut off visitation, at the Department’s

recommendation, without a sufficient showing that a complete

denial of visitation was appropriate under the circumstances. In

addition, we conclude that the Department did not exercise

reasonable efforts to rehabilitate father. We therefore reverse the

judgment and remand the case for further proceedings.

I. Background

¶2 In June 2017, the Department filed a petition in dependency

or neglect because of concerns that mother and father were using

methamphetamine, engaging in domestic violence, and neglecting

the children’s basic and special educational needs. At the time the

petition was filed, one of the children was five years old and the

other was seven years old.

¶3 A juvenile court magistrate adjudicated the children

dependent or neglected and approved treatment plans for the

1
parents. Eighteen months later, the juvenile court terminated both

parents’ parental rights.

II. Reasonable Efforts

¶4 Mother and father raise a number of challenges regarding the

services that the Department provided to their family. The juvenile

court made no explicit findings regarding whether the Department

made reasonable efforts to rehabilitate the parents and reunite the

family. Regardless, as discussed below, our review of the record

reveals that the evidence was insufficient to support such a

determination. Therefore, we agree with mother and father that the

judgment must be reversed.

A. Standard of Review and Legal Principles

¶5 One of the goals of the Children’s Code is to preserve the

parent-child relationship whenever possible. § 19-1-102(1)(b),

C.R.S. 2019; see also People in Interest of C.A.K., 652 P.2d 603, 610

(Colo. 1982). To that end, when the state has instituted

dependency or neglect proceedings, it must make reasonable efforts

to rehabilitate parents and reunite families following the

out-of-home placement of abused or neglected children.

§§ 19-1-103(89), 19-3-100.5, 19-3-604(2)(h), C.R.S. 2019.

2
“Reasonable efforts” means the exercise of diligence and care to

reunify a parent with his or her children. § 19-1-103(89). The

reasonable efforts standard requires each county to provide services

to children who are in out-of-home placement and to their families

in accordance with section 19-3-208, C.R.S. 2019. §§ 19-1-103(89),

19-3-100.5(5).

¶6 After adjudicating a child dependent or neglected, a juvenile

court may terminate parental rights under section 19-3-604(1)(c)

only if clear and convincing evidence establishes that (1) the parent

has not complied with an appropriate, court-approved treatment

plan or the plan was unsuccessful; (2) the parent is unfit; and (3)

the parent’s conduct or condition is unlikely to change within a

reasonable time. In determining unfitness, the juvenile court must

consider whether reasonable efforts by child-caring agencies have

been unable to rehabilitate the parents. § 19-3-604(2)(h).

¶7 When reviewing a juvenile court’s decision to terminate

parental rights, appellate courts have long applied a very deferential

standard, setting aside a termination only when the juvenile court’s

findings are “so clearly erroneous as to find no support in the

record.” C.A.K., 652 P.2d at 613. “The credibility of the witnesses

3
and the sufficiency, probative value, and weight of the evidence, as

well as the inferences and conclusions to be drawn from it, are

within the discretion of the trial court.” K.D. v. People, 139 P.3d

695, 702 (Colo. 2006) (citing C.A.K., 652 P.2d at 612).

¶8 However, our supreme court has also suggested that a

different standard may be applicable. People in Interest of S.N. v.

S.N., 2014 CO 64 (S.N. II). In S.N. II, the juvenile court had entered

summary judgment adjudicating the child dependent or neglected,

concluding that there was no disputed issue of fact that the

parents’ care of the child presented a risk of prospective harm. Id.

at ¶ 2; see also People in Interest of S.N., 2013 COA 157, ¶ 5 (S.N. I),

rev’d, 2014 CO 64. A division of the court of appeals reversed,

holding that the issue of prospective harm involved disputed facts.

S.N. II, ¶ 26.

¶9 The supreme court reversed the division. In doing so, it held

that prospective harm is not “purely a factual question.” Id. at

¶ 21. Instead, the court stated that “[w]hether a child is dependent

and neglected is a mixed question of fact and law because

resolution of this issue necessitates application of the dependency

and neglect statute to the evidentiary facts.” Id. The court then

4
reiterated the distinction between evidentiary facts — i.e., “the raw,

historical data underlying the controversy” — and the ultimate fact,

which “involves a conclusion of law or at least a determination of a

mixed question of law and fact [that] settles the rights and liabilities

of the parties.” Id. (quoting Blaine v. Moffat Cty. Sch. Dist. Re No. 1,

748 P.2d 1280, 1287 (Colo. 1988)).

¶ 10 We acknowledge that the S.N. case involved a different stage of

a child protection proceeding — an adjudication — than the stage in

this case — a termination. But there is no logical reason why the

supreme court’s dichotomy would not apply equally at the

termination stage. Cf. In Interest of Baby A, 2015 CO 72, ¶ 16

(reviewing as a mixed question of fact and law the juvenile court’s

decision to terminate a biological father’s parental rights in an

adoption proceeding under section 19-5-105, C.R.S. 2019). The

analytical underpinnings of S.N. II would apply with equal force to

the distinction between “evidentiary facts” and the “ultimate facts”

warranting a juvenile court’s decision to terminate parental rights.

Indeed, at least three divisions of this court appear to have applied

S.N. II to the termination stage in a dependency or neglect case.

See People in Interest of S.R.N.J-S., 2020 COA 12, ¶ 10; People in

5
Interest of S.K., 2019 COA 36, ¶ 41; People in Interest of L.M., 2018

COA 57M, ¶ 17.

¶ 11 This change, if indeed it is a change, significantly alters this

court’s role in reviewing cases involving termination of parental

rights. For example, if a trial court’s findings and conclusions

regarding a parent’s fitness are reviewed as purely factual findings,

they will “not be disturbed on review unless so clearly erroneous as

to find no support in the record.” C.A.K., 652 P.2d at 613. This is

an extremely deferential standard.1 But if the fitness determination

is, as the supreme court suggested in S.N., a mixed question of fact

and law, the resolution of the ultimate question — whether

sufficient grounds for termination have been shown — is reviewed

———————————————————————
1 Indeed, it is difficult to reconcile this standard of review with the
standard of proof to be applied by the juvenile court — clear and
convincing evidence. Under this standard, we cannot disturb a
juvenile court’s conclusion that there was clear and convincing
evidence that a parent was unfit so long as the record contains any
evidence that the parent was unfit. Contra McCoy v. People, 2019
CO 44, ¶ 63 (In criminal cases, appellate courts review the record
de novo to determine “whether the relevant evidence, both direct
and circumstantial, when viewed as a whole and in the light most
favorable to the prosecution, is substantial and sufficient to support
a conclusion by a reasonable mind that the defendant is guilty of
the charge beyond a reasonable doubt.” (quoting Clark v. People,
232 P.3d 1287, 1291 (Colo. 2010))).

6
de novo. See S.K., ¶ 41. In other words, though we would defer to

the juvenile court’s findings of historical fact, we would no longer be

required to deferentially review the juvenile court’s legal conclusion

of unfitness.

¶ 12 And many of the findings and conclusions that go into a

juvenile court’s ultimate determination whether to terminate

parental rights arguably fall in the “mixed question” bucket, in that

they involve the “application of the dependency and neglect statute

to the evidentiary facts.” S.N. II, ¶ 21. For example, the

determination of whether a parent is unfit requires the application

of legal standards set forth in section 19-3-604. See S.R.N.J-S.,

¶ 11. Similarly, as relevant here, a juvenile court’s conclusion that

the government exercised reasonable efforts requires application of

section 19-3-208 to the historical facts as found by the juvenile

court. See § 19-1-103(89) (deeming the services enumerated in

section 19-3-208 to meet the reasonable efforts standard); cf. People

in Interest of I.J.O., 2019 COA 151, ¶ 22 (“We recognize that we

review a juvenile court’s finding of reasonable efforts for clear error.

Even so, we must review de novo whether the court applied the

correct legal standard.” (citing S.N. II, ¶ 21)).

7
¶ 13 In short, in the wake of the supreme court’s decision in S.N. II,

it is unclear whether we are to review the juvenile court’s

determination of reasonable efforts (implicit in this case) de novo or

for clear error. However, we conclude that we need not resolve this

question because the juvenile court’s decision here was erroneous

under either standard.2

B. Visitation

¶ 14 Mother contends that the juvenile court violated her

constitutional right to due process and her statutory right to

visitation services when it denied her those services for reasons

unrelated to the children’s health, safety, or well-being. Similarly,

father asserts that the juvenile court erred by delegating decisions

regarding visitation to the Department and guardian ad litem (GAL),

with the result that he had extremely limited visitation with the

———————————————————————
2 That being said, these decisions involve critical, and often
conflicting, interests: children’s right to have their physical, mental,
and emotional conditions and needs met, see § 19-3-604(3), C.R.S.
2019, and parents’ fundamental liberty interest in the care,
custody, and management of their children, see Santosky v.
Kramer, 455 U.S. 745, 753 (1982). Uncertainty regarding our role
in reviewing juvenile court orders in these all-too-frequent cases
potentially delays much needed permanency. We respectfully urge
the supreme court to provide clarity.

8
children. The substance of both parents’ arguments is that (1) they

did not receive statutorily mandated visitation services and (2) the

juvenile court consequently erred when it found that the

Department made reasonable efforts to rehabilitate them and

reunify the family.

¶ 15 Father also contends that the Department did not make

reasonable efforts to “rehabilitate” the children by providing the

services they needed to prepare for a successful reunification,

including visitation with each other and with father. In other

words, he asserts that the Department did not make reasonable

efforts to reunify the family. See § 19-3-100.5 (the state must make

reasonable efforts to reunify families); § 19-3-208(1), (2)(a)(IV) (the

state shall provide services to children who are in out-of-home

placement to facilitate reunification of parents and children).

¶ 16 We agree that the juvenile court reversibly erred when it

(1) conditioned visitation services for mother and the children on

mother’s sobriety without a proper statutory basis and (2) found

that the parents were unfit despite the Department’s failure to meet

9
the reasonable efforts standard by providing adequate visitation

services for the family.3

¶ 17 Visitation services for parents and children in out-of-home

placement must be provided in accordance with individual case

plans. § 19-3-208(2)(b)(IV). The child’s health and safety are the

paramount concerns in determining whether services, including

visitation, are necessary and appropriate. People in Interest of D.G.,

140 P.3d 299, 302 (Colo. App. 2006). Visitation services shall be

designed to promote the health, safety, and well-being of the

children; facilitate the speedy reunification of parents and children;

and promote the best interests of the child. § 19-3-208(2)(a).

1. Mother’s Visitation

¶ 18 On June 22, 2017, the Department removed the children from

the parents’ home pursuant to an emergency order and placed them

with a paternal great-aunt and great-uncle. At the shelter hearing

five days later, the magistrate ordered the Department to provide

———————————————————————
3 Because we agree with mother’s statutory argument, we need not
reach her due process claim. See, e.g., BS & C Enters., LLC v.
Barnett, 186 P.3d 128, 133 (Colo. App. 2008) (noting that the
principle of judicial restraint counsels against unnecessarily
deciding constitutional issues (citing Developmental Pathways v.
Ritter, 178 P.3d 524, 535 (Colo. 2008))).

10
the family visitation at least twice per week. The Department was

to supervise mother’s visits, while the placement providers would

supervise father’s visits. The magistrate also ordered the GAL to

schedule regular telephone calls for the family. The caseworker’s

report noted that mother was appropriately attached to the

children, who described her as “the best mom.”

¶ 19 On July 5, 2017, mother completed a mental health

evaluation, in which she reported symptoms of depression and

anxiety. She said the children were her reason to live and that she

wanted to be a good mother.

¶ 20 On July 18, 2017, A.A. entered residential treatment after the

great-aunt and great-uncle were unable to manage his behavior.

¶ 21 On July 21, 2017, the magistrate held a shelter hearing to

address A.A.’s placement. The parents reported that they had been

allowed only one telephone call with the children in the past month.

Mother expressed frustration at being denied contact with A.A.

while he was struggling because, in her experience, she could have

a settling effect on A.A. and could help him get his behavior under

control.

11
¶ 22 On July 26, 2017, mother reported that she was struggling

emotionally because she had never been away from her children

before. She requested a set schedule for telephone calls, which the

court ordered. The Department reported that staff at the residential

treatment facility were frequently placing A.A. in physical holds to

manage his behavior. There is no evidence that the Department

had provided any in-person visitation for the family since the

children’s removal.

¶ 23 On August 15, 2017, A.A. was moved to a second residential

treatment facility.

¶ 24 On September 26, 2017, a different magistrate held a

permanency planning hearing. The caseworker reported that

mother had been uncooperative and defiant and both parents

continued to use methamphetamine. As a result, the Department

asked the magistrate to suspend mother’s visitation until she could

demonstrate two weeks of monitored sobriety. The GAL agreed with

the request on the grounds that the parents’ relationship with each

other was toxic, as evidenced by emails between the parents, and

their relationship created a terrible environment for the children.

But he did not explain how the parents’ relationship with one

12
another affected the children, given that the children were placed

out of the home and, as a result, there was no evidence that they

were witnessing the parents’ conflict.

¶ 25 The magistrate suspended visitation until each parent could

demonstrate two weeks of sobriety through urinalysis testing. The

magistrate reasoned there was no point in allowing visitation until

the parents were sober because, until then, visitation would be

more harmful to the children than helpful.

¶ 26 But the magistrate did not explain how he came to this

conclusion. There was no evidence that either parent had attended

a visit while intoxicated or that either parent had missed or

disrupted a visit due to intoxication. Indeed, there was no evidence

that either parent was allowed any in-person visits with the

children.

¶ 27 Further, there was no evidence that a more moderate

approach, such as sobriety testing immediately before visits, would

not have sufficiently addressed any concerns about the parents’

conduct during visitation without depriving the family of this

fundamental service. Thus, it is unclear how the magistrate’s

visitation order was designed to promote the health, safety, and

13
well-being of the children; facilitate the speedy reunification of the

family; or promote the best interests of the children. See

§ 19-3-208(2)(a).

¶ 28 At a review hearing in February 2018, mother’s counsel asked

the second magistrate to consider therapeutic visitation and offered

to have mother complete an assessment, if necessary, to determine

the appropriate level of supervision or intervention. But after

mother spoke out of turn, the magistrate denied the request,

stating, “[T]here is the example of why she has no contact with the

children. She can’t deal with it.” The magistrate did not explain,

and we are unable to glean from the record, how mother’s conduct

in court related to her ability to have appropriate therapeutic

visitation sessions with the children or how the continued denial of

visitation services for mother and the children served the statutory

goals of section 19-3-208(2)(a).

¶ 29 Given this record, we conclude that the magistrate erred when

he suspended the parents’ visitation entirely pending two weeks of

demonstrated sobriety.

¶ 30 Further, the magistrate and the juvenile court did not ensure

that the family was provided adequate visitation services. Because

14
mother never established two consecutive weeks of clean urinalysis

tests, the Department never offered visitation services for her and

the children. As a result, mother and the children were totally

deprived of the visitation services required by section 19-3-208(2)(h)

without any showing that such total deprivation was necessary to

protect the children. Thus, we further conclude that the juvenile

court erred when it terminated mother’s parental rights because the

record does not support a determination that the Department made

reasonable efforts to reunite mother with the children.

2. Father’s Visitation with E.A.

¶ 31 Father met the sobriety requirement and resumed monitored

visitation with the children. At a review hearing in November 2017,

the caseworker reported that father was appropriate in visits with

both children.

¶ 32 But at the termination hearing, the caseworker testified that

father’s visits with E.A. had been suspended again in January

2018. She said the Department had stopped offering visitation

because E.A. perceived that father did not understand him, was

disrespectful of E.A., and did not fit in with E.A.’s need to organize

and control his environment.

15
¶ 33 Although the case continued for another year, father and E.A.

had no more visits. The second magistrate, and later the juvenile

court, periodically reviewed the case and approved the

Department’s repeated recommendations to deny visitation because

the visit in January had gone poorly. In particular, the GAL

explained that E.A. was upset because father had been “loud and

boisterous” and had thrown E.A.’s Legos. The caseworker reported

that father had been “disrespectful toward [the] Legos.” Eventually,

the GAL and the Department began to report that E.A. no longer

wanted contact with his parents.

¶ 34 But there is no evidence in the record that the Department

made any referrals for therapy or therapeutic visitation for father

and E.A. to preserve and strengthen their family ties. See

§ 19-1-102(1)(b). And although the Department indicated in

February 2018 that it planned to establish professionally

supervised visitation at the Department’s facilities, it failed to do so,

without explanation. Instead, the record establishes that, when

visitation under the supervision of E.A.’s kinship placement

provider became problematic, the Department withdrew all

visitation services for father and E.A. It is unclear why the

16
Department took this drastic step without making any effort to help

father and E.A. repair their relationship or to determine whether

any other level of visitation services would meet E.A.’s needs, such

as professionally supervised or monitored visitation.

¶ 35 Therefore, we conclude that the record does not establish that

the Department provided adequate visitation services for father and

E.A. as required by section 19-3-604(2)(h). As a result, we further

conclude that the record does not support a determination that the

Department made reasonable efforts to reunite father and E.A.

Thus, the juvenile court erred when it terminated father’s

parent-child legal relationship with E.A.

3. Father’s Visitation with A.A.

¶ 36 Father contends that the juvenile court improperly delegated

visitation decisions to the Department, the GAL, and A.A.’s

therapists. As a result, father asserts, he had only one visit with

A.A. in the six months before the termination hearing concluded.

¶ 37 We decline to address this contention because, as discussed

below, we reverse the judgment terminating father’s parent-child

legal relationship with A.A. on other grounds.

17
4. Visitation Between the Children

¶ 38 Father contends that the Department did not provide adequate

visitation for the children with each other and that, as a result, they

were not accustomed to each other enough to live together with

father.

¶ 39 We agree that the Children’s Code recognizes the importance

of sibling relationships and requires the Department to promote

frequent contact between siblings in foster care in accordance with

the children’s best interests. § 19-7-204, C.R.S. 2019.

Nonetheless, we decline to review this contention because it did not

form a basis for the court’s termination decision.

C. Substance Use Treatment Services for Father

¶ 40 Father contends that the juvenile court erred when it

terminated his parental rights because the Department did not

make reasonable efforts to rehabilitate him. We agree.

¶ 41 The Department moved to terminate parental rights on June

1, 2018. Father entered an inpatient substance use treatment

program three days later and successfully complied with the

program for over four months.

18
¶ 42 At the termination hearing, father testified that the inpatient

program was designed to take two years, including eighteen months

in the residential facility and six months in a halfway house. But in

September 2018, he said, the caseworker and the GAL told him that

they planned to move forward with the termination motion because

the children should not have to wait two years for him to finish the

program. Father testified that he then decided to move to a sober

living facility so he could be available to parent the children. He

said that he had already completed over 400 hours of therapy,

including dialectical behavioral therapy, cognitive behavioral

therapy, anger management, and reality therapy, and he felt

confident that he could maintain sobriety in a less restrictive

environment.

¶ 43 The Department and the GAL argued that father’s early

departure from the inpatient program demonstrated his inability to

address his substance use. But father’s counsel asserted that

father faced an impossible choice: stay in the inpatient treatment

program and be deemed unfit because he was not available to care

for the children or leave the program and be deemed unfit because

he had not completed the program.

19
¶ 44 We recognize that the juvenile court discredited father’s

testimony that he left the two-year program early to try to preserve

his parental rights. Regardless, the record does not support a

finding that the Department made reasonable efforts to rehabilitate

father in light of the Department’s decision not to offer him any

other substance abuse treatment.

¶ 45 Father and the caseworker both testified at the termination

hearing that the Department did not provide referrals or funding for

father’s substance abuse treatment services. Instead, father was

left to locate and pay for these services on his own. It appears that

the caseworker had decided that the only way father could comply

with his treatment plan (which required that he receive substance

abuse treatment) was to complete the two-year inpatient program.

But it is unclear why nothing less than a two-year inpatient

program would suffice to address father’s substance use.

¶ 46 The caseworker testified at the termination hearing that she

had spoken with father’s therapist at the sober living facility in

mid-October 2018 and was told that the facility staff was working to

match the services father had received in the inpatient program.

The caseworker said she did not speak with anyone at the sober

20
living facility again. Nevertheless, the Department objected that the

sober living facility only provided substance abuse support and did

not provide adequate substance abuse treatment. Yet the

Department did not offer any referrals for programs that it

considered adequate to comply with father’s treatment plan.

Instead, the caseworker testified at the termination hearing that she

was unaware of any substance abuse treatment father had

arranged or paid for on his own. (We note that the undisputed

evidence shows that father had been sober for four months when he

moved to the sober living facility and remained sober when the

termination hearing ended three months later.)

¶ 47 Under these circumstances, we conclude that the record does

not support a determination that the Department made reasonable

efforts to rehabilitate father. On this independent basis, the

juvenile court erred when it terminated father’s parent-child legal

relationships with both children.

D. Mental Health Services for A.A.

¶ 48 Father contends that the juvenile court erred when it

terminated his parent-child legal relationship with A.A. because the

Department did not meet its obligation to make reasonable efforts

21
to reunify the family by providing necessary mental health services

for A.A. We need not resolve this contention in light of our reversal

on other grounds. However, because the issue of A.A.’s treatment

will certainly arise on remand, we address the issues raised.

1. A.A.’s Placement History

¶ 49 A.A. and E.A. were removed from their parents’ home on

June 22, 2017, and placed with the great-aunt and great-uncle.

¶ 50 In July 2018, then-seven-year-old A.A. was placed in a

residential treatment facility because the great-aunt and

great-uncle were unable to manage his aggressive and violent

behavior. The Department reported that staff at the residential

treatment facility frequently placed A.A. in physical management

holds to control his behavior.

¶ 51 In August 2018, A.A. moved to a second residential treatment

facility, where he lived in a highly structured therapeutic

environment for nearly nine months.

¶ 52 In February 2019, A.A.’s Court Appointed Special Advocate

(CASA) reported that the treatment facility staff believed A.A. was

ready to transition to the community, although the next move

22
would be extremely difficult. The GAL asked the court to authorize

step-down placement for A.A., including continuing day treatment.

¶ 53 At a shelter hearing on May 3, 2018, the second magistrate

placed A.A. with a paternal aunt and uncle. Father also resided in

the home and had worked with A.A.’s treatment team to prepare for

the transition so he could care for A.A. under the supervision of the

aunt and uncle. But, contrary to the recommendations of A.A.’s

treatment providers, the GAL, and the CASA, the Department

reported that it had not arranged to provide continuing day

treatment for A.A. because the public school district had not agreed

to pay for it. The GAL reported that A.A. was not ready for the

public school system.

¶ 54 The caseworker testified at the termination hearing that father

argued with the aunt and uncle over father’s use of alcohol two

days after A.A. was placed in the home. She said the aunt and

uncle asked father to leave, and he moved out two weeks later. (As

discussed above, father entered the inpatient treatment program

about two weeks after leaving the paternal aunt’s home.)

¶ 55 The caseworker testified that, on May 25, 2018, the aunt took

A.A. to a hospital emergency department and reported that he was

23
exhibiting suicidal behavior and had been violent toward her son.

Over the next eleven weeks, A.A. changed placements six times,

moving in and out of three different residential treatment facilities

and emergency mental health hospitalizations at two different

hospitals. The caseworker testified that, at the time of the

termination hearing, A.A. was living at a residential treatment

facility and was subject to physical management holds up to three

times per day, four days per week, usually because he “was

assaultive” to staff or other children.

2. A.A.’s Treatment Needs

¶ 56 A.A.’s individual therapist from the residential treatment

facility gave the following testimony at the termination hearing

regarding A.A.’s treatment needs for a successful transition to the

aunt and uncle’s home:

 A.A. had been diagnosed with post-traumatic stress

disorder and attention deficit hyperactivity disorder.

 A.A. needed a lot of support to transition successfully to a

home environment because he had spent so much time in

the highly structured environment of the residential

treatment facility.

24
 A.A.’s treatment team had recommended that A.A. begin

day treatment at the residential treatment facility

immediately as he transitioned to a family setting.

 The day treatment program would provide stability, a

structured educational program, and therapeutic services.

 If day treatment was not available, A.A. would need

individual and family therapeutic support.

 Father and A.A. had begun family therapy at the residential

treatment facility as part of the transition plan. A.A.’s

treatment team wanted this therapy to continue while A.A.

adjusted to the home environment.

 A.A. did not begin day treatment because neither the school

district nor the Department agreed to pay for it.

 The Department did not set up any other therapeutic

services for A.A. before removing him from the residential

treatment facility.

¶ 57 The caseworker gave the following testimony to explain why

the Department had not provided these services:

 The school district in Denver, where the residential

treatment facility was located, denied funding for A.A.’s day

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treatment because A.A. would not be a Denver resident

once he was placed with the aunt and uncle in Douglas

County.

 The Department did not provide day treatment because the

Denver school district did not agree to pay for it.

 Instead, the Department provided Key Essential Elements of

Permanency services in the home to provide support and

parenting skills for the placement providers, daily for the

first week and then three times per week.

 The Department scheduled a meeting with A.A.’s new school

in Douglas County to update his individualized education

plan (IEP). The IEP then in effect identified only A.A.’s

speech and language deficit and did not acknowledge his

significant mental health and behavioral needs.

 The Department planned to ask the Douglas County school

district to pay for day treatment at the IEP meeting.

 A.A. was hospitalized after three weeks and did not return

to the paternal aunt’s home, so the IEP meeting never took

place.

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¶ 58 Thus, the record establishes that the Department did not

provide any of the therapeutic services that A.A.’s treatment

providers said were necessary to ensure a successful transition to

family life after nine months of residential care.

¶ 59 A.A. was undoubtedly affected by father’s relapse and eviction

from the aunt and uncle’s home. But even without that disruption,

A.A. was subjected to a slew of simultaneous transitions:

 he moved from the highly structured environment of a

residential treatment facility, where he had lived for nine

months, to a family setting;

 he lost contact with his mental health treatment providers

and was not offered any other treatment;

 he was enrolled in a new school two weeks before the end of

the school year; and

 all of his daily routines changed.

¶ 60 These events would have taxed any child. In the absence of

adequate support, the disruptions’ deleterious effect on a child with

significant mental health diagnoses was not only predictable but

predicted by the GAL, the CASA, and A.A.’s treatment providers at

the residential treatment facility.

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¶ 61 We recognize that section 19-3-208(2)(d)(IV) limits the

Department’s responsibility to provide mental health services based

on the state’s capacity to obtain funding. But the Department does

not argue on appeal that it was not required to provide these

necessary services, and there is no evidence in the record that the

Department was unable to secure funding.

¶ 62 On remand, the juvenile court must consider whether the

Department’s approach to addressing A.A.’s mental health needs is

sufficient to meet the requirement that the Department exercise

reasonable efforts to reunify the family. Further, to the extent the

Department asserts lack of funding for the services A.A. requires,

the juvenile court must base any decision regarding such funding

on evidence specifically related to the Department’s efforts, if any, to

secure funding for the needed services.

III. Remaining Issues

¶ 63 Both parents contend that termination of their parental rights

was manifestly unjust to A.A. because he remained in residential

care with no prospect of adoption. Father also contends that (1) the

Department did not make reasonable efforts to rehabilitate him

because it did not provide domestic violence treatment as required

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by his treatment plan; (2) the juvenile court erred when it found

that he could not become fit within a reasonable time despite

several months of demonstrated sobriety after he found treatment

on his own; and (3) his trial counsel rendered ineffective assistance.

¶ 64 Because we reverse the termination judgment on other

grounds, we need not address these contentions.

IV. Conclusion

¶ 65 The judgment is reversed and the case is remanded to the

juvenile court. On remand, before the court may again consider

termination of the parents’ parental rights, it shall review whether

the existing treatment plans are appropriate or modify them as

necessary and, consistent with this opinion, conduct further

proceedings as the court deems warranted. See People in Interest of

N.F., 820 P.2d 1128, 1130 (Colo. App. 1991).

¶ 66 In implementing the existing treatment plans or adopting new

plans, the juvenile court shall determine whether and under what

conditions the Department must provide mother and father with

visitation and therapeutic services as reasonable efforts under

section 19-3-208. The juvenile court must make this determination

based on the children’s health and safety. See D.G., 140 P.3d at

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302. We express no opinion concerning the ultimate outcome that

the juvenile court may reach on remand.

JUDGE NAVARRO and JUDGE LIPINSKY concur.

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