Peo in Interest of WB

21CA0468 Peo in Interest of WB 10-21-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA0468

Fremont County District Court No. 19JV81

Honorable Stephen A. Groome, Judge

The People of the State of Colorado,

Appellee,

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

and Concerning T.B.,

Appellant.

JUDGMENT AFFIRMED

Division II

Opinion by JUDGE BERGER

Román and Yun, JJ., concur

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

Announced October 21, 2021

Brenda L. Jackson, County Attorney, Nicole L. Bartell, Assistant County

Attorney, Cañon City, Colorado, for Appellee

Jenna L. Mazzucca, Guardian Ad Litem

The Morgan Law Office, Kris P. Morgan, Colorado Springs, Colorado, for

Appellant

1

¶ 1

T.B. (father) appeals the judgment terminating the parent-

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

I. Background

¶ 2

The Fremont County Department of Human Services filed a

petition in dependency and neglect regarding the then-one-month-

old child. The Department alleged that father was incarcerated.

¶ 3

The juvenile court adjudicated the child dependent and

neglected. The court then adopted a treatment plan for father.

¶ 4

The Department and the guardian ad litem later moved to

terminate father’s parental rights.

¶ 5

Over a year after the petition was filed and following a hearing,

the magistrate granted the motion. Father petitioned for district

court review of the magistrate’s termination judgment. The district

court affirmed the magistrate’s decision.

¶ 6

Father appeals.

II. Standard of Review

¶ 7

A district court reviewing a magistrate’s decision under C.R.M.

7(a) may not alter the magistrate’s factual findings unless clearly

erroneous. C.R.M. 7(a)(9). Our review of the district court’s

decision is effectively a second layer of appellate review, and, like

2

the district court, we must accept the magistrate’s factual findings

unless clearly erroneous. In re Parental Responsibilities Concerning

G.E.R., 264 P.3d 637, 638-39 (Colo. App. 2011).

III. Termination of Parental Rights

A. General Law

¶ 8

The juvenile court may terminate parental rights if it finds, by

clear and convincing evidence, that (1) the child has been

adjudicated dependent and neglected; (2) the parent has not

complied with an appropriate, court-approved treatment plan or the

plan has not been successful; (3) the parent is unfit; and (4) the

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

reasonable time. § 19-3-604(1)(c), C.R.S. 2020; People in Interest of

C.H., 166 P.3d 288, 289 (Colo. App. 2007).

¶ 9

Whether a juvenile court properly terminated parental rights

presents a mixed question of fact and law because it involves

application of the termination statute to evidentiary facts. People in

Interest of A.M. v. T.M., 2021 CO 14, ¶ 15. “We review the juvenile

court’s findings of evidentiary fact — the raw, historical data

underlying the controversy — for clear error and accept them if they

have record support.” People in Interest of S.R.N.J-S., 2020 COA 12,

3

¶ 10. But we review de novo the juvenile court’s legal conclusions

based on those facts — including its conclusion that the

Department made reasonable efforts to rehabilitate the parent and

reunify the family under section 19-3-604(2)(h). See S.R.N.J-S., ¶

10.

B. Fitness Within a Reasonable Time

¶ 10

Father contends that the juvenile court erred by finding that

he could not become fit within a reasonable time. In particular, he

asserts that he was not given a reasonable amount of time to

comply with his treatment plan. We discern no basis for reversal.

¶ 11

An unfit parent is one whose condition or conduct renders him

or her unable to give a child reasonable parental care. People in

Interest of D.P., 160 P.3d 351, 353 (Colo. App. 2007). Reasonable

parental care requires, at a minimum, that the parent provide

nurturing and protection adequate to meet the child’s physical,

emotional, and mental health needs. People in Interest of A.J., 143

P.3d 1143, 1152 (Colo. App. 2006).

¶ 12

In determining whether a parent can become fit within a

reasonable time, the juvenile court may consider whether any

changes occurred during the dependency and neglect proceeding,

4

the parent’s social history, and the chronic or long-term nature of

the parent’s conduct or condition. D.P., 160 P.3d at 353. A

reasonable time is not indefinite, and must be determined by

considering the child’s physical, mental, and emotional conditions

and needs. A.J., 143 P.3d at 1152.

¶ 13

Periods as short as five to nine months have been held to be

sufficient time to comply with a treatment plan. Id.

¶ 14

Here, the juvenile court found that father was unfit and there

was no likelihood that he would become fit within a reasonable

time. In doing so, the court found that father had approximately

eleven months, which was “a substantial and reasonable period of

time,” to complete his treatment plan. The court next found that

father had an opportunity to participate in services and visits when

he was not in custody, but he refused to engage with the

Department, enroll in services, or consistently attend visits. The

court also found that father had “demonstrated little to no change

in behavior or insight into the problems which exist[ed] and that

must be remedied to parent the child effectively and safely.”

¶ 15

The record supports the juvenile court’s findings. Father had

approximately eleven months from the time the treatment plan was

5

adopted until the termination hearing to work on his treatment

plan. During that time, he was in and out of custody. When he

was out of custody, father could have completed a substance abuse

and mental health assessment, provided urinalysis (UA) samples,

and visited the child. He did not complete the assessment. His

UAs were positive for controlled substances or “dilute,” which is

considered a positive result. He missed several visits and, when he

attended, he was not alone.

¶ 16

The caseworker testified that father had approximately three

months to engage in services and visits before the treatment plan

was adopted. Yet, in the past fourteen months, father had made

very little progress.

¶ 17

Because the record supports the juvenile court’s factual

findings, we will not disturb them or the court’s legal conclusions

on appeal.

C. Reasonable Efforts

¶ 18

Father contends that the juvenile court erred by finding that

the Department had made reasonable efforts to reunify the family.

Specifically, he argues that the Department failed to provide visits

while he was incarcerated. We discern no basis for reversal.

6

¶ 19

In determining whether a parent is unfit, the juvenile court

must consider whether the Division made reasonable efforts to

reunify the family. § 19-3-604(2)(h), (k)(III); see also §§ 19-3-100.5,

19-3-208, C.R.S. 2020 (requiring the state to make reasonable

efforts to reunite the family when appropriate).

¶ 20

Among the efforts required under section 19-3-208 are

screening, assessments, and individual case plans for the provision

of services; 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).

¶ 21

The reasonable efforts standard is deemed met if services are

provided in accordance with section 19-3-208. § 19-1-103(89),

C.R.S. 2020; People in Interest of J.A.S., 160 P.3d 257, 262 (Colo.

App. 2007). The parent is responsible for using those services to

obtain the assistance that he or she needs to comply with his or her

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

(Colo. App. 2011).

7

¶ 22

The juvenile court found that the Department had made

efforts to engage father. As relevant here, the court found that the

“difficulties in creating a parenting time opportunity during his

periods of incarceration are the result of father’s lack of

responsibility and engaging in criminal conduct that resulted in his

incarceration.” The court further found that father “created the

impediments to parenting time, not the Department.”

¶ 23

The record shows that the Department devised a treatment

plan for father; referred him to a substance abuse and mental

health assessment and sobriety monitoring; coordinated visits;

provided transportation; and facilitated placement services for the

child. Therefore, the Department met the reasonable efforts

standard.

¶ 24

It is true that father did not have visits while he was

incarcerated. The caseworker testified that she had not asked

about visits when she contacted the facilities where father was

being held in custody. But, during the times that father was not in

custody, he did not consistently attend visits. caseworker testified

that father had canceled or no-showed at several visits. And, in the

8

month before the termination hearing while father was out of

custody, he had attended only two out of three scheduled visits.

¶ 25

Given this evidence, we cannot say that the Department failed

to make reasonable efforts. Because the record supports the

juvenile court’s factual findings, we will not disturb them or its legal

conclusions on appeal.

IV. Conclusion

¶ 26

We affirm the judgment.

JUDGE ROMÁN and JUDGE YUN concur.