Peo in Interest of CC

21CA0323 Peo in Interest of CC 11-24-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA0323

Weld County District Court No. 19JV803

Honorable W. Troy Hause, Judge

The People of the State of Colorado,

Appellee,

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

and Concerning C.C.,

Appellant.

JUDGMENT AFFIRMED

Division A

Opinion by JUDGE TAUBMAN*

Bernard, C.J., and Vogt*, J., concur

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

Announced November 24, 2021

Bruce T. Baker, County Attorney, David S. Anderson, Assistant County

Attorney, Greeley, Colorado, for Appellee

Jenna L. Mazzucca, Guardian Ad Litem

Patrick R. Henson, Office of Respondent Parents’ Counsel, Andrew Gargano,

Office of Respondent Parents’ Counsel, 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. 2021.

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¶ 1 In this dependency and neglect proceeding, C.C. (father)

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

legal relationship to C.C. (child). We affirm.

I. Background

¶ 2 In September 2019, the Weld County Department of Human

Services (Department) received a report that the child had tested

positive for methamphetamine at birth. At the initial hearing, the

caseworker, qualified as an expert in child protection, testified that

the child was experiencing withdrawal symptoms from the drug.

Mother and father admitted using methamphetamine. The juvenile

court granted the Department temporary custody of the child, and

the Department placed him with kinship placement providers

(kinship providers).

¶ 3 The Department then filed a petition in dependency and

neglect alleging, among other things, that the child’s environment

was injurious to his welfare. Mother admitted the allegations in the

petition; father neither admitted nor denied the petition, remaining

silent to protect his rights in several ongoing criminal matters. The

juvenile court adjudicated the child dependent and neglected by

them. The juvenile court adopted treatment plans for both parents.

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¶ 4 Father’s treatment plan required him to (1) cooperate with

case professionals; (2) complete a substance abuse evaluation and

follow any treatment recommendations; (3) comply with urinalysis

testing; (4) participate in parenting time; (5) complete a mental

health evaluation and follow any treatment recommendations; (6)

obtain and maintain housing appropriate for himself and the child;

(7) secure legal income; and (8) cooperate with any current and

ongoing criminal cases.

¶ 5 Later, alleging that father had not complied with his treatment

plan and that it was unsuccessful, the Department moved to

terminate his parental rights. After a hearing, the juvenile court

granted the motion.

II. Legal Framework

¶ 6 Under 19-3-604(1)(c), C.R.S. 2021, the juvenile court may

terminate parental rights if it finds by clear and convincing evidence

that (1) the child was adjudicated dependent or neglected; (2) the

parent has not complied with an appropriate, court-approved

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

and (4) the parent’s conduct or condition is unlikely to change

within a reasonable time.

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III. Reasonable Efforts

¶ 7 Father contends that the juvenile court erred when it

determined that the Department made reasonable efforts. We do

not agree.

A. Standard of Review

¶ 8 The Department and guardian ad litem urge us to employ a

clear error standard of review. We decline to do so. The supreme

court has directed us that resolution of an issue necessitating

application of the termination statute to evidentiary facts presents a

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

2021 CO 14, ¶ 15, 480 P.3d 682, 686.

¶ 9 We review the juvenile court’s factual findings for clear error.

C.R.C.P. 52. The credibility of witnesses; the sufficiency, probative

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

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

juvenile court. People in Interest of C.A.K., 652 P.2d 603, 613 (Colo.

1982). However, a determination of the proper legal standard to be

applied in a case and the application of that standard to the facts of

the care are questions of law that we review de novo. M.A.W. v.

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People in Interest of A.L.W., 2020 CO 11, ¶ 31, 456 P.3d 1284,

1290.

B. Relevant Law

¶ 10 When determining parental unfitness, the juvenile court must

consider whether the Department made reasonable efforts to

rehabilitate the parent and reunify the family. § 19-3-604(2)(h).

“Reasonable efforts” means “the exercise of diligence and care” for a

child who is in out-of-home placement. § 19-1-103(89), C.R.S.

2021; see also People in Interest of A.A., 2020 COA 154, ¶ 5, 479

P.3d 57, 60. The reasonable efforts standard is satisfied when

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

2021. § 19-3-103(89).

¶ 11 In determining whether the Department made reasonable

efforts, we do not look to the Department’s promulgated rules and

regulations, as father would have us do. Instead, we look to see

whether the juvenile court considered whether “(1) the services

provided were appropriate to support the parent’s treatment plan

but (2) they were unsuccessful in accomplishing the treatment

plan’s purpose of rendering [the parent] fit.” People in Interest of

S.N-V., 300 P.3d 911, 915 (Colo. App. 2011).

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¶ 12 The parent is responsible for using the services provided by

the Department to obtain the assistance needed to comply with the

treatment plan’s requirements, People in Interest of J.C.R., 259 P.3d

1279, 1285 (Colo. App. 2011), and the court may consider a

parent’s unwillingness to participate in treatment as a factor in

determining whether the Department has made reasonable efforts,

see People in Interest of A.V., 2012 COA 210, ¶ 12, 297 P.3d 1019,

1022.

C. Analysis

¶ 13 The juvenile court, similar to the division in J.C.R., 259 P.3d at

1285, concluded that, although the Department made reasonable

efforts to rehabilitate him, father did not make an effort to

“maintain contact with the [c]hild” and did not “develop[] a bond

with the [c]hild.” The record evidence supports these

determinations.

1. Communication Between Father and the Department

¶ 14 Father asserts that the Department failed to maintain contact

with him while he was incarcerated, and thereby did not provide

reasonable efforts. We are not convinced.

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¶ 15 Despite father’s contrary assertions on appeal, the caseworker

testified that she “had ongoing communication every month” with

father. Father testified that he was visited in jail at least twice by

caseworkers. He also stated that he regularly received mail from

the Department while he was incarcerated. During his period of

release, although father testified that he made “quite a few

attempts” to reach the caseworker, she stated that father’s contact

with her consisted only of reaching out “once or twice.” Further,

the caseworker testified that father stopped almost all

communication in August 2020. She had not been contacted by

father since his reincarceration. Significantly, the juvenile court

concluded that it found the caseworker’s testimony to be credible.

See C.A.K., 652 P.2d at 613.

2. Starting and Restarting Visitation

¶ 16 Father next asserts that the Department “failed to provide . . .

visitation services while he was incarcerated despite his request for

visitation services.” Similarly, father asserts that the Department

failed to timely schedule a noncompliance meeting to restart

father’s visitation with the child. While the record contains

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conflicting testimony regarding father’s assertions, the trial court

properly relied on the caseworker’s testimony it found credible.

¶ 17 Section 19-3-208(2)(b)(IV) requires the Department to provide

visitation services between a parent and child, as determined

appropriate and necessary by an individual case plan. The child’s

health and safety are the paramount concerns in determining

whether visitation services are necessary and appropriate. A.A., ¶

17, 479 P.3d at 62.

¶ 18 The record shows that father chose not to participate in his

treatment plan’s visitation requirement. See A.V., ¶ 12, 297 P.3d at

1022 (a court may consider a parent’s unwillingness to participate

in treatment as a factor in determining whether the Department has

made reasonable efforts). Father became incarcerated days after

the case opened, on the very date of his first scheduled in-person

visit with the child. He remained incarcerated until March 2020.

The caseworker testified that no in-person visits could be provided

at the jail, and phone or video visits through the jail were not

appropriate at that time because the child was still a newborn.

¶ 19 When father was released, at the beginning of the COVID-19

pandemic, the Department reasonably determined it could only

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offer video visitation with the child to prevent virus transmission.

See People in Interest of D.G., 140 P.3d 299, 306-07 (Colo. App.

2006) (absent safety concerns, a parent is entitled to face-to-face

visitation). Initially, father rejected video visits; he preferred to wait

until he could have in-person visits. However, in late May or June

of 2020, father requested video visitation with the child. The

caseworker submitted a referral for in-person visits and began video

visits in the meantime.

¶ 20 Despite his access to video visitation, father attended only five

video visits from March until September 2020. After father

cancelled two visits in a row in June 2020, he was subsequently

discharged from the visitation program until he could attend a

noncompliance meeting with the caseworker to discuss any barriers

to his participation. The caseworker testified that she told father

that it was his responsibility to set up a noncompliance meeting.

She also testified that, during this time, father “contacted [her], but

he didn’t respond in regards to visitation; never . . . expressed

wanting to set up our [noncompliance] meeting.” She stated that it

was not until “late . . . August that he actually confirmed wanting to

set up a meeting . . . .”

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¶ 21 After the meeting, father failed to attend his September 2020

in-person visit and was again discharged for noncompliance. The

caseworker testified that father told her that he skipped the

September in-person visit because “he was just not in a good

place . . . in his life. . . . [H]e did not feel that it was a good time for

him to have visits with [the child].” Father was reincarcerated in

November 2020 and remained in jail until the termination hearing.

3. Technical Issues

¶ 22 Father asserts that the Department “failed to assist” him with

“the technical issues that arose during virtual visitations.”

However, the record indicates that father did not timely inform the

caseworker of his technical issues, and, indeed, resolved them

himself. At father’s noncompliance meeting, in August 2020, father

stated for the first time that his phone was not working, preventing

him from attending video visits. He also stated, however, that he

had purchased a tablet and “it should no longer be an issue.”

4. Visitation and Kinship Providers’ Order of Protection Against

Father

¶ 23 Last, father asserts that the Department “failed [to] make any

accommodations for the [kinship providers’] protective order against

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[him] that prevented him from attending visits.” Again, the record

clearly contradicts this assertion.

¶ 24 The mandatory protection order father signed at the beginning

of the case prevented him from contacting mother. Father testified

that he thought it also prevented him from contacting the kinship

provider and therefore unfairly limited his contact with the child.

However, father also testified that it was his attorney — and not a

court order — who advised him not to have contact with the kinship

provider, who was a prosecution witness. Ultimately, father

confirmed that the Department “ensured he would have no contact

with [the kinship provider]” during visits.

¶ 25 Given this record, we will not disturb the juvenile court’s

determination that the Department made reasonable efforts to

rehabilitate father.

IV. Fitness in a Reasonable Time

¶ 26 Father also contends that the juvenile court erred when it

determined that he was unfit and unlikely to become fit in a

reasonable time. Specifically, father asserts that he “substantially

complied with all components of his treatment plan.” We disagree.

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¶ 27 As a threshold matter, we are not convinced by the

Department’s assertion that father failed to preserve this claim.

Father’s counsel’s argument that father substantially complied with

the treatment plan, as well as his assertion that father could

provide the child with “minimally adequate parent[ing] upon his

release from jail,” preserved father’s fitness contention for appeal.

¶ 28 The court found that “we are not in a place where we could

find that there’s any likelihood within a reasonable time that

[father] is going to be able to be the minimal, adequate parent that

[the child] deserves.” The record supports this finding.

¶ 29 The juvenile court erroneously found, contrary to record

evidence, that father did not sign a release allowing the caseworker

to access his completed integrated evaluation. The record suggests

that the caseworker had obtained a valid release and spoke with the

therapist about father’s engagement in treatment. This error,

however, is harmless; record evidence otherwise supports the

juvenile court’s conclusion that father had not complied with his

treatment plan and remained unfit. For example, father’s therapist

reported to the caseworker that father stopped participating in

treatment in October 2020, around the same time that father

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testified he had had a breakdown. Similarly, as outlined above,

father had not been in contact with the Department or engaged in

parenting time in many months. Although he had “resolved his

pending criminal matters,” at the time of the termination hearing he

had not yet been sentenced. He testified that it was likely that, on

his release, he would likely have to “comply with substance abuse

classes . . . drug and alcohol classes and all that other stuff,” and

he would likely have “court supervision for . . . the next four years.”

¶ 30 Thus, even though father had signed a release, there is no

record evidence that the child’s best interest would be served by

delaying his permanency. In fact, the caseworker testified that the

child had no relationship with his father and needed “stability and

permanency” through adoption.

¶ 31 Given this record evidence, we perceive no error in the juvenile

court’s determination that father could not become fit within a

reasonable time.

V. Conclusion

¶ 32 We affirm the judgment.

CHIEF JUDGE BERNARD and JUDGE VOGT concur.