Peo in Interest of JMM

21CA0737 Peo in Interest of JMM 01-20-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA0737

El Paso County District Court No. 19JV553

Honorable Theresa M. Cisneros, Judge

The People of the State of Colorado,

Appellee,

In the Interest of J.M.M., a Child,

and Concerning M.M.,

Appellant.

JUDGMENT AFFIRMED

Division VII

Opinion by JUDGE JOHNSON

Berger and Brown, JJ., concur

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

Announced January 20, 2022

Diana K. May, County Attorney, Melanie Douglas, Contract Attorney, Colorado

Springs, Colorado, for Appellee

Gina G. Bischofs, Guardian Ad Litem

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

Appellant

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

appeals the juvenile court’s order terminating her parent-child legal

relationship with J.M.M. (the child). We affirm.

I. Background

¶ 2 The El Paso County Department of Human Services

(Department) filed a petition in dependency and neglect regarding

the one-year-old child. The petition alleged that the Department

received a report of mother using methamphetamine in the

presence of the child. The petition also alleged that mother said she

did not know which drug a urinalysis test “would be positive for” if

she were required to take one. The petition further alleged that the

family home was hazardous, dirty, and cluttered with needles on

the floor. The petition described a previous dependency and neglect

case involving mother and three older children, resulting in the

termination of mother’s parental rights as to those children.

¶ 3 The juvenile court adjudicated the child dependent and

neglected following a jury trial. The court adopted a treatment plan

for mother requiring that she, among other things, (1) complete

substance abuse and mental health evaluations and follow any

recommendations; (2) obtain stable housing and employment; (3)

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participate in life skills and parenting classes; and (4) visit the child

regularly.

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

rights. After a hearing, the juvenile court terminated mother’s

parental rights.

II. Standard of Review

¶ 5 To terminate parental rights, clear and convincing evidence

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

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

successfully rehabilitated by an appropriate, court-approved

treatment plan; (3) the parent is unfit; and (4) the parent’s conduct

or condition is unlikely to change within a reasonable time. § 19-3-

604(1)(c), C.R.S. 2021; People in Interest of C.H., 166 P.3d 288, 289

(Colo. App. 2007).

¶ 6 Where resolution of an issue necessitates application of the

termination statute to evidentiary facts, it presents a mixed

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

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

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

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

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conclusions to be drawn from the evidence are all within the

province of the juvenile court. People in Interest of C.A.K., 652 P.2d

603, 613 (Colo. 1982). But a determination of the proper legal

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

standard to the particular facts of the case are questions of law that

we review de novo. M.A.W. v. People in Interest of A.L.W., 2020 CO

11, ¶ 31.

III. Child’s Best Interests

¶ 7 Mother argues that the juvenile court erred when it found

termination was in the child’s best interests because she

demonstrated a loving bond during visits. We are unpersuaded.

A. Applicable Law

¶ 8 A goal of a treatment plan is to preserve the parent-child

relationship by assisting the parent to overcome problems that led

to the adjudication. People in Interest of K.B., 2016 COA 21, ¶ 11.

It is the responsibility of the parent to successfully complete the

treatment plan. People in Interest of D.P., 160 P.3d 351, 354 (Colo.

App. 2007). The treatment plan objectives must be “reasonably

calculated to render the parent fit to provide adequate parenting to

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the child within a reasonable time.” People in Interest of E.S., 2021

COA 79, ¶ 31; see also K.B., ¶ 13; § 19-1-103(12), C.R.S. 2021.

B. Analysis

¶ 9 The record shows that, despite her care for the child during

the visits she attended, mother did not visit the child regularly.

Mother missed more than half of her scheduled visits and admitted

that, at the time of the termination hearing, she had not seen the

child for three weeks. The juvenile court noted that even if mother

disagreed with the substance abuse and mental health

recommendations from the treatment plan, it expected her to be

more compliant with the visitation plan.

¶ 10 As to the substance abuse and mental health requirements of

the treatment plan, mother had not complied with any of the

recommendations and referrals for services made by the

Department. Although mother testified that she did not have a

substance abuse problem, she admitted that she used

methamphetamine during the case. And mother also admitted that

she did not submit urinalysis tests as recommended by her

substance abuse evaluation.

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¶ 11 Also, mother did not have stable housing or employment and

had not attended any parenting classes.

¶ 12 Because the record supports the findings that mother had not

complied with the treatment plan and visitation with the child had

been irregular, we see no basis to disturb the juvenile court’s

termination judgment.

IV. Less Drastic Alternatives

¶ 13 Mother argues that the juvenile court should have placed the

child permanently with maternal grandmother as a less drastic

alternative to termination. We disagree.

A. Applicable Law

¶ 14 The juvenile court must consider and eliminate less drastic

alternatives before it terminates the parent-child legal relationship.

People in Interest of D.P., 181 P.3d 403, 408 (Colo. App. 2008).

When considering less drastic alternatives, the court bases its

decision on the best interests of the child, giving primary

consideration to the child’s physical, mental, and emotional

conditions and needs. § 19-3-604(3).

¶ 15 A less drastic alternative of long-term or permanent placement

may not be appropriate when it does not provide adequate

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permanence or otherwise meet the child’s needs. People in Interest

of M.M., 726 P.2d 1108, 1122 (Colo. 1986). When determining

whether placement with a relative or other person is a viable

alternative to termination, the juvenile court may consider various

factors, including whether an ongoing relationship with the parent

would be beneficial or detrimental to the child. People in Interest of

A.R., 2012 COA 195M, ¶ 38. This determination will be influenced

by a parent’s fitness to care for his or her child’s needs. See § 19-3-

604(2); A.R., ¶ 38. Long-term placement with a relative is not a

viable less drastic alternative to termination if the child needs a

stable, permanent home that can only be assured by adoption.

People in Interest of M.B., 70 P.3d 618, 627 (Colo. App. 2003).

¶ 16 When the child is less than six years old at the filing of the

petition, the expedited permanency planning (EPP) provisions apply.

§§ 19-1-102(1.6), 19-1-123, C.R.S. 2021; People in Interest of M.T.,

121 P.3d 309, 313 (Colo. App. 2005). The EPP provisions require

that a child be placed in a permanent home as expeditiously as

possible. § 19-1-102(1.6).

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B. Analysis

¶ 17 The record supports the juvenile court’s determination that no

less drastic alternative to termination was available.

¶ 18 Nothing in the record indicates that grandmother was willing

to care for the child. One caseworker testified that the Department

submitted a kinship referral for grandmother but that she did not

respond. The caseworker also testified that grandmother was very

hard to contact and did not stay in communication. Indeed, the

caseworker testified that the Department reached out to

grandmother via phone, left voicemails, and sent a letter but never

received a response. Case reports indicate that the previous

caseworker talked with grandmother about being a placement, but

she did not give a clear answer and said she would “let the

caseworker know.” The Department also reported that it set up a

home visit with grandmother to discuss a possible placement, but

grandmother cancelled and did not reschedule the meeting.

¶ 19 Although it is true that grandmother never explicitly stated

she would not be a placement option for the child, the fact that she

did not respond to the Department’s repeated requests or

communications demonstrated a lack of interest. No evidence in

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the record establishes that grandmother was willing to care for the

child subject to an allocation of parental responsibilities or any

other arrangement.

¶ 20 Even if grandmother was an available placement, the record

likewise establishes that the child needed the permanency that only

adoption could provide. Two caseworkers testified that termination

and adoption by the child’s foster parents were in his best interests.

¶ 21 Based on this record, which included mother’s lack of

compliance with the treatment plan, we cannot conclude that the

juvenile court erred when it found no available less drastic

alternative.

V. Conclusion

¶ 22 We affirm the juvenile court’s judgment.

JUDGE BERGER and JUDGE BROWN concur.