Peo in Interest of NC

24CA1067 Peo in Interest of NC 02-13-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1067
El Paso County District Court No. 21JV415
Honorable Diana K. May, Judge

The People of the State of Colorado,

Appellee,

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

and Concerning B.R-V.,

Appellant.

JUDGMENT AFFIRMED

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

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 13, 2025

Kenneth Hodges, County Attorney, Shannon Boydstun, Assistant County
Attorney, Colorado Springs, Colorado, for Appellee

B. Kate Harvey, Guardian Ad Litem

The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for
Appellant
¶1 In this dependency and neglect action, B.R-V. (mother)

appeals the judgment terminating her parent-child legal

relationship with N.C. (the child). We affirm.

I. Background

¶2 In 2019, the El Paso County Department of Human Services

(the Department) filed a petition in dependency and neglect, alleging

concerns about mother’s substance use. Mother successfully

completed a treatment plan, and the juvenile court dismissed the

dependency and neglect action in 2020.

¶3 A little more than a year later, the Department received a

series of referrals with concerns about physical and sexual abuse of

the then-three-year-old child. The Department filed another

petition in dependency and neglect. The juvenile court granted

temporary custody of the child to the Department and issued a

protective order requiring supervised family time between mother

and the child.

¶4 The juvenile court adjudicated the child dependent and

neglected. The court adopted a treatment plan for mother which

required that she provide a safe and stable home environment for

the child, improve her protective parenting skills, participate in

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family time, and address her mental health and substance abuse

concerns. Mother was being held at the county jail on a short

sentence when the treatment plan was adopted, and the court

acknowledged that mother’s participation in some elements may be

limited to times she was out of custody.

¶5 Mother was released from custody shortly after the treatment

plan was adopted and participated in life skills and individual

therapy. Mother’s life skills and mental health providers later

testified that she engaged only sporadically and that they had

concerns about her ability to be a safe and protective parent.

Nonetheless, ten months after the petition was filed, the

Department returned the child to her care and custody when she

obtained stable housing. That return home, however, was short

lived.

¶6 After the child had been home with mother for about four

months, the Department received a new referral with concerns

about mother’s substance use. The juvenile court removed the

child from mother’s home for the second time and issued a new

order for supervised family time. Initially, the child was placed with

maternal family members and the Department moved for an

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allocation of parental responsibilities. However, the Department

withdrew the motion when the maternal family members decided

not to be placement providers for the child.

¶7 About two months later, mother was arrested. Mother was

held at the county jail for three months and then transferred to the

Department of Corrections (DOC), where she remained at the time

of the termination hearing. After her sentencing, the Department

moved to terminate mother’s parental rights.

¶8 Three years after the filing of the petition and almost two years

after the child’s second removal, the juvenile court terminated

mother’s parental rights following a contested hearing.

II. Reasonable Efforts

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

the Department provided reasonable efforts to reunify her after her

incarceration. Although we agree, we conclude that the error was

harmless.

A. Standard of Review

¶ 10 Whether a department satisfied its obligation to make

reasonable efforts to reunify the family is a mixed question of fact

and law. We review the juvenile court’s factual findings related to

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reasonable efforts for clear error but review de novo the court’s legal

determination, based on those findings, as to whether a department

satisfied its reasonable efforts obligation. People in Interest of

A.S.L., 2022 COA 146, ¶ 8.

B. Applicable Law

¶ 11 Before a court may terminate parental rights under section

19-3-604(1)(c), C.R.S. 2024, a county department of human

services must make reasonable efforts to rehabilitate parents and

reunite families. §§ 19-3-100.5(1), 19-1-103(114), 19-3-208, 19-3-

604(2)(h), C.R.S. 2024. “Reasonable efforts” means “the exercise of

diligence and care” for children in out of home placement. § 19-1-

103(114).

¶ 12 To that end, services that are provided in accordance with

section 19-3-208 are consistent with reasonable efforts. § 19-1-

103(114). The services that “must be available and provided,” as

relevant here, include family time. § 19-3-208(2)(b). A child is

entitled to in-person family time unless a court finds that the child’s

health and safety is endangered by face-to-face contact. People in

Interest of D.G., 140 P.3d 299, 305 (Colo. App. 2006). Any ongoing

restriction of family time must be supported by a court order

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finding that the restriction “is necessary to protect the child’s or

youth’s safety or mental, emotional, or physical health.” § 19-3-

217(1.5)(d), C.R.S. 2024. A parent’s incarceration, in and of itself,

doesn’t excuse a department from making reasonable efforts,

including providing family time services. See §§ 19-3-507(1)(f)(I),

19-3-508(1)(e), C.R.S. 2024.

¶ 13 To evaluate whether a department made reasonable efforts,

the 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). Whether a

department made reasonable efforts “must be measured holistically

rather than in isolation with respect to specific treatment plan

objectives.” People in Interest of My.K.M. v. V.K.L., 2022 CO 35,

¶ 35. 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

a department made reasonable efforts. See People in Interest of

A.V., 2012 COA 210, ¶ 12.

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C. Analysis

¶ 14 Here, the juvenile court made a perfunctory finding that the

Department made reasonable efforts. The court determined that

mother failed to comply with services offered under the treatment

plan before her incarceration. The court acknowledged mother’s

contention that the Department failed to exert efforts after her

incarceration but “disagree[d],” noting that the caseworker

“communicated with mother through letters and requested

releases.”

¶ 15 But requesting releases and responding to three of mother’s

letters during the ten months of mother’s incarceration doesn’t

amount to providing screenings, assessments, referral services, or

family time that “must be available and provided” to all families

when a child is in out of home placement. § 19-1-208(2)(b). These

minimal efforts didn’t meet the reasonable efforts standard.

¶ 16 Once mother was incarcerated at the DOC, the caseworker’s

reports filed with the court regarding mother’s services were

identical and limited to a single sentence: “all services have been

closed due to [mother’s] incarceration.” At the termination hearing,

the caseworker testified that she never went to the DOC facility

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where mother was housed, although she knew the facility and it

was less than fifty miles away.

¶ 17 In its answer brief, the Department doesn’t deny that it failed

to provide mother with family time services. Instead, it claims,

without citing to the record, that family time wasn’t going well

before mother’s incarceration. Even if this assertion was true,

family time may not be suspended because of failure to comply with

the treatment plan, and it is the juvenile court — not a department

— who must determine whether a child’s health or safety is

endangered by family time and issue orders restricting that family

time if appropriate. See People in Interest of B.C., 122 P.3d 1067,

1070-71 (Colo. App. 2005); see also § 19-3-217(1.5)(f) (“The court or

the county department shall not limit family time as a sanction for

a parent’s failure to comply with court orders or services if the

child’s or youth’s safety or mental, emotional, or physical health is

not at risk as a result of the family time.”). Regardless, in this case

the Department didn’t seek to amend the level of family time and

didn’t provide services. Moreover, there is no indication in the

record that the Department provided any support to the child’s

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placement providers to set up family time at the DOC between the

child and mother.

¶ 18 However, we “must disregard any error or defect in the

proceeding which does not affect the substantial rights of the

parties.” C.R.C.P. 61. “An error affects a substantial right only if it

can be said with fair assurance that the error substantially

influenced the outcome of the case or impaired the basic fairness of

the trial itself.” People in Interest of C.C., 2022 COA 81, ¶ 20

(internal quotations omitted). And, in the end, we aren’t persuaded

that the Department’s failure to provide reasonable efforts after

mother’s incarceration in the DOC impacted the outcome of the

dependency and neglect action.

¶ 19 The juvenile court found that mother didn’t regularly engage

in the case or services prior to her incarceration. True, the record

suggests that mother must have made some progress in the first

year of the action because the court briefly returned custody of the

child to her. There was, however, no evidence at all presented

during the termination hearing about the first eight months after

the child’s second removal. Nonetheless, the scant evidence that

was presented suggested that mother failed to consistently engage

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in services even before the child was returned to her care. And a

family time supervisor testified that mother attended only half of

the family time available to her in the month before her arrest and

incarceration.

¶ 20 Most importantly, the juvenile court found that mother was

unfit because she continued to demonstrate “the same non-

protective behavior” that was alleged when the petition was filed.

The court found that mother was “making excuses and minimizing

or just outright not believing allegations” made by the child.

¶ 21 The record supports these findings. Mother testified that she

was engaged in services at the DOC, including mental health and

substance abuse treatment. But despite this recent engagement

and nearly a year of services focused on protective parenting at the

beginning of the case, mother’s testimony reflected a lack of insight

into the safety risks that men in her life posed to the child. Mother

testified that the dependency and neglect action opened because

her “problem was just having a heart or passion for — for certain

things, certain people.” Mother testified that she “lik[ed] a male

presence,” and people she considered family “did sometimes, time to

time, see [the child].” Mother named three individuals she

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considered family, including several men that the Department

specifically requested not be in contact with the child because of

existing protective orders, criminal child abuse charges, and reports

from the child that they weren’t safe, put cigarettes out on her

body, and sexually abused her. Despite these concerns, mother

insisted that “none of [these individuals] hurt” the child and

minimized the multiple cigarette burns reported to the Department

by explaining the child was burned once while climbing over one of

the men on a couch. Mother testified that she didn’t believe the

child’s reports of sexual abuse, although the caseworker testified

that the sexual abuse was “very prevalent” in the child’s processing.

At the beginning of the termination hearing, mother asked the court

to recognize an individual as the child’s psychological father; the

caseworker later testified that the child was listed as a victim in this

individual’s domestic violence and child abuse cases.

¶ 22 Given this evidence and the court’s findings, the Department’s

failure to provide services to mother in the DOC was harmless.

III. Fitness in a Reasonable Period of Time

¶ 23 Mother next contends that the juvenile court erred by finding

that she wouldn’t become fit within a reasonable period of time.

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Specifically, mother contends that she made “significant progress

before her incarceration,” was engaged in services while serving her

DOC sentence, and maintained a relationship with her child that

should have been preserved. We aren’t persuaded.

¶ 24 When determining if a parent is likely to change within a

reasonable time, “the court may consider whether any change has

occurred during the proceeding, the parent’s social history, and the

chronic or long-term nature of the parent’s conduct or condition.”

People in Interest of S.Z.S., 2022 COA 133, ¶ 24. The court need not

give a parent additional time, even when there has been recent

progress on the treatment plan. Id. at ¶¶ 24, 28-29. An unfit

parent is one whose conduct or condition renders them “unable or

unwilling to give the child reasonable parental care to include, at a

minimum, nurturing and safe parenting sufficiently adequate to

meet the child’s physical, emotional, and mental health needs and

conditions.” § 19-3-604(2).

¶ 25 What constitutes a reasonable time is fact specific and must

be determined by considering the physical, mental, and emotional

conditions and needs of each particular child. Id. at ¶ 25. When,

as here, a child is under six years old at the time of the filing of the

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petition, the action is subject to the expedited permanency planning

provisions and the court must consider the child’s need to be

placed in a permanent home as expeditiously as possible.

§§ 19-1-102(1.6), 19-1-123, C.R.S. 2024.

¶ 26 As discussed in detail above, the juvenile court determined,

with record support, that mother was unfit based on her lack of

engagement and inability to act as a protective parent. Although

the juvenile court briefly returned the child to mother’s custody ten

months after the petition was filed, the evidence presented at the

termination hearing suggested that mother’s progress on her

treatment plan was minimal at the time the child was returned.

¶ 27 The court considered mother’s recent engagement with

services at the DOC but determined “those do not negate the almost

three years of . . . consistent behaviors and lack of appreciation [of]

the needs, the best interests of her child.” The court’s

determination that mother’s behaviors continued to endanger the

child are supported by the record.

¶ 28 The juvenile court found that the child didn’t have a

significant bond with mother. At the time of the termination

hearing, the child was almost seven years old and the dependency

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and neglect action had been open for almost three years. The court

noted that the child was in mother’s care less than two years in her

lifetime over the course of two dependency and neglect cases. Only

one visitation supervisor testified concerning just a month-long

period, but the evidence before the court was that mother didn’t

regularly attend family time during that period.

¶ 29 Most importantly, the juvenile court considered this child’s

need for permanence. The court determined that the child needed a

stable home in part because of her young age. The juvenile court

determined that termination was in this child’s best interests. The

caseworker testified that the child struggled with attachment and

appropriate boundaries and needed stability and predictability. The

caseworker, an expert in child protection, opined that the child

needed to “not be in this state of flux and unknown and

apprehension.” The caseworker further opined that the child

needed permanency quickly so that she could know a “forever”

home and that termination of mother’s parental rights was in the

child’s best interests.

¶ 30 Given the record support for the juvenile court’s findings

regarding mother’s lack of progress over the long course of the

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dependency and neglect action and the child’s immediate need for

permanency, we discern no error in the court’s conclusion that

mother couldn’t become fit in a period of time that would be

reasonable for the child.

IV. Disposition

¶ 31 The judgment is affirmed.

JUDGE BROWN and JUDGE MOULTRIE concur.

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