Peo in Interest of AMI

24CA1795 Peo in Interest of AMI 07-24-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1795
City and County of Denver Juvenile Court No. 23JV30162
Honorable Laurie A. Clark, Judge

The People of the State of Colorado,

Appellee,

In the Interest of A.M.I. and M.M.I., Children,

and Concerning F.M.A.N.,

Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE PAWAR
Lipinsky and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 24, 2025

Katie McLouglin, Acting City Attorney, Christina R. Kinsella, Assistant City
Attorney, Denver, Colorado, for Appellee

Debra W. Dodd, Guardian Ad Litem

Elizabeth A. McClintock, Office of Respondent Parent’s Counsel, Colorado
Springs, Colorado, for Appellant
¶1 In this dependency and neglect proceeding, F.M.A.N. (mother)

appeals the juvenile court’s order revoking her deferred

adjudication and adjudicating A.M.I. and M.M.I. (the children)

dependent or neglected. We conclude that the Denver Department

of Human Services did not meet its burden to show that mother

failed to sufficiently comply with the terms of her deferred

adjudication agreement. Accordingly, we reverse and remand with

directions.

I. Background

¶2 In January 2023, the Department received a referral

concerning the then-seven and five-year-old children, who were

living with mother at a homeless shelter. The Department opened

an assessment to work with the family on a voluntary basis because

the shelter’s staff members were concerned about possible medical

and educational neglect, as well as a lack of supervision.

¶3 Two months later, after mother was arrested for refusing to

leave the shelter, the Department obtained an oral order for

temporary legal custody of the children and placed them with their

maternal grandparents.

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¶4 The Department then filed a petition in dependency and

neglect. In addition to its concerns about possible neglect while the

family was living at the homeless shelter, the Department alleged

that mother was previously involved with the Department and had a

history of mental health issues.

¶5 In July 2023, mother admitted paragraph 5(e) of the petition,

in which the Department alleged that the children were homeless,

without proper care, or not domiciled with their parent, guardian,

or legal custodian through no fault of mother. The parties entered

into an agreement (the deferred adjudication agreement) to defer the

adjudication for at least six months as long as mother complied

with several specified terms, including completing a psychological

evaluation, obtaining stable housing, mitigating the Department’s

safety concerns, and understanding the children’s needs.

¶6 Four months later, mother filed a motion to return the

children home, asserting that she had complied with the terms of

the deferred adjudication agreement and that she was a fit parent.

The juvenile court set a hearing on mother’s motion but continued

it at mother’s request. In the meantime, the Department filed a

motion to revoke the deferred adjudication on the grounds that

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mother had failed to sufficiently comply with the deferred

adjudication agreement.

¶7 In April 2024, the juvenile court began a contested hearing

regarding the “return home [motion] and the revocation of the

deferred [adjudication].” The hearing lasted seven days over four

months. After hearing the evidence, the court entered an oral order

granting the Department’s motion to revoke the deferred

adjudication and denying mother’s motion to return the children

home. The court later issued a written adjudicatory and

dispositional order.

II. Discussion

¶8 Mother contends that the juvenile court erred by misapplying

the law governing deferred adjudications. Specifically, she argues

that the Department did not meet its burden to show that she failed

to sufficiently comply with the terms of her deferred adjudication

agreement, and thus, the court’s findings were unsupported by the

record. She also argues that the court failed to follow People in

Interest of N.G., 2012 COA 131, which requires a court to reconsider

the status of the children — i.e., whether they are dependent or

neglected — before revoking a deferred adjudication. Finally,

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mother argues that the juvenile court misapplied N.G. because it

did not make any findings about whether her Troxel presumption —

the presumption that she was acting in the children’s best interests

— had been overcome. See Troxel v. Granville, 530 U.S. 57, 66

(2000).

¶9 We agree with mother that the court’s findings that mother did

not sufficiently comply with the deferred adjudication agreement

lacked record support and we therefore reverse the adjudication.

Because we reverse on this basis, we do not address mother’s other

arguments.

A. Legal Authority and Standard of Review

¶ 10 In dependency and neglect proceedings, an adjudication

represents the juvenile court’s determination that state intervention

is necessary to protect a child and that the family requires

rehabilitative services to safely care for the child. People in Interest

of J.G., 2016 CO 39, ¶ 16. Typically, before adjudicating a child

dependent or neglected, the court must hold a hearing at which the

department is required to prove the allegations in the petition by a

preponderance of the evidence. Id.; see also § 19-3-505, C.R.S.

2024. Alternatively, the court may accept a parent’s admission at

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an adjudicatory hearing. People in Interest of J.W. v. C.O., 2017 CO

105, ¶ 32. The “court’s acceptance of [a parent’s] admission

establishe[s] the status of the children as dependent or neglected.”

Id.

¶ 11 When a parent admits that a child is dependent or neglected,

the parent may defer adjudication by continuing the adjudicatory

hearing. Section 19-3-505(5), provides the process for doing so.

Specifically, when a parent admits the children are dependent or

neglected, a deferred adjudication allows a juvenile court, with all

parties’ consent, to continue the adjudicatory hearing for six

months and to defer entry of judgment. § 19-3-505(5)(a)-(b).

Following the initial six-month period, the juvenile court may

continue the hearing for another six months, after which the court

must dismiss or sustain the petition. § 19-3-505(5)(b).

¶ 12 Whether a child is dependent or neglected presents a mixed

question of fact and law because it requires the application of the

statutory criteria to evidentiary facts. See People in Interest of E.R.,

2018 COA 58, ¶ 5. We review the court’s factual findings for clear

error but review de novo its legal conclusions based on those facts.

People in Interest of A.S.L., 2022 COA 146, ¶ 8.

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B. The Department Did Not Prove That Mother Failed to
Sufficiently Comply with the Deferred Adjudication Agreement

¶ 13 Consistent with the deferred adjudication agreement, mother

was entitled to an “evidentiary hearing [on] whether or not [she had]

sufficiently complied with the terms of this deferred adjudication.”

At the hearing, the Department bore the burden to prove, by a

preponderance of the evidence, that mother failed to sufficiently

comply with the terms of the deferred adjudication agreement. See

Atl. & Pac. Ins. Co. v. Barnes, 666 P.2d 163, 165 (Colo. App. 1983)

(the burden of proof rests “upon the party who asserts the

affirmative of an issue” or “the party seeking to change the status

quo”); see also J.G., ¶ 16, (the burden of proof for adjudicating a

child dependent or neglected is by a preponderance of the evidence).

¶ 14 The Department moved to revoke the deferred adjudication

agreement based on mother’s alleged noncompliance with three of

its terms. In its initial motion to revoke, the Department alleged

that mother failed to comply with the term requiring her to complete

a full psychological exam. Then, during the pendency of the

hearing, the Department filed two amended motions alleging that

mother failed to comply with the terms requiring her to “maintain

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stable housing, adequate for herself and her children” and

“sufficiently mitigate” safety concerns so that the children could be

returned to her custody within ten months of the adoption of the

agreement.

¶ 15 At the evidentiary hearing, the Department was thus required

to prove that, during the deferral period, mother did not (1)

complete the psychological evaluation; (2) obtain stable housing; or

(3) sufficiently mitigate the Department’s safety concerns.

1. Term Requiring Mother to Complete a Psychological
Evaluation

¶ 16 At the conclusion of the evidentiary hearing, the juvenile court

found that mother was “compliant with the psychological evaluation

and following through with those recommendations [and] that she

has engaged in mental health [treatment].” That finding was

supported by the record. Specifically, the evidence established that

although the Department’s approved provider rescheduled mother’s

appointment at least twice, she completed a psychological

evaluation, albeit with a different provider, in February 2024.

¶ 17 We reject the Department and guardian ad litem’s (GAL)

argument that we should affirm the revocation based on mother’s

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failure to comply with the psychological evaluation term because

the juvenile court “could have found” such noncompliance. We do

not reweigh the evidence or substitute our judgment for that of the

juvenile court. People in Interest of K.L.W., 2021 COA 56, ¶ 62; see

also In re Parental Responsibilities Concerning B.R.D., 2012 COA 63,

¶ 15 (when there is record support for the court’s findings, its

resolution of conflicting evidence is binding on review).

¶ 18 Because the juvenile court’s finding that mother complied with

the psychological evaluation term has record support, we cannot

conclude that revocation of the deferred adjudication was warranted

based on a violation of that term.

2. Term Requiring Mother to Obtain Stable Housing

¶ 19 Although the Department moved to revoke the deferred

adjudication based on mother’s alleged failure to secure stable

housing, the juvenile court did not specifically address this term in

its oral ruling or findings. Rather, after making findings about

mother’s compliance with certain terms of the agreement, the court

stated that it “didn’t get enough information” to make findings or

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conclusions about the other terms.1 Thus, despite some evidence

indicating that an eviction proceeding was pending against mother

during the deferral period, we defer to the court’s determination

that the Department failed to provide enough evidence to show

whether mother complied with the housing term or not. See People

in Interest of A.J.L., 243 P.3d 244, 249-50 (Colo. 2010) (it is for the

juvenile court, as the trier of fact, to determine the sufficiency,

probative effect, and weight of the evidence). Accordingly, we

cannot conclude that revocation of the deferred adjudication was

warranted based on mother’s failure to sufficiently comply with the

housing term.

3. Term Requiring Mother to Mitigate Safety Concerns

¶ 20 Next, in support of its order revoking mother’s deferred

adjudication, the juvenile court found that mother failed to

1 The juvenile court specifically addressed mother’s compliance with

the terms requiring her to (1) complete a psychological evaluation;
(2) abstain from leaving the state of Colorado with the children; (3)
obtain employment or another legal source of income; (4) complete
Department-approved parental education; (5) consistently attend
family time; (6) cooperate with the Department and the GAL; (7)
understand the children’s physical, emotional, and mental health
needs; and (8) sufficiently mitigate safety concerns to return the
children to her within ten months of the deferred adjudication
agreement.

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sufficiently mitigate safety concerns in a manner that would allow

the Department to safely return the children to her. However, the

court did not explain what those remaining safety concerns were,

nor did it credit specific testimony or evidence showing that mother

had not mitigated those concerns. In other words, the court made

no findings in support of its determination regarding the

Department’s safety concerns.

¶ 21 In its closing argument, the Department argued that “the

safety concerns are the exact same” as outlined in the petition. But

our review of the record reveals that the Department did not present

any evidence to show that the safety concerns described in the

petition still existed during the deferral period. See Robertson v

People, 2017 COA 143M, ¶ 35 (arguments of counsel are not

evidence). And although mother had also filed a motion seeking

return of her children, that did not excuse the Department from

proving, as grounds for revoking the deferred adjudication, that

mother failed to substantially comply with certain terms of the

deferred adjudication agreement as alleged in its motions. The

Department’s burden necessarily included proving its safety

concerns. To the contrary, numerous witnesses, including a

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visitation supervisor called to testify by the Department, stated they

had no safety concerns about mother’s ability to parent the

children.

¶ 22 Notably, the Department did not call the caseworker assigned

to this case to testify about the safety concerns during the deferral

period and the ways in which mother either addressed or failed to

mitigate those concerns. Rather, the Department and the GAL

point us to a previously assigned caseworker’s testimony as record

support for the court’s finding that safety concerns remained at the

time of revocation. But that caseworker admitted she had worked

with the family years earlier (between 2020 and 2021) and did not

have a “picture of what things look like today.” Thus, her testimony

could not establish that there were remaining safety concerns at the

time of the hearing.

¶ 23 Additionally, the Department and the GAL point to a visitation

supervisor’s testimony as record support for the juvenile court’s

finding that mother failed to mitigate the safety concerns. Although

that visitation supervisor testified months earlier and in connection

with the Department’s motion to change the location of family time,

not the Department’s motion to revoke the deferred adjudication,

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the court stated that it would consider the testimony as to both

motions. But the safety concerns about which the visitation

supervisor testified were based on three family time sessions that

occurred five months before the court revoked mother’s deferred

adjudication. The supervisor expressed concerns about mother’s

ability to discipline the children, set boundaries, and keep the

children safe around her dog. But even assuming this testimony

established the Department’s safety concerns, it did not establish

that mother failed to mitigate those concerns within ten months of

entering into the deferred adjudication agreement.

¶ 24 In sum, the juvenile court did not credit or point to any

evidence to support its determination that that mother failed to

mitigate any safety concerns during the deferral period. Neither the

Department nor the GAL direct us to any supporting evidence, and

our review of the record does not reveal any such evidence.

¶ 25 Because it lacks record support, the court’s finding that

mother failed to mitigate the Department’s safety concerns by the

time of revocation was clearly erroneous. See In re Parental

Responsibilities of S.Z.S., 2022 COA 105, ¶ 11. Accordingly, we

cannot conclude that revocation of the deferred adjudication was

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warranted based on mother’s failure to comply with the term

requiring her to sufficiently mitigate safety concerns.

4. Term Requiring Mother to Understand the Children’s Needs

¶ 26 Last, the juvenile court found that mother did “not understand

the physical, emotional, or mental health needs of the children” and

noted that understanding the children’s needs was a term of the

deferred adjudication agreement. Again, we conclude that the

record did not support this finding because the Department failed

to present evidence establishing the children’s needs or how mother

did not understand them.

¶ 27 We note that the Department never moved to revoke the

deferred adjudication based on mother’s alleged failure to

understand the physical, emotional, or mental health needs of the

children. Although we question whether mother received notice

that the court might revoke on this deferred agreement term,

mother does not argue on appeal that revocation based on this term

constituted a due process violation, so we do not consider it.

Nonetheless, the fact that the Department never cited this term

when it moved for revocation sheds some light on what we perceive

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as the Department’s failure to present any evidence related to this

term.

¶ 28 In any event, as noted above, we would defer to the court’s

finding that mother did not understand the children’s needs if it

was supported by the record. See People in Interest of S.R.N.J-S.,

2020 COA 12, ¶ 10. But in its oral ruling, the juvenile court did not

explain what it found to be the children’s needs, nor did it credit

any evidence establishing what they were or how mother did not

understand them.

¶ 29 We acknowledge that the court found mother’s psychiatrist’s

testimony to be credible. But the psychiatrist did not testify about

the children’s needs, nor did she testify that mother did not

understand them. Rather, she testified that, while issues dealing

with parenting were “outside of [her] scope,” mother’s mental health

diagnosis did not create a barrier to her parenting.

¶ 30 We also acknowledge the court’s finding that mother’s

psychological evaluation was insufficient and lacked helpful

recommendations. To that end, the Department and the GAL assert

that “the deficiencies of the psychological evaluation contributed to

the court’s concerns about mother’s ability to understand the

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children’s physical, emotional, or mental health needs.” However,

to support this argument, they point to testimony provided by a

psychologist who neither evaluated mother nor directly worked with

the family. Thus, although that expert opined that mother’s

psychological evaluation was insufficient to establish whether she

had mental health issues, the expert could not explain anything

about the children’s needs or mother’s ability to understand them.

¶ 31 Moreover, the Department and the GAL assert that mother’s

own testimony supported the juvenile court’s finding that she did

not understand her children’s needs. Specifically, they point to her

testimony about whether she would allow the children to continue

therapy with their current provider or stay at their current school if

they were returned to her. True, mother did not give definitive

answers when asked, hypothetically, whether she would allow the

children to continue therapy with their current provider or stay at

the same school if they were returned to her care. However, the

Department did not present any evidence to establish that the

children needed to continue therapy with their current provider or

that they needed to stay in their current school. Thus, this

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testimony was not dispositive of whether mother understood the

children’s needs.

¶ 32 The Department and the GAL also point to testimony from

hearings in July 2023 and January 2024, as well as a caseworker’s

court report from January 2023, to support their contention that

mother would not consent to the children’s therapy. But this

testimony and court report were not offered as evidence during the

revocation hearing, and thus, we will not consider them. See

Boulder Plaza Residential, LLC v. Summit Flooring, LLC, 198 P.3d

1217, 1222 (Colo. App. 2008) (recognizing that

an appellate court will not consider evidence that a party failed to

introduce at trial).

¶ 33 Finally, the Department and the GAL assert that the evidence

established that mother did not understand the younger child’s

medical needs; specifically, that mother did not understand that the

child did not have foot pain or an injury, as mother believed.

Indeed, mother testified that when the Department became involved

with the family, the child had severe foot pain that required her to

repeatedly take him to urgent care and carry him everywhere. And

she admitted that after child was placed with maternal

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grandparents, she had witnessed him “walking around” even

though he still asked her to carry him. However, the Department

did not present any evidence to establish that mother’s concerns

about the child’s foot were unwarranted, thereby showing that she

did not understand his needs. For example, the Department did

not call anyone familiar with the child or the true nature of the

injury, such as maternal grandmother or the child’s doctor, to

testify. And without any evidence showing that mother’s concerns

about the child’s foot were unwarranted, the testimony about the

alleged injury could not support a finding that mother did not

understand his medical needs.

¶ 34 The Department and the GAL also point to the caseworker’s

court report from September 2024 to support their assertion that

the child “no longer had issues with his feet” after he was placed

with maternal grandparents. But this court report was not

admitted into evidence at the revocation hearing; rather, it was only

filed after the hearing had concluded. Moreover, the Department

did not call the caseworker who wrote the report to testify at the

revocation hearing. Thus, we will not consider it. See id.

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¶ 35 In sum, the juvenile court did not credit any evidence to

support its finding that mother did not understand the children’s

needs. Neither the Department nor the GAL directs us to any

evidence establishing the children’s needs and how mother failed to

understand them. And our review of the record does not reveal any

such evidence. Thus, because the court’s finding that mother did

not understand the children’s needs lacked record support, it was

clearly erroneous. See S.Z.S., ¶ 11. Accordingly, we cannot

conclude that revocation of the deferred adjudication was warranted

based on mother’s failure to comply with the term requiring her to

understand the children’s needs.

C. The Juvenile Court Was Required to Dismiss the Petition

¶ 36 Based on the foregoing, we hold that the court’s order revoking

mother’s deferred adjudication and entering the adjudicatory

judgment must be reversed. It follows that the subsequent

dispositional order requires reversal as well.

¶ 37 On remand, the juvenile court must dismiss the petition.

Under section 19-3-505(5)(b), the juvenile court “shall” either

dismiss or sustain the petition after the second six-month deferral

period has passed. Both six-month deferral periods had passed by

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the time the court revoked the deferred adjudication and entered

judgment. Thus, the court had only two options at the end of the

revocation hearing — to dismiss or sustain the petition.

¶ 38 Based on our conclusion above, the court’s only option was to

dismiss the Department’s petition in dependency and neglect.

III. Disposition

¶ 39 The adjudicatory judgment and dispositional order are

reversed. On remand, the juvenile court shall dismiss the

Department’s petition in dependency and neglect.2

JUDGE LIPINSKY and JUDGE LUM concur.

2 Nothing in this disposition precludes the Department from filing a

new petition in dependency and neglect if circumstances warrant.

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