People ex rel. J.W. and N.W

COLORADO COURT OF APPEALS 2016COA125

Court of Appeals No. 15CA1698
Clear Creek County District Court No. 14JV8
Honorable D. Wayne Patton, Judge
Honorable Ruthanne Polidori, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of J.W. and N.W., Children,

and Concerning C.O.,

Respondent-Appellant.

JUDGMENT AND ORDER VACATED
AND CASE REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE ROMÁN
Harris, J., concurs
Hawthorne, J., concurs in part and dissents in part

Announced August 25, 2016

Robert Loeffler, County Attorney, Sue S. Thibault, Assistant County Attorney,
Georgetown, Colorado, for Petitioner-Appellee

Wendy M. Hickey, Guardian Ad Litem

C.O., Pro Se
¶1 C.O. (mother) appeals from the judgment terminating the

parent-child legal relationships between her and J.W. and N.W.

(children) and from the order adjudicating the children dependent

or neglected with respect to her. Because the court issued the

adjudication order after the court entered judgment terminating

mother’s parental rights, and not before, we conclude that the court

did not acquire jurisdiction to terminate the parent-child

relationship. In addition, because the adjudication order was

entered after mother filed her notice of appeal, we also conclude

that the court lacked jurisdiction to enter that order as well.

Accordingly, we vacate both the judgment and the order and

remand for further proceedings.

I. Background

¶2 In May 2014, the Clear Creek County Department of Human

Services (the department) sought temporary protective custody of

J.W., then five years old, and N.W., then ten months old, citing

serious (and ultimately fatal) injuries suffered by an unrelated child

residing in the home and ongoing concerns about mother’s ability to

protect the children. The department noted that the family had

been the subject of several previous referrals concerning drug use,

1
domestic violence, and possible physical abuse of the children,

including an allegation that J.O., the children’s maternal uncle, had

choked J.W. When confronted with the latter allegation, mother

was protective of her brother, denying that he would ever do

anything to hurt the child.

¶3 Soon after being granted temporary custody of the children,

the department filed a petition in dependency or neglect, alleging

that the children were dependent or neglected for the reason set

forth in section 19-3-102(1)(a), C.R.S. 2015, which provides that a

child is dependent or neglected if “[a] parent, guardian, or legal

custodian has abandoned the child or has subjected him or her to

mistreatment or abuse or a parent, guardian, or legal custodian has

suffered or allowed another to mistreat or abuse the child without

taking lawful means to . . . prevent it from recurring.” As factual

support for this allegation, the department cited, among other

things, mother’s lack of protectiveness when faced with the

allegation that her brother had choked J.W. Mother denied the

allegations.

¶4 Shortly before the adjudicatory hearing, the department filed

an amended petition in dependency or neglect. This time the

2
department did not allege that mother had abandoned the children,

subjected them to mistreatment or abuse, or allowed another to

mistreat or abuse them without taking lawful means to prevent it

from recurring. It alleged instead that the children were dependent

or neglected for the reasons set forth in section 19-3-102(1)(b),

which provides that a child is dependent or neglected if “[t]he child

lacks proper parental care through the actions or omissions of the

parent,” and in section 19-3-102(1)(c), which provides that a child is

dependent or neglected if “[t]he child’s environment is injurious to

his or her welfare.”1

¶5 Mother’s adjudicatory trial took place on July 10 and 11,

2014. Following the trial, the jury was asked to decide (1) whether

the children were dependent or neglected because their

environment was injurious to their welfare; and (2) whether the

children were dependent or neglected because they lacked proper

parental care through the actions or omissions of their parent,

guardian, or legal custodian.

¶6 The trial did not result in an adjudication.

1Father entered a “no fault” admission to the petition, and on July
10, 2014, the court adjudicated the children dependent or neglected
with respect to him.

3
¶7 Instead, the jury answered “no” to the question asking

whether the children lacked proper parental care through the

actions or omissions of their parent, guardian, or legal custodian.

It further stated that it was “unable to return an answer” to the

question asking whether the children’s environment was injurious

to their welfare.

¶8 On July 14, 2014, a hearing was held to discuss scheduling a

new adjudication trial for mother. Rather than delay the

proceedings by requesting a retrial, mother chose to admit that the

children’s environment was injurious to their welfare. The trial

court accepted her admission. The parties agree that mother was

not offered a deferred adjudication under section 19-3-505(5)(a),

C.R.S. 2015, and that the court did not enter a formal order

adjudicating the children dependent or neglected at the hearing.

See § 19-3-505(7)(a) (“When the court finds that the allegations of

the petition are supported by a preponderance of the evidence . . .

the court shall sustain the petition and shall make an order of

adjudication setting forth whether the child is neglected or

4
dependent.”). Instead, the court proceeded to adopt the treatment

plan that was already in place as her treatment plan going forward.2

¶9 A few months later, the court terminated mother’s parental

rights, finding that although mother loved the children and had

made efforts to comply with her treatment plan, she could not meet

the children’s needs.

¶ 10 On October 30, 2015, more than a month after mother’s

parental rights were terminated, the court entered a written order

adjudicating the children dependent or neglected with respect to

her.

2 In June 2014, a “Family Services Plan” was submitted to the
court. Among other things, the department recommended that
mother participate in a psychological evaluation and follow the
recommendations of the evaluator; participate in weekly individual
therapy with a provider that she and the department mutually
agreed upon; participate in therapeutic visits with the children and
follow any recommendations made by the visit supervisor; and sign
all necessary releases of information so that the department could
make referrals for services and evaluations, receive information
from the service providers and evaluators, and allow providers to
communicate with one another to coordinate services. On July 10,
2014, the court adopted the department’s recommendations, and
on July 14, the court approved those recommendations as mother’s
treatment plan.

5
II. Timeliness of the Appeal

¶ 11 As an initial matter, we address the department’s contention

that the appeal is untimely with respect to issues arising during the

adjudicatory stage of the proceeding. It argues the appeal of such

issues is untimely because, although the court did not sign a

written order adjudicating the children dependent or neglected with

respect to mother until October 30, 2015, mother acknowledged in

her petition on appeal that the adjudication and disposition order

was “made” on July 14, 2014. We disagree that the appeal is

untimely.

¶ 12 To begin, mother is appealing an order purporting to terminate

her legal relationship with her children; therefore, this is a final

appealable order under section 19-1-109(2)(b), C.R.S. 2015. Simply

put, mother contends that the department did not prove all of the

essential elements under section 19-3-604(1)(c), C.R.S. 2015.

¶ 13 As for the adjudicatory order, it is well established that “an

order or judgment must be reduced to writing and dated and signed

before it is a final, appealable order.” People in Interest of O.J.S.,

844 P.2d 1230, 1233 (Colo. App. 1992) (citing C.R.C.P. 58), aff’d

sub nom. D.A.S. v. People, 863 P.2d 291 (Colo. 1993). Thus, if the

6
court sustains the petition in dependency or neglect and adopts a

treatment plan for a parent, but does not reduce the adjudicatory

and dispositional orders to writing, those orders are not final and

appealable until the entry of a judgment of termination or other

final and appealable order. See People in Interest of T.E.M., 124

P.3d 905, 907-08 (Colo. App. 2005) (holding that where the record

established that children were adjudicated dependent or neglected

and a treatment plan was adopted for the parent, but the orders

were not reduced to writing, the orders became appealable upon

entry of the judgment of termination).

¶ 14 Here, the court entered a written order purporting to

adjudicate the children dependent or neglected with respect to

mother and adopt a treatment plan for her, but it did not do so

until October 30, 2015, more than a month after entering the

judgment terminating her parental rights. Because the termination

order was entered before an adjudicatory order was entered, it was

the termination order that allowed mother to appeal issues arising

during the adjudicatory stage of the proceeding.

7
III. Jurisdiction

A. The Termination Order

¶ 15 We next consider whether the trial court had jurisdiction to

terminate mother’s parental rights before it entered an order

adjudicating the children dependent or neglected with respect to

her. We conclude that it did not.

¶ 16 Although mother did not initially raise this issue, in a

dependency or neglect proceeding the court’s subject matter

jurisdiction is based on the fact of the child being dependent or

neglected, and a challenge to a court’s subject matter jurisdiction

may be raised at any time. See § 19-1-104(1)(b), C.R.S. 2015;

People in Interest of N.D.V., 224 P.3d 410, 414 (Colo. App. 2009).

¶ 17 In supplemental briefing requested by this court,3 mother

argues that the children were not adjudicated dependent or

neglected until after the court entered the written order of

adjudication in October 2015, and, therefore, the court did not have

jurisdiction to terminate her parental rights. We agree that when

3 Under C.A.R. 3.4(j)(2) (2015), in effect at all relevant times during
this appeal, “[a]fter reviewing the petition on appeal, any response,
and the record, the Court of Appeals may . . . set the case for
supplemental briefing on issues raised by the parties or noticed by
the court.”

8
the court terminated mother’s parental rights, it did not have

jurisdiction to do so.

1. Law

¶ 18 For a parent involved in a dependency or neglect proceeding,

the entry of an adjudicatory order is a critically important turning

point. The purpose of the adjudicative process is to “determine

whether the factual allegations in the dependency or neglect

petition are supported by a preponderance of the evidence” such

that the child’s status “warrants intrusive protective or corrective

state intervention into the familial relationship.” People in Interest

of J.G. v. M.L., 2016 CO 39, ¶ 18 (citations omitted). Thus, if a

parent admits the allegations in the petition in dependency or

neglect — or if the state, in a contested case, proves the allegations

— then the court may enter an adjudicatory order, which vests the

court with “extensive and flexible dispositional remedies.” People in

Interest of A.M.D., 648 P.2d 625, 639-40 (Colo. 1982).

¶ 19 Alternatively, if the parent denies the allegations and the state

fails to prove them, the court must order the petition dismissed and

the child, as well as his or her parents, guardian, or legal

custodian, discharged from any restrictions or temporary orders.

9
§ 19-3-505(6); People in Interest of A.H., 271 P.3d 1116, 1121 (Colo.

App. 2011).

¶ 20 Although the purpose of adjudication is to determine whether

state intervention into the familial relationship is necessary to serve

the best interests of the children, the determination must be made

in a manner that protects parental rights. J.G., ¶ 24. Recognizing

“the bedrock principle” that the right to parent one’s children is a

fundamental liberty interest, our supreme court has held that

intervention into that interest requires “fundamentally fair

procedures.” Id. at ¶ 20 (citation omitted).

¶ 21 Discovering what fundamental fairness consists of in a

particular situation is often an “uncertain enterprise,” but due

process requires the court to make the inquiry. A.M. v. A.C., 2013

CO 16, ¶ 28 (citation omitted). Ensuring a fair procedure at the

adjudicatory stage is critical because “termination is impossible

absent the preliminary determination that the child is dependent

and neglected.” Id. at ¶ 29.

¶ 22 The importance of the adjudicatory stage is reflected in the

fact that a parent has a statutory right to a jury trial on the

allegations set forth in the petition in dependency or neglect.

10
§ 19-3-202, C.R.S. 2015; People in Interest of A.M., 786 P.2d 476,

479 (Colo. App. 1989). The parent may elect to waive his or her

right to a jury trial and may confess, stipulate, or elect not to

contest part or all of the allegations in a dependency or neglect

petition. If a parent admits part or all of the allegations in the

petition, “the court may accept the admission after finding that (1)

the parent understands his or her rights, the allegations contained

in the petition, and the effect of the admission; and (2) the

admission is voluntary.” N.D.V., 224 P.3d at 417 (citing C.R.J.P.

4.2(c)). If the court accepts the parent’s admission, the state is

relieved from the burden of proving such admitted allegations at the

adjudicatory hearing. C.R.J.P. 4.2(c); A.M., 786 P.2d at 479. But

the statute does not provide any short cuts. The court must take

the next step after accepting an admission — namely, it must

adjudicate the child dependent or neglected. § 19-3-505(7)(a).

¶ 23 Indeed, in order to terminate parental rights in a dependency

or neglect proceeding, the court must first find that the child who is

the subject of the proceeding “has been adjudicated dependent or

neglected.” § 19-3-604(1)(a), (b), (c). Without an adjudication, a

court does not acquire subject matter jurisdiction to terminate a

11
parent-child relationship. See A.M.D., 648 P.2d at 639-40; N.D.V.,

224 P.3d at 421 (Lichtenstein, J., dissenting). This is because the

General Assembly’s statutory grant of subject matter jurisdiction is

limited until the adjudication order has been entered. N.D.V., 224

P.3d at 421 (Lichtenstein, J., dissenting). Stated differently, while

the General Assembly has provided jurisdiction “[t]o terminate the

legal parent-child relationship,” § 19-1-104(1)(d), “this statutory

provision presupposes an adjudication of the child as dependent or

neglected.” N.D.V., 224 P.3d at 423 (Lichtenstein, J., dissenting);

see also A.M.D., 648 P.2d at 639-40.

2. Application

¶ 24 In this case, an adjudicatory trial was held in July 2014. At

the conclusion of the trial, the jury found in mother’s favor on one

of the questions presented to it and was unable to reach a verdict

on the other question. During a subsequent hearing, mother’s

attorney informed the court that he and mother had discussed

further proceedings with the county attorney, and mother “seem[ed]

to be receptive to admitting” the remaining allegation against her at

that point. He noted, however, that mother wanted very much to

file an administrative challenge to the allegations of child abuse

12
found in the state’s child abuse database because, as a teacher, she

did not want to have a child abuse report on her record. He

explained that she was concerned about the possibility that

entering an admission to the petition in dependency or neglect

would affect the administrative appeal. The attorney admitted that

he did not know the answers to mother’s questions, and so he had

not advised her one way or the other.

¶ 25 The trial court then questioned mother about her

understanding of the proceedings and her desire to enter an

admission that the children were in an injurious environment.

Mother told the court that she wanted to enter an admission

because she “want[ed] to get [her] kids back the speediest way” she

could, and it would take time for a new trial.

¶ 26 The trial court then ruled as follows: “All right, then, I’m

willing to prepare – I’ll make [sic] the admission that the mother’s

entered the admission that the child – children’s environment is

injurious.”

¶ 27 Significantly, the court did not state at any time during the

July 14 hearing — or at any other time prior to the termination

order — that it was adjudicating the children dependent or

13
neglected with respect to mother. § 19-3-505(7)(a). And that the

written order entered on October 30, 2015, states that the order

was “entered and effective on this 14th day of July, 2014,” does not

change the fact that the court actually did not enter an adjudicatory

order on July 14, 2014.

¶ 28 The department and the guardian ad litem (GAL) rely on

N.D.V. for the proposition that formal adjudication prior to

termination is not required. In N.D.V., a division of this court ruled

that a juvenile court’s subject matter jurisdiction in dependency or

neglect cases is based on the fact of the child being dependent or

neglected. 224 P.3d at 414. The division concluded that if a parent

admits that fact, the court’s acceptance of the admission

establishes “the essential factual predicate for the court’s exercise of

its jurisdiction” and the court’s subsequent failure to enter a formal

order sustaining the petition does not divest the court of

jurisdiction. Id.

¶ 29 The N.D.V. majority thus treated the mother’s admission,

together with the court’s acceptance of her admission, as sufficient

to invoke the court’s continuing jurisdiction to terminate parental

rights. The department and GAL ask us to adopt the reasoning of

14
the majority in N.D.V. We decline to do so. See People in Interest of

A.V., 2012 COA 210, ¶ 11 n.1 (“One division [of the court] is not

bound by the holding of another division.”).

¶ 30 Instead, we agree with Judge Lichtenstein’s thoughtful dissent

in N.D.V., specifically that continuing jurisdiction, which a court

must have to enter any orders other than temporary orders, does

not exist unless an adjudication order has been entered. 224 P.3d

at 425 (“A child’s status as dependent or neglected is determined

only by the entry of an order of adjudication.”); see § 19-3-505(7)(a)

(stating that when the court finds that the allegations of the petition

are supported by a preponderance of the evidence, except when the

case is continued as provided in section 19-3-505(5), the court

“shall sustain the petition” and “shall make an order of

adjudication” setting forth whether the child is neglected or

dependent); see also § 19-3-205(1), C.R.S. 2015 (stating that once a

child is adjudicated dependent or neglected, jurisdiction of the

court continues until he becomes twenty-one or jurisdiction is

terminated by court order).

¶ 31 In her dissent, Judge Lichtenstein concluded that when a

parent enters an admission in order to obtain a deferred

15
adjudication, the admission is “conditional” as it is based upon

statutory provisions that do not permit the court to continue the

case beyond one year unless the court enters an adjudication

sustaining the petition. N.D.V., 224 P.3d at 424. She further

concluded that such an admission only authorizes the court’s

temporary intervention in the case pending a dependency or neglect

adjudication; thus, even after entering an admission, a parent has

the right to have an adjudication made either dismissing or

sustaining the petition. Id. (citing section 19-3-505(5)(b)).

¶ 32 Here, mother was not offered a deferred adjudication, nor did

she request one. Nevertheless, we find Judge Lichtenstein’s

analysis persuasive. Assuming, without deciding, that mother’s

admission and the court’s acceptance of it were sufficient to

establish a factual basis for the adjudication of the children as

dependent or neglected children,4 we nevertheless conclude that the

4 Under C.R.J.P. 4.2(c), the court may accept a parent’s admission
after finding, among other things, that the parent understands the
effect of his or her admission. Here, mother’s attorney candidly told
the court that he was unable to answer some questions that mother
had asked about the effect of making an admission. Although the
court questioned mother generally about her understanding of the
proceedings, and offered to give her time to think about what she
should do, the court did not specifically question her about her

16
admission and the court’s acceptance of it did not satisfy section

19-3-505(7)(a), which provides that “the court shall sustain the

petition and shall make an order of adjudication” if the court finds

that the allegations of the petition are supported by a

preponderance of the evidence. (Emphasis added.) Because the

court did not enter an order of adjudication, we conclude that

mother’s admission only authorized the court to continue its

temporary intervention in the case pending an adjudication. In

effect, adjudication was deferred. And, because an adjudication is a

prerequisite to termination under section 19-3-604(1)(c), the trial

court lacked jurisdiction to enter the order terminating mother’s

parental rights. Given the enormous consequences at stake, we

conclude that this is the fairest procedure and the one that most

comports with legislative intent.

understanding of the effect of making an admission. Nor did the
court make a finding as to whether she understood the effect of
making an admission. On this record, we cannot determine
whether mother understood the effect of her admission when she
made it; thus, we cannot determine whether the court could
properly accept her admission. Instead, we assume that mother’s
admission is valid but have concerns based on statements made by
her counsel at the July 14, 2014, hearing and at oral argument
before us concerning the sufficiency of his advice to her and her
understanding of the implications of her admission. See People in
Interest of C.H., 166 P.3d 288, 290 (Colo. App. 2007).

17
B. The Adjudicatory Order

¶ 33 Turning to the October 30, 2015, written adjudicatory order,

we note that it was entered several weeks after mother filed her

notice of appeal. “Unless otherwise authorized by statute or rule,

the filing of a notice of appeal shifts jurisdiction to the appellate

court and divests the trial court of jurisdiction to conduct further

substantive action related to the judgment on appeal.” People in

Interest of K.A., 155 P.3d 558, 561 (Colo. App. 2006) (citing Musick

v. Woznicki, 136 P.3d 244, 246 (Colo. 2006)). Here, mother is

appealing the adjudicatory order; accordingly, we conclude that the

trial court did not have jurisdiction to take any action regarding it

after mother’s notice of appeal shifted jurisdiction to this court.

IV. Mother’s Issues

¶ 34 All of mother’s contentions concern issues that arose at or

after the adjudicatory stage of the proceeding. Because we have

concluded that the trial court did not adjudicate the children

dependent or neglected with respect to mother and, thus, did not

have jurisdiction to proceed beyond the adjudicatory stage, we

conclude that the issues raised by mother in her original petition on

appeal are moot.

18
V. Conclusion

¶ 35 The order adjudicating the children dependent or neglected

with respect to mother and the judgment terminating her parental

rights with respect to the children are vacated. On remand, the

court shall resume proceedings at the adjudicatory stage.

JUDGE HARRIS concurs.

JUDGE HAWTHORNE concurs in part and dissents in part.

19
JUDGE HAWTHORNE concurring in part and dissenting in

part.

¶ 36 In my view, section 19-1-104(1)(b) and (d), C.R.S. 2015, grants

the juvenile court exclusive original subject matter jurisdiction in

proceedings (1) concerning any child who is dependent or neglected

and (2) terminating the legal parent-child relationship. And I

conclude that the failure to enter an adjudication order in

dependency or neglect actions does not divest the juvenile court of

its subject matter jurisdiction to order a termination of the parent-

child relationship under section 19-3-604(1)(c), C.R.S. 2015. So, I

respectfully dissent from Part III.A of the majority opinion, which

vacates the court’s judgment terminating mother’s parent-child

legal relationship with the children and remands to the court to

resume proceedings at the adjudicatory stage; from Part IV, which

concludes that the issues raised by mother are moot; and from the

conclusion in Part V. Otherwise, I concur with Parts I, II, and III.B.

I. Jurisdiction

¶ 37 The majority opinion in People in Interest of N.D.V. concluded

that

20
when, as here, a court accepts a parent’s
admission that the child is neglected or
dependent, the child’s status is established
and the court has jurisdiction to conduct
further proceedings. If, thereafter, the court
fails to enter an adjudicatory order so
reflecting as statutorily required, the court
does not lose jurisdiction in the matter.

224 P.3d 410, 418 (Colo. App. 2009) (cert. denied Feb. 22, 2010). I

agree. Paraphrasing or reformulating the majority opinion’s

analysis could disserve the author and would needlessly lengthen

this opinion. So, I adopt N.D.V.’s analysis here and conclude that

any error in conducting the termination hearing and entering an

order terminating mother’s parent-child relationship with the

children, without first entering an adjudication order, would have

been procedural, not jurisdictional. And because mother did not

raise the issue in the trial court, she has waived it. To the extent

mother argues that section 19-3-505(5) or (7), C.R.S. 2015,

establishes a procedural prerequisite to conducting the termination

hearing or entering a termination order, I conclude that she has

also waived this issue.

¶ 38 To insist that the trial court comply with a procedural rule, a

party must object to the court’s noncompliance in a timely manner

21
or the noncompliance may be waived. N.D.V., 224 P.3d at 417

(holding that because mother did not raise in trial court issue of

error in conducting termination hearing without first entering an

adjudicatory order, she had waived it); see People in Interest of E.H.,

837 P.2d 284, 290 (Colo. App. 1992) (stating that the right to insist

on compliance with procedural rules must be timely exercised or

the noncompliance may be waived); People in Interest of T.S., 781

P.2d 130, 132 (Colo. App. 1989) (explaining that because mother

failed to object on grounds asserted on appeal, she was deemed to

have waived any objection and could not raise it on appeal); see

also People in Interest of Z.P., 167 P.3d 211, 213 (Colo. App. 2007)

(father waived right to counsel by failing to make a timely request).

I conclude that mother waived her right to challenge this procedural

requirement on appeal because she never raised this issue before

the trial court.1

¶ 39 After the first trial, mother admitted the allegations of the

amended petition, and the court accepted her admission. She never

sought to withdraw her admission and never challenged the trial

1Throughout the adjudication, disposition, and termination
proceedings, mother was represented by counsel.

22
court’s subsequent orders on jurisdictional grounds. After mother’s

admission, but before the termination hearing, mother participated

in additional hearings before the trial court. At no point did mother

assert that prior to conducting those hearings the trial court was

required to dismiss or sustain the petition. See § 19-3-505(6)-(7)(a).

¶ 40 During the two-day termination hearing mother did not

demand that the court enter an adjudication order before

conducting further proceedings. And she did not raise this

objection when the court issued its oral termination order in which

the court found that the children had been adjudicated dependent

and neglected. Nor did she object to the court’s later written

termination order finding that “the children have been adjudicated

dependent and neglected.” By her inaction, and under these

circumstances, mother has waived her right to object to any

procedural error arising from the court conducting the termination

hearing without first entering an adjudication order.

¶ 41 Mother does not contend on appeal that the court erred by

accepting her admission or assert that the children were not

dependent or neglected throughout the proceedings. Nor has she

presented any basis on which the court could have properly

23
dismissed the petition or concluded that the children were not

dependent or neglected. Accordingly, I would not disturb the trial

court’s judgment on procedural grounds.

II. Mother’s Other Issues

¶ 42 Because I reject mother’s jurisdictional claim, I respectfully

disagree that the other issues raised in mother’s petition on appeal

are moot. So, I consider and reject each in turn.

A. Effect of Jury’s Inability to Determine Whether Children’s
Environment was Injurious
¶ 43 Mother contends that the trial court erred by refusing to

return the children to her physical custody after the jury in the first

trial rendered a verdict that the children’s environment was not

injurious to their welfare.

¶ 44 I reject this argument because the record belies mother’s

assertion. The jury did not find that the children’s environment

was not injurious to their welfare; it declared that it was unable to

determine whether the environment was injurious.

B. Treatment Plan’s Appropriateness

¶ 45 Mother contends that decisions made by the trial court

rendered her treatment plan inappropriate. First, she contends

24
that the court erred when it failed to order a substitute family

therapist when problems arose in her relationship with the

therapist. Second, she contends that the court erred when it

reduced her visits with the children. I do not agree that these

decisions rendered the treatment plan inappropriate.

¶ 46 An appropriate treatment plan is one that is “reasonably

calculated to render the particular [parent] fit to provide adequate

parenting to the child within a reasonable time and that relates to

the child’s needs.” § 19-1-103(10), C.R.S. 2015. A successful

treatment plan renders the parent fit. K.D. v. People, 139 P.3d 695,

699 (Colo. 2006). A treatment plan is not necessarily inappropriate

because it was not successful. In many cases it is virtually

impossible to devise a plan which will guarantee success. People in

Interest of M.M., 726 P.2d 1108, 1121-22 (Colo. 1986).

1. Maintaining Family Therapist

¶ 47 The termination trial record shows that a therapist was

retained to provide therapeutic visitation services to mother and the

children. From the beginning, there were problems between mother

and the therapist. The therapist reported that mother was very

defensive in her parenting and she had difficulty accepting the

25
therapist’s intervention. Mother testified that she had a hard time

understanding the family therapist because the therapist was “too

abstract.”

¶ 48 Mother had requested several times that the therapist be

replaced because she did not believe the therapist was helpful. Her

individual therapist noted that mother did not feel “emotionally

safe” with the family therapist. But, the Clear Creek County

Department of Human Services (CCCDHS) case supervisor testified

that changing to a new family therapist was never seriously

considered because the children were comfortable with the

therapist and a change would have been disruptive for them; the

therapist was regarded as “one of the best” at providing therapeutic

visits; and, in the supervisor’s view, mother’s problem was that she

did not agree with the feedback from the therapist.

¶ 49 The witnesses’ credibility and the evidence’s sufficiency,

probative effect, and weight, as well as the inferences and

conclusions to be drawn from it, are within the trial court’s

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

1982). A trial court’s findings and conclusions will not be disturbed

on review unless they are so clearly erroneous as to find no record

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support. Id. The evidence was conflicting as to whether the family

therapist was helpful to mother. Even so, the trial court found that

mother’s treatment plan was appropriate. I infer from this finding

that the trial court determined that the difficulties between the

therapist and mother were insufficient to render the treatment plan

inappropriate. Because the evidence supports this conclusion, I

would not disturb it. See id.

2. Reducing Weekly Visits

¶ 50 Mother also contends that the trial court erred, and rendered

the treatment plan inappropriate, by reducing visitation between

her and the children. Again, I disagree.

¶ 51 Visitation services are to be provided to parents “as

determined necessary and appropriate by individual case plans.”

§ 19-3-208(2)(b)(IV), C.R.S. 2015.

¶ 52 When deciding whether visitation services should be provided,

the court must bear in mind that a treatment plan’s purpose is to

preserve the parent-child relationship by assisting the parent in

overcoming the problems that required intervention into the family.

People in Interest of D.G., 140 P.3d 299, 304 (Colo. App. 2006). But,

the child’s health and safety remain the “paramount concern” when

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determining whether visitation should be offered as part of the

efforts to reunite the family. § 19-1-103(89).

¶ 53 Questions concerning children’s health and safety are matters

entrusted to the trial court’s sound discretion. People in Interest of

B.C., 122 P.3d 1067, 1070 (Colo. App. 2005). After more than a

year of therapeutic visitation, CCCDHS requested that the visitation

plan be modified. It alleged that the family therapist, J.W.’s

individual therapist, and mother’s individual therapist had raised

concerns that having visits twice a week was detrimental to both

mother and the children. Reports from all three therapists

described their concerns about mother’s and the children’s

emotional condition during and after visits.

¶ 54 Following a hearing, the court reduced visits to once per week,

citing testimony by the family therapist and J.W.’s therapist that

the children were in a state of “hyper arousal” after visits with

mother, and such a state was not healthy for them.

¶ 55 The trial court did not abuse its discretion in reducing

visitation because evidence indicated that visitation twice a week

was emotionally harmful to the children, and I conclude that the

reduction did not render mother’s treatment plan inappropriate.

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C. Adequacy of Factual Findings

¶ 56 Mother contends that the termination order is inadequate

because the court “fail[ed] to make appropriate factual findings or to

identify the deficiencies which rendered termination constitutionally

appropriate.” I disagree.

¶ 57 Under section 19-3-604(1)(c), the parent-child legal

relationship may be terminated if the court finds:

 that the child has been adjudicated dependent or

neglected, and the court finds based on clear and

convincing evidence that the parent did not reasonably

comply with a treatment plan approved by the court or

that the treatment plan has been unsuccessful;

 that the parent is unfit; and

 that the parent’s conduct or condition is unlikely to

change within a reasonable time.

The trial court found by clear and convincing evidence:

 the children had been adjudicated dependent and

neglected as to mother;

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 the court had adopted an appropriate treatment plan and

that plan had not been complied with or had not been

successful;

 mother was unfit;

 reasonable efforts had been made to rehabilitate her, but

they had been unsuccessful; and

 her condition was unlikely to change within a reasonable

time.

¶ 58 The court also made detailed and extensive findings as to the

specific reasons why it concluded that mother’s parental rights

should be terminated. Citing a report prepared by the family

therapist and the testimony of the psychologist who evaluated

mother, the court noted that mother had a history of trauma and

mental health problems that interfered with her ability to meet her

children’s needs.

¶ 59 I conclude that the trial court’s findings show that the court

considered each factor in section 19-3-604(1)(c) and also identified

the specific deficiencies leading the court to terminate mother’s

parental rights.

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III. Conclusion

¶ 60 I would affirm the trial court’s judgment terminating the

parent-child legal relationship between mother and the children.

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