Opinion
23CA1673
05-23-2024
The People of the State of Colorado, Appellee, In the Interest of A.A., a Child, and Concerning P.E.A. and Y.M.C., Appellants.
Ronald A. Carl, County Attorney, Jordan Lewis, Assistant County Attorney, Aurora, Colorado, for Appellee. Alison Bettenberg, Sheena Knight, Guardians Ad Litem. Lindsey Parlin, Office of Respondent Parents' Counsel, Denver, Colorado, for Appellant P.E.A. Harald Van Gaasbeek, Office of Respondent Parents' Counsel, Fort Collins, Colorado, for Appellant Y.M.C.
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Arapahoe County District Court No. 21JV299 Honorable Bonnie H. McLean, Judge.
Ronald A. Carl, County Attorney, Jordan Lewis, Assistant County Attorney, Aurora, Colorado, for Appellee.
Alison Bettenberg, Sheena Knight, Guardians Ad Litem.
Lindsey Parlin, Office of Respondent Parents' Counsel, Denver, Colorado, for Appellant P.E.A.
Harald Van Gaasbeek, Office of Respondent Parents' Counsel, Fort Collins, Colorado, for Appellant Y.M.C.
OPINION
SCHOCK JUDGE.
¶ 1 Y.M.C. (mother) and P.E.A. (father) appeal the juvenile court's judgment terminating each of their parent-child legal relationships with A.A. (the child). We affirm the judgment.
I. Background
¶ 2 In June 2021, the Arapahoe County Department of Human Services (the Department) removed the then-fifteen-month-old child from her home pursuant to a verbal removal order, based on concerns of methamphetamine use by the parents, domestic violence, and an injury to the child. The Department then filed a petition in dependency and neglect based on the same concerns.
¶ 3 Both mother and father initially stipulated to deferred adjudications under section 19-3-505(5), C.R.S. 2023. But after they failed to comply with their terms, the juvenile court adjudicated the child dependent and neglected as to both parents in April 2022. The court adopted treatment plans for both parents.
¶ 4 Mother's treatment plan included six objectives: (1) caseworker contact; (2) financial stability; (3) mental health treatment; (4) substance use treatment; (5) protective parenting; and (6) domestic violence survivor treatment. Among other things, the plan required mother to complete a mental health assessment and substance abuse evaluation, attend appointments and services recommended by providers, and cooperate in drug testing. At the dispositional hearing, mother's counsel said that she was "fine, I guess, adopting the treatment plan today," but that she had "concerns of whether it is, in fact, an appropriate treatment plan."
¶ 5 Father's treatment plan included eight objectives: (1) caseworker contact; (2) employment/other legal income; (3) safe and stable lifestyle; (4) legal lifestyle; (5) parenting education; (6) mental health/substance abuse treatment; (7) parenting time; and (8) domestic violence offender treatment. Because father was incarcerated when the treatment plan was adopted, the plan included specific steps that father should take while in custody and additional steps that he should take upon his release. At the dispositional hearing, father said he was in agreement with the first seven components of the plan - all but the domestic violence offender treatment. He later requested an opportunity to object to the domestic violence component of the plan, but he did not do so.
¶ 6 In October 2022, the Department moved to terminate both parents' parent-child legal relationships with the child, alleging that neither had complied with their treatment plans and that both were unfit and unlikely to become fit within a reasonable time. The termination hearing was originally scheduled for February 2023.
¶ 7 In January 2023, mother filed a notice of applicability of the Americans With Disabilities Act (ADA) and related civil rights laws. In that notice, mother said that she had a learning disability that qualified as a disability under the ADA. She did not, however, request any accommodations or modifications to the treatment plan, saying that "[s]hould [mother] identify any accommodations or modifications, undersigned counsel will confer with counsel and motion the court." The termination hearing was continued to April 2023, based in part on mother's identification of "ADA issues."
¶ 8 In February 2023, mother provided the Department with a mental health assessment prepared by Dr. Steven P. Gilbertson, which concluded that mother had "a combination of significant trauma and what appears to be a learning disability." The assessment provided several recommendations, including that mother should be "connected with a mental health practitioner who is Trauma Specific and not merely trauma informed." After receiving Dr. Gilbertson's report, the caseworker made a referral for a neuropsychological evaluation for mother. But mother did not complete the necessary paperwork to pursue that evaluation.
¶ 9 In April 2023, the juvenile court held a hearing on the Department's motion to terminate the parent-child legal relationships. Three months later, it granted the motion.
II. Applicable Law and Standard of Review
¶ 10 The juvenile court may terminate a parent-child legal relationship if it finds, by clear and convincing evidence, that (1) the child has been adjudicated dependent or neglected; (2) the parent has not reasonably complied with an appropriate court-approved treatment plan, or such a plan has not been successful; (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. 2023.
¶ 11 An appropriate treatment plan is one that is "reasonably calculated to render the [parent] fit to provide adequate parenting to the child within a reasonable time and that relates to the child's needs." § 19-1-103(12), C.R.S. 2023. The treatment plan should be designed to "preserve the parent-child relationship by assisting the parent in overcoming the problems that required the intervention." K.D. v. People, 139 P.3d 695, 699 (Colo. 2006) (citation omitted). But the appropriateness of a treatment plan must be assessed "in light of the facts existing at the time of the plan's approval." People in Interest of B.C., 122 P.3d 1067, 1071 (Colo.App. 2005). A treatment plan is not inappropriate just because it is unsuccessful. People in Interest of M.M., 726 P.2d 1108, 1121 (Colo. 1986).
¶ 12 In determining whether a parent is unfit, the juvenile court must consider whether the Department made reasonable efforts to rehabilitate the parent. § 19-3-604(2)(h); see also § 19-3-100.5, C.R.S. 2023. "Reasonable efforts" means the "exercise of diligence and care." § 19-1-103(114). This standard is satisfied by the provision of services in accordance with section 19-3-208, C.R.S. 2023. § 19-1-103(114); People in Interest of C.T.S., 140 P.3d 332, 335 (Colo.App. 2006). Those services include, as necessary and appropriate, screenings, assessments, and individual case plans; home-based family and crisis counseling; information and referral services; visitation services; and placement services. § 19-3-208(2)(b). The services provided must be "appropriate to support the parent's treatment plan." People in Interest of S.N-V., 300 P.3d 911, 915 (Colo.App. 2011). But the parent is responsible for using those services to ensure compliance with the treatment plan. People in Interest of J.C.R., 259 P.3d 1279, 1285 (Colo.App. 2011).
¶ 13 We review the juvenile court's determination that a treatment plan is appropriate for an abuse of discretion. People in Interest of M.W., 2022 COA 72, ¶ 32. The reasonable efforts determination presents a mixed question of fact and law. People in Interest of A.S.L., 2022 COA 146, ¶ 8. Because no party challenges the juvenile court's underlying factual findings, we review de novo its legal determination, based on those findings, as to whether the Department satisfied its reasonable efforts obligation. Id.
III. Mother's Appeal
¶ 14 Mother asserts that the juvenile court erred by finding that her treatment plan was appropriate and that the Department made reasonable efforts to rehabilitate her. Both arguments are based on mother's contention that the Department did not reasonably accommodate her learning disability. We are not persuaded.
Mother also asserts that she meets the criteria for post-traumatic stress disorder (PTSD) and complex posttraumatic stress disorder. But her ADA notice did not identify either of these disorders. See People in Interest of S.K., 2019 COA 36, ¶ 22 ("The Department can accommodate, and the juvenile court can address, only disabilities that are known to them."). Nor did mother argue at any point in the juvenile court that her PTSD constituted a disability under the ADA. See People in Interest of S.Z.S., 2022 COA 133, ¶ 20. Thus, to the extent mother makes an ADA-based argument concerning her PTSD, that argument is not preserved. Id. at ¶ 21.
A. ADA
¶ 15 The ADA imposes an affirmative duty on public entities to make reasonable accommodations for qualified individuals with disabilities. People in Interest of S.K., 2019 COA 36, ¶ 18. That duty applies to the provision of services under section 19-3-208. § 19-3-208(2)(g); S.K., ¶ 25. Thus, when a parent has a qualifying disability, the department and the juvenile court "must account for and, if possible, make reasonable accommodations for the parent's disability when devising a treatment plan and providing rehabilitative services." S.K., ¶ 34. And in assessing the propriety of the plan and the reasonableness of the department's efforts, the juvenile court must consider whether reasonable accommodations were made. Id. Absent reasonable accommodations, a department does not satisfy its reasonable efforts obligation. Id. at ¶ 33.
¶ 16 But the ADA only requires accommodations that are reasonable. Id. at ¶ 38. What is reasonable varies from case to case "based on the child's health and safety needs, the nature of the parent's disability, and the available resources." Id. at ¶ 39. Even when a parent has a disability, the "paramount concern must remain the child's health and safety." Id. at ¶ 36. Termination may still be appropriate when, even after reasonable accommodation, the parent is unable to meet the child's needs. Id. at ¶ 25.
¶ 17 Moreover, the department and the juvenile court can only accommodate disabilities that are known to them. Id. at ¶ 22. Thus, for a parent to benefit from a reasonable accommodation, the parent must raise the applicability of the ADA in a timely manner - preferably before the court adopts the treatment plan. People in Interest of S.Z.S., 2022 COA 133, ¶ 16. The parent should also "identify any modifications that he or she believes are necessary to accommodate the disability." S.K., ¶ 21. A parent's failure to do so impedes the department's ability to provide reasonable accommodations and also undermines the parent's argument that any requested accommodation was reasonable. S.Z.S., ¶¶ 16-17.
B. Appropriateness of Mother's Treatment Plan
¶ 18 Mother contends that her treatment plan was not appropriate because it was not individualized to her disability. But at the time the treatment plan was adopted, mother neither disclosed any disability nor identified any modifications she believed were necessary to accommodate such disability. See S.K., ¶ 21. And when she filed her ADA notice seven months later - and three months after the motion for termination was filed - she still did not identify any requested accommodations or modifications to the plan, saying only that she would file a motion if she identified any.
¶ 19 Mother nevertheless asserts that the Department was on notice of her disability before she filed her ADA notice because she was appointed a guardian ad litem and her difficulties were apparent to the caseworker and the court early on in the case. See S.Z.S., ¶¶ 19-20. But although there was substantial discussion in the record about the trauma mother had suffered, no one attributed her challenges to a learning disability until Dr. Gilbertson's report.
¶ 20 In any event, even if the Department and juvenile court were, or should have been, on notice of mother's purported learning disability earlier in the case, the juvenile court did not abuse its discretion by finding that mother's treatment plan was appropriate. At the termination hearing, the caseworker walked through each component of the treatment plan and explained why it was necessary to make mother a fit parent. She also testified that she believed the treatment plan was appropriate and that if mother had successfully completed the objectives of the treatment plan, it would have addressed the issues that made her an unfit parent.
¶ 21 Although mother asserts generally that the treatment plan should have included accommodations for her disability or should have been amended to do so, she does not identify any specific accommodation or modification that should have been incorporated into the plan itself. See S.K., ¶ 49 (noting that we cannot consider whether a treatment plan should have included accommodations if the parent "fails to identify what accommodations or individualized treatment should have been incorporated into the plan"). Instead, mother incorporates her argument, discussed below, that the Department did not provide reasonable accommodations to help her comply with the plan. But the Department's "efforts to implement the plan have no bearing on whether or not the plan was appropriate." People in Interest of A.N-B., 2019 COA 46, ¶ 26.
¶ 22 Mother also suggests - again without any particulars - that the treatment plan should have been amended to incorporate the recommendations in Dr. Gilbertson's report. But again, mother did not make any such argument in the juvenile court. See S.Z.S., ¶ 18. To the contrary, she expressly asserted in her ADA notice - filed after the report was completed - that if she identified any necessary accommodations or modifications, she would confer with the Department and file a motion. If mother believed Dr. Gilbertson's recommendations were reasonable accommodations for her disability, it was incumbent on her to bring those proposed accommodations to the attention of the juvenile court. S.K., ¶ 21.
¶ 23 Thus, because the record supports the juvenile court's finding that mother's treatment plan was reasonably calculated to render her a fit and proper parent within a reasonable period of time, the court did not abuse its discretion by finding the plan appropriate.
C. Reasonable Efforts as to Mother
¶ 24 Mother also contends that the Department failed to make reasonable efforts to rehabilitate her because it did not sufficiently consider or accommodate her disability in providing its services.
¶ 25 We reiterate that mother gave no notice of her disability until eighteen months after the case began, three months after the termination motion was filed, and three weeks before the originally scheduled termination hearing. And she never requested any accommodation. Because the Department can accommodate only disabilities that are known to it, mother's failure to timely raise the ADA issue substantially undermines her argument that the Department's efforts were not reasonable. See S.Z.S., ¶¶ 16-17.
¶ 26 Regardless, the record supports the juvenile court's conclusion that the Department made reasonable efforts based on the facts of which it was aware. The caseworker testified that although communication with mother was difficult, she generally met with mother at least once a month to discuss the treatment plan and the necessary next steps to expand mother's time with the child and return the child to mother's care. She provided mother with hard and electronic copies of the treatment plan and repeatedly gave her instructions for completing urinalysis testing. The caseworker also made a referral for a mental health evaluation at the outset of the case, which mother did not complete for nearly a year.
¶ 27 When mother identified barriers to her compliance with the treatment plan, the caseworker worked to help her overcome them. For example, when mother said she could not communicate with the caseworker because she did not have a phone, the Department twice provided her with a cell phone. And when mother identified transportation barriers, the Department gave her bus passes.
¶ 28 The caseworker also testified as to specific measures she took to assist mother with the reading comprehension and memory challenges that were later noted in Dr. Gilbertson's report. Among other things, the caseworker testified that she (1) reiterated and wrote out complex information to help mother understand and remember it; (2) had one-on-one meetings to explain next steps; (3) provided reports in person and through email; (4) requested that facilitated meetings occur every sixty days instead of the usual ninety; (5) went over plan requirements with mother verbally and in writing; and (6) explained in detail the urinalysis testing process and the bus transportation schedule. Mother also had a guardian ad litem and a parent advocate to further assist her with understanding and meeting the treatment plan objectives.
¶ 29 Much of mother's argument on appeal centers on the recommendations in Dr. Gilbertson's report - recommendations that, again, the Department did not receive until two months before the termination hearing. But although the caseworker did not have that report during much of the case, she testified that she nevertheless carried out several of those recommendations.
¶ 30 Mother zeroes in on one specific aspect of Dr. Gilbertson's recommendations: that mother be connected with a "trauma specific" mental health practitioner. The caseworker testified that she was not familiar with this term. So she reached out to mother's team to ask for clarification, but she did not receive a response. She also made a referral for a neuropsychological assessment - a referral Dr. Gilbertson testified was a "good step" - to provide treatment recommendations "based on how [mother's] brain and thought processes work." But mother did not follow through on that assessment either. Moreover, Dr. Gilbertson testified that there were "trauma specific" practitioners at the provider to which mother had been referred. The juvenile court found that, if mother had completed the required mental health evaluation, it could have "helped steer [the Department] to get her hooked up with additional resources and maybe some different types of treatment."
¶ 31 We agree with the juvenile court that it was not unreasonable for the caseworker to fail to identify a practitioner in a specialty she had never heard of in the two months between her receipt of Dr. Gilbertson's report and the termination hearing - particularly when the provider she had identified could provide that treatment.
Mother contends for the first time on appeal that the juvenile court acted improperly by noting that it also did not know what "trauma specific" meant. Even if we consider this unpreserved argument, we reject it. The court did not rely on its "personal observations" to find that the treatment did not exist, as mother asserts. It simply pointed out that the phrase was uncommon to explain why the caseworker's response was reasonable.
¶ 32 None of mother's other challenges convince us that the Department's efforts were not reasonable. Most of these challenges - the lack of a female mental health provider, the lack of a domestic violence treatment referral, the lack of housing resources, and the lack of assistance in filling out the paperwork for the neuropsychological assessment - were not argued at the termination hearing. See S.Z.S., ¶¶ 18, 21 (declining to consider ADA issue not raised at termination hearing). But even assuming these arguments were sufficiently preserved by mother's general reasonable efforts argument, or by her cross-examination of the caseworker on these points, the record does not support them.
¶ 33 First, mother argues that she should have had a female provider. But she was switched to a female provider upon request. When mother said she could not participate because of problems with her phone camera, the Department got her a new phone. When that phone was stolen, the Department got her another one.
¶ 34 Second, although mother requested individual therapy, the provider would not allow it until mother had shown further engagement. Rather than show further engagement, mother was removed from the group for missing two sessions in a row.
¶ 35 Third, while the caseworker did not make a specific referral for domestic violence services, she testified that those services would have been provided if mother had successfully engaged with a mental health provider. She also testified that she "had conversations with mother about her willingness to engage in [domestic violence] services" but mother "often stated that she did not believe [those services were] necessary." Cf. People in Interest of A.V., 2012 COA 210, ¶ 12 (noting that juvenile court may consider parent's "unwillingness to participate in treatment as a factor in determining whether the Department made active efforts").
¶ 36 Fourth, the Department was not required to find mother suitable housing; that was mother's responsibility under the plan. See J.C.R., 259 P.3d at 1285; § 19-3-208(2). But the caseworker testified that mother's parent advocate - whom mother trusted more than the caseworker - was assisting mother in those efforts.
¶ 37 Fifth, the juvenile court found that the caseworker provided mother and her team multiple opportunities to fill out the necessary paperwork for the neuropsychological evaluation and continually followed up to see if the paperwork was completed. The caseworker explained that she did not personally help mother complete the evaluation because she worried that mother would not be forthcoming with her because mother did not trust her.
¶ 38 Finally, there is no indication in the record, much less in the juvenile court's findings, of any prejudice or discrimination against mother on the basis of her disability. The caseworker testified that she was aware of mother's memory and comprehension struggles and that she attempted to work through them in all the ways described above. She also explained that while she did not blame mother for being a victim of violent crime, such violence was relevant to the safety of mother's home environment and mother's ability to care for the child, both of which are proper considerations.
¶ 39 Thus, taking into account all of these circumstances, we agree with the juvenile court that the Department fulfilled its obligation to make reasonable efforts. Ultimately, those efforts were unsuccessful, due in large part to a lack of follow-through and meaningful participation by mother. But "the ADA does not restrict the [juvenile] court's authority to terminate parental rights when the parent, even on the basis of a disability, is unable to meet his or her child's needs." People in Interest of C.Z., 2015 COA 87, ¶ 17.
IV. Father's Appeal
¶ 40 Father also challenges the appropriateness of his treatment plan and the reasonableness of the Department's efforts to rehabilitate him. Father was incarcerated for the entire period between the adjudication and the termination, and for all but two weeks that the case was ongoing. He contends that he could not comply with his treatment plan while in prison and that the Department failed to reasonably assist him in doing so. While cognizant of the difficulties in tailoring and implementing a treatment plan for an incarcerated parent, we perceive no error.
A. Appropriateness of Father's Plan
¶ 41 Father asserts that his treatment plan was inappropriate because it contained several objectives that he could not complete in prison, including engaging in treatment for substance use and domestic violence, maintaining regular contact with the Department, and securing stable housing and employment.
¶ 42 But father took the opposite position when the plan was approved. At the dispositional hearing, father explicitly agreed that the first seven objectives of his treatment plan - all but the domestic violence treatment - were appropriate, even though he was incarcerated at the time. By doing so, father waived any argument that the treatment plan was inappropriate, at least with respect to the components of the plan to which he agreed. See People in Interest of D.P., 160 P.3d 351, 354 (Colo.App. 2007).
¶ 43 We recognize that in S.N-V. the division held that a parent does not invite error or forfeit a challenge to a department's reasonable efforts by failing to object to the appropriateness of the treatment plan when it is adopted. 300 P.3d at 916-18. But father did not simply fail to object to the treatment plan, as the parent did in S.N-V. See id. at 913. He explicitly agreed the plan was appropriate. And on appeal, father does not merely challenge the Department's efforts to rehabilitate him, as the parent did in S.N-V. See id. at 912. He challenges the plan itself. It is one thing to hold, as the division did in S.N-V., that a party's acquiescence to one point (the appropriateness of the plan) should not estop them from appealing a ruling on a related, but different, ground (reasonable efforts). It is another thing for a party to make an argument on appeal that is directly contrary to that party's express stipulation.
¶ 44 That leaves only the domestic violence treatment objective, to which father failed to object but did not expressly stipulate. Father contends that this objective was not appropriate because he could not engage in domestic violence treatment while incarcerated. But father's treatment plan required domestic violence treatment only after he was released from custody (unless such services were available while he was in custody). It included a number of other steps for father to take while he was in custody, including taking accountability for his actions, researching anger management skills, researching coping mechanisms, articulating how his violent actions had impacted the child, and identifying what changes he planned to make once he was released. Father does not challenge the appropriateness of any of these components of his plan.
The other objectives that father challenges on appeal - caseworker contact, employment, and stable housing - similarly distinguished between steps father was required to take while he was in custody and steps he was required to take after his release.
¶ 45 Thus, we conclude that the juvenile court did not abuse its discretion by finding that father's treatment plan was appropriate.
B. Reasonable Efforts as to Father
¶ 46 Father argues that the Department failed to make reasonable efforts to rehabilitate him because it did not (1) facilitate virtual visits with the child by paying for those visits; (2) maintain sufficient contact with him while he was in prison; or (3) provide him with substance abuse and domestic violence resources.
¶ 47 The juvenile court acknowledged, as did the caseworker, that father's incarceration made his compliance with the treatment plan more difficult - made even more so by father's transfer to a higher security facility for possessing methamphetamine while in custody during the pendency of this case. In particular, the court noted the challenge of contacting someone who is in prison. But the court found that the Department "did everything that they could possibly do" and that any failings were "not due to a lack of reasonable efforts by the Department." The record supports that conclusion.
¶ 48 The caseworker testified that she "worked tirelessly" to set up family time, making multiple attempts to reach father, his case manager, and the prison facility to do so. She wrote letters and filled out forms for virtual visits. But she was unable to get an answer from the prison to set the visits up. One of the problems was that the prison required father to deposit money into his account to pay for the virtual visits, but he did not do so, and the caseworker testified that she did not have the ability to do so.
¶ 49 The caseworker also testified that father was able to speak to the child by phone during mother's family time at the Department. Though that arrangement was not ideal, the caseworker explained that "the requirements of [father's] facilities" frustrated anything more. Cf. People in Interest of D.G., 140 P.3d 299, 306-07 (Colo.App. 2006) (concluding that reasonable efforts were made where father "did not present evidence to support his contention that face-to-face visitation was feasible" while he was incarcerated).
¶ 50 The caseworker also testified that, once father was placed in his current higher security facility, it became more difficult to contact him due to stricter guidelines and regulations. She nevertheless made multiple attempts to speak with father's case manager and "brainstormed with his case manager" ways to communicate with father. But to contact father, she needed a court order and a waiver from his attorney, which she testified she requested. The caseworker testified that father sent her one letter and she responded, but father made no further attempt to contact her, even though his treatment plan required him to write her a letter monthly. And although father was believed to have a phone in prison at one point, the caseworker said he never called her.
We note that father testified that he sent the caseworker four or five letters and tried to contact the caseworker by phone. But we accept the juvenile court's factual findings if they have record support. People in Interest of S.R.N.J-S., 2020 COA 12, ¶ 10.
¶ 51 Finally, although father asserts that he should have been provided "educational materials, books, or other resources" related to substance use and domestic violence treatment, there is no indication in the record that he ever asked for such resources. It was incumbent on father to take responsibility for complying with the terms of his own treatment plan. See J.C.R., 259 P.3d at 1285.
¶ 52 More to the point, the reasonable efforts analysis does not turn on a point-by-point scrutiny of whether there is anything the Department could have done better. Instead, we must consider the reasonableness of the Department's efforts as a whole based on the totality of the circumstances. Cf. People in Interest of My.K.M. v. V.K.L., 2022 CO 35, ¶¶ 31, 33 (applying the "more demanding" "active efforts" standard under the Indian Child Welfare Act). Given the constraints within which the Department was operating, we cannot conclude that it failed to make reasonable efforts.
V. Disposition
¶ 53 The judgment is affirmed.
JUDGE J. JONES and JUDGE WELLING concur.