Opinion
23CA2224
05-23-2024
The People of the State of Colorado, Appellee, In the Interest of K.R.W. a Child, and Concerning L.F., Appellant.
Todd Starr, County Attorney, Elizabeth Shaver, Assistant County Attorney, Grand Junction, Colorado, for Appellee Joe Anderson, Guardian Ad Litem Lindsey Parlin, Office of Respondent Parents' Counsel, Denver, Colorado, for Appellant
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Mesa County District Court No. 21JV155 Honorable Brian J. Flynn, Judge
Todd Starr, County Attorney, Elizabeth Shaver, Assistant County Attorney, Grand Junction, Colorado, for Appellee
Joe Anderson, Guardian Ad Litem
Lindsey Parlin, Office of Respondent Parents' Counsel, Denver, Colorado, for Appellant
Freyre and Lipinsky, JJ., concur.
OPINION
SCHUTZ, JUDGE
¶ 1 In this dependency and neglect proceeding, L.F. (mother) appeals the juvenile court's judgment terminating her parent-child legal relationship with K.R.W. (the child). We affirm.
I. Background
¶ 2 The Mesa County Department of Human Services (the Department) filed a petition in dependency and neglect after concerns were raised that mother physically abused the child. The child was thirteen years old when the petition was filed. Mother denied the allegations in the petition, and after an adjudicatory trial, a jury adjudicated the child dependent and neglected. In February 2022, the juvenile court adopted a treatment plan requiring mother to, among other things, address all identified mental health issues, maintain contact with the caseworker, attend family time, complete parenting and life skills classes, and gain and maintain employment.
¶ 3 Just over two years after the child was removed from the home, the Department moved to terminate mother's parental rights. After an evidentiary hearing, the court granted the termination motion. As relevant here, the court concluded that "the Department clearly made reasonable efforts to rehabilitate [mother] and reunite [the child] with her" and mother was "not likely to become fit in a reasonable time."
II. Termination Criteria and Standard of Review
¶ 4 The juvenile court may terminate parental rights if it finds, by clear and convincing evidence, that (1) the child was adjudicated dependent or neglected; (2) the parent has not complied with an appropriate, court-approved treatment plan or the plan has not been successful; (3) the parent is unfit; and (4) the parent's conduct or condition is unlikely to change in a reasonable time. § 19-3-604(1)(c), C.R.S. 2023.
¶ 5 Whether a juvenile court properly terminated parental rights presents a mixed question of fact and law because it involves application of the termination statute to evidentiary facts. People in Interest of A.M. v. T.M., 2021 CO 14, ¶ 15. "We review the juvenile court's findings of evidentiary fact - the raw, historical data underlying the controversy - for clear error and accept them if they have record support." People in Interest of S.R.N.J-S., 2020 COA 12, ¶ 10. But we review de novo the juvenile court's legal conclusions based on those facts. See id. It is for the juvenile court, as the trier of fact, to determine the sufficiency, probative effect, and weight of the evidence, and to assess witness credibility. People in Interest of A.J.L., 243 P.3d 244, 249-50 (Colo. 2010).
III. Reasonable Efforts
¶ 6 Mother asserts that the Department did not make reasonable efforts to rehabilitate her because it failed to promote family time with the child and facilitate family therapy. We disagree.
A. Applicable Law
¶ 7 The Department must make reasonable efforts to reunify the family when an abused or neglected child is placed out of the home. § 19-3-100.5(1), C.R.S. 2023. "'Reasonable efforts' . . . means the exercise of diligence and care . . . for children and youth who are in . . . out-of-home placement ...." § 19-1-103(114), C.R.S. 2023. Section 19-3-208, C.R.S. 2023, sets forth the types of services that shall be provided to children who are in an out-of-home placement. As relevant here, such reasonable efforts include family time services for parents with children in out-of-home placement and home-based family and crisis counseling. § 19-3-208(2)(b)(II), (IV).
¶ 8 The juvenile court should consider whether the services provided were appropriate to support the parent's treatment plan, People in Interest of S.N-V., 300 P.3d 911, 915 (Colo.App. 2011), by "considering the totality of the circumstances and accounting for all services and resources provided to a parent to ensure the completion of the entire treatment plan," People in Interest of My.K.M. v. V.K.L., 2022 CO 35, ¶ 33. But the parent is ultimately responsible for using the services to comply with the plan. People in Interest of J.C.R., 259 P.3d 1279, 1285 (Colo.App. 2011). And the court may consider a parent's unwillingness to participate in treatment in determining whether the department made reasonable efforts. See People in Interest of A.V., 2012 COA 210, ¶ 12.
¶ 9 Whether a department of human services has satisfied its obligation to make reasonable efforts to reunify the family and avoid out-of-home placement of the child presents a mixed question of fact and law. People in Interest of A.S.L., 2022 COA 146, ¶ 8. We review the juvenile court's factual findings for clear error but review de novo the court's legal determination as to whether the Department satisfied its reasonable efforts obligation. Id.
B. Analysis
1. Family Time
¶ 10 To fulfill its obligations under section 19-3-208, the Department submitted "many authorizations for family time, including therapeutic family time." However, mother "no called, no showed twice" and the provider discontinued services.
¶ 11 Nevertheless, mother asserts on appeal that the Department did not make reasonable efforts because the child was "allowed to dictate" whether she wanted to attend family time with mother, and therefore, often missed visits because she was spending time with friends or doing extracurricular activities. Mother asserts that, given the child's resistance to visits, the Department should have provided "incentives" to encourage the child to attend family time with her.
¶ 12 The record shows that, to the extent the Department could facilitate and encourage family time between mother and the child, the Department did so. For example, in response to the child missing family time due to wanting to be with friends or extracurricular activities, the first caseworker explained that she gave mother the child's schedule in the hope that mother might be able to see the child participate in these activities and rearranged the family time schedule to work around the scheduling difficulties. The caseworker also testified that she encouraged the child's placement provider to talk with the child about the importance of attending family time with mother. And the placement provider testified that they did so, but they never bribed the child. The placement provider said they were "there to support [the child's] choices, not to tell [the child] what to do and how to feel."
¶ 13 The first caseworker testified that, while she encouraged the child to attend, the child "struggle[ed] emotionally" during family time. The caseworker also testified that there were "communication struggles between [the child] and mother" and mother's communication style was "hurtful." For example, during one visit, mother commented to the child about her weight, stating that she "just ke[pt] getting bigger and bigger." The caseworker testified that the comment was "not appropriate" and observed the child react negatively to it, "stepp[ing] back" and "us[ing] her brother as a shield." The juvenile court also noted that mother was not supportive of the child and that mother had expressly doubted the child's claim that she had been sexually assaulted by mother's then-deceased husband. Because of these circumstances, the child said that she felt emotionally vulnerable in mother's presence, and on at least one occasion, experienced a panic attack while visiting mother.
¶ 14 The caseworker who had been assigned to the case the longest - and who was appointed most recently before the termination hearing - testified that she had not observed any changes in mother over the course of the case. And she testified that providing repercussions or incentives to the child would not have encouraged the child to attend family time with mother.
¶ 15 In sum, and as amplified by some of the issues discussed in more detail infra, the absence of family time was largely attributable to mother's failure to make meaningful progress on her treatment plan and her continued inappropriate interactions with the child. Given this record, we cannot say the Department failed to make reasonable efforts when it declined to force the child to visit with mother or provide incentives for the child when the child refused.
2. Family Therapy
¶ 16 We likewise reject mother's assertion that the Department failed to put forth reasonable efforts to ensure that she and the child could attend family therapy.
¶ 17 The record shows that, in October 2022, mother moved to modify the treatment plan to include family therapy. In response, the Department authorized family therapy services and scheduled a family therapy session. However, mother did not attend the scheduled session.
¶ 18 At the hearing following the missed session, the child told the juvenile court that, when mother did not show up, it "messed with [her] a lot." The child's counsel for youth (CFY) objected to further family therapy and the parties agreed to attend a mediation to resolve the issue. Following the mediation, the CFY notified the court that the child no longer objected to family therapy but requested that mother be required to "sign a release of information" so that the child's individual therapist and the family therapist could speak to mother's therapist.
¶ 19 But the Department never received a release from mother verifying that she progressed in therapy sufficiently to justify further family therapy sessions with the child. And the second caseworker testified that mother was unwilling to participate in family therapy because the child requested that "somebody who she feels safe with" - like one of her foster parents - be present, but mother was "not comfortable" with them attending the session.
¶ 20 To the extent mother asserts that "no family therapy occurred" because the child "made no progress towards family therapy due to her lack of insight and growth in individual therapy," we disagree. While the child's lack of attendance at individual therapy may have complicated her ability to attend family therapy, the caseworker testified that the child's lack of sufficient progress toward family therapy was attributable to her difficulty in bonding with any single therapist because she "changed hand[s] so many times" between therapists. But more importantly, as mentioned above, family therapy did not occur because mother missed scheduled sessions, failed to submit a release of information, and was unwilling to meet the conditions designed to ensure that the child felt emotionally safe in mother's presence.
3. Other Resources
¶ 21 The record further shows that the Department provided mother with the resources needed to engage in a healthy way with her child - including mental health services, parenting classes, and life skills classes - but mother failed to take advantage of those resources. See A.V., ¶ 12; J.C.R. 259 P.3d at 1285. More specifically, while it appears that mother engaged in individual therapy at the beginning of the case, she withdrew from therapy altogether in late 2022. And while mother attended a few of the life skills classes, which were provided to help her communicate more effectively with the child, she refused to take any parenting classes because she did "a few parenting classes" before she had children in "2006" and did not think additional classes were necessary.
¶ 22 Overall, the evidence indicated that it was mother's lack of engagement in her own treatment plan - and not the Department's lack of efforts - that prevented mother's rehabilitation. The totality of these circumstances supports the juvenile court's conclusion that the Department made reasonable efforts. See My.K.M., ¶ 33.
IV. Fitness Within a Reasonable Time
¶ 23 Mother asserts that the juvenile court erred when it found that she could not become fit within a reasonable time. We are not persuaded.
A. Applicable Law
¶ 24 An unfit parent is one whose conduct or condition renders them "unable or unwilling to give the child reasonable parental care." § 19-3-604(2). Reasonable parental care requires, at a minimum, that the parent provide nurturing and protection adequate to meet the child's physical, emotional, and mental health needs. People in Interest of A.J., 143 P.3d 1143, 1152 (Colo.App. 2006).
¶ 25 When evaluating the likelihood that a parent will become fit within a reasonable time, the juvenile court may consider, among other factors, whether any changes occurred during the proceeding, the parent's social history, and the chronic or long-term nature of the parent's conduct or condition. People in Interest of D.P., 160 P.3d 351, 353 (Colo.App. 2007). The length of time considered "reasonable" depends on the physical, mental, and emotional conditions and needs of the child. People in Interest of N.A.T., 134 P.3d 535, 537 (Colo.App. 2006).
B. Analysis
¶ 26 The juvenile court determined that mother was unfit and that she was not likely to become fit in a reasonable time. Specifically, the court found that mother has "had over a year to become fit and has a substantial distance to travel before she would be a fit parent to [the child]." The record supports the court's findings.
¶ 27 At the time of the termination hearing, the case had been open for almost two and a half years and mother's treatment plan had been in place for over twenty-two months. In that time, mother missed multiple appointments with her caseworkers. Mother "no called, no showed twice" to family time, which caused the provider of therapeutic family time to discontinue services. At the time of the termination hearing, mother was not in therapy and, according to the caseworker, had not engaged in therapy for one year. Mother did not participate in all the required life skills or parenting classes. And while mother maintained her housing, she never obtained employment.
¶ 28 Nevertheless, mother asserts that she had made some progress with her treatment plan and because her objectives would require a significant amount of time to complete, she should have been afforded additional time. However, the caseworker testified that, in the fourteen months before the termination hearing, she had not observed any change in mother even though mother "had ample time to . . . show some kind of progress." Indeed, mother had almost two years to engage in her treatment plan before the court held the termination hearing. Under these circumstances, we discern no error in the juvenile court's determination that mother was unfit and not likely to become fit in a reasonable time.
V. Disposition
¶ 29 The judgment is affirmed.
JUDGE FREYRE and JUDGE LIPINSKY concur.