Concerning J.D.K. and A.J.L., Appellants. v. << (2023)

APPEAL DISMISSED IN PART AND JUDGMENT AFFIRMED

¶ 1 In this dependency and neglect case, A.J.L. (mother) and J.D.K. (father) appeal the judgment terminating their parental rights to D.R.K. (the child). We dismiss father's appeal and affirm the juvenile court's judgment as to mother.

I. Background

¶ 2 In April 2021, the Denver Department of Human Services (the Department) filed a petition in dependency and neglect regarding the one-month-old child. The Department alleged that mother had tested positive for methamphetamine during prenatal visits in October and November of 2020, that mother and father had tested positive for methamphetamine a month after the child was born, and that father had admitted that he and mother “had [the child] in their care at the time of their use.”

¶ 3 The parents agreed to a deferred adjudication, the terms of which required them to obtain employment and stable housing and attend substance abuse treatment. The court revoked the deferred adjudication in February 2022 based on the parents’ noncompliance, adjudicated the child dependent and neglected as to both parents, and adopted the terms of the deferred adjudication as the parents’ treatment plans.

¶ 4 In July 2022, the Department moved to terminate the parents’ parental rights. Two months later, mother moved to continue the termination hearing, and the court denied the motion. After a five-day hearing in October and November of 2022, the court terminated the parents’ parental rights. As pertinent to this appeal, the court found that (1) mother was unfit and her conduct or condition was unlikely to change within a reasonable time and (2) the Department had made reasonable efforts to rehabilitate mother and reunify her with the child, but mother's “slow and intermittent progress” on her treatment plan had “left the Department unable to effectuate the goal of rehabilitating [her] to safely parent [the child].”

¶ 5 Both parents now appeal.

II. Analysis

¶ 6 Mother contends that the juvenile court reversibly erred by (1) denying her motion to continue the termination hearing; (2) finding that she could not become a fit parent within a reasonable time; and (3) finding that the Department made reasonable efforts to rehabilitate her and reunify her with the child. Father contends that the court erred by terminating his parental rights because the court should not have terminated mother's parental rights but should instead have ordered an allocation of parental responsibilities (APR) to her. We first address mother's contention regarding her motion to continue, then turn to the parents’ contentions regarding the court's ruling terminating their parental rights.

A. Mother's Motion to Continue the Termination Hearing

¶ 7 Mother contends that the juvenile court erred by denying her motion to continue the termination hearing. We disagree.

1. Governing Law and Standard of Review

¶ 8 When, as here, a dependency and neglect proceeding involves a child under six years old, the expedited permanency planning (EPP) procedures require the court to hear a motion for termination within 120 days. § 19-3-508(3)(a), C.R.S. 2022. To justify a delay, the moving party must establish (1) good cause; (2) that a delay serves the best interests of the child; and (3) that a manifest injustice would occur in the absence of a continuance. Id.; see also Chief Justice Directive 96-08, Directive Concerning the Processing of Dependency and Neglect Cases, § 4 (Dec. 1996) (describing the manifest injustice standard). In ruling on a motion to continue, the juvenile court should consider the child's need for permanency and balance the need for orderly and expeditious administration of justice against the facts underlying the motion. People in Interest of A.J., 143 P.3d 1143, 1150 (Colo. App. 2006).

¶ 9 In civil cases generally, a continuance shall be granted only for good cause and should be limited to unforeseen and exceptional circumstances that would prevent the moving party from receiving a fair trial. See C.R.C.P. 121, § 1–11; Todd v. Bear Valley Vill. Apartments, 980 P.2d 973, 976 (Colo. 1999). Examples of unforeseen and exceptional circumstances include the unavoidable absence of a party due to incarceration, Gonzales v. Harris, 189 Colo. 518, 520, 542 P.2d 842, 843-44 (1975), the unavoidable absence of a party due to a chronic medical condition, Rausch v. Cozian, 86 Colo. 389, 390, 282 P. 251, 252 (1929), and an unanticipated medical emergency requiring a party's admission to the hospital, Gallavan v. Hoffner, 154 Colo. 353, 356, 390 P.2d 817, 818-19 (1964).

¶ 10 We review a juvenile court's denial of a continuance for an abuse of discretion. People in Interest of T.E.M., 124 P.3d 905, 908 (Colo. App. 2005). A court abuses its discretion when its ruling is manifestly arbitrary, unfair, or unreasonable. People in Interest of C.Y., 2018 COA 50, ¶ 13.

2. Discussion

¶ 11 In her motion to continue, mother acknowledged that, despite “engag[ing] with a variety of different treatment providers,” she had not succeeded in maintaining sobriety until she was accepted into a sober living facility in April 2022. But since that time, she argued, she had made significant progress on her treatment plan, including maintaining sobriety, securing employment, and, in September 2022, moving into a new sober living facility where the child could live with her. She further argued that, although her visitation supervisor had recently recommended that her visits with the child be expanded and conducted with a lower level of supervision, the Department had delayed acting on the recommendation. Accordingly, mother asked the court “to continue the hearing to allow [her] additional time to demonstrate her ability to meet all of [the child's] needs.”

¶ 12 The court denied the motion, finding that all of mother's arguments could “be presented during the hearing as a defense to the motion” to terminate. At the start of the termination hearing, mother's counsel renewed the motion to continue, and the court again denied it.

¶ 13 Mother claims that the juvenile court abused its discretion by denying her motion to continue without addressing her arguments or making factual findings about the best interests of the child or whether a manifest injustice would occur in the absence of a continuance. But as the court correctly found, mother's arguments in support of her motion to continue went to the merits of why termination should not occur. As we will discuss in greater detail below, the juvenile court may not terminate parental rights unless it finds, among other things, that the parent is unfit, the parent's conduct or condition is unlikely to change within a reasonable time, and “[r]easonable efforts by child-caring agencies ․ have been unable to rehabilitate the parent.” § 19-3-604(1)(c), (2)(h), C.R.S. 2022. Mother's motion is best understood as arguing that (1) her significant progress on her treatment plan since April 2022 demonstrated that she could become a fit parent within a reasonable time and (2) the Department's delay in acting on the recommendation from her visitation supervisor demonstrated that it had not made reasonable efforts to rehabilitate her. The court thus correctly determined that her arguments could “be presented during the hearing as a defense to the motion” to terminate.

¶ 14 Because mother did not allege unforeseen and exceptional circumstances that prevented her from receiving a fair hearing, see Todd, 980 P.2d at 976, but instead raised arguments that went to the merits of why termination was improper, we conclude that the juvenile court did not abuse its discretion by denying her motion to continue.

B. Parents’ Contentions Regarding Termination

¶ 15 We next address the parents’ contentions regarding the juvenile court's ruling terminating their parental rights. We begin by setting forth the statutory criteria and standard of review, then address each contention in turn.

1. Statutory Criteria and Standard of Review

¶ 16 The juvenile court may terminate parental rights if it finds, by clear and convincing evidence, that (1) the child was adjudicated dependent and 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 within a reasonable time. § 19-3-604(1)(c); People in Interest of C.H., 166 P.3d 288, 289 (Colo. App. 2007).

¶ 17 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 will disturb a juvenile court's factual findings and conclusions only if they are “so clearly erroneous as to find no support in the record.” Id. (quoting People in Interest of A.J.L., 243 P.3d 244, 250 (Colo. 2010)). But the determination of the proper legal standard to be applied in a case and the application of that standard to the particular facts of the case are questions of law that we review de novo. M.A.W. v. People in Interest of A.L.W., 2020 CO 11, ¶ 31.

¶ 18 “The credibility of the witnesses; the sufficiency, probative value, and weight of the evidence; and the inferences and conclusions to be drawn from the evidence are within the discretion of the [juvenile] court.” A.M., ¶ 15. As such, it is not our role to reweigh the evidence or substitute our judgment for that of the juvenile court. People in Interest of K.L.W., 2021 COA 56, ¶ 62.

2. Likelihood that Mother Would Change

¶ 19 Mother contends that the juvenile court erred when it found that her conduct or condition was unlikely to change within a reasonable time. We are not persuaded.

a. Relevant Law

¶ 20 To terminate parental rights, the juvenile court must find that an unfit parent's conduct or condition is unlikely to change within a reasonable time. § 19-3-604(1)(c)(III). “A reasonable time is not an indefinite time, and it must be determined by considering the physical, mental, and emotional conditions and needs of the child.” A.J., 143 P.3d at 1152. Courts may also consider the parent's social history, the chronic or long-term nature of the parent's conduct or condition, and whether any change has occurred during the pendency of the dependency and neglect proceeding. Id. Because the determination of a reasonable time is thus necessarily fact-specific, what constitutes a reasonable time may vary from case to case. People in Interest of D.Y., 176 P.3d 874, 876 (Colo. App. 2007).

b. Discussion

¶ 21 Mother argues that “the record suggests that [she] could have become fit within a reasonable time” and that the juvenile court should therefore have allowed her more time to complete her treatment plan.

¶ 22 Evidence was presented that mother had made impressive progress on her treatment plan. The caseworker testified that, by the time of the termination hearing, mother had secured employment and found a safe place for herself and the child to live. Mother testified that she had maintained her sobriety since April 13, 2022, approximately six months before the termination hearing. The caseworker confirmed that mother had received negative hair follicle tests — a type of test that can prove sobriety over a ninety-day period — in August and October of 2022.

¶ 23 Evidence was also presented, however, that supported a conclusion that mother was unlikely to become fit within a reasonable time. The maternal grandmother testified that mother's struggle with addiction began in 2006, fifteen years before this case opened. The substance use disorder counselor who facilitated mother's treatment testified that mother was enrolled in intensive outpatient treatment but was “still in the initial stages” of developing the skills that would enable her to maintain sobriety and “manag[e] any ․ challenges that might make [her] vulnerable to relapse.” She testified that “a person who has had a long-term challenge with addiction” is “more vulnerable” to relapse and would consequently need “a long period” of sobriety to demonstrate that the challenge had been overcome. She testified that, although residence in a sober living facility could be an important part of treatment, “it would be important to see” how a person did outside of that structured environment in order to “get[ ] a clear perspective of [the person's] ability to sustain a lifestyle of recovery.”

¶ 24 The caseworker testified that, although the case had been open for twenty months, mother had not been able to maintain her sobriety until six months before the termination hearing and had complied inconsistently with sobriety monitoring. She also testified that, in her opinion, mother had not succeeded in obtaining stable housing because her residence at the sober living facility was temporary and she did not have a plan for where she would live after that. She testified that the Department had paid mother's first month's rent at the facility but would not provide additional assistance and that mother had expressed concern about her ability to pay the second month's rent. Accordingly, she testified that it was her opinion that mother “ha[d] not demonstrated a period of sobriety and stability” sufficient to show that she could become a fit parent within a reasonable time.

¶ 25 When asked what the “risks” to the child would be “in giving [mother] additional time to continue to demonstrate her stability,” the caseworker testified that the child had been “waiting for [mother] to be [in a position] to have her for 20 months” and that the child was at an age where continued uncertainty risked confusing her about who would take care of her and harming her sense of having a permanent home. She testified that the child had lived with the foster parents for thirteen months; that she was “very comfortable” there and that “all of her needs [were] being met”; that they wished to adopt her; and that removing her from their home “down the road would be extremely detrimental and traumatizing” to her. She testified that the child was “a very happy baby” who “deserve[d] permanency.”

¶ 26 The juvenile court acknowledged that mother had put “a lot of work” into her treatment plan and found that she had proved her sobriety since April 2022 by clear and convincing evidence. But the court found that mother was still “early in her sobriety” and that the substance use counselor's testimony had convinced it of “how slow this sobriety road is going to be.” Citing especially the counselor's testimony that mother was still in the initial stages of developing the skills to maintain sobriety, that a person who has experienced long-term addiction is vulnerable to relapse, and that mother would face a new set of challenges when she eventually left the structured sober living environment, the court found that “[d]ocumented stability and sobriety would likely take another year, if [mother's] recovery was linear. This would be the best case scenario.”

¶ 27 Noting that “we're 20 months into an expedited permanency planning case” and citing the caseworker's testimony about the child's need for permanency, the court found that a year was not a reasonable time to wait. “[P]articularly given the child's very young age and the length of time she has been out of the parents’ care and has been in the [foster parents’] care,” the court found, she could not afford to spend “another year” “in limbo.” Rather, it was in her best interests “to have the permanency that adoption can provide.”

¶ 28 Because the court's finding that mother was unlikely to become fit within a reasonable time is supported by the record, we may not disturb it on appeal.

3. The Department's Reasonable Efforts

¶ 29 Mother contends that the juvenile court erred by finding that the Department made reasonable efforts to rehabilitate her and reunify her with the child because the Department failed to (1) promote bonding and (2) facilitate visitation between mother and the child. We disagree.

a. Relevant Law

¶ 30 In a termination proceeding, the juvenile court, when determining whether a parent is unfit or whether her conduct or condition will change, must assess whether “[r]easonable efforts by child-caring agencies ․ have been unable to rehabilitate the parent.” § 19-3-604(2)(h); see People in Interest of S.N-V., 300 P.3d 911, 915 (Colo. App. 2011). “ ‘Reasonable efforts’ ․ means the exercise of diligence and care ․ for children and youth who are in foster care or out-of-home placement ․” § 19-1-103(114), C.R.S. 2022.

¶ 31 The Department satisfies the reasonable efforts standard if services are provided in accordance with section 19-3-208, C.R.S. 2022. See People in Interest of J.A.S., 160 P.3d 257, 262 (Colo. App. 2007). Such reasonable efforts include screening, assessments, home-based family and crisis counseling, information and referral services to available public and private assistance resources, visitation services for parents with children in out-of-home placements, and placement services including foster care and emergency shelter. § 19-3-208(2)(b). The parent is responsible for using the services to obtain the assistance she needs to comply with her treatment plan. People in Interest of J.C.R., 259 P.3d 1279, 1285 (Colo. App. 2011).

b. Bonding

¶ 32 Mother argues that the Department failed to promote bonding between her and the child because it did not find a play therapy provider for the child, conduct an “icebreaker visit” between mother and the foster parents, or provide attachment-based therapy to mother and the child.

¶ 33 Regarding play therapy, the caseworker testified that the child was remarkably happy and social but that she believed the child could benefit from play therapy “as she was getting older.” But she testified that, at the time of the termination hearing, the child had been on a waitlist to see a play therapy provider for six months. She testified that “that is how long waitlists are, and as much as I would love to change that, I cannot. It's not something I determine.”

¶ 34 Regarding an icebreaker visit, the caseworker testified that it was no longer the Department's practice to conduct such visits. In response to questioning by mother's counsel, she explained that counsel “probably [knew] of an icebreaker thing that the [D]epartment used to have that does not exist any longer and has never existed since I've worked at the [D]epartment.” But she testified that neither mother nor the foster parents had requested help with communication. The foster mother testified that the foster parents were “very close” with the maternal grandmother and that tensions between mother and the maternal grandmother created a “volatile overarching situation,” but that communication between the foster parents and mother was respectful.

¶ 35 Regarding attachment, mother argues that the Department failed “to provide any sort of therapeutic services so that [the child and mother] could better grow their bond and form a better attachment,” but she does not contend that she ever requested such services.

¶ 36 Overall, the evidence of mother's bond with the child was conflicting. The visitation supervisor, who oversaw more than forty visits between mother and the child, testified that they had a loving relationship and that the child was “always, without fail, happy to see her [mother] at the outset of visits.” The caseworker, in contrast, testified that she had “big concerns about the bond” between the child and mother. But as detailed above, the record does not support mother's specific contentions about the Department's failures to promote bonding. The caseworker testified that she did her best to place the child in play therapy and that the Department no longer offered icebreaker visits, and the juvenile court found her testimony credible. And the record does not reflect that mother requested attachment therapy. Accordingly, based on this record, we cannot conclude that the Department failed to make reasonable efforts to reunify mother with the child.

c. Visitation

¶ 37 Mother argues that the Department failed to facilitate visitation between her and the child because it delayed acting on the visitation supervisor's recommendation for less-restricted visits.

¶ 38 The visitation supervisor testified that, approximately two months before the termination hearing, he had recommended that mother's visits with the child be expanded and conducted with a lower level of supervision. Around the same time, however, mother requested that visits be moved to Saturdays, which the visitation supervisor was not able to accommodate. The caseworker testified that she referred mother to a new visitation supervisor and informed her of the prior supervisor's recommendation, but that the new supervisor told the caseworker that she “needed to make her own assessment of where visits were at” and what level of supervision was necessary. The new supervisor ultimately did not make the same recommendation for a lower level of supervision.

¶ 39 Based on this record, we cannot conclude that the Department deliberately delayed implementing the first visitation supervisor's recommendation for less-restricted visits. The change in supervisors was not made for the purposes of delay, and although the caseworker conveyed the recommendation for less-restricted visits to the new supervisor, the new supervisor did not agree.

¶ 40 Accordingly, because the record supports the juvenile court's finding that the Department made reasonable efforts to rehabilitate mother and reunify her with the child, we will not disturb that finding on appeal.

III. Father's Standing

¶ 41 Father contends that the juvenile court erred by finding that mother's conduct or condition was unlikely to change within a reasonable time and, therefore, erred by terminating mother's parental rights. He argues that, if the court had not terminated mother's parental rights, it could have granted an APR to her and thereby avoided terminating his parental rights. We conclude that father does not have standing to assert this argument.

¶ 42 One parent does not have standing to raise issues regarding the propriety of termination of the other parent's parental rights. See J.A.S., 160 P.3d at 261; People in Interest of J.M.B., 60 P.3d 790, 792 (Colo. App. 2002) (father lacked standing to challenge the appropriateness of mother's treatment plan). In J.A.S., a division of this court held that the mother did not have standing to challenge the juvenile court's findings that the father was unfit and unlikely to change within a reasonable time. 160 P.3d at 261. Accordingly, she did not have standing to assert that the court erred by terminating the father's parental rights and rejecting placement with the father as a less drastic alternative to termination.¹

¶ 43 “When the appellant lacks standing, the appeal should be dismissed for lack of jurisdiction.” People in Interest of J.C.S., 169 P.3d 240, 244 (Colo. App. 2007). Because father lacks standing to assert that the juvenile court erred by terminating mother's parental rights, we conclude that his appeal must be dismissed.

IV. Disposition

¶ 44 Father's appeal is dismissed, and the judgment is affirmed as to mother.

FOOTNOTES

1.   To the extent father could be deemed to have standing by virtue of his own interest in having the child placed with mother as a less drastic alternative to termination, see People in Interest of J.A.S., 160 P.3d 257, 261 (Colo. App. 2007), we nevertheless discern no basis for reversal. We have already concluded that the record supports the juvenile court's finding that mother was unlikely to become fit within a reasonable time.

Opinion by JUDGE YUN

Navarro and Bernard *, JJ., concur JUDGE NAVARRO and JUDGE BERNARD concur.