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March 12, 2026 Get Citation Alerts Download PDF Add Note

Peo in Interest of EN

Colorado Court of Appeals

• Citations: None known
• Docket Number: 25CA1438

• Precedential Status: Non-Precedential

• Opinion

• Authorities (7)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

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Combined Opinion

25CA1438 Peo in Interest of EN 03-12-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA1438
Arapahoe County District Court No. 24JV96
Honorable J. Robert Lowenbach, Judge

The People of the State of Colorado,

Appellee,

In the Interest of E.N. and A.T.N., Children,

and Concerning B.M.N. and E.R.H.,

Appellants.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE GOMEZ
Pawar and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 12, 2026

Ron Carl, County Attorney, Writer Mott, Deputy County Attorney, Rebecca M.
Taylor, Senior Assistant County Attorney, Jordan Lewis, Assistant County
Attorney, Littleton, Colorado, Tamra White, Assistant County Attorney, Aurora,
Colorado, for Appellee

Josi McCauley, Guardian Ad Litem for E.N.

Josi McCauley, Counsel for Youth, Superior, Colorado, for A.T.N.

Harald Van Gaasbeek, Office of Respondent Parents’ Counsel, Fort Collins,
Colorado, for Appellant B.M.N.

Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr,
Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant E.R.H.
¶1 In this dependency and neglect case, B.M.N. (mother) appeals

the judgment terminating her parent-child legal relationships with

E.N. and A.T.N. (the children), and E.R.H. (father) appeals the

judgment terminating his parent-child legal relationship with E.N.

We affirm.

I. Background

¶2 The Arapahoe County Department of Human Services filed a

petition in dependency or neglect based on allegations that the

parents used drugs in the hospital room following the birth of the

younger child, E.N., and based on mother’s admission that she

used methamphetamine and alcohol during the pregnancy. The

petition also alleged unsafe living conditions — specifically, that the

residence was dirty, cluttered, and smelled like marijuana.

¶3 The Department later amended the petition to include

mother’s older child, A.T.N, who was then ten years old. (Father is

not A.T.N.’s father.) Mother had been working with the Department

voluntarily regarding the older child due to concerns about drug

use, domestic violence, and the child not being in school. The

Department placed the children with maternal aunt, where they

remained for the duration of the proceedings.

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¶4 Both parents admitted the allegations of the petition, and the

juvenile court adjudicated the children dependent and neglected.

The court then approved a treatment plan for each parent requiring

them to: (1) maintain caseworker contact and cooperate with the

Department; (2) provide safe and stable housing and maintain a

legal income; (3) complete a mental health assessment and follow

all treatment recommendations; (4) complete a substance abuse

evaluation and follow its recommendations, including drug testing

and demonstrated sobriety; (5) engage in family time; (6) refrain

from criminal activity; and (7) participate in domestic violence

treatment. Shortly thereafter, father was arrested. He was

incarcerated for the remainder of this case.

¶5 The Department later moved to terminate parental rights, and

the juvenile court conducted a two-day termination hearing. Fifteen

months after the Department filed the petition, the juvenile court

terminated the parent-child legal relationships.

¶6 Mother and father both appeal the termination judgment.

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II. Mother’s Fitness

¶7 Mother argues that the juvenile court erred when it found that

she was unfit and unlikely to become fit within a reasonable time.

We are not persuaded.

A. Applicable Law and Standard of Review

¶8 To terminate a parent-child legal relationship, clear and

convincing evidence must establish, among other things, that the

parent is unfit and that the parent’s conduct or condition is

unlikely to change in a reasonable time. § 19-3-604(1)(c)(II)-(III),

C.R.S. 2025. An unfit parent is one whose conduct or condition

renders them “unable or unwilling to give the child reasonable

parental care to include, at a minimum, nurturing and safe

parenting sufficiently adequate to meet the child’s physical,

emotional, and mental health needs and conditions.” § 19-3-604(2).

¶9 In determining whether a parent’s conduct or condition is

likely to change within a reasonable time, “the court may consider

whether any change has 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 S.Z.S., 2022

COA 133, ¶ 24. The court need not give a parent additional time,

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even when the parent has made some recent progress on the

treatment plan. Id. at ¶¶ 24, 28-29.

¶ 10 A juvenile court’s termination of parental rights presents a

mixed question of law and fact because it involves application of the

termination statute to evidentiary facts. People in Interest of

S.R.N.J-S., 2020 COA 12, ¶ 10. We review the court’s factual

findings for clear error, meaning we will accept the findings if there

is record evidence to support them, but we review de novo the

court’s legal conclusions based on those findings. Id.

¶ 11 The credibility of the witnesses, as well as the sufficiency,

probative effect, and weight of the evidence, and the inferences and

conclusions to be drawn from the evidence, are all subject to the

juvenile court’s discretion. People in Interest of A.J.L., 243 P.3d

244, 249-50 (Colo. 2010).

¶ 12 Additionally, when a child is under six years old, as one of the

children was here, the juvenile court must consider the expedited

permanency planning provisions, which require that the child be

placed in a permanent home as expeditiously as possible. See

§§ 19-1-102(1.6), 19-1-123, 19-3-702(5)(c), C.R.S. 2025.

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B. Analysis

¶ 13 As an initial matter, we disagree with mother’s assertion that

the juvenile court misapplied K.D. v. People, 139 P.3d 695 (Colo.

2006), in considering her outstanding warrants, and the resulting

possibility of arrest and incarceration, as part of its determination

regarding parental fitness. It is true that the supreme court held in

K.D. that “[p]arental incarceration alone is an insufficient basis on

which to terminate parental rights.” Id. at 700. But the juvenile

court here did not terminate mother’s parental rights based solely

on her potential incarceration. To the contrary, the court

considered mother’s potential incarceration among “a number of

reasons” supporting its conclusion that mother was unfit and

unlikely to become fit within a reasonable time. And the court’s

finding that mother “will not be available to parent appropriately

because of the likelihood of arrest on multiple warrants” is

consistent with the supreme court’s recognition in K.D. that a court

may “consider[] even a relatively short period of parental

incarceration as a significant factor in determining fitness,”

particularly if it affects the parent’s ability to “provide a stable home

atmosphere for the child within a reasonable period.” Id. at 701-02.

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¶ 14 We also disagree with mother’s assertions that the juvenile

court’s conclusion on fitness is undermined by the evidence of her

successful engagement in family time and the lack of evidence of

any failure to complete the domestic violence objective of her

treatment plan. Even if mother complied in full or in part with

these components of her treatment plan, the court concluded that

she remained unfit for other reasons, including, in particular, her

excessive use of controlled substances. See People in Interest of

K.B., 2016 COA 21, ¶ 26 (even substantial compliance with a plan

may not be sufficient to render a parent fit).

¶ 15 Turning to her substance abuse, Mother takes issue with the

court’s findings, noting that she had made recent progress on that

aspect of her treatment plan. For example, mother notes that she

had entered a residential substance abuse treatment program and

had provided negative urinalysis tests over a two-week period. The

court acknowledged mother’s recent steps to address her substance

use but still found that she had made little progress on her

treatment plan and concluded that her conduct or condition was

unlikely to change within a reasonable period.

6
¶ 16 The record supports the court’s findings as well as its ultimate

conclusion on fitness. The Department presented evidence that

mother did not achieve sobriety. At the time of the caseworker’s

last home visit, mother was still actively using substances and

wasn’t taking accountability for her substance use. The family time

supervisor testified that she suspected that mother had used

substances while at the Department and had been under the

influence during family time visits. Mother herself testified that

she’d “recently” had “a problem with substance abuse.”

¶ 17 Additionally, the caseworker testified that mother didn’t

consistently comply with urinalysis testing. Although she’d recently

had two negative uranalysis tests, every single test before that time

had come back positive for fentanyl and methamphetamines,

including a test submitted less than a month before the termination

hearing. The caseworker also testified that mother was

unsuccessfully discharged from inpatient substance use treatment

twice. And mother conceded that she hadn’t successfully

completed any substance use program.

¶ 18 Mother didn’t comply with other aspects of her treatment plan

as well. The juvenile court took judicial notice of three criminal

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cases in which mother had active warrants for failures to appear.

And the caseworker testified that mother had been arrested twice

since the caseworker took over the case. The caseworker also

testified that mother had been “going from one family [or friend] to

another” since being evicted from an apartment and that she hadn’t

provided any documentation of employment.

¶ 19 Ultimately, the caseworker opined that mother was not a fit

parent because she hadn’t complied with her treatment plan. The

caseworker further opined that, even if mother became compliant, it

would still take a year for her to meet all the requirements of her

treatment plan, and that it wasn’t in the children’s best interest to

extend the case for that long.

¶ 20 Because the record supports the court’s findings, as well as its

ultimate conclusion that mother was unfit and unlikely to become

fit within a reasonable time, we have no basis to disturb the court’s

ruling on fitness. See S.R.N.J-S., ¶ 10.

III. Less Drastic Alternative

¶ 21 Mother also argues that the juvenile court erred by finding

that there was no less drastic alternative to termination, as an

8
allocation of parental responsibilities (APR) to maternal

grandmother was a viable less drastic alternative. We disagree.

A. Applicable Law and Standard of Review

¶ 22 Before terminating parental rights under section 19-3-

604(1)(c), the juvenile court must consider and eliminate less

drastic alternatives. People in Interest of L.M., 2018 COA 57M, ¶ 24.

In considering less drastic alternatives, a court must give primary

consideration to the child’s physical, mental, and emotional

conditions and needs. § 19-3-604(3); L.M., ¶ 29. The court may

also consider other factors, including the child’s need for

permanency. L.M., ¶ 29.

¶ 23 For a less drastic alternative to be viable, it must do more than

just “adequately” meet a child’s needs; it must be the “best” option

for the child. People in Interest of A.M. v. T.M., 2021 CO 14, ¶ 27. If

the court considers a less drastic alternative but finds instead that

termination is in the child’s best interests, the court must reject the

less drastic alternative and order termination. Id. at ¶ 32. And we

must affirm the court’s decision if its findings are supported by the

record. People in Interest of B.H., 2021 CO 39, ¶ 80.

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B. Analysis

¶ 24 Mother first argues that there was insufficient evidence to

support the juvenile court’s finding that an APR to grandmother

was not in the children’s best interest. But the record supports the

court’s findings that no alternative short of termination would

adequately serve the children’s best interest and that the children

needed permanency.

¶ 25 The court didn’t make any specific findings regarding the

children’s safety beyond the general finding that no alternative to

termination would serve the children’s best interest. But the

evidence showed that grandmother’s home was not safe for the

children. Mother’s fourteen-year-old son was living with

grandmother pursuant to an APR from a different case. Mother

testified that she reported her teenage son for potentially sexually

assaulting one of the children. And the caseworker testified that

“there was a finding within our Department that he did sexually

assault” one of the children. The caseworker opined that, based on

these allegations, it would not be appropriate for the children to be

placed with grandmother. In arguing that the evidence regarding

these allegations was “incorrect,” mother effectively asks us to

10
reweigh the evidence and substitute our judgment for that of the

juvenile court, which we cannot do. See A.J.L., 243 P.3d at 249-50.

¶ 26 The caseworker further testified that, even if grandmother was

an appropriate placement, an APR would not be in the children’s

best interest because mother was living with grandmother. As

discussed above, mother didn’t complete her treatment plan, was

actively using substances in grandmother’s home, and hadn’t

mitigated the Department’s safety concerns.

¶ 27 Next, mother argues that the court erred because the juvenile

court found that other permanency options would require that the

children be moved to a new home, which would cause “a traumatic

transition,” and no evidence supported this finding. Although the

term “traumatic transition” does not otherwise appear in the record,

the record supports the court’s general finding that a transition to a

new home would not be in the children’s best interests. The

caseworker testified that A.T.N. had been with maternal aunt for “a

couple of years,” and E.N. had been with her for his whole life. The

caseworker explained that the children needed consistency and

stability and, in particular, that A.T.N. needed to process “the

trauma” that was “created [by] this process and this case being

11
open” and needed to “begin her life outside of the ongoing safety

concerns that ha[d] not been mitigated” by the parents. The

caseworker also explained that the aunt was meeting the children’s

emotional and medical needs.

¶ 28 Finally, mother argues that the juvenile court failed to

determine if the children’s placement was appropriate and left that

determination to another court. But the court found that the

children’s current home was “consistent” and “nurturing,” would

“provide permanence,” and “appear[ed] to be an appropriate

placement.” To the extent that mother argues the court erred when

it noted that the “adoption court” would determine whether the

children’s placement was appropriate for adoption, her argument is

unavailing because “when a court concludes that termination is in

a child’s best interests . . . the child does not need to be in a

potentially adoptive home.” People in Interest of H.L.B., 2025 COA

86, ¶ 20; see also People in Interest of T.E.M., 124 P.3d 905, 910-11

(Colo. App. 2005) (declining to disturb a juvenile court’s rejection of

placement with a relative as a less drastic alternative and its

determination that termination and adoption were in the children’s

best interests “whether or not they were ultimately adopted”).

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¶ 29 We therefore decline to disturb the juvenile court’s conclusion

that there was no less drastic alternative to termination.

IV. Reasonable Efforts

¶ 30 Father asserts that the Department failed to provide

reasonable efforts once he became incarcerated because it (1) took

months to contact the jail where he was incarcerated to ascertain

what services were available; (2) never informed the jail of his

treatment plan; (3) never followed up to set up mental health

treatment; and (4) didn’t set up any family time visits with E.N.

while he was incarcerated. We discern no basis for reversal.

A. Applicable Law

¶ 31 Before a juvenile court may find a parent unfit, the county

department of human services must make reasonable efforts to

rehabilitate the parent and reunite the family. §§ 19-1-103(114),

19-3-100.5(1), 19-3-208, 19-3-604(2)(h), C.R.S. 2025. Reasonable

efforts mean the “exercise of diligence and care” to reunify parents

with their children. § 19-1-103(114).

¶ 32 Services provided in accordance with section 19-3-208 satisfy

the reasonable efforts standard. § 19-1-103(114). Thus, a

department must provide, among other things, individual case

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plans, referrals to available public and private assistance resources,

family time services, and placement services. § 19-3-208(2)(b). And

if funding is available, a department must provide mental health

services and drug and alcohol treatment services. § 19-3-208(2)(d).

¶ 33 In assessing a department’s provision of reasonable efforts, a

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), “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.

¶ 34 A parent’s incarceration does not excuse a department from

making reasonable efforts. See § 19-3-508(1)(e), C.R.S. 2025.

When the department learns of a parent’s incarceration, it must

communicate with the facility where the parent is held regarding

the requirements of the parent’s treatment plan and provide

information to the court detailing the services and treatment

available to the parent at that facility. § 19-3-508(1)(e)(I), (III). If

the caseworker is unable to determine any treatment or services

14
available to the parent, they must still report their efforts to obtain

such information. § 19-3-508(1)(e)(III).

B. Analysis

¶ 35 As to father’s arguments concerning the Department’s

communications with the jail regarding father’s treatment plan and

available services, the juvenile court found that, although the

Department made “many” reasonable efforts, the court expected

more timely communication. Nonetheless, the court found that

timely communication would not have made a difference in father

receiving treatment and that “the failures of the caseworker were

not the reason that the treatment plan failed.”

¶ 36 The court’s findings are supported by the record. The

caseworker testified that she contacted the jail two months after

father’s incarceration to determine if it offered any “educational

classes, group sessions, [or] therapy sessions.” But father was “put

on disciplinary lockdown” and transitioned to maximum security for

“behavioral issues,” which limited his access to services. The

caseworker testified that father told her that “the jail itself [did] not

provide any services whatsoever.” The caseworker informed father

that he still had access to individual therapy while on lockdown,

15
but that he had to make the request for therapy himself. But even

after the caseworker advised father to enroll in individual therapy,

he never did so.

¶ 37 Nothing in the record suggests that, had the caseworker timely

investigated or reported about the limited jail-based services

available to father, it would’ve made a difference in the outcome of

the case. This is especially so given the juvenile court’s record-

supported findings that father picked up new criminal charges for

conduct he committed after the treatment plan was in place; that in

the resulting proceedings, father stipulated to an eight-year-

sentence, which meant he wouldn’t be available to parent E.N. for

several years; that father “fail[ed] to access [mental health therapy]

that was available in the jail”; that almost no other pertinent

services were available to father at the jail; that father “ha[d] been

hostile to the efforts of the Court and [the Department] to address

his unfitness” and was “predispos[ed] not to comply with the

treatment plan”; and, for all those reasons, that father’s conduct or

condition was unlikely to change within a reasonable time. See

People in Interest of C.C., 2022 COA 81, ¶ 20 (“An error affects a

substantial right only if ‘it can be said with fair assurance that the

16
error substantially influenced the outcome of the case or impaired

the basic fairness of the trial itself.’”) (citation omitted).

¶ 38 And as to father’s final argument concerning family time

during his incarceration, the juvenile court found that the visitation

supervisor used reasonable efforts in an attempt to secure family

time. In particular, the court noted that the supervisor spent a lot

of time trying to set up virtual visits, arranged to have the child

present while waiting on the line for visits, and relied on messages

that father had terminated the call.

¶ 39 The family time supervisor testified that she “attempted many

solutions” to facilitate family time while father was incarcerated and

that she followed the jail’s process to set up visitation. The child

was brought to the Department weekly for over six months to

attempt video visits with father at the jail. But when the supervisor

waited with the child on the line for a visit, the call would terminate

with a message that “the [inmate] had ended the call.” The

supervisor tried calling the jail ahead of time to allow them to locate

father for the visit. When that didn’t work, the supervisor notified

father’s attorney about her struggles in securing family time.

17
Ultimately, the supervisor concluded that there was nothing else

she could have done to facilitate family time for father at the jail.

¶ 40 Thus, the record supports the juvenile court’s conclusion that

the Department made reasonable efforts attempting to secure

parenting time for father while he was incarcerated.

V. Disposition

¶ 41 The judgment is affirmed.

JUDGE PAWAR and JUDGE JOHNSON concur.

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