Peo in Interest of SiOG

21CA0023 Peo in Interest of SiOG 10-21-2021 COLORADO COURT OF APPEALS Court of Appeals No. 21CA0023 City and County of Denver Juvenile Court No. 19JV894 Honorable D. Brett Woods, Judge The People of the State of Colorado, Appellee, In the Interest of Si.O.G. and S.M.G., Children, and Concerning M.M.V. and S.O.G., Appellants. JUDGMENT AFFIRMED Division VII Opinion by JUDGE NAVARRO Grove and Pawar, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 21, 2021 Kristin M. Bronson, City Attorney, Laura Grzetic Eibsen, Assistant City Attorney, Denver, Colorado, for Appellee Barry Meinster, Guardian Ad Litem Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant M.M.V. Pamela K. Streng, Office of Respondent Parents’ Counsel, Georgetown, Colorado, for Appellant S.O.G. 1 ¶ 1 In this dependency and neglect pr oceeding, S.O.G. (father) appeals the juvenile court’s judgm ent terminating his parent-child legal relationship with S.M.G., and M.M.V. (mother) appeals the juvenile court’s judgment terminati ng her parent-child legal relationship with S.M.G. and Si.O. G (the children). The parents contend that the juvenile court err ed by determining that termination was in the children’s b est interests, as opposed to a less drastic alternative. We disagr ee and affirm. I. Background ¶ 2 In May 2019, the Denver Departm ent of Human Services received a report that S.M.G. t ested positive for methamphetamin e at birth. The child was also born premature and required treatm ent in a neo-natal care unit. Mother admit ted to using methamphetamine and to having a relapse while pregnant. She asserted that she relapsed after f ather shot her in the hand. Fath er was arrested on criminal charg es related to the shooting and remained incarcerated throughout the case. ¶ 3 In June 2019, after S.M.G. was dis charged from the hospital, a Department caseworker attempt ed many home visits to check on 2 the children, without success. 1 The Department filed a motion for temporary protective custody of t he children, which the juvenile court granted. ¶ 4 The Department later filed a petitio n in dependency and neglect alleging, among other thing s, that the children were homeless, without proper care, or not living with either parent through no fault of the parents. Father and mother admitted th e allegations, and the court adjudica ted the children dependent or neglected. The court adopted treat ment plans for both parents. ¶ 5 The children were placed togeth er in foster care, where they remained throughout the case. The r ecord indicates that father’s fiancée asked to be considered a placement for the children in October 2019, but she did not hav e stable housing. The Department approved the paternal grandmother’s home for placement in January 2020. At that time, however, the paternal grandmother “said that she was no t able to take care of the two kids.” The Department and guardi an ad litem objected to moving the children to the fiancée or pat ernal grandmother. 1 Although father’s name appears on Si.O.G.’s birth certificate, Si.O.G. is not father’s biological ch ild. 3 ¶ 6 The court set a contested placem ent hearing for January 2020, but father agreed to “contin ue [the] matter until after his criminal trial [was] completed . . . [in] March.” Mother, via her counsel, agreed with this plan. By February 2020, the fiancée had moved in with the paternal grandm other, and the paternal grandmother told the Department she now wanted to be consider ed as a placement for the children. T he paternal grandmother started participating in supervised visitati on with the fiancée. Later, however, the paternal grandmother requested separate visits from the fiancée. ¶ 7 The record does not indicate that t he contested placement hearing occurred in March. In May , father’s counsel asked that the hearing be continued to August 2020, stating that “the proposed placement has not really had an opportunity to get to know the kid s or to really visit them.” The court granted the continuance. ¶ 8 Meanwhile, in June 2020, the Depar tment filed a forthwith motion to discontinue the childr en’s visits with the paternal grandmother and fiancée. The cou rt suspended visits temporarily and set a contested visitation h earing. After that hearing, the co urt concluded that the paternal grandmot her and fiancée should be 4 allowed in-person visitation, wit h a parent-coach present, in advance of the contested placem ent hearing. ¶ 9 The contested placement hearing w as held in September 2020. The juvenile court, considering th e children’s “medical, physical, emotional and other specific need s,” denied the request to move th e children. The court also ordered t hat visitation continue with the fiancée and paternal grandmoth er. ¶ 10 Also in September 2020, the Depar tment filed motion to terminate the parents’ parental rig hts, alleging that their treatment plans were not successful. Aft er a hearing, the court granted th e motion. II. Less Drastic Alternatives ¶ 11 Neither parent disputes that the Depart ment proved each of the statutory elements for termin ation of their parental rights. See 19-3-604(1)(c), C.R.S. 2020. Instead, both parents contend that t he juvenile court did not properly con sider less drastic alternatives. ¶ 12 Mother asserts that the court erron eously relied on a previous finding made pursuant to section 19-3-702, C.R.S. 2020, in lieu of a finding pursuant to section 19-3 -604(3). Father asserts that approved placements existed that “would maintain family ties and 5 foster the child’s culture, heritag e, and sibling relationships.” We perceive no error on the court’s par t. A. Relevant Law and Standard of R eview ¶ 13 When considering termination und er section 19-3-604(1)(c), the juvenile court must also consid er and eliminate less drastic alternatives to termination. Peopl e in Interest of M.M. , 726 P.2d 1108, 1122 (Colo. 1986). This d etermination is implicit in, and thus intertwined with, the statutor y criteria for termination. Peopl e in Interest of L.M. , 2018 COA 57M , ¶ 24. If the juvenile court’s findings “conform to the statutory c riteria for termination and are adequately supported by evidence i n the record, a reviewing court may reasonably presume that, in the absence of any indication in the record to the contrary, the [juvenil e] court considered and eliminated less drastic alternativ es.” People in Interest of A.M. v. T.M. , 2021 CO 14, ¶ 41 . ¶ 14 The court must give primary consi deration to the child’s physical, mental, and emotional co nditions and needs. § 19-3- 604(3); A.M., ¶ 20. Thus, the court may consider whether an ongoing relationship with the par ent would be beneficial or detrimental to the child and the chi ld’s need for permanency when 6 determining whether there is a via ble alternative to termination. L.M. , ¶ 29. Indeed, the primary and controlling issue in termination proceedings is the determination o f what will serve the child’s interests and welfare. A.M. , ¶ 2 0. ¶ 15 Moreover, even where a less drastic alternative exists and would be adequate, if the court con siders the alternative “in connection with its overall consid eration of the statutory criteria for termination and finds that termina tion is in the child’s best interests, it must reject the alternat ive and order termination.” I d. at ¶ 32; see also id. at ¶ 1. ¶ 16 Whether a juvenile court properly t erminated parental rights presents a mixed question of fact and law because it involves application of the termination stat ute to evidentiary facts. See i d. at ¶ 15. A determination of the prop er 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 C O 11, ¶ 31. ¶ 17 We will not disturb the court’s fact ual findings and conclusions when they are support ed by the record. Id . at ¶ 32; s ee also A.M. , ¶ 15. The credibility of the witnesses as well as the 7 sufficiency, probative effect, and w eight of the evidence, and the inferences and conclusions to be dr awn from it are within the juvenile court’s discretion. Peopl e in Interest of C.A.K. , 652 P.2d 603, 613 (Colo. 1982). Our supr eme court has emphasized that a juvenile court’s “determinations r egarding permanent placement and its determination that termin ation was in the child’s best interests” are factual findings entitl ed to deference, unless unsupported by the record. A.M. , ¶ 48. B. Analysis ¶ 18 The juvenile court concluded that there were no less drastic alternatives to termination that wer e in the children’s best interest. In its oral findings, the juvenile co urt gave the following reasons for this conclusion: (1) information r eceived at the September 2020 contested placement hearing indi cated that the children’s placement with the paternal grand mother and fiancée was not in the children’s best interest (2) father ’s potential return home to th e fiancée and paternal grandmoth er was a concern because of how father’s unresolved domestic violen ce issues could negatively aff ect the children; and (3) there were l egitimate concerns about father’s motivations for placing the childr en with the fiancée and paternal 8 grandmother; specifically, that this placement would assist father in resolving his criminal case. The evi dence amply supports the court’s determination. ¶ 19 First, we do not agree with moth er that the juvenile court erred by incorporating its finding s from the placement hearing into its factual findings at the terminat ion hearing. The court took proper judicial notice of its prior findings and orders. See People i n Interest of O.J.S. , 844 P.2d 1230 , 1 233 (Colo. App. 1992) (a court may take judicial notice of its own file, its findings of fact, and it s conclusions of law). Furthermor e, the court differentiated between the findings required at the cont ested placement hearing and thos e related to a less drastic alternatives determination. ¶ 20 Second, at the contested placem ent hearing, the court considered the fact that the children “h aven’t been placed with [the fiancée and paternal grandmoth er] throughout the case” when it determined that the fiancée and pa ternal grandmother were not appropriate placements for the chil d. The Department previously determined that the fiancée, on h er own, could not be an appropriate placement for the child because “her housing was an issue.” Similarly, although the D epartment approved the paternal 9 grandmother as a placement, sh e repeatedly insisted that she coul d not physically care for the childr en on her own. Neither father nor mother points to any evidence indi cating that the paternal grandmother’s situation had chang ed at the time of the terminati on hearing, nor do they provide any l egal argument indicating that the juvenile court could not consider t he paternal grandmother’s previous testimony that she could n ot care for the children alone. Cf. People v. Rios , 43 P.3d 726 , 7 32 (Colo. App. 2001) (a court has discretion to take into consideratio n its own observations). ¶ 21 Department counsel informed the c ourt that the Department “seriously look[ed]” at the fiancée a nd paternal grandmother as a placement option where they woul d reside together with the children in paternal grandmoth er’s home. At the contested placement hearing, however, the c aseworker testified that having two adults and two children in the paternal grandmother’s one- bedroom home made it “quite snug .” Furthermore, when the fiancée worked, the paternal grand mother would be caring for t he children alone, something that she could not physically accommodate. The paternal grand mother previously testified that she did not want the children in da ycare. But if the fiancée stopp ed 10 working to care for the children full time, the caseworker testified that she would “worry about . . . how they [would] financially provide for the children . . . [an d] themselves.” ¶ 22 We note that, while father asserts t hat the fiancée and paternal grandmother could provid e “ties to the child’s culture, heritage, and sibling relationships, ” the record supports a finding that the foster parents could adeq uately provide such ties. The record indicates that the foster par ents supported the children’s “black and Spanish roots.” The fo ster mother testified at the contested placement hearing that the children have “dolls and toys and books that are culturally div erse” and that the family attends a “culturally diverse” church. The fo ster mother testified that sh e wanted to make sure that she was “engaging [the children] in being around people of different cultur es and ethnicities, especially th eir own.” She was also open to allowi ng mother and father to remain in contact with the children. Finall y, during the course of the case, mother had another child, who w as to be placed in the same fost er family. ¶ 23 Third, the juvenile court did not co nsider placement with the fiancée and paternal grandmoth er a viable less drastic alternative to 11 termination because of father’s dom estic violence “issues.” Although father had no convictions for domestic violence at the tim e of the termination hearing, his tr eatment plan included a domestic violence treatment component. Fat her was unable to participate in domestic violence therapy while h e was incarcerated. Neverthel ess, the fiancée testified that she plann ed to invite father into the home with the paternal grandmother onc e he was no longer incarcerat ed. She testified, “once [father] gets ou t of prison . . . we’re going to b e a family.” The caseworker testifi ed, at the contested placement hearing, that she was worried about the fiancée’s safety “and of course if the children were placed w ith [the fiancée,] the children’s safety” if father were released from jail and lived with the fiancée and paternal grandmother. At t ermination, no evidence was offered to controvert this testimony. ¶ 24 Finally, the court expressed concer n about “possible issues of witness tampering.” Specifically, t he court noted that “if the father or the fiancée had the children, t hat [father] might do better in his criminal case.” The record shows t hat, at the time of the contest ed placement hearing, father faced wit ness tampering charges. The court’s concern was supported by t he caseworker’s testimony that 12 those charges were “part of the r eason” that she “did not want t o place the children with [the fian cée] and [paternal grandmother].” ¶ 25 In light of the evidence discussed above, the record supports the juvenile court’s finding that termination of mother’s and father’s parental rights, not a less drastic alternative, was in the childr en’s best interests. Therefore, we do n ot disturb the court’s determination. III. Conclusion ¶ 26 The judgment is affirmed. JUDGE GROVE and JUDGE PAWA R concur.