Peo in Interest of NR
Peo in Interest of NR
Peo in Interest of NR
Opinion
24CA0167 Peo in Interest of NR 07-03-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0167
Otero County District Court No. 23JV30007
Honorable Samuel S. Vigil, Judge
The People of the State of Colorado,
Appellee,
In the Interest of N.R. and E.A.R., Children,
and Concerning V.V.,
Appellant.
JUDGMENT AFFIRMED
Division A
Opinion by JUDGE RICHMAN*
Román, C.J., and Graham*, J., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 3, 2024
Kim R. Verhoeff, Lamar, Colorado, for Appellee
Jenna L. Mazzucca, Guardian Ad Litem
Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr,
Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant.
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2023.
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¶ 1 In this dependency and neglect proceeding, V.V. (mother)
appeals the juvenile court’s judgment terminating her parent-child
legal relationship with N.R. and E.A.R. (the children). We affirm.
I. Background
¶ 2 In March 2023, the Otero County Department of Human
Services filed a petition alleging that the children were dependent or
neglected after it received reports that the children’s parents were
smoking fentanyl in the children’s presence. The children, who
were four and one year old at the time, both tested positive for
methamphetamine after they were removed from the home. As
relevant here, mother admitted the petition, and the children were
adjudicated dependent or neglected. The juvenile court then
adopted a treatment plan for mother.
¶ 3 Two months later, L.R., a paternal relative living in Florida,
requested that the Department consider her as a kinship placement
provider for the children. In September 2023, the Department
moved to terminate mother’s parental rights due to her lack of
compliance with her treatment plan. After a hearing, the juvenile
court granted the motion.
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II. Termination Framework 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 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 in a reasonable time. 19-3-
604(1)(c), C.R.S. 2023. Implicit in the statutory scheme for
termination is the requirement that the juvenile court consider and
eliminate less drastic alternatives before entering an order
terminating the parent-child legal relationship. People in Interest of
M.M., 726 P.2d 1108, 1122 (Colo. 1986).
¶ 5 When, as in this case, a child was less than six years old when
they were removed from the home, the expedited permanency
planning (EPP) provisions apply and require the juvenile court to
place the child in a permanent home as expeditiously as possible.
§§ 19-1-102(1.6), 19-1-123, 19-3-702(5)(c), C.R.S. 2023; People in
Interest of M.T., 121 P.3d 309, 313 (Colo. App. 2005).
¶ 6 Whether a juvenile court properly terminated parental rights
presents a mixed question of law and fact because it involves
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application of the termination statute to evidentiary facts. People in
Interest of A.M. v. T.M., 2021 CO 14, ¶ 15. We review the court’s
court’s legal conclusions. People in Interest of S.R.N.J-S., 2020 COA
12, ¶ 10.
III. No Less Drastic Alternative
¶ 7 Mother contends that the juvenile court erred when it
concluded that no less drastic alternatives to termination existed.
Specifically, she asserts that sections 19-3-403(3.6)(a)(V), C.R.S.
2023, and 19-3-702(5)(e), as amended by House Bill 23-1024,
required the court to consider L.R. as a placement provider for the
children. Relatedly, mother asserts that the Department should
have completed an Interstate Compact for the Placement of
Children (ICPC) home study for L.R., and that without the home
study, there was insufficient evidence for the court to conclude that
no less drastic alternatives to termination existed. We are not
convinced.
A. Additional Facts
¶ 8 L.R. had previously taken custody of one of the children’s
older siblings. In June 2023, L.R. contacted the caseworker to tell
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her that the sibling, who was fourteen or fifteen years old at the
time, had actually left L.R.’s home. Indeed, the sibling left about
one year earlier, and no one knew where she had gone or where she
currently lived. The caseworker, whom the court qualified as an
expert in child protection, testified that she was concerned about
the sibling’s safety and reported the situation to the Florida
department of human services. The Florida department did not
investigate the matter.
¶ 9 The record does not indicate that L.R. made any further
contact with the Department. Nor did the Department proceed with
an ICPC home study to facilitate the children’s placement with L.R.
in Florida
B. Relevant Law
¶ 10 On August 6, 2023, House Bill 23-1024 took effect. The new
law requires the juvenile court to give placement preference to a
“relative or kin who is capable, willing, and available for care [of
children in a dependency proceeding]” at various stages of the case.
See e.g., § 19-3-403(3.6)(a)(V) (at the temporary custody hearing); §
19-3-508(1)(b), C.R.S. 2023 (at the dispositional hearing); § 19-3-
702(5)(e) (at permanency hearings). In making this determination,
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the court must give “primary consideration to the [children’s]
mental, physical, and emotional needs.” § 19-3-403(3.6)(a)(V) (at
the temporary custody hearing); § 19-3-508(1)(b), C.R.S. 2023 (at
the dispositional hearing); § 19-3-702(5)(e) (at permanency
hearings).
¶ 11 The juvenile court is not required to place the children with
relatives or kin at these stages. For instance, at a temporary
custody hearing, a “court may place or continue custody with the
county department of human or social services if the court is
satisfied from the information presented at the hearing that such
custody is appropriate and in the child’s or youth’s best interests..”
§ 19-3-403(3.6)(a)(V). Similarly, at the dispositional hearing,
placement with a capable, willing, and available relative is
presumed to be in the child’s best interest, but that presumption
may be rebutted by a preponderance of the evidence. See § 19-3-
507(1)(b.5), C.R.S. 2023 (dispositional hearings).
¶ 12 The bill did not amend the termination statute, section 19-3-
604, and it did not discuss less drastic alternatives. When
considering less drastic alternatives, the juvenile court must base
its decision on the best interests of the child, giving primary
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consideration to the child’s physical, mental, and emotional
conditions and needs. See § 19-3-604(3). A court may consider
and weigh various factors in determining the viability of a less
drastic alternative, including whether the alternative option
provides the child with adequate permanency or meets the child’s
needs. People in Interest of T.E.M., 124 P.3d 905, 910 (Colo. App.
2005).
¶ 13 To be viable, a less drastic alternative must do more than
“adequately” meet a child’s needs; instead, the less drastic
alternative must be in the child’s best interests. A.M., ¶ 27. If the
court considers a less drastic alternative but nevertheless finds that
termination is in the child’s best interests, it must reject the less
drastic alternative and order termination. A.M., ¶ 32.
C. Analysis
¶ 14 As an initial matter, we disagree with the parties that mother’s
contention was preserved. While mother’s counsel indicated in
closing arguments that an allocation of parental responsibilities to
L.R. was a potential less drastic alternative to termination, she did
not argue to the juvenile court that it was required, by the changes
enacted through House Bill 23-1024, to prioritize or reinstate an
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investigation of L.R. as placement alternative for the children.
Similarly, although mother’s counsel specifically relies on the joint
trial management certificate filed in this case in her closing
argument, that document does not mention the bill. Because
mother did not place the juvenile court on notice of this issue, she
did not preserve this issue for our review. See Berra v. Springer &
Steinberg, P.C., 251 P.3d 567, 570 (Colo. App. 2010) (to preserve an
issue for appeal, a party must bring the issue to the district court’s
attention so the court has an opportunity to rule on it).
¶ 15 Furthermore, even if the issue had been preserved, mother
does not explain on appeal how the bill’s amendments apply to a
juvenile court’s less drastic alternative determination at
termination. As noted above, the bill does not amend or discuss the
termination statute and it does not include reference to less drastic
alternatives. Insofar as mother relies on section 19-3-702(5)(e),
which applies to permanency hearings, she points to no evidence,
nor could we locate any, that the court considered this termination
hearing to be a permanency hearing. See People in Interest of M.B.,
70 P.3d 618, 623 (Colo. App. 2003) (permanency hearings and
termination hearings are separate proceedings that may overlap).
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However, even assuming section 19-3-702(5)(e) applied, the
caseworker’s expert testimony that the children were unlikely to be
safe in L.R.’s home indicates that the court applied the required
statutory criteria. Similarly, written notice of the Department’s
rationale for rejecting L.R. for placement, as required by 19-3-
702(5)(e), was provided to all parties at the permanency hearing
several months earlier. See § 19-3-702(5)(e) (“The department shall
also report any decision regarding placing the child or youth with a
relative or kin.”).
¶ 16 Finally, while an ICPC home study would have provided more
information about L.R.’s home, the Department would not have
been bound by the resulting ICPC assessment to place the child
with L.R. Instead, the Department would have had fourteen days to
determine whether the placement was appropriate. See Dep’t of
Human Servs. Rule 7.307.51, 12 Code Colo. Regs. 2509-4.
¶ 17 The record shows that the juvenile court explicitly gave
“primary consideration to the physical, mental and emotional
conditions and needs of the children” when considering less drastic
alternatives. The court concluded that the Department, after
exploring family members, had not “found a safe relative placement
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for the child[ren].” Moreover, the court found that the children
“require permanency due to their young age.”
¶ 18 The record supports these findings. The caseworker testified
that she had investigated at least three kinship placements — F.V.,
J.M., and D.A. F.V. was ruled out because the caseworker opined
that the children would not be safe in her home because she had
“multiple children” removed from her home “as a result [of] no
protective action from the adults.” She disqualified J.M. for safety
concerns; he had convictions for domestic violence and protection
order violations. And D.A. declined to be considered for placement.
¶ 19 As for placement with L.R., the caseworker repeatedly testified
that she was concerned that the sibling had left the home at such a
young age and that L.R. did not know how to locate her. Thus, as
we mentioned above, the caseworker opined that L.R.’s home was
likely not safe for the children. Moreover, the caseworker opined
that adoption by the children’s foster parents was in their best
interests because “it meets their permanency needs and mental,
physical, [and] emotional well-being.” See T.E.M., 124 P.3d at 910.
¶ 20 Given this record support, and the fact that the young
children in this EPP case had been out of home for nine months at
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the time of termination, the juvenile court did not err by concluding
that were no viable less drastic alternatives rather than ordering the
Department to wait for an ICPC study of L.R.’s home as a potential
placement.
IV. Judicial Notice
¶ 21 Mother also contends that the juvenile court erred when it
took judicial notice of the entire case, including Exhibits CC
through GG (the exhibits), and relied on unspecified hearsay within
those exhibits. We perceive no basis for reversal.
A. Relevant Law and Standard of Review
¶ 22 A court may take judicial notice of an adjudicative fact that is
not subject to reasonable dispute if the fact is either (1) “generally
known within the territorial jurisdiction of the trial court” or (2)
“capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.” CRE 201(a)-(b).
Because court records are recognized as sources whose accuracy
cannot be reasonably questioned, a court may take judicial notice of
may take judicial notice of its own file, its findings of fact, and its
conclusions of law.” See People in Interest of O.J.S., 844 P.2d 1230,
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1233 (Colo. App. 1992), aff’d sub nom. D.A.S. v. People, 863 P.2d
291 (Colo. 1993). We note however that in O.J.S., only the juvenile
court’s previous findings of fact were at issue. See id. (father argues
that “it is error for the court to take judicial notice of findings of fact
made with regard to other phases of the proceedings”).
¶ 23 The court’s decision to take judicial notice of a fact is reviewed
for an abuse of discretion. Vento v. Colo. Nat’l Bank, 985 P.2d 48,
52 (Colo. App. 1999). A court abuses its discretion when its ruling
is manifestly arbitrary, unreasonable, or unfair, or when it
misapplies the law. People in Interest of E.R., 2018 COA 58, ¶ 6.
Nevertheless, an error in the admission of evidence is harmless if it
does not affect a substantial right of a party. CRE 103(a); C.R.C.P.
61. An error affects a substantial right if it can be said with fair
assurance that it substantially influenced the outcome of the case
or impaired the basic fairness of the proceeding itself. People in
Interest of R.J., 2019 COA 109, ¶ 22.
¶ 24 When the juvenile court is the trier of fact, we presume that it
disregarded any immaterial or incompetent evidence that may have
been introduced. People in Interest of J.A.S., 160 P.3d 257, 261
(Colo. App. 2007). Under these circumstances, we will not disturb
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the judgment unless the court could not have reached the result
but for the incompetent evidence. People in Interest of M.M., 215
P.3d 1237, 1249-50 (Colo. App. 2009).
B. Analysis
¶ 25 We acknowledge mother’s argument that the record contains
an oral ruling by the juvenile court that it would take judicial notice
of “the full file” in this case. Such a ruling is inconsistent with case
law interpreting the allowable scope of judicial notice. See O.J.S.,
844 P.2d at 1233. Nevertheless, the court’s final written order
indicates that it considered only the adjudicative facts of the file.
See Thyssenkrupp Safway, Inc. v. Hyland Hills Parks & Recreation
Dist., 271 P.3d 587, 589 (Colo. App. 2011) (if ambiguity arises from
a conflict between oral and written findings, it is the written order
that controls).
¶ 26 True, as mother points out, the juvenile court took judicial
notice of the exhibits in the final written order; these exhibits did
not contain solely adjudicative facts. However, the court also took
notice of these exhibits only “pursuant to CRE 201.” We assume
that the court was guided by the limits provided in CRE 201 and
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that it disregarded incompetent evidence within those exhibits. See
J.A.S., 160 P.3d at 261.
¶ 27 Finally, even if we were to agree that the juvenile court
improperly relied on the parts of the court file and the exhibits, the
testimony of the caseworker supports the court’s decision.
¶ 28 The caseworker testified that she made referrals for the
services required in mother’s treatment plan. Nevertheless, mother
was not successful with any of the plan’s objectives. Mother never
signed releases of information for her treatment providers, and she
did not provide verifiable certificates of completion for any classes to
the caseworker. Mother missed many required urinalysis tests, and
the caseworker had no knowledge that mother had ever appeared at
the testing center. Mother attended only ten of the seventy-seven
visits arranged for her since the case began. She had not visited
the children, without explanation, within the last six months of the
case. The caseworker opined that, under these circumstances,
mother was not fit and would not become fit within a reasonable
time. The caseworker opined that terminating mother’s parental
rights was in the children’s best interest.
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¶ 29 In sum, the record supports the juvenile court’s findings that
mother had not complied with her treatment plan, was unfit and
unlikely to become fit in a reasonable time, and that the
Department provided reasonable efforts — conclusions mother does
not appear to challenge on appeal. Thus, even if the court erred in
taking judicial notice, the error did not affect mother’s substantial
rights.
V. Disposition
¶ 30 The judgment is affirmed.
CHIEF JUDGE ROMÁN and JUDGE GRAHAM concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.