Peo in Interest of XW
Peo in Interest of XW
Peo in Interest of XW
Opinion
24CA0290 Peo in Interest of XW 09-05-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0290
El Paso County District Court No. 22JV30034
Honorable Robin Chittum, Judge
The People of the State of Colorado,
Appellee,
In the Interest of X.W., a Child,
and Concerning T.W.,
Appellant.
JUDGMENT AFFIRMED
Division VII
Opinion by JUDGE KUHN
Tow and Gomez, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 5, 2024
Kenneth R. Hodges, County Attorney, Nicole S. Burton, Assistant County
Attorney, Colorado Springs, Colorado, for Appellee
Debra W. Dodd, Guardian Ad Litem
Andrew A. Gargano, Office of Respondent Parents’ Counsel, Denver, Colorado,
for Appellant
1
¶ 1 In this dependency and neglect action, T.W. (mother) appeals
the judgment allocating parental responsibilities for X.W. (the child)
to J.T.F. (father). We affirm the judgment.
I. Background
¶ 2 The El Paso County Department of Human Services filed a
petition in dependency and neglect alleging that mother subjected
the child and his older siblings to physical abuse. The petition also
alleged that mother had a history of substance abuse, which was
putting the child at risk. Finally, the petition alleged that mother
had prior involvement with the Department. When the petition was
filed, the child was just under two years old. The child’s siblings
are not part of this appeal.
¶ 3 Mother admitted that the child’s environment was injurious,
and the juvenile court adjudicated the child dependent and
neglected before adopting a treatment plan for both parents.
Sixteen months after the petition was filed, father moved for an
allocation of parental responsibilities (APR). Mother did not object,
but she requested mediation to “work out visitation.”
¶ 4 Almost two years after the Department filed the petition, the
juvenile court held an APR hearing. Based on mother’s agreement
2
to renegotiated terms, the court entered judgment without a
contested hearing, awarding physical custody and sole
decision-making responsibility to father.
II. Reasonable Efforts
¶ 5 Mother first argues that the juvenile court erred by entering
the APR judgment because the Department failed to make
reasonable efforts to reunify her with the child. We disagree.
¶ 6 A department must make reasonable efforts to rehabilitate
parents and reunite families following the placement of abused or
neglected children out of the home. §§ 19-1-103(114), 19-3-100.5,
19-3-208(1), 19-3-604(2)(h), C.R.S. 2024. Reasonable efforts
“means the exercise of diligence and care . . . for children . . . who
are in[, or at imminent risk of being placed in,] foster care or
out-of-home placement.” § 19-1-103(114).
¶ 7 But the child was not in out-of-home placement when the APR
judgment entered — father had custody. § 19-1-103(107)
(“Placement out of the home” means placement in a home or center
operated or licensed by the Department of Human Services.). And
the court allocated parental responsibilities between parents, not to
a nonparent. See People in Interest of A.S.L., 2022 COA 146, ¶ 20
3
(holding that the court is required to consider reasonable efforts
when it enters an APR to a nonparent). Accordingly, the juvenile
court was not required to make reasonable efforts findings as part
of the APR judgment. See §§ 19-1-103(114), 19-3-100.5(1),
19-3-208(1), 19-3-604(2)(h); cf. A.S.L., ¶ 20.
¶ 8 Mother claims that the Department was required to make
reasonable efforts for the time periods during the case when the
child was in out-of-home placement. But she does not explain how
the court’s findings at earlier permanency planning hearings would
create an additional requirement for the APR judgment, which was
entered when the child was no longer placed out of the home. And
contrary to mother’s assertion, the permanency planning statute
does not apply to a child who is placed at home with a parent.
§§ 19-1-103(107), 19-3-702(1), C.R.S. 2024.
¶ 9 Mother next argues that reasonable efforts findings were
required in her case because the child was at “imminent risk” of
out-of-home placement because of father’s past failures to comply
with his treatment and safety plans. As mother states, the
Children’s Code requires reasonable efforts for children and youth
who are in “out-of-home placement or are at imminent risk of foster
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care or out-of-home placement.” § 19-1-103(114). It is true the
child was removed from father’s custody for a short time during the
case. But nothing in the record suggests that father was not in
compliance with his treatment or safety plans when the court
entered the APR judgment. To the contrary, the caseworker’s report
to the court indicated that the Department had no concerns about
the child’s safety and that all his needs were being met in his
father’s home. Additionally, the court found when entering the APR
judgment that permanency had been achieved for the child in his
father’s custody. The court’s judgment granting an APR to father
and dismissing the child from the dependency and neglect action
belies mother’s claim that the child was at “imminent risk” for
out-of-home placement.
¶ 10 To the extent that mother includes a separate due process
argument as part of her reasonable efforts claim, we decline to
address it. At no point during the proceedings did mother give the
juvenile court an opportunity to address any due process concerns
she may have had. See People in Interest of T.E.R., 2013 COA 73,
¶ 30 (generally, issues not raised in the trial court will not be
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(“We do not require that parties use ‘talismanic language’ to
preserve particular arguments for appeal, but the trial court must
be presented with an adequate opportunity to make findings of fact
and conclusions of law on any issue before we will review it.”)
(citations omitted).
III. Best Interest of the Child and Waiver
¶ 11 Mother next contends that the juvenile court erred by
allocating sole decision-making responsibility to father and only
granting mother two hours of family time each week, which she
argues was not in the child’s best interests. Specifically, mother
now argues that “only equally shared custody could assure
consistent and guaranteed contact between mother and [the child].”
¶ 12 We conclude that mother waived this argument by agreeing to
allocate physical custody and sole decision-making responsibility to
father.
A. Legal Principles
¶ 13 Waiver is the intentional relinquishment of known right. See
People v. Rediger, 2018 CO 32, ¶ 39. When a party waives an issue
below, we do not review it on appeal. Id. at ¶ 40. A parent may
expressly or impliedly waive a statutory right, but the waiver must
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be voluntary. See People in Interest of J.R.M., 2023 COA 81, ¶ 9. A
statutory right may be waived by the party’s statements or that of
2002).
B. Additional Background
¶ 14 Mother appeared in person at the APR hearing. She agreed to
father “having legal decision-making” responsibility and to her
having two hours of family time per week. Mother requested, and
received, an additional requirement that father inform her of major
decisions for the child. After the agreements were entered on the
record, the juvenile court advised mother regarding her right to a
contested hearing on the APR. The court asked if mother had any
questions about the rights she would be giving up. Mother’s
response was not captured by the recording but caused the court to
ask if mother wanted to have a hearing, and mother responded that
she did. Mother then had the following exchange with the court:
THE COURT: Well, then you want to have a
hearing with regard --
[Mother]: Yeah.
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THE COURT: Oh, okay. So you do want to
have a formal hearing regarding the allocation
of parental responsibilities.
[Mother]: I don’t get to see him right now. I
haven’t got to see my son in months.
THE COURT: Well, we’re hoping that --
[Mother]: (talking over the court) three hours.
THE COURT: Two is what I think they said.
[Mother]: Exactly, how is that fair?
THE COURT: Understood.
[Mother]: Are we almost done? Can I go?
THE COURT: Not yet, because we got to talk.
If you want to have a hearing, it’s going to take
a while and we’ve got to set a hearing.
¶ 15 The court then stated, “I’m not adopting the APR at this point.
I’ll make a reasonable efforts finding with regards to [the child] and
we need to set this for --.” However, the court did neither, because
the parties pointed out that they were already set for a contested
hearing that day and would prefer to proceed without setting an
additional date.
¶ 16 The juvenile court recessed so mother could confer with her
attorney before beginning the contested part of the hearing. Mother
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asked why she had to stay to talk to her attorney and why the
hearing had to be held that day but agreed to talk to counsel.
¶ 17 The juvenile court recalled the case twenty minutes later. At
that time, mother’s counsel reported that she spoke to mother and
mother “did give . . . authority to enter into an agreement on her
behalf.” Counsel further informed the court that mother “did leave”
and was “not intending on coming back.” Mother’s counsel
reported that mother was upset about the status of her visits with
the child but she nonetheless “underst[ood] the nature of what this
hearing would be for in terms of the custody orders.”
¶ 18 Based on mother’s agreement, the juvenile court approved the
APR, including the modifications made on the record regarding
increased parenting time for mother and father’s duty to inform
mother of major decisions.
C. Analysis
¶ 19 The Department and guardian ad litem argue that mother
waived this issue when she agreed that father should have legal
decision-making responsibility and gave her counsel authority to
enter into an agreement for an APR after receiving an advisement.
We agree.
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¶ 20 Mother argues that she did not waive the issue. In support,
she first points to an exchange between the juvenile court and her
counsel informing the court that she did not agree with the initial
amount of proposed visitation. But mother’s disagreement with the
initial offer is not relevant. Our review of the record reveals that the
initial amount proposed was one hour of family time per week, not
the two hours ultimately ordered. Father proposed increasing the
initial amount offered to two hours per week, and mother confirmed
directly with the court that she agreed with the new offer.
Furthermore, she later authorized her counsel to confirm her
agreement. In any case, mother’s dissatisfaction with the hours of
family time allotted to her does not change her explicit agreement to
allocate father sole decision-making responsibility.
¶ 21 Mother next contends that even if she agreed to father having
sole decision-making responsibility, “the lower court was required
to base its APR ruling on the best interests of the child,” and so
“mother’s waiver of a hearing did not constitute a waiver of her right
to appeal the ruling.”
¶ 22 We reject such a distinction. If mother believed that the
statutory criteria for an APR would not be met, she could have
10
requested a hearing on that issue. By entering into an agreement
to allocate rights to father and waiving her right to a hearing,
mother waived her right to challenge the APR ruling. See Rediger,
¶ 39. And mother invited any error in the juvenile court’s adoption
of the proposed judgment that was based on her decision to waive a
hearing to challenge those statutory criteria. See People in Interest
of S.N-V., 300 P.3d 911, 916 (Colo. App. 2011) (the invited error
doctrine applies when a party invites or injects an error in the
proceedings and later claims that the error should be a basis for
reversal on appeal).
¶ 23 Finally, mother contends that she did not waive her right to
appeal the APR judgment as a whole because she “only left and
acquiesced to the ruling after the court ruled the [D]epartment had
made reasonable efforts, which she had already tied to the best
interests of her child.”
¶ 24 But mother did not mention the child’s best interests during
her exchanges with the juvenile court during the APR hearing. And
her counsel, who reported that mother was frustrated with the
status of her family time, did not mention the child’s best interests
at any point during the hearing.
11
¶ 25 In any case, it is clear from the record made by mother’s
counsel that while mother disagreed with the Department about
family time, she still asked her counsel to enter an agreement on
her behalf. And as discussed above, reasonable efforts made by the
Department are not a factor that the juvenile court needs to
consider when determining whether an APR to a parent is in a
child’s best interests.
1
¶ 26 Thus, the record makes clear that by the end of the APR
hearing, mother intentionally relinquished her right to challenge the
court’s entry of an APR to father. She attempts to avoid this
problem on appeal by asking us to vacate the APR judgment
because of the juvenile court’s alleged failure to consider the child’s
best interests. We conclude that mother’s challenge to the APR
judgment is waived and therefore do not address its merits.
IV. Miscarriage of Justice
¶ 27 Finally, mother urges us to consider the merits of her claim
under a miscarriage of justice exception. See People in Interest of
1
Notably, mother does not argue that her waiver was based on a
faulty advisement, involuntary, or otherwise ineffective. See People
in Interest of K.J.B., 2014 COA 168, ¶ 29 (“Statutory rights may be
waived if the waiver is voluntary.”).
12
M.B., 2020 COA 13, ¶ 21 (“[G]iven the constitutional nature of
parental rights, we will recognize a miscarriage of justice exception
for review of unpreserved errors.”). We decline to do so, both
because the APR judgment did not sever mother’s parental rights,
and because mother did not merely fail to preserve her claim, she
waived the issue.
V. Disposition
¶ 28 The judgment is affirmed.
JUDGE TOW and JUDGE GOMEZ concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.