People ex rel. S.L.

421 P.3d 1207

The PEOPLE of the State of Colorado, Petitioner-Appellee,

IN the INTEREST OF S.L. and A.L., Children, and Concerning L.L. and K.L., Respondent-Appellants.

Court of Appeals No. 16CA2238

Colorado Court of Appeals, Division II.

Announced December 28, 2017

Rehearing Denied February 8, 2018

Kent A. Borchard, County Attorney, Meeker, Colorado, for Petitioner-Appellee.

Anna N.H. Ulrich, Guardian Ad Litem.

Patrick R. Henson, Respondent Parents' Counsel, Longmont, Colorado, for Respondent-Appellant L.L.

Pamela K. Streng, Georgetown, Colorado, for Respondent-Appellant K.L.

Opinion by JUDGE WELLING¶ 1 In this dependency and neglect proceeding, K.L. (mother) and L.L. (father) appeal from the judgment terminating their parent-child legal relationships with S.L. and A.L. (the children). Among the issues raised on appeal is an issue of first impression, namely whether a parent is entitled to have his or her counsel present when a trial court conducts an in camera interview of a child in a dependency and neglect proceeding. In Part III.A.2.a, we conclude that whether to grant such a request is within a trial court's sound discretion, based upon a number of case-specific considerations. Based on our resolution of this issue and the other claims raised on appeal, we affirm.

I. Background

¶ 2 The parents came to the attention of the Rio Blanco County Department of Human Services (Department) as a result of concerns about the welfare of the children due to the condition of the family home, the parents' use of methamphetamine, and criminal cases involving the parents. In January 2015, the parents voluntarily entered into an agreement for services with the Department whereby they retained physical custody of the children and committed to individual and substance abuse counseling and monitoring.

¶ 3 In April 2015, after four months of voluntary services and following reports of continued methamphetamine use, the Department filed a petition in dependency or neglect for the children. The petition alleged that the parents had used illegal drugs which affected their ability to appropriately parent the children and they had also failed to provide the children with appropriate and safe housing.

¶ 4 The parents subsequently entered admissions to the allegation that the children lacked proper parental care. The court adjudicated the children dependent and neglected and subsequently adopted treatment plans for the parents.

¶ 5 Later, the Department moved to terminate the parent-child legal relationships with the children. After considering the evidence presented at a three-day hearing, the trial court terminated both mother's and father's parental rights.

¶ 6 The parents separately appeal the trial court's decision. We first address the parents' contentions that the Department failed to use reasonable efforts to reunify them with their children. Next, we address the separate contentions father raises on appeal. We conclude that none of the contentions merit reversal of the trial court's judgment.

II. Reasonable Efforts

¶ 7 The parents contend that the Department failed to make reasonable efforts to reunify them with their children. Father argues that (1) he should have been provided inpatient treatment for his drug problem; (2) he was not provided with sufficient time to complete the services required by his treatment plan; and (3) the Department failed to accommodate his scheduling needs with regard to the drug testing and visitation. Mother argues that the Department (1) did not provide her with sufficient time to complete essential services required by her treatment plan; (2) failed to provide proper referrals and case management services; and (3) did not provide reasonable monitored sobriety testing. We are not persuaded that the trial court erred in finding that the Department had made reasonable efforts to ensure the parents would be successful in completing their treatment plans.

A. Governing Law

¶ 8 A court may terminate the parent-child legal relationship pursuant to section 19-3-604(1)(c), C.R.S. 2017, if clear and convincing evidence establishes that (1) an appropriate treatment plan, approved by the trial court, has not been complied with by the parent or has not been successful in rehabilitating the parent; (2) the parent is unfit; and (3) the conduct or condition of the parent is unlikely to change within a reasonable time.

People in Interest of A.J.L. , 243 P.3d 244, 251 (Colo. 2010).

¶ 9 The state must make reasonable efforts to prevent out-of-home placement of an abused or neglected child and to reunite the family. §§ 19-1-103(89), 19-3-100.5(1), C.R.S. 2017; see also People in Interest of S.M.A.M.A. , 172 P.3d 958, 963 (Colo. App. 2007). Such reasonable efforts must include screening, assessments, the development of an appropriate treatment plan, the provision of information and referrals to available public and private assistance resources, placement services, and visitation services, all as determined necessary and appropriate in a particular case. §§ 19-3-100.5(5), -208(2)(b), C.R.S. 2017; People in Interest of A.D. , 2017 COA 61, ¶ 32, 413 P.3d 290.

¶ 10 A treatment plan is appropriate if it "is reasonably calculated to render the [parent] fit to provide adequate parenting to the child within a reasonable time and ... relates to the child's needs." § 19-1-103(10) ; see also People in Interest of K.B. , 2016 COA 21, ¶ 13, 369 P.3d 822. The appropriateness of a parent's treatment plan is "measured by its likelihood of success in reuniting the family and by the extent to which its requirements were realistic in light of the facts existing at the time it was adopted." People in Interest of J.M.B. , 60 P.3d 790, 792 (Colo. App. 2002).

¶ 11 It is the parent's responsibility to comply with the treatment plan. Id. at 791. Absolute compliance is not required. People in Interest of C.L.I. , 710 P.2d 1183, 1185 (Colo. App. 1985). However, partial compliance, or even substantial compliance, may not be sufficient to render the parent fit. People in Interest of D.L.C. , 70 P.3d 584, 588 (Colo. App. 2003).

¶ 12 "The credibility of witnesses, the sufficiency, probative effect and weight of the evidence, and the inferences and conclusions to be drawn therefrom are all within the province of the [trial] court...." E.S.V. v. People , 2016 CO 40, ¶ 24, 370 P.3d 1144. We will not disturb the trial court's findings unless they are so clearly erroneous as to find no support in the record. Id.

B. Analysis

1. The Parents' Treatment Plans

¶ 13 The parents' treatment plans were essentially identical and required the following action steps:

• The parents will cooperate with all medical, psychiatric, and parenting evaluations and provide honest reporting of problems with the family unit.

• The parents will attend their treatment sessions and will not be tardy, cancel, or reschedule more than one session in a one-month period.

• The parents will address current and past substance abuse issues and will be able to identify the reasons and motivation behind their substance abuse.

• The parents will submit up to three random and observed drug screens per week.

• The parents will participate in weekly, supervised visits with the children and will comply with the parameters for visitation. Visitations will progress to unsupervised and overnight status.

• The parents will attend Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings a minimum of once per week.

• The parents will make relationship choices that prioritize the safety and well-being of their children.

• The parents will demonstrate the ability to provide sufficient financial and household management resources to support their children.

• The parents will verbalize and demonstrate their understanding of criteria that must be maintained for the family to become reunified.

¶ 14 Approximately six months before the termination hearing, the Department modified mother's treatment plan at mother's request to clarify certain objectives. The modified treatment plan continued to emphasize mother's need to address substance abuse issues and included a provision regarding relapse prevention skills. It also included a component requiring mother to reduce her anxiety by participating in specialized therapy, learning to identify her triggers, and increasing her coping skills. Finally, it provided that mother would participate in bimonthly couple's therapy to improve her communications skills with father.

2. Services Offered to the Parents

¶ 15 Pursuant to the parents' voluntary agreement and treatment plans, the Department provided numerous services to the parents, including substance abuse therapy, therapeutic visitation supervision, drug abuse monitoring, and a parental capacity evaluation. The Department also provided counseling for the children.

¶ 16 As the trial court noted, the Department used drug testing to determine if the parents were complying with the treatment plans' objectives regarding substance abuse. Drug testing was accomplished by having the parents submit to random drug tests up to three days per week. On a designated day, the parents would check whether they had to go in for testing, which would be performed within a specified time frame.

¶ 17 Records kept by the Department showed that during an eighteen-month period, father was to be drug tested eighty-six times; he failed to submit samples fifty-one times, and for the thirty-five samples he submitted, thirty-two were negative and three were positive. During that same period, mother was to be drug tested one hundred and thirty-one times; she failed to submit samples seventy-five times, and for the fifty-six samples she submitted, forty-five were negative and eleven were positive.

¶ 18 As the trial court found, the parents' failure to comply with the drug testing requirements demonstrated a lack of compliance with this part of the treatment plans. Similarly, as discussed below, the parents' arrests for possession of methamphetamine during the...