in Interest of A.A

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                SUMMARY
                                                           November 5, 2020

                               2020COA154

No. 19CA0328, People in Interest of A.A. — Juvenile Court —
Dependency and Neglect — Termination of the Parent-Child
Legal Relationship

     A division of the court of appeals holds that where the juvenile

court completely cuts off visitation between the parents and the

children, without any showing that entirely prohibiting such

visitation is necessary to protect the children, there have not been

reasonable efforts to reunify the family. The division further notes a

potential conflict in the standard of review language found in two

supreme court cases — Interest of S.N. v. S.N., 2014 CO 64, and

People in Interest of C.A.K., 652 P.2d 603 (Colo. 1982) — and urges

the supreme court to clarify the standard to be applied in reviewing

termination of parental rights cases.
COLORADO COURT OF APPEALS                                    2020COA154


Court of Appeals No. 19CA0328
Adams County District Court No. 17JV209
Honorable Priscilla J. Loew, Judge


The People of the State of Colorado,

Appellee,

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

and Concerning M.A. and J.A.,

Appellants.


                      JUDGMENT REVERSED AND CASE
                       REMANDED WITH DIRECTIONS

                                 Division VII
                           Opinion by JUDGE TOW
                       Navarro and Lipinsky, JJ., concur

                         Announced November 5, 2020


Heidi M. Miller, County Attorney, Deborah Kreshner, Assistant County
Attorney, Westminster, Colorado, for Appellee

Barry Meinster, Guardian Ad Litem

Antony Noble, Office of Respondent Parents’ Counsel, Lakewood, Colorado, for
Appellant M.A.

The Saroyan Law Firm, L.L.C., Zaven T. Saroyan, Colorado Springs, Colorado,
for Appellant J.A.
¶1    Mother, J.A., and father, M.A., appeal the juvenile court’s

 judgment terminating their parent-child legal relationships with

 A.A. and E.A. We conclude that the Adams County Human Services

 Department (Department) did not exercise reasonable efforts to

 reunify the family. In particular, we agree with both parents that

 the court completely cut off visitation, at the Department’s

 recommendation, without a sufficient showing that a complete

 denial of visitation was appropriate under the circumstances. In

 addition, we conclude that the Department did not exercise

 reasonable efforts to rehabilitate father. We therefore reverse the

 judgment and remand the case for further proceedings.

                           I.   Background

¶2    In June 2017, the Department filed a petition in dependency

 or neglect because of concerns that mother and father were using

 methamphetamine, engaging in domestic violence, and neglecting

 the children’s basic and special educational needs. At the time the

 petition was filed, one of the children was five years old and the

 other was seven years old.

¶3    A juvenile court magistrate adjudicated the children

 dependent or neglected and approved treatment plans for the


                                   1
 parents. Eighteen months later, the juvenile court terminated both

 parents’ parental rights.

                       II.   Reasonable Efforts

¶4    Mother and father raise a number of challenges regarding the

 services that the Department provided to their family. The juvenile

 court made no explicit findings regarding whether the Department

 made reasonable efforts to rehabilitate the parents and reunite the

 family. Regardless, as discussed below, our review of the record

 reveals that the evidence was insufficient to support such a

 determination. Therefore, we agree with mother and father that the

 judgment must be reversed.

            A.    Standard of Review and Legal Principles

¶5    One of the goals of the Children’s Code is to preserve the

 parent-child relationship whenever possible. § 19-1-102(1)(b),

 C.R.S. 2019; see also People in Interest of C.A.K., 652 P.2d 603, 610

 (Colo. 1982). To that end, when the state has instituted

 dependency or neglect proceedings, it must make reasonable efforts

 to rehabilitate parents and reunite families following the

 out-of-home placement of abused or neglected children.

 §§ 19-1-103(89), 19-3-100.5, 19-3-604(2)(h), C.R.S. 2019.


                                   2
 “Reasonable efforts” means the exercise of diligence and care to

 reunify a parent with his or her children. § 19-1-103(89). The

 reasonable efforts standard requires each county to provide services

 to children who are in out-of-home placement and to their families

 in accordance with section 19-3-208, C.R.S. 2019. §§ 19-1-103(89),

 19-3-100.5(5).

¶6    After adjudicating a child dependent or neglected, a juvenile

 court may terminate parental rights under section 19-3-604(1)(c)

 only if clear and convincing evidence establishes that (1) the parent

 has not complied with an appropriate, court-approved treatment

 plan or the plan was unsuccessful; (2) the parent is unfit; and (3)

 the parent’s conduct or condition is unlikely to change within a

 reasonable time. In determining unfitness, the juvenile court must

 consider whether reasonable efforts by child-caring agencies have

 been unable to rehabilitate the parents. § 19-3-604(2)(h).

¶7    When reviewing a juvenile court’s decision to terminate

 parental rights, appellate courts have long applied a very deferential

 standard, setting aside a termination only when the juvenile court’s

 findings are “so clearly erroneous as to find no support in the

 record.” C.A.K., 652 P.2d at 613. “The credibility of the witnesses


                                   3
 and the sufficiency, probative value, and weight of the evidence, as

 well as the inferences and conclusions to be drawn from it, are

 within the discretion of the trial court.” K.D. v. People, 139 P.3d

 695, 702 (Colo. 2006) (citing C.A.K., 652 P.2d at 612).

¶8    However, our supreme court has also suggested that a

 different standard may be applicable. People in Interest of S.N. v.

 S.N., 2014 CO 64 (S.N. II). In S.N. II, the juvenile court had entered

 summary judgment adjudicating the child dependent or neglected,

 concluding that there was no disputed issue of fact that the

 parents’ care of the child presented a risk of prospective harm. Id.

 at ¶ 2; see also People in Interest of S.N., 2013 COA 157, ¶ 5 (S.N. I),

 rev’d, 2014 CO 64. A division of the court of appeals reversed,

 holding that the issue of prospective harm involved disputed facts.

 S.N. II, ¶ 26.

¶9    The supreme court reversed the division. In doing so, it held

 that prospective harm is not “purely a factual question.” Id. at

 ¶ 21. Instead, the court stated that “[w]hether a child is dependent

 and neglected is a mixed question of fact and law because

 resolution of this issue necessitates application of the dependency

 and neglect statute to the evidentiary facts.” Id. The court then


                                    4
  reiterated the distinction between evidentiary facts — i.e., “the raw,

  historical data underlying the controversy” — and the ultimate fact,

  which “involves a conclusion of law or at least a determination of a

  mixed question of law and fact [that] settles the rights and liabilities

  of the parties.” Id. (quoting Blaine v. Moffat Cty. Sch. Dist. Re No. 1,

  748 P.2d 1280, 1287 (Colo. 1988)).

¶ 10   We acknowledge that the S.N. case involved a different stage of

  a child protection proceeding — an adjudication — than the stage in

  this case — a termination. But there is no logical reason why the

  supreme court’s dichotomy would not apply equally at the

  termination stage. Cf. In Interest of Baby A, 2015 CO 72, ¶ 16

  (reviewing as a mixed question of fact and law the juvenile court’s

  decision to terminate a biological father’s parental rights in an

  adoption proceeding under section 19-5-105, C.R.S. 2019). The

  analytical underpinnings of S.N. II would apply with equal force to

  the distinction between “evidentiary facts” and the “ultimate facts”

  warranting a juvenile court’s decision to terminate parental rights.

  Indeed, at least three divisions of this court appear to have applied

  S.N. II to the termination stage in a dependency or neglect case.

  See People in Interest of S.R.N.J-S., 2020 COA 12, ¶ 10; People in


                                     5
  Interest of S.K., 2019 COA 36, ¶ 41; People in Interest of L.M., 2018

  COA 57M, ¶ 17.

¶ 11   This change, if indeed it is a change, significantly alters this

  court’s role in reviewing cases involving termination of parental

  rights. For example, if a trial court’s findings and conclusions

  regarding a parent’s fitness are reviewed as purely factual findings,

  they will “not be disturbed on review unless so clearly erroneous as

  to find no support in the record.” C.A.K., 652 P.2d at 613. This is

  an extremely deferential standard.1 But if the fitness determination

  is, as the supreme court suggested in S.N., a mixed question of fact

  and law, the resolution of the ultimate question — whether

  sufficient grounds for termination have been shown — is reviewed



                          ———————————————————————
  1 Indeed, it is difficult to reconcile this standard of review with the
  standard of proof to be applied by the juvenile court — clear and
  convincing evidence. Under this standard, we cannot disturb a
  juvenile court’s conclusion that there was clear and convincing
  evidence that a parent was unfit so long as the record contains any
  evidence that the parent was unfit. Contra McCoy v. People, 2019
  CO 44, ¶ 63 (In criminal cases, appellate courts review the record
  de novo to determine “whether the relevant evidence, both direct
  and circumstantial, when viewed as a whole and in the light most
  favorable to the prosecution, is substantial and sufficient to support
  a conclusion by a reasonable mind that the defendant is guilty of
  the charge beyond a reasonable doubt.” (quoting Clark v. People,
  232 P.3d 1287, 1291 (Colo. 2010))).

                                     6
  de novo. See S.K., ¶ 41. In other words, though we would defer to

  the juvenile court’s findings of historical fact, we would no longer be

  required to deferentially review the juvenile court’s legal conclusion

  of unfitness.

¶ 12   And many of the findings and conclusions that go into a

  juvenile court’s ultimate determination whether to terminate

  parental rights arguably fall in the “mixed question” bucket, in that

  they involve the “application of the dependency and neglect statute

  to the evidentiary facts.” S.N. II, ¶ 21. For example, the

  determination of whether a parent is unfit requires the application

  of legal standards set forth in section 19-3-604. See S.R.N.J-S.,

  ¶ 11. Similarly, as relevant here, a juvenile court’s conclusion that

  the government exercised reasonable efforts requires application of

  section 19-3-208 to the historical facts as found by the juvenile

  court. See § 19-1-103(89) (deeming the services enumerated in

  section 19-3-208 to meet the reasonable efforts standard); cf. People

  in Interest of I.J.O., 2019 COA 151, ¶ 22 (“We recognize that we

  review a juvenile court’s finding of reasonable efforts for clear error.

  Even so, we must review de novo whether the court applied the

  correct legal standard.” (citing S.N. II, ¶ 21)).


                                       7
¶ 13   In short, in the wake of the supreme court’s decision in S.N. II,

  it is unclear whether we are to review the juvenile court’s

  determination of reasonable efforts (implicit in this case) de novo or

  for clear error. However, we conclude that we need not resolve this

  question because the juvenile court’s decision here was erroneous

  under either standard.2

                              B.   Visitation

¶ 14   Mother contends that the juvenile court violated her

  constitutional right to due process and her statutory right to

  visitation services when it denied her those services for reasons

  unrelated to the children’s health, safety, or well-being. Similarly,

  father asserts that the juvenile court erred by delegating decisions

  regarding visitation to the Department and guardian ad litem (GAL),

  with the result that he had extremely limited visitation with the



                         ———————————————————————
  2 That being said, these decisions involve critical, and often
  conflicting, interests: children’s right to have their physical, mental,
  and emotional conditions and needs met, see § 19-3-604(3), C.R.S.
  2019, and parents’ fundamental liberty interest in the care,
  custody, and management of their children, see Santosky v.
  Kramer, 455 U.S. 745, 753 (1982). Uncertainty regarding our role
  in reviewing juvenile court orders in these all-too-frequent cases
  potentially delays much needed permanency. We respectfully urge
  the supreme court to provide clarity.

                                     8
  children. The substance of both parents’ arguments is that (1) they

  did not receive statutorily mandated visitation services and (2) the

  juvenile court consequently erred when it found that the

  Department made reasonable efforts to rehabilitate them and

  reunify the family.

¶ 15   Father also contends that the Department did not make

  reasonable efforts to “rehabilitate” the children by providing the

  services they needed to prepare for a successful reunification,

  including visitation with each other and with father. In other

  words, he asserts that the Department did not make reasonable

  efforts to reunify the family. See § 19-3-100.5 (the state must make

  reasonable efforts to reunify families); § 19-3-208(1), (2)(a)(IV) (the

  state shall provide services to children who are in out-of-home

  placement to facilitate reunification of parents and children).

¶ 16   We agree that the juvenile court reversibly erred when it

  (1) conditioned visitation services for mother and the children on

  mother’s sobriety without a proper statutory basis and (2) found

  that the parents were unfit despite the Department’s failure to meet




                                      9
  the reasonable efforts standard by providing adequate visitation

  services for the family.3

¶ 17   Visitation services for parents and children in out-of-home

  placement must be provided in accordance with individual case

  plans. § 19-3-208(2)(b)(IV). The child’s health and safety are the

  paramount concerns in determining whether services, including

  visitation, are necessary and appropriate. People in Interest of D.G.,

  140 P.3d 299, 302 (Colo. App. 2006). Visitation services shall be

  designed to promote the health, safety, and well-being of the

  children; facilitate the speedy reunification of parents and children;

  and promote the best interests of the child. § 19-3-208(2)(a).

                         1.   Mother’s Visitation

¶ 18   On June 22, 2017, the Department removed the children from

  the parents’ home pursuant to an emergency order and placed them

  with a paternal great-aunt and great-uncle. At the shelter hearing

  five days later, the magistrate ordered the Department to provide


                         ———————————————————————
  3 Because we agree with mother’s statutory argument, we need not
  reach her due process claim. See, e.g., BS & C Enters., LLC v.
  Barnett, 186 P.3d 128, 133 (Colo. App. 2008) (noting that the
  principle of judicial restraint counsels against unnecessarily
  deciding constitutional issues (citing Developmental Pathways v.
  Ritter, 178 P.3d 524, 535 (Colo. 2008))).

                                    10
  the family visitation at least twice per week. The Department was

  to supervise mother’s visits, while the placement providers would

  supervise father’s visits. The magistrate also ordered the GAL to

  schedule regular telephone calls for the family. The caseworker’s

  report noted that mother was appropriately attached to the

  children, who described her as “the best mom.”

¶ 19   On July 5, 2017, mother completed a mental health

  evaluation, in which she reported symptoms of depression and

  anxiety. She said the children were her reason to live and that she

  wanted to be a good mother.

¶ 20   On July 18, 2017, A.A. entered residential treatment after the

  great-aunt and great-uncle were unable to manage his behavior.

¶ 21   On July 21, 2017, the magistrate held a shelter hearing to

  address A.A.’s placement. The parents reported that they had been

  allowed only one telephone call with the children in the past month.

  Mother expressed frustration at being denied contact with A.A.

  while he was struggling because, in her experience, she could have

  a settling effect on A.A. and could help him get his behavior under

  control.




                                   11
¶ 22   On July 26, 2017, mother reported that she was struggling

  emotionally because she had never been away from her children

  before. She requested a set schedule for telephone calls, which the

  court ordered. The Department reported that staff at the residential

  treatment facility were frequently placing A.A. in physical holds to

  manage his behavior. There is no evidence that the Department

  had provided any in-person visitation for the family since the

  children’s removal.

¶ 23   On August 15, 2017, A.A. was moved to a second residential

  treatment facility.

¶ 24   On September 26, 2017, a different magistrate held a

  permanency planning hearing. The caseworker reported that

  mother had been uncooperative and defiant and both parents

  continued to use methamphetamine. As a result, the Department

  asked the magistrate to suspend mother’s visitation until she could

  demonstrate two weeks of monitored sobriety. The GAL agreed with

  the request on the grounds that the parents’ relationship with each

  other was toxic, as evidenced by emails between the parents, and

  their relationship created a terrible environment for the children.

  But he did not explain how the parents’ relationship with one


                                    12
  another affected the children, given that the children were placed

  out of the home and, as a result, there was no evidence that they

  were witnessing the parents’ conflict.

¶ 25   The magistrate suspended visitation until each parent could

  demonstrate two weeks of sobriety through urinalysis testing. The

  magistrate reasoned there was no point in allowing visitation until

  the parents were sober because, until then, visitation would be

  more harmful to the children than helpful.

¶ 26   But the magistrate did not explain how he came to this

  conclusion. There was no evidence that either parent had attended

  a visit while intoxicated or that either parent had missed or

  disrupted a visit due to intoxication. Indeed, there was no evidence

  that either parent was allowed any in-person visits with the

  children.

¶ 27   Further, there was no evidence that a more moderate

  approach, such as sobriety testing immediately before visits, would

  not have sufficiently addressed any concerns about the parents’

  conduct during visitation without depriving the family of this

  fundamental service. Thus, it is unclear how the magistrate’s

  visitation order was designed to promote the health, safety, and


                                   13
  well-being of the children; facilitate the speedy reunification of the

  family; or promote the best interests of the children. See

  § 19-3-208(2)(a).

¶ 28   At a review hearing in February 2018, mother’s counsel asked

  the second magistrate to consider therapeutic visitation and offered

  to have mother complete an assessment, if necessary, to determine

  the appropriate level of supervision or intervention. But after

  mother spoke out of turn, the magistrate denied the request,

  stating, “[T]here is the example of why she has no contact with the

  children. She can’t deal with it.” The magistrate did not explain,

  and we are unable to glean from the record, how mother’s conduct

  in court related to her ability to have appropriate therapeutic

  visitation sessions with the children or how the continued denial of

  visitation services for mother and the children served the statutory

  goals of section 19-3-208(2)(a).

¶ 29   Given this record, we conclude that the magistrate erred when

  he suspended the parents’ visitation entirely pending two weeks of

  demonstrated sobriety.

¶ 30   Further, the magistrate and the juvenile court did not ensure

  that the family was provided adequate visitation services. Because


                                     14
  mother never established two consecutive weeks of clean urinalysis

  tests, the Department never offered visitation services for her and

  the children. As a result, mother and the children were totally

  deprived of the visitation services required by section 19-3-208(2)(h)

  without any showing that such total deprivation was necessary to

  protect the children. Thus, we further conclude that the juvenile

  court erred when it terminated mother’s parental rights because the

  record does not support a determination that the Department made

  reasonable efforts to reunite mother with the children.

                    2.   Father’s Visitation with E.A.

¶ 31   Father met the sobriety requirement and resumed monitored

  visitation with the children. At a review hearing in November 2017,

  the caseworker reported that father was appropriate in visits with

  both children.

¶ 32   But at the termination hearing, the caseworker testified that

  father’s visits with E.A. had been suspended again in January

  2018. She said the Department had stopped offering visitation

  because E.A. perceived that father did not understand him, was

  disrespectful of E.A., and did not fit in with E.A.’s need to organize

  and control his environment.


                                    15
¶ 33   Although the case continued for another year, father and E.A.

  had no more visits. The second magistrate, and later the juvenile

  court, periodically reviewed the case and approved the

  Department’s repeated recommendations to deny visitation because

  the visit in January had gone poorly. In particular, the GAL

  explained that E.A. was upset because father had been “loud and

  boisterous” and had thrown E.A.’s Legos. The caseworker reported

  that father had been “disrespectful toward [the] Legos.” Eventually,

  the GAL and the Department began to report that E.A. no longer

  wanted contact with his parents.

¶ 34   But there is no evidence in the record that the Department

  made any referrals for therapy or therapeutic visitation for father

  and E.A. to preserve and strengthen their family ties. See

  § 19-1-102(1)(b). And although the Department indicated in

  February 2018 that it planned to establish professionally

  supervised visitation at the Department’s facilities, it failed to do so,

  without explanation. Instead, the record establishes that, when

  visitation under the supervision of E.A.’s kinship placement

  provider became problematic, the Department withdrew all

  visitation services for father and E.A. It is unclear why the


                                     16
  Department took this drastic step without making any effort to help

  father and E.A. repair their relationship or to determine whether

  any other level of visitation services would meet E.A.’s needs, such

  as professionally supervised or monitored visitation.

¶ 35   Therefore, we conclude that the record does not establish that

  the Department provided adequate visitation services for father and

  E.A. as required by section 19-3-604(2)(h). As a result, we further

  conclude that the record does not support a determination that the

  Department made reasonable efforts to reunite father and E.A.

  Thus, the juvenile court erred when it terminated father’s

  parent-child legal relationship with E.A.

                    3.   Father’s Visitation with A.A.

¶ 36   Father contends that the juvenile court improperly delegated

  visitation decisions to the Department, the GAL, and A.A.’s

  therapists. As a result, father asserts, he had only one visit with

  A.A. in the six months before the termination hearing concluded.

¶ 37   We decline to address this contention because, as discussed

  below, we reverse the judgment terminating father’s parent-child

  legal relationship with A.A. on other grounds.




                                    17
                  4.   Visitation Between the Children

¶ 38   Father contends that the Department did not provide adequate

  visitation for the children with each other and that, as a result, they

  were not accustomed to each other enough to live together with

  father.

¶ 39   We agree that the Children’s Code recognizes the importance

  of sibling relationships and requires the Department to promote

  frequent contact between siblings in foster care in accordance with

  the children’s best interests. § 19-7-204, C.R.S. 2019.

  Nonetheless, we decline to review this contention because it did not

  form a basis for the court’s termination decision.

            C.   Substance Use Treatment Services for Father

¶ 40   Father contends that the juvenile court erred when it

  terminated his parental rights because the Department did not

  make reasonable efforts to rehabilitate him. We agree.

¶ 41   The Department moved to terminate parental rights on June

  1, 2018. Father entered an inpatient substance use treatment

  program three days later and successfully complied with the

  program for over four months.




                                    18
¶ 42   At the termination hearing, father testified that the inpatient

  program was designed to take two years, including eighteen months

  in the residential facility and six months in a halfway house. But in

  September 2018, he said, the caseworker and the GAL told him that

  they planned to move forward with the termination motion because

  the children should not have to wait two years for him to finish the

  program. Father testified that he then decided to move to a sober

  living facility so he could be available to parent the children. He

  said that he had already completed over 400 hours of therapy,

  including dialectical behavioral therapy, cognitive behavioral

  therapy, anger management, and reality therapy, and he felt

  confident that he could maintain sobriety in a less restrictive

  environment.

¶ 43   The Department and the GAL argued that father’s early

  departure from the inpatient program demonstrated his inability to

  address his substance use. But father’s counsel asserted that

  father faced an impossible choice: stay in the inpatient treatment

  program and be deemed unfit because he was not available to care

  for the children or leave the program and be deemed unfit because

  he had not completed the program.


                                    19
¶ 44   We recognize that the juvenile court discredited father’s

  testimony that he left the two-year program early to try to preserve

  his parental rights. Regardless, the record does not support a

  finding that the Department made reasonable efforts to rehabilitate

  father in light of the Department’s decision not to offer him any

  other substance abuse treatment.

¶ 45   Father and the caseworker both testified at the termination

  hearing that the Department did not provide referrals or funding for

  father’s substance abuse treatment services. Instead, father was

  left to locate and pay for these services on his own. It appears that

  the caseworker had decided that the only way father could comply

  with his treatment plan (which required that he receive substance

  abuse treatment) was to complete the two-year inpatient program.

  But it is unclear why nothing less than a two-year inpatient

  program would suffice to address father’s substance use.

¶ 46   The caseworker testified at the termination hearing that she

  had spoken with father’s therapist at the sober living facility in

  mid-October 2018 and was told that the facility staff was working to

  match the services father had received in the inpatient program.

  The caseworker said she did not speak with anyone at the sober


                                    20
  living facility again. Nevertheless, the Department objected that the

  sober living facility only provided substance abuse support and did

  not provide adequate substance abuse treatment. Yet the

  Department did not offer any referrals for programs that it

  considered adequate to comply with father’s treatment plan.

  Instead, the caseworker testified at the termination hearing that she

  was unaware of any substance abuse treatment father had

  arranged or paid for on his own. (We note that the undisputed

  evidence shows that father had been sober for four months when he

  moved to the sober living facility and remained sober when the

  termination hearing ended three months later.)

¶ 47   Under these circumstances, we conclude that the record does

  not support a determination that the Department made reasonable

  efforts to rehabilitate father. On this independent basis, the

  juvenile court erred when it terminated father’s parent-child legal

  relationships with both children.

                  D.   Mental Health Services for A.A.

¶ 48   Father contends that the juvenile court erred when it

  terminated his parent-child legal relationship with A.A. because the

  Department did not meet its obligation to make reasonable efforts


                                      21
  to reunify the family by providing necessary mental health services

  for A.A. We need not resolve this contention in light of our reversal

  on other grounds. However, because the issue of A.A.’s treatment

  will certainly arise on remand, we address the issues raised.

                      1.   A.A.’s Placement History

¶ 49   A.A. and E.A. were removed from their parents’ home on

  June 22, 2017, and placed with the great-aunt and great-uncle.

¶ 50   In July 2018, then-seven-year-old A.A. was placed in a

  residential treatment facility because the great-aunt and

  great-uncle were unable to manage his aggressive and violent

  behavior. The Department reported that staff at the residential

  treatment facility frequently placed A.A. in physical management

  holds to control his behavior.

¶ 51   In August 2018, A.A. moved to a second residential treatment

  facility, where he lived in a highly structured therapeutic

  environment for nearly nine months.

¶ 52   In February 2019, A.A.’s Court Appointed Special Advocate

  (CASA) reported that the treatment facility staff believed A.A. was

  ready to transition to the community, although the next move




                                    22
  would be extremely difficult. The GAL asked the court to authorize

  step-down placement for A.A., including continuing day treatment.

¶ 53   At a shelter hearing on May 3, 2018, the second magistrate

  placed A.A. with a paternal aunt and uncle. Father also resided in

  the home and had worked with A.A.’s treatment team to prepare for

  the transition so he could care for A.A. under the supervision of the

  aunt and uncle. But, contrary to the recommendations of A.A.’s

  treatment providers, the GAL, and the CASA, the Department

  reported that it had not arranged to provide continuing day

  treatment for A.A. because the public school district had not agreed

  to pay for it. The GAL reported that A.A. was not ready for the

  public school system.

¶ 54   The caseworker testified at the termination hearing that father

  argued with the aunt and uncle over father’s use of alcohol two

  days after A.A. was placed in the home. She said the aunt and

  uncle asked father to leave, and he moved out two weeks later. (As

  discussed above, father entered the inpatient treatment program

  about two weeks after leaving the paternal aunt’s home.)

¶ 55   The caseworker testified that, on May 25, 2018, the aunt took

  A.A. to a hospital emergency department and reported that he was


                                   23
  exhibiting suicidal behavior and had been violent toward her son.

  Over the next eleven weeks, A.A. changed placements six times,

  moving in and out of three different residential treatment facilities

  and emergency mental health hospitalizations at two different

  hospitals. The caseworker testified that, at the time of the

  termination hearing, A.A. was living at a residential treatment

  facility and was subject to physical management holds up to three

  times per day, four days per week, usually because he “was

  assaultive” to staff or other children.

                       2.   A.A.’s Treatment Needs

¶ 56   A.A.’s individual therapist from the residential treatment

  facility gave the following testimony at the termination hearing

  regarding A.A.’s treatment needs for a successful transition to the

  aunt and uncle’s home:

        A.A. had been diagnosed with post-traumatic stress

          disorder and attention deficit hyperactivity disorder.

        A.A. needed a lot of support to transition successfully to a

          home environment because he had spent so much time in

          the highly structured environment of the residential

          treatment facility.


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        A.A.’s treatment team had recommended that A.A. begin

         day treatment at the residential treatment facility

         immediately as he transitioned to a family setting.

        The day treatment program would provide stability, a

         structured educational program, and therapeutic services.

        If day treatment was not available, A.A. would need

         individual and family therapeutic support.

        Father and A.A. had begun family therapy at the residential

         treatment facility as part of the transition plan. A.A.’s

         treatment team wanted this therapy to continue while A.A.

         adjusted to the home environment.

        A.A. did not begin day treatment because neither the school

         district nor the Department agreed to pay for it.

        The Department did not set up any other therapeutic

         services for A.A. before removing him from the residential

         treatment facility.

¶ 57   The caseworker gave the following testimony to explain why

  the Department had not provided these services:

        The school district in Denver, where the residential

         treatment facility was located, denied funding for A.A.’s day

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  treatment because A.A. would not be a Denver resident

  once he was placed with the aunt and uncle in Douglas

  County.

 The Department did not provide day treatment because the

  Denver school district did not agree to pay for it.

 Instead, the Department provided Key Essential Elements of

  Permanency services in the home to provide support and

  parenting skills for the placement providers, daily for the

  first week and then three times per week.

 The Department scheduled a meeting with A.A.’s new school

  in Douglas County to update his individualized education

  plan (IEP). The IEP then in effect identified only A.A.’s

  speech and language deficit and did not acknowledge his

  significant mental health and behavioral needs.

 The Department planned to ask the Douglas County school

  district to pay for day treatment at the IEP meeting.

 A.A. was hospitalized after three weeks and did not return

  to the paternal aunt’s home, so the IEP meeting never took

  place.




                            26
¶ 58   Thus, the record establishes that the Department did not

  provide any of the therapeutic services that A.A.’s treatment

  providers said were necessary to ensure a successful transition to

  family life after nine months of residential care.

¶ 59   A.A. was undoubtedly affected by father’s relapse and eviction

  from the aunt and uncle’s home. But even without that disruption,

  A.A. was subjected to a slew of simultaneous transitions:

        he moved from the highly structured environment of a

          residential treatment facility, where he had lived for nine

          months, to a family setting;

        he lost contact with his mental health treatment providers

          and was not offered any other treatment;

        he was enrolled in a new school two weeks before the end of

          the school year; and

        all of his daily routines changed.

¶ 60   These events would have taxed any child. In the absence of

  adequate support, the disruptions’ deleterious effect on a child with

  significant mental health diagnoses was not only predictable but

  predicted by the GAL, the CASA, and A.A.’s treatment providers at

  the residential treatment facility.

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¶ 61   We recognize that section 19-3-208(2)(d)(IV) limits the

  Department’s responsibility to provide mental health services based

  on the state’s capacity to obtain funding. But the Department does

  not argue on appeal that it was not required to provide these

  necessary services, and there is no evidence in the record that the

  Department was unable to secure funding.

¶ 62   On remand, the juvenile court must consider whether the

  Department’s approach to addressing A.A.’s mental health needs is

  sufficient to meet the requirement that the Department exercise

  reasonable efforts to reunify the family. Further, to the extent the

  Department asserts lack of funding for the services A.A. requires,

  the juvenile court must base any decision regarding such funding

  on evidence specifically related to the Department’s efforts, if any, to

  secure funding for the needed services.

                         III.   Remaining Issues

¶ 63   Both parents contend that termination of their parental rights

  was manifestly unjust to A.A. because he remained in residential

  care with no prospect of adoption. Father also contends that (1) the

  Department did not make reasonable efforts to rehabilitate him

  because it did not provide domestic violence treatment as required


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  by his treatment plan; (2) the juvenile court erred when it found

  that he could not become fit within a reasonable time despite

  several months of demonstrated sobriety after he found treatment

  on his own; and (3) his trial counsel rendered ineffective assistance.

¶ 64   Because we reverse the termination judgment on other

  grounds, we need not address these contentions.

                            IV.   Conclusion

¶ 65   The judgment is reversed and the case is remanded to the

  juvenile court. On remand, before the court may again consider

  termination of the parents’ parental rights, it shall review whether

  the existing treatment plans are appropriate or modify them as

  necessary and, consistent with this opinion, conduct further

  proceedings as the court deems warranted. See People in Interest of

  N.F., 820 P.2d 1128, 1130 (Colo. App. 1991).

¶ 66   In implementing the existing treatment plans or adopting new

  plans, the juvenile court shall determine whether and under what

  conditions the Department must provide mother and father with

  visitation and therapeutic services as reasonable efforts under

  section 19-3-208. The juvenile court must make this determination

  based on the children’s health and safety. See D.G., 140 P.3d at


                                    29
302. We express no opinion concerning the ultimate outcome that

the juvenile court may reach on remand.

     JUDGE NAVARRO and JUDGE LIPINSKY concur.




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