SUMMARY

June 3, 2021

2021COA79

No. 20CA1400, People in Interest of E.S. — Juvenile Court —

Dependency and Neglect — Termination of the Parent-Child 

Legal Relationship

A division of the court of appeals considers whether, during a 

dependency and neglect proceeding, a county department of human 

services may bar a parent from participating in visitation solely 

because the parent has outstanding warrants, without a finding 

that visitation would be detrimental to the children’s health and 

safety. The division holds that a department may not adopt a 

blanket policy barring parental visitation without consideration of 

the children’s health and safety. The division therefore reverses the 

judgment terminating father’s parental rights. 

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.
COLORADO COURT OF APPEALS 2021COA79

Court of Appeals No. 20CA1400

Arapahoe County District Court No. 18JV261

Honorable Natalie T. Chase, Judge

The People of the State of Colorado,

Appellee,

In the Interest of E.S. and L.S., Children,

and Concerning F.S.,

Appellant. 

JUDGMENT REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division VI

Opinion by JUDGE LIPINSKY

Pawar and Taubman*, JJ., concur

Announced June 3, 2021

Ronald Carl, County Attorney, Heather L. Tomka, Assistant County Attorney, 

Aurora, Colorado, for Appellee

Alison Bettenberg, Sheena Knight, Guardians Ad Litem

Patrick R. Henson, 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. 2020.
1

¶ 1 In determining whether a parent’s parental rights should be 

terminated under section 19-3-604(1)(c), C.R.S. 2020, following an 

adjudication that the parent’s children are dependent or neglected, 

a juvenile court must consider whether the county department of 

human services made reasonable efforts to rehabilitate the parent. 

The Colorado Children’s Code details how a department can satisfy 

the reasonable efforts standard. Providing visitation services for 

parents with children in out-of-home placement is one of the 

actions a department must take to satisfy the standard.

¶ 2 In this case, we consider whether a department may bar a 

parent from participating in visitation solely because the parent has 

outstanding warrants, without a finding that visitation would be 

detrimental to the children’s health and safety. We hold that a 

department may not adopt such a blanket policy. For that reason, 

we reverse the juvenile court’s judgment terminating the father’s 

parental rights. 

I. Background

¶ 3 F.S. (father) appeals the judgment terminating his parental 

rights to E.S. and L.S. (the children). (In this case, C.P. (mother) 

also appealed the judgment terminating her parental rights to the 
2

children. Because we grant mother’s motion for limited remand in 

a separate order, we do not address mother’s appellate arguments 

in this opinion.) 

¶ 4 In March 2018, the Arapahoe County Department of Human 

Services (Department) initiated a dependency and neglect case 

based on concerns that mother was using marijuana around the 

children, then ages three and one, and that the home was unsafe 

for the children. The Department did not know father’s 

whereabouts and reported he had an active warrant for his arrest. 

(The record contains references both to a “warrant” and “warrants.” 

The caseworker’s reports state that father had outstanding 

warrants in El Paso County and Denver, and the treatment plan 

similarly refers to “warrants.” For this reason, we refer to father’s 

“warrants.”)

¶ 5 The juvenile court adjudicated the children dependent and 

neglected. The juvenile court adopted a treatment plan for father 

that required him to (1) maintain employment; (2) refrain from 

criminal activity; (3) attend parenting time once he had cleared his 

active warrants; (4) remain in contact with the caseworker; and (5) 
3

complete a domestic violence evaluation and comply with treatment 

recommendations. 

¶ 6 In October 2019, the Department moved to terminate father’s 

parental rights. The Department refiled the termination motion in 

June 2020 after the termination hearing was continued. 

¶ 7 Following an evidentiary hearing in July 2020, the juvenile 

court terminated father’s parental rights. 

¶ 8 After this case was fully briefed, father joined with mother in a

motion for limited remand. In their motion, the parents note that 

the supreme court publicly censured Natalie Chase, the juvenile 

court judge who ordered the termination of their parental rights, for 

undermining the confidence in the impartiality of the judiciary by 

manifesting bias or prejudice based on race or ethnicity. See In re 

Chase, 2021 CO 23, ¶ 7, ___ P.3d ___, ___. 

¶ 9 Because we reverse the judgment as to father on the merits, 

the motion for limited remand is moot as to him. We grant the 

motion for limited remand as to mother in a separate order. 

II. Termination Criteria and Standard of Review

¶ 10 The juvenile court terminated father’s parental rights under 

section 19-3-604(1)(c). Under that statute, the juvenile court may 
4

terminate parental rights if it finds by clear and convincing evidence 

that (1) the child was adjudicated dependent or neglected; (2) the 

parent has not complied with an appropriate, court-approved 

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

and (4) the parent’s conduct or condition is unlikely to change in a

reasonable time.

¶ 11 Where resolution of an issue necessitates application of the 

termination statute to evidentiary facts, it presents a mixed 

question of fact and law. People in Interest of A.M. v. T.M., 2021 CO 

14, ¶ 15, 480 P.3d 682, 686. We review the juvenile court’s factual 

findings for clear error. C.R.C.P. 52. 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 juvenile court. People in Interest of C.A.K., 652 P.2d 

603, 613 (Colo. 1982). But a determination of the proper 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 CO 

11, ¶ 31, 456 P.3d 1284, 1289.
5

III. Discussion

A. Reasonable Efforts

¶ 12 Father first asserts that the Department failed to make 

reasonable efforts because it did not provide him visitation services. 

We agree.

1. Preservation and Standard of Review

¶ 13 The Department and the guardian ad litem (GAL) contend that 

father’s challenge to the Department’s reasonable efforts is

unpreserved because he failed to raise it before the termination 

hearing. Divisions of this court are split on this issue. One division

has held that a parent must bring any deficiencies in the 

department’s lack of reasonable efforts to the court’s attention 

before the termination hearing to preserve such a challenge for 

appeal. See People in Interest of D.P., 160 P.3d 351, 355-56 (Colo. 

App. 2007). Another division has held that a parent’s failure to 

object to the department’s lack of reasonable efforts before the 

termination hearing does not bar appellate review of a reasonable 

efforts claim. See People in Interest of S.N-V., 300 P.3d 911, 916 

(Colo. App. 2011).
6

¶ 14 Under the circumstances of this case, we need not decide 

which approach is correct because even if we assume, without 

deciding, that father failed to preserve this issue, we elect to 

address his claim to avert a miscarriage of justice. See People in 

Interest of M.B., 2020 COA 13, ¶ 21, 459 P.3d 766, 770-71 (“[G]iven 

the constitutional nature of parental rights, we will recognize a 

miscarriage of justice exception for review of unpreserved errors.”); 

In re R.G.B., 98 P.3d 958, 959 (Colo. App. 2004) (“Where an error of 

the trial court . . . involves a miscarriage of justice, we may consider 

the issue for the first time on appeal.”). This exception to the 

preservation rule applies to “those limited situations in which an 

error by the trial court, not otherwise properly preserved for appeal, 

should be characterized as . . . one causing a miscarriage of 

justice.” People in Interest of A.E., 914 P.2d 534, 539 (Colo. App. 

1996). For the reasons discussed below, we conclude that a

miscarriage of justice would result if we expressly or implicitly 

enforced a blanket policy barring parental visitation in a 

dependency and neglect case without consideration of the children’s 

health and safety. 
7

¶ 15 The Department and the GAL also disagree with father 

regarding which standard of review applies to our review of a 

reasonable efforts claim. They assert that we should review the 

court’s reasonable efforts finding only for clear error. C.A.K., 652 

P.2d at 613. Father responds, however, that while the court’s 

factual findings — “the raw, historical data underlying the 

controversy” — are reviewed for clear error, its legal determinations 

based on those factual findings are still subject to de novo review. 

People in Interest of S.R.N.J-S., 2020 COA 12, ¶ 10, ___ P.3d ___, ___ 

(citing People in Interest of S.N. v. S.N., 2014 CO 64, ¶ 21, 329 P.3d 

276, 282). 

¶ 16 We recognize that a division of this court recently concluded 

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

determination of reasonable efforts . . . de novo or for clear error.” 

People in Interest of A.A., 2020 COA 154, ¶ 13, 479 P.3d 57, 61 

(noting that our supreme court had not yet reviewed a juvenile 

court’s judgment terminating parental rights as a mixed question of 

fact and law). But the division in A.A. determined that it did not 

need to resolve the question “because the juvenile court’s 
8

decision . . . was erroneous under either standard.” A.A., ¶ 13, 479 

P.3d at 61.

¶ 17 For the reasons explained below, we, too, need not resolve this 

dispute because, under either standard, the juvenile court’s 

decision on reasonable efforts was erroneous. 

2. Law

¶ 18 In determining whether a parent is unfit under section 

19-3-604(1)(c), the juvenile court must consider whether the 

Department made reasonable efforts to rehabilitate the parent. 

§ 19-3-604(2)(h); S.N-V., 300 P.3d at 915. “Reasonable efforts” 

means “the exercise of diligence and care” for a child in out-of-home 

placement. § 19-1-103(89), C.R.S. 2020.

¶ 19 The reasonable efforts standard is satisfied when services are 

provided in accordance with section 19-3-208, C.R.S. 2020. 

§ 19-1-103(89). Among the efforts required under section 19-3-208 

are screenings, assessments, and individual case plans for the 

provision of services; home-based family and crisis counseling; 

information and referral services to available public and private 

assistance resources; visitation services for parents with children in 
9

out-of-home placement; and placement services including foster 

care and emergency shelter. § 19-3-208(2)(b). 

3. Analysis

¶ 20 Father asserts that the Department did not make reasonable 

efforts because it prohibited him from visiting his children while he 

had outstanding warrants. For the reasons discussed below, we 

agree with father and conclude that the Department did not make 

reasonable efforts.

¶ 21 Father’s treatment plan required him to participate in 

visitation “[t]o assist [him] with developing and maintaining a 

positive and appropriate relationship with [the children] once active 

warrants have been cleared by El Paso and Denver Counties.” 

(Emphasis added.) The caseworker testified that father never 

visited with the children because he had not resolved his warrants. 

She said that a Department policy prohibited any parent from 

participating in visitation if the parent had an outstanding warrant. 

The caseworker did not explain the reasons for the policy, nor did 

she elaborate why such a policy was appropriate in this case. 

Father asked the Department to make an exception to the policy to 

allow him to have face-to-face visitation with the children. The 
10

caseworker declined father’s request, however, because “it was just 

against what the policy states.”

¶ 22 Father maintains that the Department’s policy is “per se 

invalid” under section 19-3-208 because the statute provides that 

the Department “must” provide him with visitation services. See 

Ryan Ranch Cmty. Ass’n v. Kelley, 2016 CO 65, ¶ 42, 380 P.3d 137, 

146 (“[T]he word ‘must’ connotes a mandatory requirement.”). 

Section 19-3-208 requires the Department to provide visitation to 

parents, but only “as determined necessary and appropriate by 

individual case plans.” § 19-3-208(2)(b). However, the juvenile 

court, and not the Department, must decide whether visitation 

services are necessary and appropriate in a particular case. People 

in Interest of B.C., 122 P.3d 1067, 1070-71 (Colo. App. 2005) (noting 

that questions concerning the children’s health and safety are 

matters entrusted to the juvenile court’s sound discretion, and 

decisions regarding visitation may not be delegated to a 

department). We therefore agree with father that the Department’s 

blanket policy violates section 19-3-208 because it creates a general 

prohibition on visitation services without any consideration of the 

children’s health and safety or whether visitation is necessary and 
11

appropriate under the treatment plan. See People in Interest of 

D.G., 140 P.3d 299, 302 (Colo. App. 2006). 

¶ 23 In concluding that the Department’s policy is improper, we do 

not intend to suggest that the Department could never recommend 

suspending visitation services for a parent with an outstanding 

warrant. Rather, the Department could deny a parent visitation 

services under these circumstances, but only if the juvenile court 

found that visitation with the parent would be detrimental to the 

health and safety of the child. See, e.g., id. at 305 (noting that 

face-to-face visitation may not be appropriate if the parent is 

incarcerated or has committed sexual assault on a child). But, 

absent health and safety concerns, a juvenile court may not 

approve a treatment plan that does not provide for face-to-face

visitation. Id. (“[T]he trial court erred in approving a case plan that 

provided for written communication in lieu of visitation services.”). 

¶ 24 The Department and the GAL do not direct us to anywhere in

the record where the juvenile court explicitly found that the

prohibition of father’s visitation was necessary to protect the 

children. See People in Interest of K.C., 685 P.2d 1377, 1379-80 

(Colo. App. 1984) (noting that visitation may not be denied without 
12

the court’s approval or knowledge). To the extent the juvenile court 

implicitly approved the limitation by adopting the treatment plan, 

the juvenile court did not make any specific findings about whether 

such a limitation was needed to protect the children’s health and 

safety. See A.A., ¶¶ 24-27, 479 P.3d at 62-63; see also D.G., 140 

P.3d at 305. And we see no evidence in the record that father’s 

active warrants in and of themselves posed a threat to the 

children’s health and safety. Compare People in Interest of T.W., 

797 P.2d 821, 823 (Colo. App. 1990) (denying visitation because 

there was a strong possibility that the parent had sexually 

assaulted the child and the child “became extremely upset before 

and after visits” with the parent), with D.G., 140 P.3d at 305 (noting 

that visitation could not be denied “because of the department’s 

generalized belief that the children could be emotionally harmed if 

they had any personal contact with their parents”). 

¶ 25 The lack of visitation here is akin to the situation described in 

A.A., ¶ 25, 479 P.3d at 63, in which the department recommended 

suspending visitation until the parents could “demonstrate two 

weeks of monitored sobriety.” See also D.G., 140 P.3d at 305 

(noting that the juvenile court erred by adopting the department’s 
13

recommended visitation plan that prohibited face-to-face contact). 

In A.A., ¶¶ 25-27, 497 P.3d at 63, the court adopted the 

department’s recommendation, but it did not explain why it did so

or how the “order was designed to promote the health, safety, and 

well-being of the children.” Because one of the parents “never 

established two consecutive weeks of clean urinalysis tests, the 

[d]epartment never offered services for her.” Id. at ¶ 30, 497 P.3d at 

63. According to the division, this situation resulted in a “total[] 

depriv[ation] of the visitation services required by section 

19-3-208(2)[(b)] without any showing that such total deprivation 

was necessary to protect the children.” Id. Therefore, the 

department did not make reasonable efforts. Id. 

¶ 26 Because we agree with the analysis in A.A., we also conclude 

that “the juvenile court did not ensure that [father] was provided 

adequate visitation services” here. Id. The Department did not offer 

visitation to father solely because of its policy prohibiting visitation 

for a parent with an outstanding warrant, resulting in a total 

deprivation of the visitation services that section 19-3-208(2)(b) 

requires. See A.A., ¶ 30, 497 P.3d at 63. To the extent that the 
14

juvenile court approved of the limitation, see K.C., 685 P.2d at 

1379-80, it erred, see A.A., ¶ 26, 497 P.3d at 63.

¶ 27 Lastly, the Department and the GAL do not argue that the 

court’s refusal to allow father to have visitation with the children, 

consistent with the Department’s blanket policy, constituted 

harmless error in light of father’s noncompliance with other parts of 

his treatment plan. Rather, their assertion that father did not 

engage in his treatment plan is inextricably intertwined with their 

argument that father could have visited the children if he had 

complied with the Department’s blanket policy by addressing his 

outstanding warrants.

¶ 28 We therefore conclude that the juvenile court erred by 

applying the blanket policy to support its finding that the 

Department had made reasonable efforts. For this reason, we

reverse the judgment. To the extent that father’s treatment plan 

was based on the Department’s blanket policy, the juvenile court 

must modify father’s treatment plan as described above and afford 

father an opportunity to have face-to-face visitation, subject to any 

concerns regarding the children’s health or safety, under section 

19-3-208. 
15

¶ 29 Because we reverse the termination judgment based on the 

Department’s failure to make reasonable efforts to provide father 

with visitation services, we need not address (1) whether the 

Department’s policy also violated father’s due process rights or (2) 

father’s other claims challenging the Department’s failure to make 

reasonable efforts. For the same reason, there is no need for a 

remand to address whether Judge Chase’s bias or prejudice based 

on race or ethnicity may have affected her decision to terminate 

father’s parental rights.

B. Appropriate Treatment Plan

¶ 30 Father also asserts that his treatment plan was inappropriate 

because it included a component that required him to address 

domestic violence even though domestic violence was not an issue. 

Because this issue is likely to arise on remand, we choose to 

address it. We reject father’s contention.

1. Law

¶ 31 The purpose of a treatment plan is to preserve the parent-child 

legal relationship by assisting the parent in overcoming the 

problems that required intervention into the family. People in 

Interest of L.M., 2018 COA 57M, ¶ 25, 433 P.3d 114, 119-20. 
16

Therefore, an appropriate treatment plan is one that is approved by 

the court, relates to the child’s needs, and provides treatment 

objectives that are reasonably calculated to render the parent fit to 

provide adequate parenting to the child within a reasonable time. 

§ 19-1-103(10); People in Interest of K.B., 2016 COA 21, ¶ 13, 369 

P.3d 822, 826.

¶ 32 We measure the appropriateness of a treatment plan by its 

likelihood of success in reuniting the family, which we assess by

considering the facts when the juvenile court approved the plan. 

B.C., 122 P.3d at 1071. That a treatment plan is not ultimately 

successful does not mean that it was inappropriate. People in 

Interest of M.M., 726 P.2d 1108, 1121 (Colo. 1986).

2. Analysis

¶ 33 Father contends that, because he had no criminal history 

involving domestic violence, the domestic violence component of his 

treatment plan was unnecessary.

¶ 34 The petition listed a domestic violence conviction from 2009. 

However, as father points out, later reports from the Department 

did not include the 2009 conviction. It is unclear to us whether the 

Department intentionally removed the conviction in the later reports 
17

because father did not have such a conviction or for some other 

reason. 

¶ 35 At the termination hearing, the caseworker testified that the 

Department required father to complete a domestic violence 

evaluation, in part based on his “criminal history.” When pressed 

on cross-examination about father’s criminal history related to 

domestic violence, the caseworker said, “I’d have to look at my 

notes, but . . . there [were] just more aggressive charges, not 

specifically around domestic violence, but I’d have to look.” 

Father’s attorney asked whether the “[i]nformation that you listed in 

the report to the [c]ourt[,] is that . . . the information you would be 

referring back to?” The caseworker responded, “Yes.” The report 

did not list any domestic violence charges. 

¶ 36 In any event, even if father did not have a criminal conviction 

for domestic violence, we conclude that record evidence supported 

the domestic violence component. At the termination hearing, the 

caseworker testified that the domestic violence component was 

added “based on reports from [mother].” Father does not contend 

on appeal that the juvenile court erred by adopting the domestic 

violence component based on mother’s reports of domestic violence. 
18

We therefore conclude that the juvenile court did not err by 

including the domestic violence component in father’s treatment 

plan.

IV. Conclusion

¶ 37 We reverse the judgment terminating father’s parental rights. 

On remand, before the court may again consider termination of 

father’s parental rights, it must modify the existing treatment plan 

to the extent it was based on the Department’s blanket policy

prohibiting him from participating in visitation. In implementing 

father’s treatment plan, the court should determine whether, and 

under what conditions, the Department must provide father with 

visitation, considering the children’s health and safety, under 

section 19-3-208. Absent health or safety concerns, the 

Department must afford father an opportunity to have visitation 

before it may file another termination motion, if it chooses to do so.

JUDGE PAWAR and JUDGE TAUBMAN concur.