25CA0425 Peo in Interest of EG-M 11-06-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0425 El Paso County District Court No. 20JV866 Honorable Lin Billings Vela, Judge
The People of the State of Colorado,
Appellee,
In the Interest of E.G-M. and V.G-M., Children,
and Concerning F.E.G.,
Appellant.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE WELLING Sullivan and Berger*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 6, 2025
Kenneth R. Hodges, County Attorney, Shannon Boydstun, Assistant County Attorney, Colorado Springs, Colorado, for Appellee
Josi McCauley, 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. 2025. ¶1 In this dependency and neglect case, F.G. (father) appeals the
judgment terminating his parental rights to E.G-M. and V.G-M. (the
children). We affirm.
I. Background
¶2 In September 2020, the El Paso County Department of Human
Services (Department) filed a petition in dependency and neglect
regarding the children. The petition alleged that the children were
living with G.M., their alleged father at the time, and were
experiencing medical neglect and living in an unsanitary and unsafe
home. The Department placed the children into foster care, where
they remained for the remainder of the case.
¶3 In August 2021, mother reported that she didn’t believe G.M.
was the children’s biological father. Father was eventually located
in a prison in Texas operated by the Texas Department of
Corrections (TDOC). Father remained incarcerated in a TDOC
facility throughout the remainder of the case.
1 ¶4 The court held a contested paternity hearing and father was
adjudicated the legal father of the children.1 Father admitted to the
allegations in the petition and the court adjudicated the children
dependent and neglected. A treatment plan was then adopted for
father.
¶5 Later, the Department moved to terminate parental rights.
Following a two-day evidentiary hearing that occurred over the
course of a year, the juvenile court granted the motion and
terminated father’s parental rights.
II. Reasonable Efforts
¶6 Father asserts that the Department failed to provide
reasonable efforts because it didn’t facilitate regular family time or
obtain information about the treatment services available to him at
the facility where he was incarcerated. We aren’t persuaded.
A. Standard of Review and Applicable Law
¶7 Before a juvenile court may find a parent unfit, the county
department of human services must make reasonable efforts to
1 G.M. appealed the paternity adjudication, which was upheld on
appeal by another division of this court in the unpublished opinion People in Interest of E.G-M., (Colo. App. No. 23CA1142, July 25, 2024) (not published pursuant to C.A.R. 35(e)).
2 rehabilitate the parent and reunite the family. §§ 19-1-103(114),
19-3-100.5(1), 19-3-208, 19-3-604(2)(h), C.R.S. 2025. Reasonable
efforts mean the “exercise of diligence and care” to reunify parents
with their children. § 19-1-103(114).
¶8 Services provided in accordance with section 19-3-208 satisfy
the reasonable efforts standard. § 19-1-103(114). Among the
services required under section 19-3-208 are screenings,
assessments, and individual care plans for the provision of services;
home-based family and crisis counseling; information and referral
services available to public and private assistance resources; family
time; and placement services. § 19-3-208(2)(b).
¶9 The juvenile court should consider whether the services
provided were appropriate to support the parent’s treatment plan,
People in Interest of S.N-V., 300 P.3d 911, 915 (Colo. App. 2011), by
“considering the totality of the circumstances and accounting for all
services and resources provided to a parent to ensure the
completion of the entire treatment plan,” People in Interest of
My.K.M. v. V.K.L., 2022 CO 35, ¶ 33.
¶ 10 Whether a department of human services satisfied its
obligation to make reasonable efforts is a mixed question of fact and
3 law. People in Interest of A.S.L., 2022 COA 146, ¶ 8. We review the
juvenile court’s factual findings for clear error and review de novo
its legal determination, based on those findings, as to whether the
department satisfied its reasonable efforts obligation. Id.
B. Analysis
¶ 11 The juvenile court found that the Department made
reasonable efforts to reunify father with the children. The record
supports the juvenile court’s findings.
¶ 12 As father asserts, the Department never provided him with
regular family time with the children. The caseworker admitted
that she was only able to secure a single ten-minute phone visit
throughout the life of the case. However, the record demonstrates
that this was due to action or inaction on the part the TDOC facility
where father was incarcerated and father’s noncooperation, not the
Department’s lack of efforts.
¶ 13 The record shows that the caseworker tried throughout the
case, without success, to set up family time for father. The
caseworker testified that she regularly and repeatedly contacted the
facility where father was incarcerated by phone and email to inquire
about family time. The caseworker reported that she would either
4 not receive a response or wouldn’t receive clear information about
how to facilitate family time. Eventually, the caseworker learned
that the facility wouldn’t allow father to have any family time while
his status at the facility was highly restricted. Father’s restriction
status wasn’t lowered until roughly four months prior to the final
termination hearing. Once father’s restriction status was lowered,
the facility reported that he still needed to update his information to
include the children on his family list and family tracking page
before family time could be implemented. At the time of the final
termination hearing, the caseworker reported father had still not yet
provided the facility with the required information despite knowing
for at least two to three months that it was needed before family
time could be set up. Thus, it was father’s lack of effort and the
facility’s noncooperation that precluded father from having regular
family time.
¶ 14 Nevertheless, father points us to the provisions of Senate Bill
23-039 (S.B. 23-039), which provides specific guidance and
directives to help navigate the provision of family time services for
incarcerated inmates in support of his argument that the
Department failed to make reasonable efforts. It’s true that S.B.
5 23-039 provides that if in-person family time isn’t reasonably
practicable, a caseworker must communicate with a facility or jail
to learn about their ability to facilitate virtual family time. § 19-3-
507(1)(f)(I)(B), C.R.S. 2025. The caseworker did just that, learning
that his facility wouldn’t allow family time while his status was
“highly restricted,” and that once his restricted status was
amended, he had to add the children to his family list in order to
have family time — which he never did. Moreover, father points to
no authority, and we aren’t aware of any, that would allow the
Department to force an out-of-state facility to provide family time
visitation.
¶ 15 Father next contends the Department didn’t make reasonable
efforts because it didn’t provide him with services while he was
incarcerated. Again, however, the record shows it was the facility’s
lack of services, not the Department’s lack of efforts, that prevented
father from accessing services.
¶ 16 The caseworker testified that when she inquired about services
available at the facility where father was incarcerated, the facility
reported that they had mental health services focused on
6 medication management. The facility ultimately reported that they
didn’t have any treatment services available for father.
¶ 17 Still, father asserts the Department violated section 19-3-
508(1)(e)(III), C.R.S. 2025, by failing to provide regular updates on
services available to him. That statute states that “[i]f, after the
dispositional hearing, the child’s parent becomes continuously
incarcerated in a department of corrections facility,” the caseworker
“shall provide information that details the services and treatment
available to a parent” or “the caseworker’s efforts to obtain the
information.” § 19-3-508(1)(e)(III). True, it does not appear that the
caseworker regularly updated the court about her efforts to obtain
information on services available to father. But, as described
above, the caseworker testified that communication with the facility
proved difficult.
¶ 18 Regardless, even if we assumed, without deciding, that this
provision applies when a parent is incarcerated in another state
and that the caseworker fell short of her statutory obligations by
failing to provide the court with updates as to the services available
to father while incarcerated during court hearings as required by
section 19-3-508(1)(e)(III), any such failure to comply with the
7 statute would be harmless because the record shows that no
pertinent services were available to father at the TDOC facility
where he was incarcerated.
¶ 19 Given this record, we conclude that the juvenile court didn’t
err in finding the Department provided reasonable efforts to reunify
father with the children.
III. Treatment Plan Compliance and Incarceration as a Basis for Termination
¶ 20 As relevant here, before the juvenile court terminates parental
rights under section 19-3-604(1)(c), it must find, by clear and
convincing evidence, that (1) the parent is unfit and (2) the parent’s
conduct or condition is unlikely to change in a reasonable period of
time. § 19-3-604(1)(c).
¶ 21 An unfit parent is one whose conduct or condition renders the
parent unable or unwilling to give a child reasonable parental care.
People in Interest of D.P., 160 P.3d 351, 353 (Colo. App. 2007).
Reasonable parental care requires, at a minimum, that the parent
provides nurturing and safe parenting sufficiently adequate to meet
the child’s physical, emotional, and mental health needs and
8 conditions. People in Interest of A.J., 143 P.3d 1143, 1152 (Colo.
App. 2006).
¶ 22 The purpose of a treatment plan is to preserve the parent-child
legal relationship by assisting the parent in overcoming the
problems that required the government’s intervention. K.D. v.
People, 139 P.3d 695, 699 (Colo. 2006). A treatment plan is
successful if it either renders a parent fit or corrects the conduct or
condition that led to state intervention. People in Interest of C.A.K.,
652 P.2d 603, 611 (Colo. 1982).
¶ 23 The fact that a treatment plan wasn’t successful doesn’t mean
that it was inappropriate, as in many cases it’s virtually impossible
to devise a plan that will guarantee success, People in Interest of
M.M., 726 P.2d 1108, 1121-22 (Colo. 1986), and on appeal father
doesn’t challenge the appropriateness of the treatment plan as
adopted at the dispositional hearing.2 In any event, it’s well-
2 Father also makes an appropriate treatment plan/abuse of
discretion argument, essentially asserting that the juvenile court devised a new treatment plan in its ruling on his treatment plan compliance at the termination hearing. But because father agrees that the treatment plan was appropriate as written, and because the court’s ruling on father’s treatment plan is addressed below, we don’t address this argument separately.
9 established that although absolute compliance with a treatment
plan isn’t required, partial or even substantial compliance may not
be sufficient to render a parent fit. People in Interest of K.B., 2016
COA 21, ¶ 26.
¶ 24 If a child is under six years old at the time the petition in
dependency or neglect is filed, the court “shall not find” that a
parent has reasonably complied with a court-approved treatment
plan if the parent (1) exhibits the same problems addressed in the
treatment plan without adequate improvement and (2) is unable or
unwilling to provide nurturing and safe parenting adequate to meet
conditions. § 19-3-604(1)(c)(I)(B).
¶ 25 Whether the juvenile court properly terminated parental rights
is a mixed question of fact and law. People in Interest of A.M. v.
T.M., 2021 CO 14, ¶ 15. We review the court’s factual findings for
clear error, and we review de novo its legal conclusions based on
those facts. People in Interest of S.R.N.J-S., 2020 COA 12, ¶ 10.
B. Treatment Plan Compliance
¶ 26 Father asserts that he substantially complied with his
treatment plan as written and that the juvenile court abused its
10 discretion when it “attempt[ed] to rewrite the treatment plan to
include additional objectives or criteria without an opportunity [for
father] to comply with them.” While we agree that the juvenile court
erred — and even assuming that the court’s error was of
constitutional magnitude — we nevertheless conclude the error was
harmless beyond a reasonable doubt. See People In Int. of T.M.S.,
2019 COA 136, ¶ 26 (recognizing that “[o]ur supreme court has not
addressed whether the constitutional harmless error standard
applies with respect to a parent’s constitutional rights in
dependency or neglect proceedings, but nevertheless applying it and
finding the juvenile court’s error harmless beyond a reasonable
doubt) (first citing A.M. v. A.C., 2013 CO 16, ¶ 16 n.10, then citing
People v. Trujillo, 114 P.3d 27, 32 (Colo. App. 2004)).
¶ 27 Father’s treatment plan, as adopted at the dispositional
hearing, required him to (1) cooperate with the Department, the
court, and the guardian ad litem; (2) “have consistent visitation with
his children to maintain their bond” once he was released from
incarceration; and (3) refrain from picking up any new criminal
convictions and address any pending charges “in order to be
available to parent his children.”
11 ¶ 28 At the termination hearing, the juvenile court found that, with
regard to the first objective, father was “minimally compliant and
sufficiently compliant,” but that his compliance wasn’t successful in
rehabilitating him.
¶ 29 Similarly, the juvenile court found that father was
“technically” compliant with objective two as it was written, but that
“[o]bviously, everyone was working towards this objective being an
active visitation objective” and it further noted that “we haven’t
been able to even begin work on [father] establishing a relationship
with his children.”
¶ 30 Finally, regarding the third objective, the juvenile court again
found father “technically” compliant because he picked up new
charges prior to the treatment plan’s adoption, not after.
Nevertheless, the court indicated that it “believe[d] the purpose of
objective number three is that [father] will do his measured best
while at [the Texas] Department of Corrections, in order to comply
with a release such that he could become available to parent his
children.” Therefore, the court found that “there’s an argument to
be made that he violated objective number three.”
12 ¶ 31 Overall, the court found that while an appropriate treatment
plan had been drafted and father had primarily complied with its
components, it wasn’t successful in rehabilitating him, and he was
unfit. See K.B., ¶ 26 (“partial, or even substantial compliance, may
not be sufficient to render the parent fit.” (Emphasis added.)).
¶ 32 We agree with father that the court’s finding “that [father]
violated objective number three,” was erroneous. The record shows
father’s new criminal charges happened before his treatment plan
was adopted and thus it was inappropriate for the court to consider
the new charges to be a violation of this treatment plan component.
Nevertheless, for reasons further described below, we conclude the
court’s error was harmless beyond a reasonable doubt.
¶ 33 “An error is harmless beyond a reasonable doubt if there is no
reasonable possibility that the error prejudiced the appellant.”
T.M.S., ¶ 26 (citing People v. Trujillo, 114 P.3d 27, 32 (Colo. App.
2004)). To be sure, the record shows that father had substantially
complied with the components of his treatment plan. Nevertheless,
our review of the record convinces us that there is no reasonable
possibility that the outcome of the proceeding would have been
different had the court concluded that father substantially complied
13 with the treatment plan as adopted at the dispositional hearing
(and not, as father argues, amended it at the termination hearing).
See T.M.S., ¶ 27. This is because, as discussed below, the record
overwhelmingly supports the conclusion that, notwithstanding his
substantial compliance with the treatment plan as adopted at the
dispositional hearing, the treatment plan wasn’t successful in
rehabilitating father and thus termination was the proper result.
See § 19-3-604(1)(c); K.B., ¶ 26.
¶ 34 The caseworker opined that father had not developed a
relationship or bond with the children. The caseworker noted that
father had previously had a mandatory release date in 2026 until
he received an additional conviction while incarcerated that
resulted in his mandatory release date being pushed to 2032. She
further posited that father was incarcerated “due to his actions”
and while his incarceration wasn’t why the case was opened, it was
what directly prevented father from being able to reunify with his
children.
¶ 35 Most importantly, the caseworker opined that the children
needed permanency and that she didn’t believe it was in the
children’s best interests to keep the case open any longer. The
14 caseworker reported that the children had complex medical and
emotional needs that required considerable treatment. V.G-M. was
diagnosed with reactive attachment disorder and autism spectrum
disorder, required leg braces, and was engaged in individual
therapy. E.G-M. “ha[d] a long list of medical diagnos[es] and needs”
that required, among other things, that he have a G-tube, a helmet,
foot lifts, and a speech assistance machine. He underwent several
surgeries throughout the case, and more surgeries were likely to
occur in the future. Both children were involved in equine therapy,
speech therapy, occupational therapy, and applied behavior
analysis therapy. The caseworker reported that father had never
expressed any interest in the children’s medical appointments, nor
did he regularly inquire about the children’s well-being. Father
himself agreed he wasn’t currently able to care for the children or
meet their needs.
¶ 36 The caseworker further opined that even if father was
immediately released, he wouldn’t be able to safely parent his
children. See § 19-3-604(1)(c)(I)(B). She noted that father currently
resides in another state and that she didn’t believe, given father’s
criminal history, that Texas would approve an Interstate Compact
15 on the Placement of Children home study, and thus the Department
would have to look at moving father to Colorado, which could be
complicated by his parole status once released. Even once father
was in Colorado — assuming that could be achieved — the
Department would still need to formulate a new appropriate
treatment plan, enroll him in services, train him on the children’s
medical needs, and begin reintegration services. The caseworker
opined that after his release it would take another year, at a
minimum, for father to be rehabilitated and to establish a
relationship with his children.
¶ 37 Additionally, because the children were less than six years old
when the petition in dependency and neglect was filed, the
expedited permanency planning (EPP) guidelines apply. See §§ 19-
1-102(1.6), 19-1-123, C.R.S. 2025. The EPP provisions require that
such children be placed in a permanent home as expeditiously as
possible. §§ 19-1-102(1.6), 19-1-123, 19-3-702(5)(c), C.R.S. 2025;
see also People in Interest of S.Z.S., 2022 COA 133, ¶ 25. At the
time of the final termination hearing, the children had already been
in their current foster care placement for over 900 days and the
EPP case had been ongoing for over four years. Father’s mandatory
16 release date was in 2032, and the caseworker didn’t believe it was
in the children’s best interests to remain without permanency until
his release.
¶ 38 Finally, the record establishes that father didn’t even take the
minimal steps that were available to him to establish some
relationship with the children or demonstrate an interest in their
well-being. For example, father never added the children to his
family list or family tracking page, which was a prerequisite to
setting up family time once his restriction status was lowered.
Moreover, the caseworker suggested father could have written
letters to the children or the caseworker using the pre-stamped
envelopes the caseworker had sent him. But father didn’t,
testifying that inmates in his TDOC facility can’t have self-stamped
envelopes mailed to them. And no one, including father, testified
that father ever inquired about the children’s well-being or their
medical needs.
¶ 39 Thus, given the overwhelming evidence in the record that
supports the juvenile court’s finding that father is unable or
unwilling to provide nurturing and safe parenting adequate to meet
the children’s needs, any error the court made when it determined
17 father didn’t comply with the treatment plan was harmless beyond
a reasonable doubt. See T.M.S., ¶¶ 25, 29 (assuming constitutional
harmless error applies to juvenile cases, the error was harmless
beyond a reasonable doubt when “ample evidence” supported that
the mother would remain unfit regardless of the alleged juvenile
court’s error).
C. Incarceration as a Basis for Termination
¶ 40 Lastly, father contends that the juvenile court “de facto
resurrected [a] deleted statutory provision” through which the court
inappropriately “allow[ed] termination based solely on
incarceration.” We disagree.
¶ 41 As father asserts, the legislature in 2023 repealed subsection
(1)(b) of 19-3-604, which allowed consideration of a parent’s long-
term confinement status in termination of parental rights. See Ch.
191, sec. 7, § 19-3-604, 2023 Colo. Sess. Laws 957 (repealing
former section 19-3-604(1)(b)(III)). In its ruling, the juvenile court
also acknowledged “that the general assembly removed [that
subsection], and the [c]ourt cannot consider long-term
incarceration of the parent alone for purposes of termination.” Still,
the court didn’t believe “it was the intent of the general assembly
18 that the [c]ourt ignore long term incarceration of the parent,
especially when we are to consider and give primary consideration
to the physical, mental, and emotional conditions and needs of
these very high-needs children.”
¶ 42 Indeed, S.B. 23-039’s legislative declaration states, in relevant
part, that “decisions to terminate parental rights should be based
on the needs of the child, and not solely on the status of the parent
as incarcerated or the length of the sentence.” 2023 Colo. Sess.
Laws at 953 (emphasis added). In other words, the General
Assembly confirmed that, while a parent’s incarceration can’t be the
sole reason for termination, it may still be considered as one of the
factors in a juvenile court’s decision.
¶ 43 The court noted it wasn’t “hanging [its] hat on long term
incarceration for [its] findings.” Thus, the court explicitly noted its
judgment was not based exclusively on father’s incarceration. The
court further indicated its concern that father “did not know the
dates of birth of his children” and that the court “heard zero
evidence, from [father’s] testimony to the caseworker, that he’s
reached out or in any way tried to learn about these children, learn
more about their special medical [and] emotional needs.” While the
19 court believed father “is sincere in his wanting to be an available
parent,” the court found that “these children cannot wait any longer
for [father] to become an available parent, let alone complete the
kind of work that needs to be done to establish a relationship with
his children.” The record supports the court’s findings, which are,
at least in part, independent of and in addition to the fact that he
was incarcerated.
¶ 44 As described above, the caseworker didn’t believe father could
safely parent his children at the time of termination. The
caseworker further opined that the case was an EPP case that had
already been open for over four years, that the children needed
permanency, and that it wasn’t in the children’s best interests to
keep the case open any longer. She noted that father hadn’t
expressed any interest in the children’s medical appointments, nor
did he regularly inquire about their well-being. And father himself
admitted that he wasn’t able to currently care for the children.
¶ 45 Therefore, although the record shows that father’s
incarceration during the case informed the juvenile court’s decision,
it wasn’t the sole reason that the court found him unfit. See K.D.,
139 P.3d at 703 (The court did not err when it “carefully considered
20 how [the parent’s] continued incarceration affected his fitness and
his corresponding ability to meet [the child’s] needs within a
reasonable time.”). We therefore reject father’s assertion.
IV. Disposition
¶ 46 The judgment is affirmed.
JUDGE SULLIVAN and JUDGE BERGER concur.