24CA0893 Peo in Interest of DRM 02-13-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0893 Adams County District Court No. 22JV30109 Honorable Caryn A. Datz, Judge
The People of the State of Colorado,
Appellee,
In the Interest of D.R.M., a Child,
and Concerning D.M.,
Appellant.
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE GROVE Harris and Pawar, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 13, 2025
Heidi Miller, County Attorney, Conor Hagerty, Assistant County Attorney, Westminster, Colorado, for Appellee
Tausha Riley, Guardian Ad Litem
Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant ¶1 D.M. (father) appeals the judgment terminating his parent-
child legal relationship with D.R.M. (the child). We affirm.
I. Background
¶2 In November 2022, the Adams County Human Services
Department (Department) received a report that the child was born
substance-exposed and had to be treated in the neonatal intensive
care unit for withdrawal symptoms. Mother told the caseworker
that she had used controlled substances during her pregnancy; her
home did not have running water, heat, or electricity; and father
(who lived in the home with mother) was currently incarcerated in
the county jail. The Department also discovered that the parents’
parental rights with respect to the child’s older sister had previously
been terminated and the older child had been adopted by the
maternal grandparents.
¶3 The Department filed a petition in dependency and neglect,
assumed temporary legal custody of the child, and placed her in the
care of her maternal grandparents. Father contested paternity, and
the juvenile court ordered him to undergo genetic testing. He
completed the genetic testing while he was serving a community
corrections sentence, but shortly thereafter, he absconded from
1 community corrections. Father did not contact the Department or
appear in court for several months; the court eventually entered an
adjudication by default judgment. The court then adopted a
treatment plan for father that required him to (1) address his
substance abuse, mental health, and criminal matters and
(2) develop a bond with the child and provide for her needs.
¶4 In February 2024, the Department moved to terminate father’s
parental rights. The juvenile court held a two-day evidentiary
hearing in April 2024. After hearing the evidence, the court entered
a thorough, written order granting the Department’s motion and
terminating the parent-child legal relationship between father and
the child under section 19-3-604(1)(c), C.R.S. 2024.
II. Indian Child Welfare Act
¶5 Father asserts that the juvenile court erred by finding that the
Department exercised due diligence as required by section 19-1-
126(3), C.R.S. 2024, of Colorado’s Indian Child Welfare Act (ICWA)
statute. We disagree.
A. Applicable Law and Standard of Review
¶6 For ICWA to apply in a dependency and neglect proceeding,
the case must involve an Indian child. See People in Interest of
2 A.G.-G., 899 P.2d 319, 321 (Colo. App. 1995); see also 25 U.S.C.
§ 1903(4) (defining “Indian child” as “any unmarried person who is
under age eighteen” and (1) “a member of an Indian tribe,” or (2)
“eligible for membership in an Indian tribe” and “the biological child
of a member of an Indian tribe”). A mere assertion of Indian
heritage, without more, is insufficient to give the juvenile court
reason to know that the child is an Indian child and trigger the
provisions of ICWA. People in Interest of E.A.M. v. D.R.M., 2022 CO
42, ¶ 56. However, Colorado’s ICWA statute places additional
requirements upon a department when it has information that “the
child may have Indian heritage.” § 19-1-126(3). Under those
circumstances, the court must direct the department to “exercise
due diligence in gathering additional information that would assist
the court in determining whether there is reason to know that the
child is an Indian child.” Id.; see also H.J.B. v. People in Interest of
A-J.A.B., 2023 CO 48, ¶ 5.
¶7 To exercise due diligence under section 19-1-126(3), the
department should
earnestly endeavor to investigate the basis for the parent or other participant’s assertion that the child may be an Indian child, to contact
3 those family members or others who are specifically identified as having knowledge regarding that assertion of general Indian heritage, and to learn whether additional information exists that will help the court determine whether there is a reason to know that the child is an Indian child.
H.J.B., ¶ 57. However, due diligence under section 19-1-126(3) is a
flexible standard that does not require the department to “succeed
in its efforts” or “exhaust every possible option in attempting to do
so.” H.J.B., ¶ 58. Nor does it require the department to contact
every tribe mentioned by the parent. Id. at ¶ 54.
¶8 Whether the department satisfied its due diligence obligation
is left to the juvenile court’s sound discretion, which necessarily
requires the court to make credibility determinations regarding the
source of the information and the basis for the source’s information.
Id. at ¶ 58.
B. Analysis
¶9 Father asserts that the juvenile court erred by finding that the
Department exercised due diligence under section 19-1-126(3)
because it did not follow up on information that the child might
have Apache, Navajo, or Ute heritage. We are not persuaded.
4 ¶ 10 At a hearing in January 2023, mother’s counsel noted that
there had been a “finding of non-ICWA in a previous case,” but
mother nevertheless “believe[d] that she may have Native American
heritage.” The court inquired of mother, who stated that maternal
grandmother “might have a better answer.” The court then turned
to the maternal grandparents, who attended the hearing. They
thought that the family might have Apache, Navajo, or Ute heritage,
but otherwise indicated that none of their relatives were members of
a tribe. Based on this discussion, the county attorney asked that
the maternal grandparents file an ICWA assessment form “so we
can fully investigate all those records made.”
¶ 11 A few weeks later, the guardian ad litem submitted an ICWA
assessment form completed by the maternal grandparents. On the
form, the maternal grandparents listed a few relatives, along with
dates and places of birth, but they did not provide any possible
tribes, including those that they had previously indicated. Because
the maternal grandparents did not provide any specific tribal
information on the assessment form, the Department sent notice
only to the Bureau of Indian Affairs.
5 ¶ 12 In March 2023, the juvenile court asked mother whether she
had any additional information, and she indicated that she did not.
The court then found that the Department had exercised due
diligence by following up on the representations previously made
and sending the appropriate notice. The court further found that it
did not have any information that the child was an Indian child and
therefore ICWA did not apply.
¶ 13 The record supports the juvenile court’s finding that that the
Department exercised due diligence under section 19-1-126(3).
Mother believed that she had Native American heritage and that the
maternal grandparents might have additional information. See
H.J.B., ¶ 57. Although the maternal grandparents initially
indicated that the family may have Apache, Navajo, or Ute heritage,
they did not identify any specific tribes when completing the ICWA
assessment form. And although they named other relatives, they
did not indicate that any of those people had additional
information, nor did they provide the Department with any contact
information for those individuals. See id. Because the Department
did not have any other information to further pursue, it sent notice
to the Bureau of Indian Affairs. In sum, because the court’s
6 findings are supported by the record and the Department had no
duty to contact any tribes, we discern no error in the court’s
determination that the Department exercised due diligence under
section 19-1-126(3). See H.J.B., ¶¶ 54, 58.
III. Reasonable Efforts
¶ 14 Father contends that that juvenile court erred by finding that
the Department made reasonable efforts to rehabilitate him and
reunify him with the child.
¶ 15 Before a juvenile court may find a parent unfit, the county
department of human services must make reasonable efforts to
rehabilitate parents and reunite families. §§ 19-1-103(114),
19-3-208, 19-3-604(2)(h), C.R.S. 2024. Reasonable efforts means
the “exercise of diligence and care” to reunify parents with their
children. § 19-1-103(114).
¶ 16 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 case plans for the provision of services;
home-based family and crisis counseling; information and referral
7 services to available public and private assistance resources; family
time; and placement services. § 19-3-208(2)(b).
¶ 17 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. But the parent is ultimately
responsible for using the services to comply with the plan. People in
Interest of J.C.R., 259 P.3d 1279, 1285 (Colo. App. 2011). And the
court may consider a parent’s unwillingness to participate in
treatment in determining whether the department made reasonable
efforts. See People in Interest of A.V., 2012 COA 210, ¶ 12.
¶ 18 Whether a department satisfied its obligation to make
reasonable efforts is a mixed question of fact and 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.
8 B. Analysis
¶ 19 The juvenile court found that the Department made
reasonable efforts to rehabilitate father because the caseworker
made “ongoing attempts to engage” father “to utilize resources and
services.” The court noted that the Department had “made referrals
for various services,” including substance abuse and mental health
treatment, monitored sobriety, and family time services. However,
based on the evidence presented, the court determined that father
did not take “advantage of these services,” “only sporadically
exercised family time,” and “did not remain in consistent contact
with the caseworker.”
¶ 20 The record supports the juvenile court’s findings. The
caseworker testified that, at the beginning of the case, father was
incarcerated in the county jail, but the Department managed to
provide him with a dual diagnosis evaluation while he was in
custody. The evaluator recommended that father complete
inpatient treatment, but because he was sentenced to community
corrections and had to maintain employment, father could only
comply with the alternative recommendation of outpatient
treatment services. The caseworker said that she attempted to
9 speak to father about the services that community corrections
required him to complete, so that the Department was not
duplicating services. However, father did not respond and
eventually absconded from community corrections supervision and
did not contact the Department for about six months. The
caseworker said that, after father was arrested, the Department
attempted to start family time while he was still in jail, but he was
moved to a prison facility before they could set it up. Thereafter,
father was in prison for about three months, and the caseworker
said that she was unable to contact father during that time.
¶ 21 Father was released from prison in January 2024. The
caseworker testified that, after father was released, she “was calling
and texting him approximately four times a week” to try to get
services and treatment set up as quickly as possible. The
caseworker said that the Department referred father for a new dual
diagnosis evaluation in February 2024, but he did not complete it.
The caseworker also set up family time for father, but father only
attended about ten hours of family time over the next three months.
Finally, the caseworker said that the Department made a referral
for father to complete drug screens, but he never did any.
10 ¶ 22 In sum, the record supports the juvenile court’s findings that
(1) the Department provided father with the appropriate resources
to engage with his treatment plan, but (2) he did not take advantage
of those resources and was therefore unsuccessful in becoming fit
within a reasonable time. See A.V., ¶ 12; J.C.R., 259 P.3d at 1285.
¶ 23 Nevertheless, father asserts that the Department did not make
reasonable efforts to provide him with substance abuse and mental
health services, the caseworker did not contact him, and he was not
provided adequate family time. But his assertions would require us
to reweigh the evidence, override the court’s credibility
determinations, and otherwise substitute our judgment for that of
the juvenile court. See People in Interest of S.Z.S., 2022 COA 133,
¶ 29; see also People in Interest of A.J.L., 243 P.3d 244, 249-50
(Colo. 2010). Because we cannot do so, we reject father’s assertion
and conclude that the court did not err by finding that the
Department made reasonable efforts.
IV. Fitness Within a Reasonable Time
¶ 24 Father argues that the juvenile erred by finding that he could
not become fit within a reasonable time. We disagree.
11 A. Applicable Law and Standard of Review
¶ 25 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
provide nurturing and safe parenting sufficiently adequate to meet
the child’s physical, emotional, and mental needs and conditions.
People in Interest of A.J., 143 P.3d 1143, 1152 (Colo. App. 2006). A
parent’s noncompliance with a treatment plan generally
“demonstrates a lack of commitment to meeting the child’s needs
and, therefore, may also be considered in determining unfitness.”
People in Interest of D.P., 181 P.3d 403, 408 (Colo. App. 2008).
¶ 26 When deciding whether a parent’s conduct or condition is
likely to change within a reasonable time, the juvenile court may
consider whether any change has occurred during the proceeding,
the parent’s social history, and the chronic or long-term nature of
the parent’s conduct or condition. People in Interest of D.L.C., 70
P.3d 584, 588-89 (Colo. App. 2003). Where a parent has made little
to no progress on a treatment plan, the court need not give the
12 parent additional time to comply. See People in Interest of R.B.S.,
717 P.2d 1004, 1006 (Colo. App. 1986).
¶ 27 The determination of a reasonable period is fact-specific and
varies from case to case. People in Interest of D.Y., 176 P.3d 874,
876 (Colo. App. 2007); see also S.Z.S., ¶ 24. However, a reasonable
time is not an indefinite time, and it must be determined by
considering the child’s physical, mental, and emotional conditions
and needs. S.Z.S., ¶ 24. As in this case, when a child is under six
years old, the juvenile court must also consider the expedited
permanency planning provisions, which require that the child be
placed in a permanent home as expeditiously as possible. See
§§ 19-1-102(1.6), 19-1-123, 19-3-702(5)(c), C.R.S. 2024.
¶ 28 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, but we review de novo its legal conclusions based on
those facts. People in Interest of S.R.N.J-S., 2020 COA 12, ¶ 10.
¶ 29 The juvenile court found that father’s conduct or condition
was unlikely to change within a reasonable time. In so concluding,
13 the court noted that the case had been open for seventeen months,
the entirety of the child’s life. During that time, father did not
consistently engage with services and made only “minimal progress”
on his treatment plan. The court also considered that father had a
“lengthy histor[y] of substance use” and this was “the second child
removed from [father’s] care due to substance use.”
¶ 30 The record supports the juvenile court’s findings. The
caseworker testified that father had a previous dependency and
neglect case with similar concerns that opened in June 2021 and
ended with termination of father’s parental rights a few months
before the child in this case was born. As noted above, father did
not participate in substance abuse or mental health treatment
during this case, and he only attended about ten hours of family
time. And although father testified that he had been sober for
about eight months, the caseworker said that, because father had
not complied with monitored sobriety, she could not confirm that
claim. The caseworker opined that, based on this information,
father’s conduct or condition was unlikely to change within a
reasonable time.
14 ¶ 31 Father maintains that the record compels the opposite
conclusion, pointing out that he completed the dual diagnosis
evaluation, began treatment through parole (including methadone
treatment and counseling), was employed, and had a stable home.
But the juvenile court specifically considered this evidence and still
concluded that father’s conduct or condition was unlikely to change
within a reasonable time. Thus, father’s appellate argument would
again require us to reweigh the evidence and substitute our
judgment for that of the juvenile court, which we cannot do. See
S.Z.S., ¶ 29. Rather, because the record supports the court’s
finding that father’s conduct or condition was unlikely to change
within a reasonable time, we reject father’s contention.
V. Less Drastic Alternative
¶ 32 Father maintains that the juvenile court erred by rejecting a
less drastic alternative to termination in the form of an allocation of
parental responsibilities (APR) to the maternal grandparents. We
disagree.
¶ 33 Before terminating parental rights under section 19-3-
604(1)(c), the juvenile court must consider and eliminate less
15 drastic alternatives. People in Interest of M.M., 726 P.2d 1108, 1122
(Colo. 1986). In considering less drastic alternatives, a court must
give primary consideration to the child’s physical, mental, and
emotional conditions and needs. § 19-3-604(3). In doing so, the
court may consider, among other things, whether (1) an ongoing
relationship between the parent and child would be beneficial,
People in Interest of A.R., 2012 COA 195M, ¶ 38; (2) an APR
provides adequate permanence and stability for the child, People in
Interest of T.E.M., 124 P.3d 905, 910-11 (Colo. App. 2005); and
(3) the placement prefers adoption over an APR, S.N-V., 300 P.3d at
920.
¶ 34 For a less drastic alternative to be viable, it must do more than
“adequately” meet a child’s needs; rather, it must be in the child’s
best interests. A.M., ¶ 27. Therefore, if the juvenile court considers
a less drastic alternative but finds instead that termination is in the
child’s best interests, it must reject the less drastic alternative and
order termination. Id. at ¶ 32. And under those circumstances, we
must affirm the court’s decision if its findings are supported by the
record. People in Interest of B.H., 2021 CO 39, ¶ 81.
16 B. Analysis
¶ 35 The juvenile court found that there was no less drastic
alternative to termination. In doing so, the court considered that
the child had been in the maternal grandparents’ care, together
with her sibling, for the entirety of the case. The court further
noted that the maternal grandparents wanted to adopt the child
and did not believe that an APR would be a viable option,
considering that they had a restraining order against father.
Ultimately, the court determined that, based on the child’s young
age and her need for permanency, adoption (rather than an APR)
was in the child’s best interests.
¶ 36 The record supports the juvenile court’s findings. The
maternal grandfather testified that the child was placed in maternal
grandparents’ home after her release from the hospital and that
they had recently adopted the child’s sibling. He also said that he
preferred adoption over an APR because it was important for the
child to know that she was in a stable home and that he had
“concerns” about the viability of an APR because of the protection
order against father. Based on this information, as well as father’s
lack of compliance with his treatment plan, the caseworker opined
17 that termination, and not a less drastic alternative, was in the
child’s best interests.
¶ 37 In sum, the record shows that the juvenile court considered
less drastic alternatives but rejected them because they were not in
the child’s best interests. See A.M., ¶ 32. And because the record
supports the court’s finding, we cannot disturb it. See B.H., ¶ 80.
¶ 38 We are not otherwise convinced by father’s contention that a
less drastic alternative existed because he made progress in
treatment, had a bond with the child, and an APR would preserve
family ties. To be sure, a juvenile court can consider these issues
when deciding if there is a viable less drastic alternative to
termination. See, e.g., People in Interest of N.D.V., 224 P.3d 410,
421 (Colo. App. 2009). But they are just some of the factors that
are relevant in deciding whether a less drastic alternative is in the
child’s best interests. See A.R., ¶ 38 (noting that the court “may
consider various factors” in its analysis of less drastic alternatives).
And in this case, the court determined that there was no viable less
drastic alternative to termination based on father’s unfitness, the
maternal grandparents’ preference for adoption, and the child’s
need for permanency. We cannot reweigh the evidence or
18 substitute our judgment to reach a different conclusion. See B.H.,
¶ 80; A.M., ¶ 32; see also S.Z.S., ¶ 29.
VI. Disposition
¶ 39 The judgment is affirmed.
JUDGE HARRIS and JUDGE PAWAR concur.