Peo in Interest of ER

• Court: Colorado Court of Appeals
• Decided: May 28, 2026
• Docket: 25CA2164
• Status: Unpublished

Opinion

25CA2164 Peo in Interest of ER 05-28-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA2164 Arapahoe County District Court No. 22JV414 Honorable Shay Whitaker, Judge

The People of the State of Colorado,

Appellee,

In the Interest of E.R. and Z.L., Children,

and Concerning A.B.,

Appellant.

JUDGMENT AFFIRMED

Division IV Opinion by JUDGE SCHOCK Welling and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 28, 2026

John Christofferson, Interim County Attorney, Tamra White, Assistant County Attorney, Aurora, Colorado, for Appellee

Robert G. Tweedell, Guardian Ad Litem

Michael Kovaka, Office of Respondent Parents’ Counsel, Littleton, Colorado, for Appellant ¶1 A.B. (mother) appeals the judgment terminating her parent-

child legal relationships with E.R. and Z.L. (the children). She

contends that the juvenile court erred by finding she was unfit and

not likely to become fit within a reasonable time. We affirm.

I. Background

¶2 In September 2022, the Arapahoe County Department of

Human Services filed a petition in dependency and neglect

concerning the children, who were then three years old and one

year old.1 The petition alleged that mother had reportedly been

leaving the children unattended and engaging in “increasingly

aggressive and erratic” behavior, including “threaten[ing] to kill [a]

staff member” at the shelter where the family was staying.

¶3 The juvenile court entered a deferred adjudication for mother,

which the Department moved to revoke nearly a year later. After a

hearing, the court granted the revocation motion and adjudicated

the children dependent and neglected. The court adopted a

treatment plan for mother requiring her to (1) attend family time

consistently; (2) address her mental health; (3) maintain

1 The petition also concerned the children’s four other siblings, who

are not at issue in this appeal.

1 employment or receive other legal income; (4) provide stable

housing for the children; and (5) communicate with the caseworker.

¶4 Five months later, the Department moved to terminate

mother’s parent-child legal relationships with the children. After a

hearing in September 2025, the juvenile court granted the motion.

II. Compliance with the Indian Child Welfare Act (ICWA)

¶5 Mother asserts that the juvenile court failed to make an

inquiry into whether the children were Indian children in

connection with the termination proceedings. We disagree.

¶6 At the commencement of each emergency, voluntary, or

involuntary child custody proceeding, the court must ask each

participant whether “the participant knows or has reason to know

that the child is an Indian child or whether the participant has

information that is relevant to determining whether the child is an

Indian child.” § 19-1.2-107(2), C.R.S. 2025; see 25 C.F.R.

§ 23.107(a) (2025). This means the court must ordinarily make

(1) an initial inquiry at the commencement of the dependency and

neglect proceeding and (2) a second inquiry when termination is

sought. People in Interest of C.A., 2017 COA 135, ¶¶ 2, 10; see also

§ 19-1.2-125(1), C.R.S. 2025 (“Upon the filing of a motion to

2 terminate . . . , the court shall make a finding, subject to the

procedures described in section 19-1.2-107(2) and (3), regarding

whether there is reason to know that the child is an Indian child.”).2

¶7 In this case, mother’s counsel reported at the temporary

custody hearing that mother “may have Native American ancestry

from a tribe in Florida.” Based on this general assertion of heritage,

the Department sent notices to the Miccosukee Tribe of Indians and

the Seminole Tribe of Florida, as well as the Bureau of Indian

Affairs. Both tribes responded that the children were neither

enrolled members, nor eligible for enrollment, with their tribes.

¶8 Around the same time, the Department moved to terminate

mother’s parental rights, asserting in the motion that there was no

credible evidence that the children were Indian children under

ICWA. See 25 U.S.C. § 1903(4) (defining “Indian child” as an

unmarried person under eighteen years old who is either (1) a

2 The Colorado Indian Child Welfare Act, §§ 19-1.2-101 to -132,

C.R.S. 2025, went into effect in August 2025, after the Department in this case sought termination but before the termination hearing. At the same time, the General Assembly repealed section 19-1.2-107’s predecessor, section 19-1-126, C.R.S. 2024. The legislative changes have no effect on the analysis in this case.

3 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).

¶9 At a subsequent hearing, after the motion for termination was

filed, the county attorney requested a finding that ICWA did not

apply in this case based on (1) the tribes’ responses to the

Department’s notices and (2) Z.L.’s father’s indication that he did

not have any Native American heritage. (The Department never

determined the identity of E.R.’s father.) Although mother did not

appear at the hearing, the court made the required ICWA inquiries

of everyone who did, including mother’s counsel. No one reported

any additional information concerning ICWA. Based on this inquiry

and the record presented by the county attorney, the court found

that ICWA did not apply. See §§ 19-1.2-107(2)-(3), 19-1.2-125(1).

¶ 10 Mother acknowledges that this inquiry occurred. And she did

not appear at any hearings after the termination motion was filed.

Moreover, the caseworker testified at the termination hearing that

(1) she did not recall mother ever indicating that she was or could

be a member of an Indian tribe; and (2) she had no reason to believe

that either of the children was a member of a tribe. Then, in its

termination order, the juvenile court found that the Department

4 had made continuing inquiries regarding mother’s potential Native

American heritage and again found that ICWA did not apply.

¶ 11 Based on this record, we conclude that the court satisfied its

obligation to make an ICWA inquiry of the participants “[u]pon the

filing of [the] motion to terminate.” § 19-1.2-125(1); cf. C.A., ¶ 20

(concluding that record did not demonstrate compliance with ICWA

after the department sought termination). Although mother did not

appear at any hearings during the termination proceedings, the

court nonetheless inquired of her counsel after the Department had

moved for termination. See §§ 19-1.2-107(2)(a), 19-1.2-125(1).

III. Fitness

¶ 12 Mother next contends that the juvenile court erred by finding

that she was unfit and that her conduct or condition was unlikely

to change within a reasonable time because she was working

toward complying with her treatment plan. We disagree.

A. Applicable Law and Standard of Review

¶ 13 A juvenile court may terminate a parent’s parental rights if it

finds, by clear and convincing evidence, that (1) the child has been

adjudicated dependent and neglected; (2) the parent has not

reasonably complied with an appropriate, court-approved treatment

5 plan or the plan has not been successful; (3) the parent is unfit;

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

within a reasonable time. § 19-3-604(1)(c), C.R.S. 2025.

¶ 14 A parent is unfit if their conduct or condition renders them

unable or unwilling to give their 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 sufficient 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 court

may also consider a parent’s noncompliance with a treatment plan.

People in Interest of D.P., 181 P.3d 403, 408 (Colo. App. 2008).

¶ 15 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 S.Z.S., 2022

COA 133, ¶ 24. What constitutes a reasonable time is fact-specific

and must be determined by considering the physical, mental, and

emotional conditions and needs of the child. Id. at ¶ 25. But a

6 “reasonable time” is not an indefinite time. Id. And even when a

parent has made progress on a treatment plan, the court need not

give the parent additional time to become fit. See id. at ¶¶ 24-25.

¶ 16 In addition, when, as in this case, the child is under six years

old when the petition is filed, the action is subject to the expedited

permanency planning (EPP) provisions, and the court must place

the child in a permanent home as expeditiously as possible. See id.

at ¶ 25; §§ 19-1-102(1.6), 19-1-123, C.R.S. 2025. In such a case,

the court may not find a parent to be in reasonable compliance with

a treatment plan when the parent (1) has not attended family time

as set forth in the treatment plan, unless good cause is shown; or

(2) exhibits the same concerns addressed in the treatment plan

without adequate improvement and is unable or unwilling to

provide nurturing and safe parenting. § 19-3-604(1)(c)(I)(A)-(B).

¶ 17 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 its legal conclusions de novo. People in

Interest of S.R.N.J-S., 2020 COA 12, ¶ 10. The determination of

whether a parent can become fit within a reasonable time is a

7 factual question that we review for clear error. S.Z.S., ¶¶ 25, 29;

People in Interest of A.J.L., 243 P.3d 244, 256 (Colo. 2010).

B. Analysis

¶ 18 The juvenile court found that mother was unfit because she

had not complied with her treatment plan and had disengaged from

the case for at least six months leading up to the termination

hearing. In particular, the court found mother had not complied

with the family time component of her plan because she had not

seen Z.L. for five months, had not seen E.R. for a year, and had not

shown good cause for failing to attend family time. See § 19-3-

604(1)(c)(I)(A). The caseworker’s testimony supports those findings.

¶ 19 The court also found, with record support, that mother did not

successfully comply with other components of her treatment plan.

The caseworker testified that mother did not confirm her housing,

verify her employment, or complete required mental health

treatment. Mother’s contact with the caseworker was sporadic,

with two extended periods of disengagement in which she had no

contact with the caseworker, including the six months preceding

the termination hearing. The court thus found that mother

continued to exhibit the same concerns that led to the Department’s

8 involvement without adequate improvement and was unwilling to

provide nurturing and safe parenting. See § 19-3-604(1)(b).

¶ 20 In finding that mother’s conduct or condition was unlikely to

change within a reasonable time, the court noted that mother had

been disengaged from the case for six months and “had a previous

disengagement for an extended period.” Given this “pattern,” the

court had “significant concerns that even if she were to re-engage at

this point,” a “similar set of circumstances” could reoccur.

¶ 21 The court also found that “because of [mother’s] extended

absences from the children’s li[ves],” there would have to be

“significant amounts” of therapy and similar supports before family

time could be reinitiated, especially with E.R. Indeed, the

caseworker opined that mother’s inconsistency with family time had

been “highly impactful” on the children, with E.R. refusing to attend

visits. The court therefore determined that even if mother were to

reengage “tomorrow,” her conduct would be unlikely to change

within a reasonable period. See S.Z.S., ¶ 25 (recognizing that a

reasonable time is not an indefinite time and must be based on the

child’s physical, mental, and emotional conditions and needs).

9 ¶ 22 Moreover, this was an EPP case that had been open for three

years at the time of the termination hearing. See §§ 19-1-102(1.6),

19-1-123. Given this duration, the caseworker opined that the

children did not “need [the case] to be open any longer.” See S.Z.S.,

¶ 25.

¶ 23 Mother asserts that she made “meaningful efforts” to meet her

treatment plan objectives. And the record indicates that at times

she did. Indeed, the court found that mother had been compliant

with her treatment plan at various times during the case and had

previously been “active” and “very engaged.” But the court weighed

mother’s periodic engagement against her extended disengagement

and the young children’s needs, finding that mother was not likely

to become fit within a reasonable time. See id. at ¶ 29; see also

People in Interest of K.B., 2016 COA 21, ¶ 26 (noting that partial or

even substantial compliance with a treatment plan does not

necessarily render a parent fit). We may not reweigh the evidence

or substitute our judgment for the juvenile court’s. See S.Z.S., ¶ 29.

¶ 24 Thus, because the record supports the juvenile court’s

findings that mother was an unfit parent and could not become fit

within a reasonable time, we do not disturb those findings. See id.

10 IV. Disposition

¶ 25 The judgment is affirmed.

JUDGE WELLING and JUDGE LUM concur.