Peo in Interest of IA

• Court: Colorado Court of Appeals
• Decided: July 3, 2025
• Docket: 24CA1830
• Status: Unpublished

Opinion

24CA1830 Peo in Interest of IA 07-03-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1830 City and County of Denver Juvenile Court No. 23JV30663 Honorable Laurie A. Clark, Judge

The People of the State of Colorado,

Appellee,

In the Interest of I.A., a Child,

and Concerning S.A.,

Appellant.

JUDGMENT AFFIRMED

Division VII Opinion by JUDGE WELLING Lum and Bernard*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 3, 2025

Katie McLoughlin, Acting City Attorney, Christina R. Kinsella, Assistant City Attorney, Denver, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem.

Andrew A. Gargano, 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. 2024. ¶1 S.A. (mother) appeals the juvenile court’s judgment allocating

parental responsibilities for I.A. (the child) to maternal

grandparents. We affirm.

I. Background

¶2 The Denver Department of Human Services filed a petition in

dependency or neglect based on substance abuse and medical and

emotional neglect. Temporary custody of the child was granted to

the maternal grandparents.

¶3 The court adjudicated the child dependent or neglected, and

mother appealed. A division of this court affirmed the child’s

adjudication. See People in Interest of I.E.A., (Colo. App. No.

24CA0997, Nov. 27, 2024) (not published pursuant to C.A.R. 35(e)).

¶4 The court adopted a treatment plan for mother, which

required her to (1) attend parenting time; (2) complete a dual mental

health and substance abuse evaluation and comply with any

recommendations; (3) comply with sobriety testing; and (4) maintain

safe and appropriate housing. Three months later, the child’s

guardian ad litem (GAL) moved to allocate parental responsibilities

(APR) to maternal grandparents.

1 ¶5 Following a contested APR hearing, the court awarded

maternal grandparents sole decision-making responsibility, made

them the child’s primary custodian, and set forth a parenting time

schedule for mother.

II. Due Diligence Under ICWA

¶6 Mother asserts that “it is unclear whether the government

complied with its due diligence requirement” to gather additional

information after she reported that the child may have an uncle

who has Sioux heritage.

¶7 Dependency and neglect cases are subject to the provisions of

the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-

1963, and Colorado’s ICWA statute, § 19-1-126, C.R.S. 2024.

Under section 19-1-126(3), when a juvenile court “receives

information that the child may have Indian heritage but does not

have sufficient information to determine that there is a reason to

know that the child is an Indian child . . . the court shall direct the

[petitioner] to exercise due diligence in gathering additional

information that would assist the court” in determining whether it

has reason to know the child is an Indian child. Due diligence is a

flexible standard that doesn’t require a department to “succeed in

2 its efforts or exhaust every possible option in attempting to do so.”

H.J.B. v. People in Interest of A-J.A.B., 2023 CO 48, ¶ 58.

¶8 Whether a department satisfied its due diligence obligation is

left to the juvenile court’s sound discretion. Id. A court abuses its

discretion when “its ruling is manifestly arbitrary, unreasonable, or

unfair, or when it misapplies the law.” People in Interest of E.R.,

2018 COA 58, ¶ 6.

¶9 Mother reported that the child had potential Sioux heritage,

and the Department attempted to contact numerous relatives to

gather more information. The caseworker spoke with mother,

maternal grandmother, and two maternal uncles. The Department

received no more information with regard to the child’s enrollment

or eligibility to enroll with any tribe. Having received no information

confirming mother’s assertion of potential Sioux heritage or

identifying heritage through any other tribe, the Department didn’t

send notices. After considering these efforts, the court determined

that it had no reason to know that the child was an Indian child.

See People in Interest of E.A.M. v. D.R.M., 2022 CO 42, ¶ 56 (a mere

assertion of Native heritage, without more, is insufficient to give the

juvenile court reason to know that a child is an Indian child).

3 ¶ 10 Because the court’s findings are supported by the record, we

discern no abuse of discretion. H.J.B., ¶¶ 54, 58.

III. Reasonable Efforts

¶ 11 Mother argues that the juvenile court erred when it

determined that the Department made reasonable efforts to

rehabilitate her and reunify the family. The Department and GAL

assert that mother didn’t adequately preserve her reasonable efforts

argument. We agree that the issue isn’t preserved; therefore, we

won’t review it. See People in Interest of M.B., 2020 COA 13, ¶ 14

(Appellate courts will “review only issues presented to and ruled on

by the lower court.”).

A. Relevant Law

¶ 12 The issue of whether a department made reasonable efforts

relates to a parent’s fitness in the context of a hearing on a motion

for termination of parental rights under section 19-3-604(1)(c). The

termination statute states that, in deciding whether a parent is

unfit, the court “shall consider,” among other things, whether

“[r]easonable efforts by child-caring agencies . . . have been unable

to rehabilitate the parent or parents.” § 19-3-604(2)(h). But this

statute isn’t applicable to an APR, and a juvenile court isn’t

4 required to make a finding of parental unfitness when awarding

permanent legal custody, such as an APR. See L.A.G. v. People in

Interest of A.A.G., 912 P.2d 1385, 1391-92 (Colo. 1996); cf. People in

Interest of A.S.L., 2022 COA 146, ¶ 20 (relying on section 19-3-

100.5, C.R.S. 2024, which sets forth policies underlying

dependency and neglect proceedings, and concluding that a

department must make reasonable efforts in a dependency or

neglect case before a nonparent).

¶ 13 To preserve an issue for appellate review, a party must alert

the juvenile court to the issue so that the court has an adequate

opportunity to make findings of fact and conclusions of law.

Forgette v. People, 2023 CO 4, ¶ 21. But a party isn’t required to

use talismanic language to preserve an issue for appeal. People in

Interest of S.Z.S., 2022 COA 133, ¶ 18.

B. Analysis

¶ 14 In an effort to show preservation, mother points to statements,

in transcripts from hearings both before and at the APR hearing, in

which mother’s counsel or mother questioned the sufficiency of

services provided to her. These statements included arguments

that mother’s family time with the child was insufficient and that

5 the Department failed to help mother enroll in a sober living facility,

refer mother for urinalysis testing, or provide her with financial

assistance for housing or transportation. But neither mother nor

her counsel formulated these arguments in terms of reasonable

efforts before the trial court, nor did they ask the court to deny the

APR because of a lack of reasonable efforts. See Forgette, ¶ 23

(“Merely calling an issue or fact to the court’s attention, without

asking for relief, is insufficient to preserve an issue for review.”)

¶ 15 Moreover, during closing argument at the APR hearing,

mother’s counsel didn’t assert that the Department had failed to

make reasonable efforts. Instead, mother’s counsel’s closing

argument reviewed each objective of her treatment plan, focusing

on mother’s alleged compliance and success. Ultimately, the court

granted the Department’s APR motion without making specific

findings as to whether the Department had made reasonable efforts.

When the court asked the parties if they needed any clarifications

regarding its order, no party requested any clarification.

¶ 16 Based this review of the record, it’s clear to us that mother

never presented the issue of the adequacy of the Department’s

efforts as a basis for denying the APR. And this isn’t just a matter

6 of not using talismanic language; the issue wasn’t raised in the

context of allocating parental responsibilities. Based on this, it’s

unsurprising that the juvenile court didn’t make any reasonable

efforts finding. And because the issue wasn’t raised, we won’t

review mother’s contention that the court’s failure to make

reasonable efforts findings is a basis for reversing the court’s APR

order.

IV. Time to Comply

¶ 17 Mother also argues that the juvenile court erred by not giving

her more time to comply with her treatment plan before allocating

parental responsibilities. We disagree for two reasons.

A. No Entitlement to Reasonable Time

¶ 18 First, we aren’t persuaded that mother was entitled to

reasonable time before the juvenile court allocates parental

responsibilities. Mother relies on People in Interest of D.Y., 176 P.3d

874, 876-77 (Colo. App. 2007), to assert that the juvenile court had

to give her reasonable time to comply with her treatment plan and

become fit before it could enter an APR.

¶ 19 Mother’s reliance on D.Y. is misplaced because section 19-3-

604(1)(c) isn’t applicable in the present case. See People in Interest

7 of S.Z.S., 2022 COA 133, ¶¶ 32-33 (“[T]he requirement that a court

allow a parent a reasonable time to comply with a treatment plan

only applies in cases in which parental rights are terminated under

subsection (1)(c).”). Moreover, a juvenile court can enter an APR in

a dependency and neglect case without first adopting a treatment

plan. See People in Interest of T.W., 2022 COA 88M, ¶ 35 (noting

that, once the court enters an adjudication, it has access to broad

dispositional remedies, including the authority to enter permanent

APR orders). Therefore, mother wasn’t entitled to a reasonable time

to comply with her treatment plan before the court entered an APR.

See id. In any event, mother’s contention that she wasn’t afforded

reasonable time to comply with her treatment plan isn’t a basis for

reversing the APR order.

B. Child’s Emotional Conditions and Needs

¶ 20 Second, mother’s argument that she should have been given

more time is also unavailing based on the child’s physical, mental,

and emotional conditions and needs, which the juvenile court

properly gave primary consideration. While unfitness “clearly

constitutes a compelling reason not to return a child home,” in an

APR, parental challenges less serious than unfitness may give rise

8 to a compelling reason not to return the child home when

considered in light of the child’s physical, mental, and emotional

conditions and needs. People in Interest of C.M., 116 P.3d 1278,

1283 (Colo. App. 2005). Therefore, the fact that a parent may

become fit in a reasonable time isn’t dispositive of whether an APR

is in the child’s best interest, particularly if there are other

compelling reasons not to return a child to the parent.

¶ 21 Here, the court concluded, with record support, that mother

resisted engagement with her treatment plan and was thus unable

to overcome the concerns that brought the family to the

Department’s attention. For example, although the caseworker

referred mother to a substance abuse evaluation, mother informed

the caseworker she wouldn’t complete it, and she didn’t engage in

any Department-sponsored substance abuse treatment. Mother

claimed to be in mental health treatment independently, but she

never provided a release for the Department to confirm her

attendance. She submitted only two urinalysis tests in the thirteen

months this case was open. Despite mother’s arguments that she

was compliant with her treatment plan, we can’t reweigh the

evidence or substitute our judgment. See People in Interest of

9 K.L.W., 2021 COA 56, ¶ 62; see also People in Interest of A.J.L., 243

P.3d 244, 249-50 (Colo. 2010).

¶ 22 Based on the juvenile court’s well-supported findings, giving

mother more time would have been detrimental to the child’s well-

being. While this case was open, the child’s emotional health

deteriorated. For example, the child expressed fear about strangers

“coming in and out of [mother’s] home as well as staying there.”

And later, when mother’s visits became supervised due to her lack

of compliance with her treatment plan, the child experienced two

psychiatric emergencies requiring hospitalization. Providing mother

with more time to comply with her treatment plan would have been

at odds with supporting the child’s emotional well-being.

V. No Procedural Due Process Violation

¶ 23 Next, we aren’t persuaded that there was any procedural due

process violation. When a court decision effectively eliminates or

weakens familial bonds by terminating parental rights or denying

custody, parents must first receive fundamentally fair procedures.

Santosky v. Kramer, 455 U.S. 753 (1982); People in Interest of D.I.S.,

249 P.3d 775, 781-82 (Colo. 2011). Thus, in termination

proceedings, due process requires that a parent be given notice of

10 the proceeding and an opportunity to be heard or defend and have

the assistance of legal counsel. People in Interest of V.M.R., 768

P.2d 1268, 1270 (Colo. App. 1989). Arguably, not all of these

protections apply in an APR proceeding because a parent retains

other rights, including the right to petition or regain custody or to

increase parenting time. See, e.g., People in Interest of L.B., 254

P.3d 1203, 1206 (Colo. App. 2011) (where the state seeks only to

award custody of a child to other persons rather than to terminate

parental rights, a parent has no due process right to counsel).

¶ 24 Here, however, we don’t need to decide what due process

protections apply at an APR proceeding because mother had all the

procedural due process she was entitled to had this been a

termination proceeding, including court-appointed counsel, being

provided with notice of the hearing, and having the opportunity to

be heard and defend against the APR motion.

VI. APR Is In Child’s Best Interest

¶ 25 Finally, mother argues that the court erred in concluding that

the APR was in the child’s best interests. Specifically, she argues

that the APR wasn’t in the child’s best interest because (1) the open

case allowed maternal grandparents access to services they couldn’t

11 otherwise receive; and (2) the APR improperly “conditioned any

expansion of [family] time . . . on [m]other completing substance

abuse treatment and mental health therapy.” Again, we perceive no

basis for reversal.

A. Relevant Law and Standard of Review

¶ 26 When a juvenile court allocates parental responsibilities in a

dependency or neglect case, it must consider the purposes of the

Children’s Code under section 19-1-102, C.R.S. 2024, see People in

Interest of C.M., 116 P.3d 1278, 1281 (Colo. App. 2005), and

allocate parental responsibilities in accordance with the child’s best

interests, see L.B., 254 P.3d at 1208. But the Children’s Code

doesn’t delineate any specific criteria for, or direct the court to

make any specific findings before entering an APR.

¶ 27 An APR judgment is within the juvenile court’s discretion and

won’t be disturbed on review if it is supported by competent

evidence in the record. See People in Interest of A.M.K., 68 P.3d

563, 565 (Colo. App. 2003). However, whether the court applied the

correct legal standard in making its findings is a question of law

that we review de novo. People in Interest of N.G.G., 2020 COA 6,

¶ 10. The credibility of the witnesses and the sufficiency, probative

12 effect, and weight of the evidence, as well as the inferences and

conclusions to be drawn from it, are matters within the court’s

discretion. People in Interest of A.M. v. T.M., 2021 CO 14, ¶ 15.

¶ 28 The court found that keeping this case open wasn’t in the

child’s best interest, because “having multiple decision-makers in

the case [was] impacting [the child’s] mental health in a significant

way.” As we have already discussed, the record shows that the

child’s mental health was negatively impacted by the case

proceedings; the caseworker’s testimony supports the court’s

finding that keeping the child with his maternal grandparents was

in his best interest.

¶ 29 The record shows that the case closure wouldn’t affect

maternal grandparents’ access to the type of service they requested.

Shortly before the APR hearing, maternal grandparents requested a

service, known as KEEP. According to the caseworker, KEEP works

in the home of the child and caregiver and teaches de-escalation

strategies. The caseworker testified that, in this case, KEEP

provided the same services as family therapy. And family therapy

would have been available to maternal grandparents if mother —

13 who had been the child’s medical decision-maker — had allowed

maternal grandparents and the child to participate in it. At the APR

hearing, the court awarded maternal grandparents medical

decision-making authority for the child. Given the court’s order,

the child and maternal grandparents no longer required the case to

remain open in order to receive equivalent services through family

therapy.

¶ 30 The court awarded mother a minimum of eight hours of

monitored family time weekly, without condition. The court also

contemplated an expansion of her family time in the future that

carried conditions: mother’s family time could expand “based on

[m]other’s successful completion of substance use treatment and

engagement in mental health therapy.” To the extent mother

disagrees with those conditions for future parenting time, she can

seek to modify the judgment in the district court. See § 14-10-

129(1)(a)(I), C.R.S. 2024 (allowing district court to modify parenting

time “whenever such order or modification would serve the best

interests of the child”). And nothing in section 14-10-129 limits a

parent’s ability to file an initial motion to modify parenting time.

See In re F.A.G., 148 P.3d 375, 377 (Colo. App. 2006) (the two-year

14 limitation in section 14-10-129(1.5) doesn’t apply to “the first

motion to modify parenting time filed after the permanent orders

have been entered”). Accordingly, because the court found, with

record support, that the conditions it imposed on mother’s future

parenting time in the APR judgment were in the child’s best

interests, the court didn’t error.

VII. Disposition

¶ 31 The judgment is affirmed.

JUDGE LUM and JUDGE BERNARD concur.