Peo in Interest of JD

• Court: Colorado Court of Appeals
• Decided: June 12, 2025
• Docket: 24CA2048
• Status: Unpublished

Opinion

24CA2048 Peo in Interest of JD 06-12-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA2048 Arapahoe County District Court No. 23JV242 Honorable Bonnie H. McLean, Judge

The People of the State of Colorado,

Appellee,

In the Interest of J.D., a Child,

and Concerning A.Y.,

Appellant.

JUDGMENT AFFIRMED

Division V Opinion by JUDGE SULLIVAN Freyre and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 12, 2025

Ron Carl, County Attorney, Kiley Schaumleffel, Assistant County Attorney, Aurora, Colorado, for Appellee

Sheena Knight, Guardian Ad Litem

Michael Kovaka, Office of Respondent Parents’ Counsel, Littleton, Colorado, for Appellant ¶1 In this dependency and neglect proceeding, A.Y. (father)

appeals the judgment terminating his parent-child legal

relationship with J.D. (the child). We affirm.

I. Background

¶2 In July 2023, the Arapahoe County Department of Human

Services filed a petition in dependency and neglect regarding the

then-newborn child. The Department alleged that mother had

tested positive for methamphetamine and fentanyl at the time of

delivery and that the child was experiencing withdrawal symptoms.

Mother had left the hospital against medical advice, and father

hadn’t been to the hospital to see the child. The Department also

noted that the parents were respondents in an open dependency

and neglect case involving the child’s older sibling.

¶3 Father requested genetic testing, which wasn’t completed until

approximately ten months into the case. The testing confirmed that

he was the child’s biological father, and the juvenile court

adjudicated him the legal parent of the child. In May 2024, father

entered an admission to specified allegations in the petition and the

juvenile court adjudicated the child dependent or neglected. On the

same day, the court adopted a treatment plan that required father

1 to cooperate with the Department; engage in substance abuse and

mental health treatment; develop financial stability; obtain stable

housing; comply with the requirements of his pending criminal

case; develop protective parenting skills; and attend family time

with the child.

¶4 Approximately three months later, the Department moved to

terminate father’s parental rights. The juvenile court held a

contested hearing on November 4, 2024, and ultimately granted the

Department’s termination motion.

II. Statutory Criteria and Standard of Review

¶5 The juvenile court may terminate parental rights if it finds, by

clear and convincing evidence, that (1) the child was adjudicated

dependent or neglected; (2) the parent hasn’t complied with an

appropriate, court-approved treatment plan or the plan hasn’t been

successful; (3) the parent is unfit; and (4) the parent’s conduct or

condition is unlikely to change in a reasonable time. § 19-3-

604(1)(c), C.R.S. 2024.

¶6 The question of whether a juvenile court properly terminated

parental rights is a mixed question of fact and law. People in

Interest of S.R.N.J-S., 2020 COA 12, ¶ 10. Thus, we review the

2 court’s factual findings for clear error but review de novo its legal

conclusions based on those facts. Id.

III. ICWA

¶7 As a preliminary matter, father contends that the juvenile

court erred under the Indian Child Welfare Act of 1978 (ICWA), 25

U.S.C. §§ 1901-1963, by failing to inquire at the outset of the

termination hearing into whether the child is “an Indian child.”

§ 19-1-126(1)(a)(I)(A), C.R.S. 2024. Specifically, father contends

that, although the court made an ICWA inquiry at an earlier stage

of the case and father’s counsel said that “there is no Native

American ancestry,” nothing in the record shows that the court

conducted a second inquiry of father after the Department moved to

terminate his parental rights. See People in Interest of C.A., 2017

COA 135, ¶¶ 10, 22 (foster care placement proceedings and

termination of parental rights proceedings are separate child

custody proceedings under ICWA, and a second inquiry is required

during the termination proceeding).

¶8 We ordered the parties to provide supplemental briefing that

addressed whether there is reason to know that the child is an

Indian child through paternal lineage and whether father would be

3 prepared to present any evidence on this issue on remand. In their

respective supplemental briefs, no party (including father) provided

any information suggesting that there is any reason to know that

the child is an Indian child, or even that they would assert on

remand that there was any such reason to know. This is consistent

with the statement by father’s counsel earlier in the case that the

child didn’t have any “Native American ancestry.”

¶9 Father’s argument that the lack of a second inquiry wasn’t

harmless is unpersuasive. He contends that if the juvenile court

had properly conducted a second inquiry, then it may have

determined that the child was an Indian child and the proceedings

would have been governed, in part, by ICWA. But without any

information suggesting that the juvenile court would have had

reason to know the child was an Indian child, or even that either

party would so assert on remand, this argument is mere

speculation.

¶ 10 Under these circumstances, we conclude that the juvenile

court’s omission of a second inquiry before the termination hearing

constitutes harmless error. See C.A.R. 35(c); cf. People in Interest of

A.R.Y.-M., 230 P.3d 1259, 1261-62 (Colo. App. 2010) (concluding

4 that deficiencies in the notice provided to the Native American

tribes was harmless).

IV. Fit Within a Reasonable Time

¶ 11 Father contends that the juvenile court erred by finding that

he couldn’t become fit within a reasonable time. We disagree.

A. Applicable Law

¶ 12 A parent is unfit if they are unable or unwilling to provide the

child reasonable parental care. People in Interest of S.Z.S., 2022

COA 133, ¶ 23. “Reasonable parental care requires, at a minimum,

that the parent provide nurturing and protection adequate to meet

the child’s physical, emotional, and mental health needs.” S.R.N.J-

S., ¶ 9. 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).

¶ 13 A parent must have a reasonable amount of time to comply

with a treatment plan before the juvenile court terminates their

parental rights. People in Interest of D.Y., 176 P.3d 874, 876 (Colo.

App. 2007). What constitutes a reasonable time to comply is

necessarily fact specific and may vary from case to case. Id. But a

5 reasonable time isn’t an indefinite time; it must be determined by

considering the physical, mental, and emotional conditions and

needs of the child. S.Z.S., ¶ 24; see also People in Interest of M.T.,

121 P.3d 309, 313 (Colo. App. 2005) (noting that “periods as short

as five to nine months have been held to be sufficient time to

comply with a treatment plan”).

¶ 14 In determining whether a parent’s conduct or condition is

likely to change and whether the parent can become fit within a

reasonable time, the juvenile court may consider several factors,

including whether any change occurred during the dependency and

neglect proceeding, the parent’s social history, and the chronic or

long-term nature of the parent’s conduct or condition. K.D. v.

People, 139 P.3d 695, 700 (Colo. 2006). When a child is under six

years old, the juvenile court must also consider the expedited

permanency planning (EPP) provisions, which require that the child

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. 2024; see also S.Z.S.,

¶ 25.

6 B. Analysis

¶ 15 The juvenile court concluded that father couldn’t become a fit

parent within a reasonable time. The court found that although

father had demonstrated “some compliance” with his treatment

plan, he exhibited “the same problems addressed in the treatment

plan without adequate improvement.” The court found that father

had prior involvement with the Department and that he was

unsuccessful in his previous case. Further, the court considered

the EPP provisions, noting that the case had been open for all

fifteen months of the child’s life. Continuing the case further, the

court found, wasn’t in the child’s best interests based on her “very

young age” and therapeutic needs.

¶ 16 The record supports the juvenile court’s findings. It shows

that by the time of termination, father hadn’t successfully resolved

the concerns that initially brought his family to the Department’s

attention. The caseworker testified that the Department was still

concerned about father’s mental health and, more specifically, his

inability to emotionally regulate in difficult situations. Father also

hadn’t participated in any mental health treatment except for

completing the first phase of a substance abuse program that also

7 included some mental health treatment. The caseworker further

testified that she didn’t believe father had developed financial

stability or obtained stable housing because, at the time of the

termination hearing, father hadn’t updated her about any

employment or informed her where he was living.

¶ 17 The Department also harbored concerns about father’s

substance use, both in this case and his prior dependency and

neglect case. For example, father tested positive for cocaine about a

month before the termination hearing. A short time later, he

revoked the release of information that allowed the caseworker to

access his urinalysis test results. The caseworker also testified that

father completed the first phase of his substance abuse treatment

program but was asked to leave the program for threatening his

peers and being aggressive. Father then transitioned to a sober

living facility; but when the caseworker spoke to the facility’s case

manager, she discovered that father hadn’t been attending group

therapy and that he had tested positive for substances.

¶ 18 The record shows that father’s issues with substance use were

longstanding. The caseworker testified that the Department had

concerns with father’s substance use at the beginning of his

8 previous dependency and neglect case, which the Department

opened over two years before the termination hearing in this case.

Additionally, the caseworker’s report, which was admitted as

evidence at the termination hearing, showed that father had been

charged with criminal drug offenses as early as 2020.

¶ 19 Finally, the child was fifteen months old at the time of

termination and had been out of the home for her entire life. The

caseworker estimated that it would take at least six months for

father to comply with the requirements of his treatment plan and

become fit. In the caseworker’s opinion as an expert in casework

and child protection, the child’s best interests wouldn’t be served by

keeping the case open and allowing father more time to comply with

his treatment plan.

¶ 20 Father nevertheless argues that he didn’t have enough time to

work on his treatment plan because the juvenile court didn’t adopt

it until approximately five months before the November 4, 2024,

termination hearing.1 But five months, depending on the case’s

1 Although the juvenile court entered its written order adopting the

treatment plan on June 17, 2024, the order states it became effective on May 10, 2024 — the date of father’s adjudicatory hearing during which the court verbally adopted the plan.

9 circumstances, may suffice for the parent to comply with the

treatment plan. M.T., 121 P.3d at 313. Even if that wasn’t the case

here, the caseworker testified that father had a court-ordered

treatment plan in his other dependency and neglect case when this

case first opened. The treatment plan objectives in that case were

“very similar” to the objectives in this case; they required father to

address substance use and mental health issues. Thus, as noted

by the caseworker, father actually had over two years, not just five

months, to work on the issues addressed in his treatment plans.

Despite that amount of time, the caseworker testified that she

continued to have the “same concerns” that existed when the

Department prepared father’s first treatment plan.

¶ 21 We also reject father’s argument that the juvenile court should

have allowed more time based on his recent progress. The court

acknowledged that father had made “some progress” on his

treatment plan, noting that he had engaged in substance abuse and

mental health treatment; went to a sober living facility; participated

in some family time with the child; and maintained contact with the

caseworker. But based on the child’s age and needs, the court still

found that keeping the case open to allow father more time wasn’t

10 in the child’s best interests. See In re Marriage of Kann, 2017 COA

94, ¶ 36 (“[O]ur supreme court has . . . expressed unbridled

confidence in trial courts to weigh conflicting evidence.”); People in

Interest of D.L.C., 70 P.3d 584, 588 (Colo. App. 2003) (while a

parent need not comply “absolutely” with every treatment plan

provision, “partial compliance, or even substantial compliance, may

not result in a successful plan that renders the parent fit”).

¶ 22 Given all this, we conclude that the juvenile court properly

analyzed whether father could become fit within a reasonable time.

Because the court’s determination is supported by the record, we

decline to disturb the judgment.

V. Less Drastic Alternatives

¶ 23 Father also contends that the juvenile court erred by

determining that there were no less drastic alternatives to

termination. We aren’t persuaded.

¶ 24 A juvenile court must consider and eliminate less drastic

alternatives to termination, although it need not make express

findings on the issue. People in Interest of A.M. v. T.M., 2021 CO 14,

¶ 40. In considering less drastic alternatives, the court must give

11 primary consideration to the child’s physical, mental, and emotional

conditions and needs. People in Interest of Z.M., 2020 COA 3M,

¶ 29. The court may consider whether an ongoing relationship with

a parent would be beneficial to the child. People in Interest of A.R.,

2012 COA 195M, ¶ 38. The parent’s fitness to care for the child’s

needs will necessarily influence this determination. Id.

¶ 25 For a less drastic alternative to be viable, it must do more than

“adequately” meet a child’s needs; rather, the less drastic

alternative must be the “best” option for the child. A.M., ¶ 27.

Long-term or permanent placement with a family member or foster

family, short of termination, may not be a viable less drastic

alternative if the placement doesn’t provide adequate permanence

that adoption would provide or otherwise meet a child’s needs.

A.R., ¶ 41. If a 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. A.M.,

¶ 32.

B. Analysis

¶ 26 The juvenile court found that there were no less drastic

alternatives to termination that would be in the child’s best

12 interests. Specifically, the court found that although the

Department looked into various family members, it didn’t find any

who would be an appropriate placement option. And the court

categorically rejected any allocation of parental responsibilities

(APR) based on the child’s young age and her physical, mental, and

emotional needs.

¶ 27 The record supports the juvenile court’s findings. The

caseworker testified that she had explored placement of the child’s

older sibling with several family members in father’s prior

dependency and neglect case but had found none. And in this case,

she had investigated new family members as well. Despite her

efforts, she was unable to identify any relatives who were willing

and able to take the child. Further, she opined that an APR

wouldn’t be appropriate because (1) maintaining an ongoing

relationship with father wasn’t in the child’s best interests and (2)

termination was the only way to provide the child with the

permanency and stability she needed.

¶ 28 We reject father’s argument that the juvenile court erred by

finding that an APR to paternal grandmother wasn’t a viable less

drastic alternative. According to father, the Department didn’t

13 investigate her during the pendency of this case. But the juvenile

court found, with record support, that the Department had

attempted to conduct a home study for paternal grandmother as

part of father’s other dependency and neglect case, which was still

pending when this case opened. The caseworker testified that

paternal grandmother had been unwilling to participate in that

home study and that there was no indication that she had changed

her mind. As a result, the court found that paternal grandmother’s

unwillingness to do “any work on [the home study] or placement . . .

[was] sufficient . . . to find that [she was] not an appropriate less

drastic alternative.”

¶ 29 In addition, even assuming that paternal grandmother was

willing and able to take the child, the court’s categorical rejection of

an APR to any family member was still supported by the

caseworker’s testimony that any move would be detrimental to the

child. See A.M., ¶ 27; A.R., ¶ 41.

¶ 30 Accordingly, because the record supports the juvenile court’s

finding that there were no viable less drastic alternatives to

termination, we won’t disturb the judgment. See People in Interest

of B.H., 2021 CO 39, ¶ 80.

14 VI. Disposition

¶ 31 We affirm the judgment.

JUDGE FREYRE and JUDGE SCHOCK concur.