24CA0935 Peo in Interest of JLC 02-06-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0935 Larimer County District Court No. 23JV30009 Honorable Gregory M. Lammons, Judge
The People of the State of Colorado,
Appellee,
In the Interest of J.L.C., a Child,
and Concerning J.C., III and J.C.,
Appellants.
JUDGMENT AFFIRMED
Division VII Opinion by JUDGE MOULTRIE Lipinsky and Johnson, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 6, 2025
William G. Ressue, County Attorney, Arthur J. Spicciati, Assistant County Attorney, Fort Collins, Colorado, for Appellee
Josi McCauley, Guardian Ad Litem
Andrew A. Gargano, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant J.C., III
Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant J.C. ¶1 J.C., III (father) and J.C. (mother) appeal the judgment
terminating their parent-child legal relationships with J.L.C. (the
child). We affirm.1
I. Background
¶2 In January 2023, the Larimer County Department of Human
Services (Department) filed a petition in dependency and neglect
due to concerns that the child experienced a pulmonary
hemorrhage at birth and needed to be resuscitated, and that
mother admitted to daily fentanyl use during her pregnancy. The
child entered a neonatal intensive care unit, where she received
intravenous fentanyl to combat withdrawal symptoms. The
Department also had concerns about father’s substance use.
¶3 The parents failed to appear at their respective adjudication
trials, and the juvenile court adjudicated the child dependent and
1 The Larimer County Department of Human Services’ answer brief
purports to incorporate by reference the guardian ad litem’s answer brief “in its entirety,” except for father’s argument that the juvenile court erred by denying his request for a continuance. Similarly, mother’s counsel filed a “Notice of Joinder in Father’s First Issue on Appeal Relating to ICWA Compliance.” This practice violates C.A.R. 28(h). See Frisco Lot 3 LLC v. Giberson Ltd. P’ship, LLLP, 2024 COA 125, ¶¶ 17-21. The parties are placed on notice that this court may sanction future violations of this rule by striking a portion or all of a party’s brief or imposing other sanctions, as appropriate.
1 neglected following bench trials. The court adopted treatment plans
for the parents that required them to (1) address their substance
abuse issues; (2) address their mental health concerns; (3) provide a
safe and stable home and meet the child’s needs; (4) communicate
with the Department and professionals; (5) attend family time; and
(6) refrain from criminal activity.
¶4 In November 2023, the Department moved to terminate the
parents’ parental rights. The juvenile court held an evidentiary
hearing in April 2024. Following the hearing, the court entered a
written ruling that granted the Department’s motion and terminated
the parent-child legal relationships between the parents and the
child.
II. Indian Child Welfare Act
¶5 Father first asserts that the juvenile court did not comply with
the provisions of the Indian Child Welfare Act (ICWA) of 1978, 25
U.S.C. §§ 1901-1963, and Colorado’s ICWA statute, § 19-1-126,
C.R.S. 2024. Specifically, he contends that the court erred by
failing to make proper inquiries and concluding that the
Department had exercised due diligence under section 19-1-126(3).
We disagree.
2 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
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”). We review de novo whether
the juvenile court complied with ICWA. People in Interest of T.M.W.,
208 P.3d 272, 274 (Colo. App. 2009).
¶7 To ascertain whether the case involves an Indian child, a
juvenile court must inquire of the parties at the commencement of
the proceeding whether they know or have reason to know that the
child is an Indian child. § 19-1-126(1)(a)(I)(A). The court must
make a new inquiry if a proceeding to terminate parental rights is
initiated during a dependency and neglect case. C.R. ICWA P. 3(a),
(c).
¶8 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. People in Interest of E.A.M. v. D.R.M., 2022 CO
3 42, ¶ 56. If the court does not have reason to know but has
information that “the child may have Indian heritage,” then 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.” § 19-1-126(3); see also H.J.B. v. People in Interest of
A-J.A.B., 2023 CO 48, ¶ 5. Due diligence “requires the department
to earnestly endeavor to investigate the basis for the parent or other
participant’s assertion that the child may be an Indian child.”
H.J.B., ¶ 57.
¶9 Whether the department satisfied its due diligence obligation
is left to the court’s sound discretion. Id. at ¶ 58.
B. Analysis
¶ 10 In March 2023, the Department sent ICWA notices to the eight
federally recognized Apache tribes. The Department attached an
affidavit from the caseworker, which stated that maternal
grandmother had told the Department that “the family belong[ed] to
the Chiricahua Apache [T]ribe in Colorado.” However, maternal
grandmother did not believe that anyone in the family was a
registered member of a tribe. The Chiricahua Apache Tribe is not a
4 federally recognized tribe, but the parties agree that the Chiricahua
Apaches’ ancestors were members of three federally recognized
tribes: Fort Sill Apache Tribe, Mescalero Apache Tribe, and San
Carlos Apache Tribe. See People in Interest of L.L., 2017 COA 38,
¶ 36 (noting that “ICWA applies only if the Tribe is a federally
recognized Indian Tribe”), overruled on other grounds by E.A.M.,
¶ 56 n.10.
¶ 11 The record indicates that all eight federally recognized Apache
tribes received the Department’s notice. A few of the tribes
indicated that the child was not a member of, or eligible for
membership in, the tribe. However, the Mescalero Apache Tribe
responded that mother or father (or possibly both) was a member of
the Tribe. Yet, the Tribe indicated that the child was not eligible for
membership in the Tribe. As pertinent to this appeal, the Fort Sill
Apache Tribe and San Carlos Apache Tribe did not respond to the
Department.
¶ 12 At a setting conference in early February 2024, the juvenile
court noted that it had seen the letter from the Mescalero Apache
Tribe stating that the child was not eligible. However, the court
further noted that, in the motion to terminate, the Department had
5 listed “a different tribe.” The court asked the county attorney to
explain the “discrepancy.” The county attorney said that he did not
have any responsive information and would “look into it further.”
¶ 13 Following the termination hearing, the juvenile court found
that “sufficient inquiries have been made into the applicability of
[ICWA], and [the child] has not been identified as an Indian Child
for ICWA purposes.”
¶ 14 On appeal, father asserts that the juvenile court failed to make
proper inquiries of the parents because it did not ask them about
ICWA until January 2024 and then only asked about “new
information.” However, neither parent appeared in court until
January 2024, and as a result, the court could not have inquired of
them previously. And although the court asked them whether they
had “new information,” instead of asking whether they had any
information, we still discern no error. A court need not use “magic
words” in inquiring about ICWA information. In this case, the
Department already had information about the Apache tribes, so if
the parents had any information about a different tribe, the parents
had the opportunity to provide it at that hearing. But they
indicated that they did not have any information.
6 ¶ 15 Nor are we convinced that the juvenile court erred by
determining that the Department had exercised due diligence under
section 19-1-126(3). Father maintains that the court directed the
Department to make further due diligence efforts at the February
2024 hearing. But the discussion at that hearing appears to relate
to the court and the county attorney’s confusion about whether
information regarding the tribe listed in the motion to terminate —
the Chiricahua Apache Tribe — was different information than that
which had already been provided to the court. Thus, we disagree
with father’s assertion. Because the Chiricahua Apache Tribe is not
a federally recognized tribe, the Department did not need to contact
it to satisfy the Department’s due diligence obligation. See E.A.M.,
¶ 48. And, in any event, the Department previously investigated the
basis for father’s assertion that the child might be an Indian child
and provided the information it obtained to the federally recognized
Apache tribes.
¶ 16 Finally, to the extent that father asserts that the Department
needed to follow up with the Fort Sill Apache Tribe and the San
Carlos Apache Tribe, we are also not persuaded. Again, the
Department contacted those tribes, but they did not respond.
7 Father does not direct us to any authority requiring the Department
to do more to satisfy the requirements of section 19-1-126(3). See
H.J.B., ¶ 52 (noting that section 19-1-126(3) does not require a
department of social services to provide notice to tribes as part of its
due diligence efforts); see also id. at ¶ 55 (holding that due diligence
“will necessarily vary with the specific circumstances of each case”).
III. Continuance
¶ 17 Father next contends that the juvenile court erred by denying
his motion to continue. We disagree.
A. Applicable Law and Standard of Review
¶ 18 The Colorado Children’s Code directs courts to “proceed with
all possible speed to a legal determination that will serve the best
interests of the child.” § 19-1-102(1)(c), C.R.S. 2024. Thus, when
ruling on a motion to continue, the juvenile court “should balance
the need for orderly and expeditious administration of justice
against the facts underlying the motion and the child’s need for
permanency.” People in Interest of R.J.B., 2021 COA 4, ¶ 11.
¶ 19 In expedited permanency planning (EPP) cases where, as here,
a child is under six years of age at the time the petition is filed, a
juvenile court cannot grant a continuance unless the moving party
8 establishes (1) good cause for the continuance and (2) that the
continuance will serve the child’s best interests. § 19-3-104, C.R.S.
2024. If a court does grant a continuance under this section, then
it must reschedule the matter within thirty days. Id.
¶ 20 We review the denial of a continuance motion for an abuse of
discretion. See C.S. v. People in Interest of I.S., 83 P.3d 627, 638
(Colo. 2004). We will not disturb the juvenile court’s decision
absent a showing that it was manifestly arbitrary, unreasonable, or
unfair. People in Interest of M.B., 2020 COA 13, ¶ 41.
¶ 21 As relevant here, the record shows that father was
incarcerated in the county jail beginning in late March 2023. He
was then transferred to the Denver-based diagnostic center for the
Department of Corrections (DOC) for a few weeks before he was
transferred to the Sterling Correctional Facility (prison) in July
2023. He was released from prison on April 26, 2024, three days
before the termination hearing.
¶ 22 At a pretrial conference the day before father was released, the
county attorney asked to continue the termination hearing for “a
couple months” to “give [father] an opportunity to engage with the
9 Department and make some attempt at reunification.” The county
attorney also noted that, although the Department had made efforts
to engage father, the prison facility had been a “roadblock.” Father
joined in the county attorney’s request.
¶ 23 The guardian ad litem (GAL) objected to a continuance. The
GAL noted that this was an EPP case based on the child’s age and
that the child needed permanency as soon as possible. See, e.g.,
§ 19-1-102(1.6) (noting that the EPP provisions require that a child
be placed in a permanent home “as expeditiously as possible”). He
further reported that the child was in a potentially permanent home
and that she was “doing really well.” Finally, the GAL stated that
there had not been “any changes” during the case that would
support “good cause to continue the proceeding,” considering the
child’s need for permanency.
¶ 24 The juvenile court denied the request for a continuance. In
doing so, the court noted that, in a “perfect world,” we would have
an opportunity for “full participation” by parents, but the court
conceded that “we don’t live in that world.” The court then stated
that the “interests of the child” had to “outweigh the request” at
that time.
10 ¶ 25 We perceive no abuse of discretion in the juvenile court’s
ruling. See C.S., 83 P.3d at 638. The court properly weighed the
need for orderly and expeditious administration of justice against
the facts underlying the motion and the child’s need for
permanency. See R.J.B., ¶ 11. The case had been open for more
than a year, father had not made progress on his treatment plan
during that time, the child was in a potentially permanent home
that could provide for all her needs, and nothing in the record
suggests that father could have become fit if he had been allowed a
few more months to work on his treatment plan. Under the statute,
the court could only continue the hearing for thirty days and
nothing suggests that, even if father immediately began to comply
with his treatment plan upon his release from prison, he could
become fit within thirty days. See § 19-3-104. Finally, as
discussed below, even though the Department had difficulties in
providing services to father in prison, the Department’s challenges
did not amount to a lack of reasonable efforts.
¶ 26 Father also asserts that the juvenile court erred by applying
Chief Justice Directive 96-08, Directive Concerning the Processing
of Dependency and Neglect Cases, § 4 (Dec. 1996) (CJD 96-08),
11 which provides that a continuance can be granted “only upon a
finding that a manifest injustice would occur in the absence of a
continuance.” Specifically, he maintains that CJD 96-08 conflicts
with the standard in section 19-3-104. Although the GAL
referenced CJD 96-08 in his argument, it was repealed on
September 8, 2023 and, therefore, did not apply in this case. We
see nothing in the court’s ruling to suggest that it relied on CJD
96-08 when it denied the continuance, and we therefore discern no
error.
¶ 27 Finally, father did not assert in the juvenile court that a denial
of the continuance would violate his due process rights, and we
therefore decline to address that contention. See M.B., ¶ 14 (in
dependency and neglect cases, appellate courts do not address
issues raised for the first time on appeal); see also Forgette v.
People, 2023 CO 4, ¶ 21 (noting that, although a party need not use
“talismanic language” to preserve an issue for appeal, a party must
still present the court with an adequate opportunity to make
findings of fact and conclusions of law on the specific issue raised
on appeal); People v. Tallent, 2021 CO 68, ¶ 11 (“[A]n appellate
court has an independent, affirmative duty to determine whether a
12 claim is preserved . . . , regardless of the positions taken by the
parties.”).
IV. Termination Criteria
¶ 28 Father also argues, for the three reasons discussed below, that
the juvenile court erred by concluding that the Department had
proved the termination criteria by clear and convincing evidence.
A. Termination Criteria and Standard of Review
¶ 29 The juvenile court may terminate parental rights if it finds, by
clear and convincing evidence, that (1) the child was adjudicated
dependent and neglected; (2) the parent has not complied with an
appropriate, court-approved treatment 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 in a reasonable time.
§ 19-3-604(1)(c), C.R.S. 2024.
¶ 30 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; see also People in Interest of A.S.L., 2022
COA 146, ¶ 8 (applying the same standard of review to whether a
department of human services satisfied its obligation to make
13 reasonable efforts). 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.
B. Treatment Plan
¶ 31 Father asserts that (1) his treatment plan was inappropriate;
and (2) to the extent that it was appropriate, he reasonably
complied with it. We disagree.
1. Applicable Law
¶ 32 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
appropriate if it is reasonably calculated to render the parent fit to
provide adequate parenting to the child within a reasonable time
and relates to the child’s needs. § 19-1-103(12), C.R.S. 2024.
¶ 33 We measure the appropriateness of a treatment plan by its
likelihood of success in reuniting the family, “which must be
assessed in light of the facts existing at the time of the plan’s
approval.” People in Interest of B.C., 122 P.3d 1067, 1071 (Colo.
App. 2005). As relevant here, a parent’s incarceration does not
14 “prohibit the creation and implementation” of an appropriate
treatment plan, but it may “render more difficult the crafting of a
meaningful and workable plan.” People in Interest of M.C.C., 641
P.2d 306, 309 (Colo. App. 1982) (noting additional considerations
for the court, such as the length of the parent’s incarceration and
nature of the criminal conduct, when approving a treatment plan
for an incarcerated parent).
¶ 34 In an EPP case, the juvenile court cannot find that a parent
successfully complied with a treatment plan when the parent
(1) has not attended family time unless good cause can be shown or
(2) exhibits the same problems addressed in the treatment plan
without adequate improvement. § 19-3-604(1)(c)(I). Although
absolute compliance with a treatment plan is not required, even
substantial compliance may not be sufficient to correct or improve
the parent’s conduct or condition, or to render the parent fit.
People in Interest of T.E.M., 124 P.3d 905, 909 (Colo. App. 2005).
2. Analysis
¶ 35 Recall that father’s treatment plan addressed six areas:
substance abuse, mental health, stability to meet the child’s needs,
communication, family time, and criminal activity. Father is correct
15 that, even though he was incarcerated during most of the case, the
treatment plan that the juvenile court adopted did not include
anything specifically related to the services available to him in the
county jail or prison. Accordingly, father asserts on appeal that his
treatment plan was inappropriate because it did not provide him
with a pathway to rehabilitation while he remained incarcerated.
¶ 36 We start by noting that father has not asserted that any of the
six main objectives in his treatment plan were unnecessary or that
the treatment plan should have addressed something else. See
People in Interest of K.B., 2016 COA 21, ¶¶ 22-23 (directing the
juvenile court to consider, on remand, whether the parent’s
treatment plan was inappropriate because it did not include a
component addressing domestic violence). Said another way, it is
undisputed that father needed to address these six areas for him to
become a fit parent.
¶ 37 Nonetheless, we recognize that father could not complete some
of the action steps listed under each of the objectives while he was
incarcerated. For example, because the Department could not
provide referrals for assessments while father was incarcerated, he
could not complete those steps while he remained in jail or prison.
16 However, we disagree with father that this necessarily rendered the
treatment plan inappropriate because he has not explained how he
could have addressed the safety concerns identified in this case
without completing the action steps listed in the treatment plan.
See People in Interest of M.M., 726 P.2d 1108, 1121-22 (Colo. 1986)
(“[I]n many cases[,] it is virtually impossible to devise a plan which
will guarantee success.”). Indeed, father does not explain how the
treatment plan could have been amended to address his concerns
but still been able to render him a fit parent in a reasonable time.
We therefore conclude that the juvenile court did not err by finding
that father’s treatment plan was appropriate.
¶ 38 Nor are we convinced by father’s alternative argument that he
reasonably complied with his treatment plan. In support, father
directs our attention to evidence that he was sober and desired to
stay sober, attended some classes in prison, was employed following
his release from prison, met with the caseworker and attended
some family team meetings and court hearings, and did not receive
additional criminal charges after the treatment plan was adopted.
But the caseworker testified that father had not demonstrated that
he could maintain his sobriety outside of a controlled environment.
17 She also explained that she observed father falling asleep during
the termination hearing. We acknowledge that father said he was
resting his eyes, but regardless, the juvenile court further noted
that father’s testimony was “extremely rapid and unintelligible.”
Additionally, the caseworker said that father did not complete a
mental health assessment, have a stable home, provide for the
child’s needs, or attend family time. Therefore, the caseworker
opined that father had not successfully complied with his treatment
plan.
¶ 39 Therefore, although some evidence supports father’s argument
that he reasonably complied with his treatment plan, other evidence
shows that father did not successfully comply with the treatment to
render him a fit parent. See T.E.M., 124 P.3d at 909 (noting that,
although the parent attempted to comply with several components
of the treatment plan, he had not addressed some of the most
significant issues that brought the case before the court). We
cannot reweigh the evidence or substitute our judgment to reach a
different conclusion. See People in Interest of S.Z.S., 2022 COA 133,
¶ 29. We therefore reject father’s contention.
18 ¶ 40 Finally, we are not persuaded by father’s assertion that we
must reverse the judgment because the juvenile court considered
evidence of father’s noncompliance before the treatment plan was
adopted. Nothing indicates that the court exclusively relied upon
this evidence when it found that father had failed to comply with
the treatment plan. Though the court considered information
concerning father’s level of engagement with the services the
Department offered him before his treatment plan was adopted, the
court also considered father’s level of engagement after the
treatment plan was adopted — including father’s testimony that he
had completed classes while incarcerated. We therefore discern no
C. Fitness Within a Reasonable Time
¶ 41 Father contends that the juvenile court erred by determining
that he was unfit, or in the alternative, if he was unfit, that he could
not become fit in a reasonable time. We disagree.
¶ 42 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).
19 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).
¶ 43 When determining whether a parent’s conduct or condition is
likely to change in 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
parent additional time to comply. See People in Interest of R.B.S.,
717 P.2d 1004, 1006 (Colo. App. 1986).
¶ 44 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
20 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 EPP 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.
¶ 45 Father asserts that the juvenile court erred because it
improperly based its fitness finding on his incarceration. See K.D.,
139 P.3d at 700-01 (noting that a court may consider parental
incarceration, so long as it does not base its termination decision on
the parent’s incarcerated status alone). In this case, the court
found, with record support, that father did not successfully comply
with the treatment plan, did not have a permanent home for the
child, was “addicted to drugs for most of his life,” did not
demonstrate that he could maintain his sobriety in the community,
and had not successfully parented any of his other children (his
parental rights to at least one other child had been terminated).
See § 19-3-604(2) (listing factors that a court may consider in
21 determining whether a parent is unfit, including whether a parent’s
parental rights had previously been terminated); see also D.P., 181
P.3d at 408. Therefore, although the record shows that father’s
incarceration during the case informed the court’s decision, it was
not the sole reason that it found him unfit. See K.D., 139 P.3d at
703 (The court did not err when it “carefully considered 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 discern no error.
¶ 46 Father also contends that the evidence did not support the
juvenile court’s findings that he was unfit or, in the alternative, he
could not become fit in a reasonable time. For example, father
points to evidence that he maintained contact with the caseworker,
took as many classes as he could, avoided disciplinary action inside
the prison, and stayed sober. He further asserts that, once he was
released from prison, he had employment and only needed ninety
days to get “his ducks in a row.” But, as described above, evidence
in the record supports the court’s findings. Consequently, we
decline father’s invitation to reweigh the evidence to reach a
different conclusion. See S.Z.S., ¶ 29.
22 D. Reasonable Efforts
¶ 47 Father argues that the Department failed to make reasonable
efforts to rehabilitate him and reunify him with the child. We
disagree.
¶ 48 Before a juvenile court may find a parent unfit, the county
department of human services must make reasonable efforts to
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. 2024. Reasonable
efforts means the “exercise of diligence and care” to reunify parents
with their children. § 19-1-103(114).
¶ 49 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
services to available public and private assistance resources; family
time; and placement services. § 19-3-208(2)(b).
¶ 50 The juvenile court should consider whether the services
provided were appropriate to support the parent’s treatment plan,
23 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.
¶ 51 Father first asserts that the Department failed to make
reasonable efforts to provide him with a copy of the treatment plan.
The caseworker admitted that she did not give father a copy of the
treatment plan, and best practices presumably require that
caseworkers provide parents with copies of their treatment plans.
But father has not directed us to anything in section 19-3-208 that
requires it. And because father was represented by counsel while
he was incarcerated, he could have acquired the treatment plan
through other means if he needed it. And nothing in the record
suggests that father failed to comply with his treatment plan
because he did not know what was in it, or that having a written
copy of it would have facilitated his compliance.
24 ¶ 52 Father next contends the Department did not make reasonable
efforts because it did not provide him with services while he was
incarcerated. We are not convinced.
¶ 53 The record shows that the caseworker met with father at the
county jail three times before he was transferred to the DOC. The
caseworker said that the Department attempted to provide family
time for father while he was in the jail, but either the jail or agency
that accepted the Department’s family time referral ultimately could
not accommodate in person visits and father was transferred to the
DOC before any video visits could be arranged.
¶ 54 Once father was transferred to the DOC, the prison informed
the caseworker that the DOC only allows “the person who holds
custody” to supervise a parent’s family time. The caseworker
reported that conversations were “ongoing” to determine how family
time could occur. The caseworker also said that she attempted to
schedule family time for father seven or eight times, but that the
prison did not always respond to her and, therefore, she did not get
“anywhere.” The placement provider was willing to facilitate virtual
family time, and eventually the prison told the caseworker that it
could not accommodate any family time until at least April 2024.
25 ¶ 55 The caseworker opined that substance abuse was the “biggest
barrier” to father’s ability to provide for the child’s needs. The
caseworker also testified that she contacted a coordinator at the jail
to inquire about services, and father said that he was able to engage
in a class offered at the jail. The caseworker encouraged father to
provide her with any treatment certificates he had received, and
father also agreed to sign a release of information to allow the
caseworker to obtain information about the classes he had
completed. The record shows that the caseworker visited father at
the prison and discussed programming with him; father told the
caseworker that he had gotten into a few classes, but other classes
had very long wait lists. The caseworker said that father did not
need a referral from the Department to participate in any of the
programs offered through the DOC.
¶ 56 Based on this record, the juvenile court found that the
Department had made reasonable efforts for father while he was
incarcerated. Specifically, the court noted that the caseworker had
attempted to contact personnel at the prison, but “the prison was
not cooperative” and the Department had no authority over the
DOC to get it to comply with its requests. Therefore, the record
26 shows that the Department made reasonable efforts for father while
he was incarcerated, but the DOC’s noncooperation, not the
Department’s lack of efforts, prevented father from accessing
additional services. Because the record supports the court’s
findings, we cannot disturb them.
¶ 57 For two reasons, we are not otherwise convinced that the
Department failed to make reasonable efforts for father after the
General Assembly enacted new laws addressing incarcerated
parents in dependency and neglect cases in January 2024. Section
19-3-507(1)(f)(I), C.R.S. 2024, now provides that, “prior to any
dispositional hearing,” the department must make reasonable
efforts to involve the parent in “planning the services for the child,”
including “[o]pportunities for meaningful family time.” Likewise,
section 19-3-508(1)(e)(III), C.R.S. 2024, 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.”
27 ¶ 58 First, the amendments to section 19-3-507(1)(f) do not apply in
this case. This statute addresses what the Department must do to
plan services with a parent before the dispositional hearing, but the
dispositional hearing in this case occurred before the amendment
went into effect. See City of Golden v. Parker, 138 P.3d 285, 290
(Colo. 2006) (noting that legislation is presumed to operate
prospectively absent legislative intent to the contrary). Thus, the
Department did not have any additional duties under section
19-3-507(1)(f).
¶ 59 Second, we are not convinced that section 19-3-508(1)(e)(III)
necessarily expands the Department’s reasonable efforts
requirement. Section 19-3-508(1)(e)(III) requires the caseworker to
investigate the services and treatment available at the prison or
detail the efforts to obtain that information. And, as stated above,
the record shows that the caseworker attempted to contact
individuals at the prison with little success. It also shows that the
caseworker met with father to discuss the services available at the
facility. The caseworker documented these efforts in her reports to
the juvenile court. Therefore, the caseworker complied with section
19-3-508(1)(e)(III).
28 V. Less Drastic Alternatives
¶ 60 Mother asserts that the juvenile court erred by finding that
there was no less drastic alternative to termination. Specifically,
she contends that there were two less drastic alternatives to
termination: (1) an allocation of parental responsibilities (APR) or
(2) giving her more time to comply with her treatment plan. For the
reasons described below, we disagree.
¶ 61 Before terminating parental rights under section
19-3-604(1)(c), the juvenile court must also consider and eliminate
less drastic alternatives. M.M., 726 P.2d at 1122. 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, T.E.M., 124 P.3d at 910-11; and (3) the placement
prefers adoption over an APR, S.N-V., 300 P.3d at 920.
29 ¶ 62 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.
¶ 63 The juvenile court found that there was no less drastic
alternative to termination. The record supports this finding. It is
undisputed that the child was born exposed to fentanyl, and mother
admitted to the caseworker that she used fifty fentanyl pills a day
before the child was born. Mother told the caseworker that she
wanted to engage in inpatient treatment when she was released
from jail, but after mother’s release, the caseworker never heard
from her again. The record also shows that mother did not
complete a mental health assessment or participate in treatment
and only saw the child twice during the pendency of the case. The
caseworker opined that, because of the child’s young age, she
30 needed permanency that could only be achieved through adoption.
She also noted that the kinship placement wanted to adopt the
¶ 64 In sum, the evidence established that mother had done
nothing to address the Department’s concerns regarding the child’s
safety or become a fit parent. It also shows that mother had no
relationship with the child and that the child needed permanency
as soon as possible. In other words, the record establishes that an
ongoing relationship with mother would not be beneficial for the
child, A.R., ¶ 38, and the child needed the permanency that only
termination and adoption could provide, T.E.M., 124 P.3d at
910-11.
¶ 65 The evidence also established that the current placement
wanted to adopt the child. See S.N-V., 300 P.3d at 920. In
contrast, no evidence suggests that the current placement would
accept an APR. See People in Interest of P.D., 580 P.2d 836, 838
(Colo. App. 1978) (noting that a court cannot enter an APR to an
unwilling party who is not the child’s parent).
¶ 66 Therefore, because the record supports the juvenile court’s
determination that termination, not a less drastic alternative, was
31 in the child’s best interests, we cannot disturb its decision. See
B.H., ¶ 81; A.M., ¶¶ 32, 49.
¶ 67 Mother also asserts that there was a less drastic alternative in
the form of extending the case and giving her more time. But we
disagree that this proposed resolution is properly characterized as a
less drastic alternative to termination. The less drastic alternative
analysis turns on whether there is a permanent or long-term
placement arrangement — such as an APR — that would conclude
the dependency and neglect proceeding without terminating
parental rights. Mother instead asks to continue the proceeding.
¶ 68 Even though mother characterizes her argument as a
challenge to the juvenile court’s less drastic alternatives finding, we
will construe it as a challenge to whether her conduct or condition
was likely to change in a reasonable time, see § 19-3-604(1)(c)(III),
and address that contention next.
¶ 69 As noted above, mother did not make any progress on her
treatment plan during the case, had very little contact with the
child, and had not had any contact with the caseworker for several
months. See R.B.S., 717 P.2d at 1006. The evidence also
established that mother had a long history of substance abuse,
32 which she had been unable to address with any success in the past.
See D.L.C., 70 P.3d at 588-89. Based on this evidence the
caseworker opined that mother was unlikely to become fit within a
reasonable time for this child.
¶ 70 The juvenile court then found, with record support, that
mother’s conduct or condition was unlikely to change within a
reasonable time. Mother does not contest the factual findings or
direct us to any contrary evidence. Because the record supports
the court’s determination that mother’s conduct or condition was
unlikely to change in a reasonable time, we cannot disturb its
judgment. See S.Z.S., ¶ 29.
VI. Disposition
¶ 71 The judgment is affirmed.
JUDGE LIPINSKY and JUDGE JOHNSON concur.