24CA0969 Peo in Interest of LA 06-05-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0969 Jefferson County District Court No. 22JV30121 Honorable Ann Gail Meinster, Judge
The People of the State of Colorado,
Appellee,
In the Interest of L.A., N.G., and D.A., Children,
and Concerning M.A. and D.G.,
Appellants.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE KUHN Welling and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 5, 2025
Kimberly Sorrells, County Attorney, Claire M. Czajkowski, Assistant County Attorney, Golden, Colorado, for Appellee
Jeffrey C. Koy, Jordan Oates, and Lauren Dingboom, Guardians Ad Litem
The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for Appellant M.A.
Beth Padilla, Office of Respondent Parents’ Counsel, Durango, Colorado, for Appellant D.G. ¶1 In this dependency and neglect proceeding, M.A. (mother) and
D.G. (father) appeal the juvenile court’s judgment terminating their
parent-child legal relationships with their children. We affirm the
judgment.
I. Background
¶2 The Jefferson County Division of Children, Youth and Families
filed a petition in dependency and neglect regarding ten-year-old
D.A., four-year-old N.G., and two-year-old L.A. (the children). The
petition alleged concerns about neglect and the condition of the
home. The petition also alleged that father was incarcerated.
¶3 The Division placed the children together in a foster home
where they remained throughout the proceeding. However, the
foster home was not a permanent placement option.
¶4 The juvenile court adjudicated the children dependent and
neglected. The court adopted a treatment plan for mother requiring
that she, among other things, (1) complete a psychological
evaluation and engage in recommended treatment; (2) attend a
parenting class; (3) maintain a safe and stable living environment;
and (4) regularly attend family time. Father’s treatment plan
required that he, among other things, (1) participate in any
1 recommended therapeutic or behavioral services; (2) maintain a safe
and stable home; (3) attend a parenting class; (4) regularly
participate in family time; and (5) comply with his parole and
refrain from further criminal activity. Father’s treatment plan was
later amended to include a requirement that he complete a
substance use assessment and treatment, if recommended.
¶5 The Division later moved to terminate mother’s and father’s
parental rights. The court held a three-day hearing over the course
of two months and, ultimately, terminated the parent-child legal
relationships between the parents and the children.
II. Analysis
¶6 Father contends that the juvenile court erred by violating the
Indian Child Welfare Act (ICWA) of 1978, 25 U.S.C. §§ 1901-1963.
Father and mother also jointly contend that the juvenile court erred
by concluding that the Division made reasonable efforts to
rehabilitate them and by concluding that there was no less drastic
alternative to termination. We address these issues in turn.
A. ICWA
¶7 Father asserts that the juvenile court violated ICWA’s notice
provisions. However, father does not assert anything more than a
2 mere assertion of heritage, and the record does not establish that
the court had reason to know the children were “Indian children.”
Thus, we perceive no error.
1. Applicable Law and Standard of Review
¶8 Under ICWA, when the court “knows or has reason to know”
that a child who is the subject of a dependency and neglect
proceeding is an “Indian child,” it has an obligation to ensure that
the Division gives notice of the proceeding to any identified tribes.
25 U.S.C. § 1912(a); see also 25 U.S.C. § 1903(4) (defining “Indian
child” as “any unmarried person who is under age eighteen” and
who is either (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”). However, a mere assertion of Native
American 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 42, ¶ 56.
¶9 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).
3 2. The Juvenile Court Did Not Violate ICWA’s Notice Provisions
¶ 10 Mother submitted an affidavit indicating Navajo heritage and
father’s affidavit indicated Apache heritage. The Division sent
notice to the tribes affiliated with the Navajo and Apache tribal
ancestral groups. Most of the tribes responded that the children
were not enrolled or eligible to enroll.
¶ 11 A few weeks before the termination hearing began, maternal
grandmother moved to intervene. In her motion she noted that the
children are either Navajo or “Leguna.” When the juvenile court
granted maternal grandmother’s motion, it also asked her about
Native American heritage. Grandmother responded, “I do believe
they have Native American heritage, we just don’t know what tribe.”
The court then asked if she had any new information that “we
haven’t already looked into” and maternal grandmother responded,
“not at this time.”
¶ 12 On appeal, father argues that the juvenile court did not
comply with ICWA because it did not send notice to the Pueblo of
Laguna, a federally recognized tribe located in New Mexico. But
maternal grandmother’s statements in her motion to intervene and
4 at the hearing amount to, at most, a mere assertion of heritage,
which, standing alone, does not trigger a requirement to send
notice. See E.A.M., ¶ 56.
¶ 13 Moreover, during the briefing in this case, the Division filed
ICWA notices with the juvenile court showing that it sent notice to
the Pueblo of Laguna.1 About a month later, the Division filed
responses from the tribe showing that none of the children were
eligible for tribal membership.
¶ 14 Accordingly, we cannot conclude that the juvenile court erred
when it found that it did not know or have reason to know the
children were “Indian children” and when it did not direct the
Division to send notice to the Pueblo of Laguna tribe.2
1 The Division filed a motion to supplement the record, which was
deferred to this division. Given that this case is now at issue, we take judicial notice of these filings in the juvenile court. See People v. Sa’ra, 117 P.3d 51, 55-56 (Colo. App. 2004) (“A court may take judicial notice of the contents of court records in a related proceeding.”). Accordingly, we deny the Division’s motion as moot.
2 Even if the court had erred, the tribe’s responses showing that the
children were not eligible for membership would render any such error harmless. See People in Interest of R.D., 2012 COA 35, ¶ 25 (“[E]rror in a civil case is harmless if id did not affect a substantial right of a party.”).
5 B. Father’s Request For a Continuance
¶ 15 Father also asserts that the juvenile court erred when it
denied his request for a continuance. We are not persuaded.
¶ 16 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.
¶ 17 The expedited permanency planning (EPP) provisions of the
Children’s Code, which apply in any case where, as here, at least
one of the subject children is under six years of age at the time the
petition is filed, provide that a juvenile court cannot grant a
continuance unless the moving party 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.
6 ¶ 18 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,
unfair, or based on a misapplication of the law. People in Interest of
M.B., 2020 COA 13, ¶ 41.
2. The Juvenile Court Did Not Abuse Its Discretion By Denying Father’s Motion
¶ 19 Prior to the termination hearing, father requested a
continuance because he received the Division’s response to his
discovery request late and that response consisted of thousands of
pages. The juvenile court denied the requested continuance noting
that the EPP provisions applied, that it would have to reset within
thirty days, which it could not do because of counsel’s scheduling
conflicts, and that it could not find good cause or that a
continuance would be in the children’s best interests.
¶ 20 Father renewed his motion for a continuance on the first day
of the termination hearing arguing that his counsel had not had
time to review discovery and that he had just received the results of
7 mother’s psychological and neuropsychological evaluation that
morning.
¶ 21 The juvenile court denied father’s motion but delayed the start
of the hearing until the afternoon, allowed father’s counsel to meet
with the therapist who conducted mother’s evaluations, added an
additional hearing day several weeks later, and informed father’s
attorney that if, after the close of evidence, she still needed more
time it would “entertain a request.”
¶ 22 We perceive no abuse of discretion in the juvenile court’s
rulings. 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 motions and the children’s need for
permanency. R.J.B., ¶ 11. The case had been open for nearly two
years, the juvenile court allowed father time to prepare for
testimony about mother’s psychological and neuropsychological
evaluations, and the court informed father that, by the close of
evidence, if he still needed additional time, he could ask. The
termination hearing spanned two months and, at the close of
evidence, father did not ask for additional time.
8 ¶ 23 Father asserts on appeal that because his counsel did not
have sufficient time to review discovery responses, his due process
rights were violated when his counsel “did not have an opportunity
to call witnesses and engage in cross examination.” But he does
not explain what witnesses he would have called, what expert
witnesses he would have retained, or how their testimony might
have changed the outcome of the proceeding. Nor does he explain
why he was not able to identify the necessary witnesses in the two
months between when the court denied his motion to continue and
its ruling on the motion to terminate or why counsel did not ask for
additional time at the close of evidence. See People in Interest of
R.J.B., 2021 COA 4, ¶ 35. Counsel’s decision not to request
additional time at the close of evidence belies any contention that
he was prejudiced by the court’s denial of his initial request for a
continuance. Accordingly, the court’s denial of a continuance was
not an abuse of discretion.
C. Reasonable Efforts
¶ 24 Mother and father both argue that the juvenile court erred
when it found the Division made reasonable efforts to rehabilitate
them and reunify the family. We disagree.
9 1. Applicable Law and Standard of Review
¶ 25 When a court decides whether parents are unfit or whether
their conduct or condition will change, the court must evaluate
whether the Division’s reasonable efforts have been unable to
rehabilitate them. § 19-3-604(2)(h), C.R.S. 2024; People in Interest
of S.N-V., 300 P.3d 911, 915 (Colo. App. 2011). “‘Reasonable efforts’
. . . means the exercise of diligence and care . . . for children and
youth who are in . . . out-of-home placement . . . .”
§ 19-1-103(114), C.R.S. 2024.
¶ 26 The Division makes reasonable efforts if appropriate services
are provided in accordance with section 19-3-208, C.R.S. 2024.
See People in Interest of J.A.S., 160 P.3d 257, 262 (Colo. App. 2007).
Such reasonable efforts include screening, assessments,
home-based family and crisis counseling, information and referral
services to available public and private assistance resources, family
time services for parents with children in out-of-home placement,
and placement services including foster care and emergency shelter.
§ 19-3-208(2)(b). Additional services should be made available if
they are determined to be necessary and appropriate by the case
plan and adequate funding exists. § 19-3-208(2)(d). Examples of
10 these additional efforts include providing transportation to required
services when other transportation is not available, mental health
services, and drug and alcohol treatment services. Id. Moreover,
services provided by the Division must comply with the provisions
of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.
§§ 12101-12134, and its related amendments and implementing
regulations. § 19-3-208(2)(g).
¶ 27 Whether the Division 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 but review de novo its legal
determination that the Division made reasonable efforts to
rehabilitate a parent. Id.
2. Father’s Contentions
¶ 28 Father argues that the Division did not make reasonable
efforts because it did not arrange family time or provide “court
ordered services” while he was incarcerated.
¶ 29 Father was incarcerated from the beginning of the case until
November of 2022 and again from September 2023 until the entry
of the termination order in April 2024.
11 ¶ 30 The record establishes the following:
• During father’s initial time in prison, his paternity was in
question and family time was not started.
• Once father was released from prison and he was
adjudicated the children’s legal father, the Division
provided an assessment with family intervention services.
• After father’s release, the caseworker supervised several
visits between him and the children until a third party
was available to supervise family time.
• Father participated in family time for another few months
but stopped visiting the children in July 2023.
• After father was reincarcerated the caseworker submitted
a referral, and the family intervention services therapist
sent letters to father attempting to schedule an intake
appointment.
• The Division could not arrange virtual visits while father
was incarcerated in Arapahoe County because the
visitation form required disclosure of personal
information about the caseworker. The caseworker “tried
phone calls” but was not able to arrange them.
12 • While father was in the Jefferson County jail, the family
intervention services therapist was able to meet with him
in person.
• While father was in Arrowhead Correctional Facility, the
caseworker met with him and attempted to contact his
case manager several times about family time options but
was unable to make contact.
¶ 31 In sum, the record indicates that the Division attempted to
provide father with family time services throughout the case and
that any lack of services was attributable to either father’s or the
facilities’ noncooperation. See People in Interest of A.V., 2012 COA
210, ¶ 12 (court may consider a parent’s unwillingness to
participate in treatment as a factor when considering reasonable
efforts).
¶ 32 We are not persuaded to reach a different conclusion based on
provisions in the recently enacted S.B. 23-039. For example, the
bill added section 19-3-507(1)(f)(I)(B), C.R.S. 2024, which now
requires a department of human services to provide “[o]pportunities
for meaningful family time between” children and incarcerated
parents. Ch. 191, sec. 5, § 19-3-507(1)(f)(I)(B), 2023 Colo. Sess.
13 Laws 955. The statute also requires a department to communicate
with a facility to ascertain its ability to facilitate family time
“through audio-visual communication technology and arrange for
available virtual family time.” Id. As described above, the record
shows that the caseworker and the family intervention services
therapist, at the caseworker’s request, attempted to contact the
Arapahoe County jail, the Jefferson County jail, and the Arrowhead
Correctional Facility but received little response.
¶ 33 Father also argues that the Division did not comply with
section 19-3-508(1)(e)(III), C.R.S. 2024, which requires the
caseworker to investigate the services and treatment available at
the prison or detail the efforts to obtain that information. The
record shows that the caseworker attempted to contact individuals
at the prison with little success. She met with father at the prison
to discuss the services available at the facility and provided a list of
available programs and an explanation of the prison case manager’s
role. And the caseworker documented these efforts in her reports to
the juvenile court. Therefore, the Division complied with section
19-3-508(1)(e)(III).
14 ¶ 34 That is not to say that a county department of human services
fulfills its reasonable efforts requirement by simply reaching out
once to a correctional facility and documenting any response (or
non-response) in the caseworker’s report. Indeed, the changes to
the statute indicate an intent to promote communication between
all of the involved entities to establish various procedures and
processes to ensure family time and other services for incarcerated
parents. See § 17-42-105(3), C.R.S. 2024 (requiring that the
Department of Corrections ensure that children and parents who
are incarcerated “have access to opportunities that facilitate
continued relationships”); § 19-1-131, C.R.S. 2024 (the state
Department of Human Services shall “promulgate rules” to facilitate
communication and family time between children and their parents
who are incarcerated).
¶ 35 But here, the record shows the caseworker reached out
multiple times to more than one facility because father changed
locations. And she requested that the family intervention specialist
also communicate with the facilities to arrange family time.
Moreover, while we recognize that once father was reincarcerated,
the Division needed to continue providing reasonable efforts,
15 including continued communication efforts with father and case
managers or others at the facility where he was housed, the
ultimate question is whether the Division made reasonable efforts
under the totality of the circumstances. Here, we are satisfied that
the caseworker provided required referrals and services while father
was not in custody and adequately attempted to continue those
services once father was reincarcerated.
3. Mother’s Contentions
¶ 36 Mother contends that the Division did not provide “a readily
available support service” and that the Division “failed to perform
its duty under the ADA to reasonably accommodate a disability.”
We are not persuaded that the Division failed to provide reasonable
efforts or to make a reasonable accommodation under the ADA.
¶ 37 The record supports the juvenile court’s finding that the
Division made reasonable efforts to rehabilitate mother. The
Division referred mother for a psychological evaluation and a
subsequent neuropsychological evaluation. As a result of those
evaluations, mother was diagnosed with an unspecified major
cognitive disorder with behavioral disturbance. The evaluation
recommended “provider support,” meaning that the evaluation
16 would be shared with mother’s medical providers, therapists, and
other professionals. The evaluation also recommended cognitive
rehabilitation therapy, occupational therapy, daily supports,
individual psychotherapy, medication management, and medical
support. The caseworker testified that in response to these
recommendations, the Division provided a life skills worker to assist
mother with daily supports and filing for Social Security Disability
benefits. The Division placed a referral for occupational therapy
and a second referral when mother’s therapist went on parental
leave. With mother’s approval, the caseworker shared mother’s
evaluation with mother’s doctor, life skills coach, and individual
therapist. The Division also arranged a parent-child interactional
study. And the caseworker worked with mother’s medical team to
schedule tests to try to pinpoint the cause of mother’s cognitive
decline.
¶ 38 On appeal, mother argues that the Division did not provide
required support services to mother in the form of “maternal
grandmother.” She argues that “[w]orking with maternal
grandmother so that she could be a support to Mother and the
children was an accommodation that should have been made to
17 assist Mother in reunifying with the children.” But mother does not
describe what services the Division should have provided to
maternal grandmother. And she does not provide, nor are we aware
of, any authority establishing that services for maternal
grandmother were required as part of the Division’s reasonable
efforts obligation under section 19-3-208.
¶ 39 And mother has not preserved any argument that the
assistance of maternal grandmother was a reasonable
accommodation under the ADA.
¶ 40 It’s true that mother filed a “Notice of Americans with
Disabilities Act Applicability” alleging that she had a physical or
mental impairment that substantially limits a major life activity.
However, she did not assert that she required any accommodations,
identify such accommodations, or provide any evidence or argument
that any accommodations were reasonable. To the contrary, the
notice indicated that “[s]hould [mother] require any
accommodations or modifications, undersigned counsel w[ould]
confer with counsel and motion the Court.” Mother points to no
subsequent request for accommodations. Accordingly, the juvenile
court did not make any findings about mother’s disability or
18 required reasonable accommodations. See People in Interest of S.K.,
2019 COA 36, ¶ 21 n.2 (noting that whether a parent is a qualified
individual with a disability under the ADA requires a fact-specific
determination that a juvenile court must resolve).
¶ 41 Nevertheless, the caseworker testified that the Division
incorporated all of the recommendations from mother’s
neuropsychological evaluation, including talking with mother about
moving to an assisted living facility or having daily visits from a
home nurse or other person. Mother declined these offers.
¶ 42 On appeal, mother appears to argue that the assistance of
maternal grandmother to care for her and the children’s needs was
required as a reasonable accommodation under the ADA. But she
never made this argument to the juvenile court, and therefore we
will not address it for the first time on appeal. See People in Interest
of S.Z.S., 2022 COA 133, ¶ 18; see also M.B., ¶ 14 (“[A]ppellate
courts review only issues presented to and ruled on by the lower
court.”).
¶ 43 To the extent that mother asserts that the Division was
required to provide additional services to maternal grandmother so
that she could either take placement of the children or be of
19 assistance to mother while she cared for the children, we interpret
these contentions as support for her argument that the juvenile
court erred when it found no available less drastic alternative,
which we address next.
D. Less Drastic Alternative
¶ 44 Both mother and father assert that the juvenile court erred
when it found no available less drastic alternative to termination.
They both argue that maternal grandmother was available to care
for the children either on her own or by moving in with mother to
care for them together. We disagree.
¶ 45 Before terminating parental rights under section
19-3-604(1)(c), the juvenile court must also consider and eliminate
less drastic alternatives. People in Interest of A.M. v. T.M., 2021 CO
14, ¶ 19. When considering a less drastic alternative, 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 an ongoing
relationship between the parent and child would be beneficial or
detrimental. People in Interest of A.R., 2012 COA 195M, ¶ 38.
20 ¶ 46 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, ¶ 80.
2. The Juvenile Court Did Not Err in Its Less Drastic Alternatives Finding
¶ 47 The juvenile court found no available less drastic alternative to
termination. The court found the children’s therapists persuasive
when they opined that “any caregiver in the home would have to be
fully able to validate the children’s trauma and understand what
they need to move forward.” Accordingly, the court found that an
allocation of parental responsibilities (APR) to maternal
grandmother was not a viable option. The record supports the
court’s findings.
¶ 48 The caseworker testified that at the time of removal all of the
children were malnourished; D.A., who was then ten years old,
21 could not read or write, did not know the letters of the alphabet and
could not identify numbers; N.G., who was then four, was
nonverbal, not toilet trained, and also could not identify letters or
numbers; and L.A., who was then two and a half, could not walk,
did not eat any solid foods, and could not hold his bottle on his
own. The children’s therapists diagnosed each of them with post-
traumatic stress disorder. The caseworker testified that all of the
children had developmental delays but had made progress since
coming into the Division’s custody.
¶ 49 The children’s therapists testified about the importance of a
caregiver who could validate the children’s past traumatic
experiences. The therapists each expressed concerns about
mother’s minimization of the severity of the children’s symptoms
and delays and inability to take responsibility for the trauma and
neglect the children had experienced. The caseworker also testified
that mother “very much” downplayed and was not able to recognize
her part in the neglect the children experienced and that mother
was unable to recognize that the children had delays.
¶ 50 The two younger children’s therapist testified that if the
children’s caregiver was not able to validate their experiences, they
22 were at significantly higher risk for a variety of negative long-term
health outcomes related to trauma, physical health, emotional
health, and social-emotional well-being. And D.A.’s therapist
testified about her concerns that he would regress without a
caregiver who could acknowledge his trauma and emotions.
¶ 51 The caseworker also testified that maternal grandmother did
not fully understand the children’s developmental delays or
recognize any concerns when the children visited her immediately
before the petition was filed. The caseworker had concerns about
the emotional impact of the children living with mother, even with
grandmother’s assistance, because of mother’s inability to
acknowledge the abuse and trauma they experienced. And she had
concerns that grandmother also did not recognize mother’s
limitations or the impact those limitations had on the children’s
development.
¶ 52 The caseworker testified that although the children had a
relationship with mother, she was unable to emotionally or
physically meet their needs and, accordingly, an ongoing
relationship was not in their best interests. Further, the
23 caseworker opined that placement with maternal grandmother
either alone or with mother was not a “viable option.”
¶ 53 Both mother and father argue that the court erred when it
found no less drastic alternative because the children were not in a
permanent home. But the existence of a permanent home is not an
element the court must find prior to termination. See § 19-3-604.
And the fact that the Division was still investigating a permanent
home does not in itself make an APR an available or viable
alternative. Termination of parental rights freed the children to be
adopted once a permanent option was found or approved, and the
caseworker testified that the children were adoptable.
¶ 54 Based on this evidence, the juvenile court did not err when it
found no less drastic alternative to termination.
III. Disposition
¶ 55 The judgment is affirmed.
JUDGE WELLING and JUDGE SCHUTZ concur.