Peo in Interest of NRR

• Court: Colorado Court of Appeals
• Decided: March 26, 2026
• Docket: 25CA1359
• Status: Unpublished

Opinion

25CA1359 Peo in Interest of NRR 03-26-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA1359 City and County of Denver Juvenile Court No. 22JV30827 Honorable Ann Gail Meinster, Judge

The People of the State of Colorado,

Appellee,

In the Interest of N.R.R., a Child,

and Concerning C.M.R. and C.L.E.,

Appellants.

JUDGMENT AFFIRMED

Division V Opinion by JUDGE WELLING Tow and Lipinsky, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 26, 2026

Miko Brown, City Attorney, Amy J. Packer, Assistant City Attorney, Denver, Colorado, for Appellee

Sheena Knight, Guardian Ad Litem

The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for Appellant C.M.R.

Andrew A. Gargano, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant C.L.E. ¶1 C.M.R. (mother) and C.L.E. (father) appeal the judgment

terminating their parent-child legal relationships with N.R.R. (the

child). We affirm.

I. Background

¶2 In December 2022, the Denver Human Services (the

Department) filed a petition in dependency and neglect regarding

the then-three-month-old child, who was recovering from heart

surgery in a hospital. According to the allegations in its petition,

the Department was concerned about mother’s ability to

understand the child’s medical needs and alleged that she was

refusing to allow the child to receive necessary medical treatments.

It also alleged concerns about mother’s mental health. And it noted

there was an open dependency and neglect case in another county

involving mother and her two older children. Moreover, the

Department alleged that father had been convicted of a sex crime

involving a child, had a criminal history involving the same type of

charges, and was incarcerated in another state.

¶3 The juvenile court granted temporary legal custody of the child

to the Department. When the child was discharged from the

1 hospital, he was placed in the same foster home as his two older

half-siblings.

¶4 Three months after the case opened, mother admitted the

allegations in the petition, and the court adjudicated the child

dependent or neglected as to mother. The court then adopted a

treatment plan for mother, requiring her to (1) establish and

maintain stability; (2) improve her parenting skills and attend

family time; (3) cooperate with the Department; and (4) address her

mental health issues. Later, the court appears to have amended

mother’s treatment plan, adding a fifth component requiring her to

demonstrate protective capacities and good decision-making skills.1

¶5 In July 2023, genetic testing confirmed that the child was

father’s biological son. Consequently, the juvenile court

adjudicated father to be the child’s legal father. Two months later,

father admitted the allegations in the petition, and the court

1 In June 2024, the parties discussed modifying mother’s treatment

plan to add the fifth component and the Department filed proposed language to be added to the treatment plan. However, we can’t find anything in the record indicating that the court formally adopted the fifth component. Nonetheless, the parties proceeded as though it had been adopted, and on appeal, mother doesn’t claim any error related to the court’s possible failure to formally adopt it.

2 adjudicated the child dependent or neglected as to him. The court

then adopted a treatment plan for father, requiring him to

(1) cooperate with the Department; (2) demonstrate the ability to

parent the child and attend virtual family time; (3) participate in sex

offender treatment; and (4) refrain from engaging in further criminal

activity.

¶6 The Department later moved to terminate the parents’ legal

relationships with the child. The juvenile court held a seven-day

termination hearing over the course of four months. Approximately

two-and-a-half years after the filing of the petition, the court

granted the Department’s motion to terminate.

II. The Indian Child Welfare Act

¶7 Both parents contend that the juvenile court erred by finding

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

§§ 1901-1963, requirements were satisfied. We disagree.

A. Applicable Law and Standard of Review

¶8 For ICWA’s active efforts requirements to apply in a

dependency and neglect proceeding, the case must, among other

things, involve an Indian child. See People in Interest of A.G-G., 899

P.2d 319, 321 (Colo. App. 1995). “Indian child” is defined as “any

3 unmarried person who is under the age of eighteen” and is either

(a) “a member of an Indian tribe” or (b) “eligible for membership in

an Indian tribe” and “the biological child of a member of an Indian

tribe.” 25 U.S.C. § 1903(4).

¶9 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 and trigger ICWA’s notice and active efforts

provisions. People in Interest of E.A.M. v. D.R.M., 2022 CO 42, ¶ 56.

Still, Colorado’s ICWA statute places certain requirements upon a

department when it has information that “the child may have

Indian heritage.” § 19-1-126(3), C.R.S. 2024.2 Under those

circumstances, 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.” Id.; see also H.J.B. v. People in Interest of

A-J.A.B., 2023 CO 48, ¶ 5.

2 After the order issued in this case, section 19-1-126(3), C.R.S.

2024, was repealed, see Ch. 338, sec. 1, § 19-1-126, 2025 Colo. Sess. Laws 1779-81, and replaced with a more detailed statute, see id. at sec. 2, §§ 19-1.2-101 to -132, 2025 Colo. Sess. Laws at 1781- 1815. We cite and apply the 2024 statute because that was the version in effect throughout the pendency of this case.

4 ¶ 10 We review a juvenile court’s finding of due diligence for an

abuse of discretion. See H.J.B., ¶ 58 (whether a department has

satisfied its due diligence obligation is ultimately left to the sound

discretion of the juvenile court).

B. Additional Facts

¶ 11 In September 2023, father reported that he had “some [Indian]

heritage” and that “Apache [was] a potential tribe.” But he stated

that he did not have any living relatives who could provide more

information about his heritage. The next day, father filed an ICWA

ancestry chart that included the names of his father and

grandfather but no contact information for them.

¶ 12 About a month later, the Department filed a sworn statement

in which the caseworker detailed her attempts to contact several of

father’s kin to gather information about his heritage. The

Department also sent ICWA notices to the Bureau of Indian Affairs

and nine federally recognized tribes associated with the Apache

Nation.

¶ 13 On the first day of the termination hearing, the Department

reported that it had received six responses from tribes indicating

that neither the child nor father was enrolled or eligible to be

5 enrolled in that tribe; two certifications indicating that the tribes

received the notice but had not responded to it; and no certification

or response from the remaining tribe. At that time, neither parent

had any new information related to father’s heritage or any ICWA

issues generally. On the fifth day of the termination hearing, the

parties confirmed that they still had no new information related to

ICWA.

¶ 14 Thereafter, the juvenile court found that the Department had

“exercised due diligence to gather additional information

throughout the proceedings that would assist the court in

determining whether there [was] reason to know that the child is an

Indian child” but that there was no information indicating a reason

to know.

C. Analysis

¶ 15 Both parents argue that, in relation to father’s heritage, the

juvenile court abused its discretion by finding that the Department

complied with the due diligence provisions of Colorado’s ICWA

statute, § 19-1-126(3). They assert that the Department failed to

exercise due diligence because, although the Department sent ICWA

6 notices to nine Apache tribes, it didn’t follow up with the tribes that

didn’t send responses.

¶ 16 However, father’s mere assertion of Apache heritage didn’t

trigger ICWA’s notice requirements. See 25 U.S.C. § 1912(a) (notice

to the child’s tribe is required only when a court knows or has

reason to know that an Indian child is involved in the proceedings);

E.A.M., ¶ 6 (a mere assertion of Indian heritage, even one that

names a specific tribe, is not enough to give the juvenile court

reason to know that the child is an Indian child). Rather, it

triggered the due diligence requirements under section 19-1-126(3).

And due diligence is a flexible standard that doesn’t require a

department to exhaust every possible option in attempting to gather

information or contact every tribe mentioned by the parent. See

H.J.B., ¶¶ 54, 58.

¶ 17 Although it wasn’t necessarily required, the Department

contacted the tribes that father mentioned. That was in addition to

the caseworker’s attempts to contact several of father’s kin despite

father’s failure to provide any of their names or contact information.

Based on those facts, we perceive no abuse of discretion in the

7 juvenile court’s conclusion that the Department exercised due

diligence under section 19-1-126(3).

III. Termination of Parental Rights

A. Legal Framework and Standard of Review

¶ 18 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. 2025.

¶ 19 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

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

conclusions based on those facts. Id.

B. Mother’s Appeal

1. Reasonable Efforts

¶ 20 Mother contends that the juvenile court erred by finding that

the Department made reasonable efforts to rehabilitate her because

8 the Department failed to accommodate her disability. We aren’t

persuaded.

a. Applicable Law

¶ 21 To determine whether a parent is unfit, the juvenile court

must consider whether the department of human services made

reasonable efforts to rehabilitate the parent and reunite the family.

See §§ 19-1-103(114), 19-3-100.5(1), 19-3-208, 19-3-604(2)(h),

C.R.S. 2025; 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 who are in out-of-home placement.

§ 19-1-103(114), C.R.S. 2025.

¶ 22 Additionally, the Americans with Disabilities Act of 1990

(ADA), 42 U.S.C. §§ 12101-12213, requires public entities to make

reasonable accommodations for qualified individuals with

disabilities. See People in Interest of C.Z., 2015 COA 87, ¶¶ 11-12.

Thus, before terminating parental rights under section

19-3-604(1)(c), the ADA requires the juvenile court to consider

whether a department provided reasonable accommodations when

determining whether it made reasonable efforts to rehabilitate the

parent. People in Interest of S.K., 2019 COA 36, ¶ 34.

9 ¶ 23 As it relates to the ADA, a parent should identify any

modifications that they believe are necessary to accommodate the

disability. Id. at ¶ 21. In considering whether reasonable

accommodations can be made for a parent’s disability, the juvenile

court’s paramount concern must be the child’s health and safety.

Id. at ¶ 36. Thus, what constitutes a reasonable accommodation

will vary from case to case based on the child’s needs, the nature of

the parent’s disability, and the available resources. Id. at ¶ 39.

¶ 24 In the petition, the Department acknowledged that mother had

limited cognitive abilities and an intellectual disability. Mother’s

initial treatment plan stated that she “may be asked to complete

additional psychological testing or updates to better understand her

developmental and mental health needs.” It also required mother to

“explore what services/supports [could] be offered [to] her through

the local Community Center Board and . . . engage in any

appropriate services that may benefit her.”

¶ 25 In March 2024, mother filed a motion for ADA

accommodations. She requested that the court order the

Department to follow the recommendations from a psychologist who

10 had completed an adaptive parenting assessment with mother. The

record doesn’t indicate whether the juvenile court ever ruled on

mother’s motion or ordered the Department to provide the

requested accommodations.

¶ 26 Then, about two months after the Department moved to

terminate mother’s parental rights, mother filed a motion to modify

her treatment plan. By that point, the psychologist had completed

an addendum to the adaptive parenting assessment, and mother

requested that her treatment plan be modified to include the

psychologist’s updated recommendations as ADA accommodations.

¶ 27 Noting that the case was already set for a termination hearing,

the juvenile court denied mother’s motion, stating that “the issues

raised in . . . mother’s motion [were] most appropriate[ly] addressed

within the context of the termination [hearing].”

¶ 28 Although the juvenile court never ordered the Department to

accommodate mother’s disability by implementing the

psychologist’s recommendations, it found that the Department

didn’t violate the ADA because it “agreed to and implemented” the

requested accommodations. It further found that the Department

11 made “tremendous effort to allow mother to choose her own

providers [and] to let her take the lead where she could.” It also

found that mother’s life skills worker and family time supervisor

“went above and beyond” to accommodate and rehabilitate mother.

¶ 29 The record supports the juvenile court’s findings. Specifically,

the record shows that the Department provided the four

accommodations that mother now claims were lacking: (1) an

“easy-to-read” treatment plan that provided her with clear

expectations; (2) family time that increased over time in both home

and community environments; (3) a robust support network; and

(4) the opportunity to self-direct her treatment.

¶ 30 First, the caseworker testified that the professionals on

mother’s team used a simplified treatment plan, created by

mother’s counsel, as a tool to help mother understand her

treatment plan. Mother’s life-skills worker testified that she

reviewed the treatment plan with mother every month and provided

“vocabulary support” for some of the words in it. She also testified

that when working with mother, she used “simplified terms,”

rephrased “higher level” concepts, and used the “teach-back

method” to ensure mother understood what they were talking

12 about. She stated that mother had a “basic understanding” of the

treatment plan and was able to articulate its components.

¶ 31 Second, the family time supervisor testified that when the case

opened, mother’s level of supervision was “parent coaching

supervised,” a high level of supervision involving intensive “hands-

on” teaching. But as the case progressed and mother’s parenting

skills improved, the level of supervision was decreased to non-

coaching supervised and then to monitored supervision. Mother’s

regular family time took place in her home, and she was allowed to

take the child into the community. Still, about a year and nine

months after the case opened, the juvenile court ordered that

mother’s level of family time supervision be increased from

monitored to supervised because mother had allowed “at least two

individuals” who posed a safety risk to the child to move into her

home, and she had gotten back together with her boyfriend despite

the court’s order that the child have no contact with him. See S.K.,

¶ 34 (ADA accommodations must account for the child’s health and

safety).

¶ 32 Third, in terms of creating a “robust support system” for

mother, the record indicates that the professional teams from both

13 of mother’s cases jointly met with her every month. Further, the

Department referred mother to the Hope Initiative, an organization

that specializes in providing life skills and parenting education to

parents with intellectual disabilities; a life-skills worker from that

organization spent four hours per week providing mother with

in-home services. Moreover, the life-skills worker testified that,

while she wanted to collaborate with mother’s local community

center board to help mother access more services and become more

independent, mother’s legal team told her that they didn’t want her

to be involved with arranging those services. In any event, by the

time of termination, mother was working with the community

center board, and it was providing her with rent assistance as well

as behavioral, personal care, homemaker, and mentorship services.

¶ 33 Fourth, the record shows that the Department focused on

allowing mother to have agency over the services she received. The

caseworker testified that the Department allowed mother to choose

her therapist. The life-skills worker testified that she and mother

planned their sessions together and that mother chose the skills on

which she wanted to work. The life-skills worker also encouraged

mother to advocate for herself and helped mother do so at the

14 monthly team meetings. Further, a case manager from the

community center board testified that, after mother qualified for

services, she had control over which services she chose to receive.

¶ 34 It’s true, as mother argues, that the psychologist opined that

the Department hadn’t provided reasonable accommodations for

mother’s intellectual disability. However, the juvenile court

specifically found that the psychologist wasn’t credible and didn’t

rely on her testimony or opinion. We can’t reweigh the evidence or

disturb the court’s findings when, as here, they have record support

and are based on credibility determinations. See People in Interest

of A.J.L., 243 P.3d 244, 249-50 (Colo. 2010) (the credibility of the

witnesses, as well as the sufficiency, probative effect, and weight of

the evidence are all subject to the juvenile court’s discretion); People

in Interest of K.L.W., 2021 COA 56, ¶ 62 (we do not reweigh the

evidence or substitute our judgment for that of the juvenile court).

¶ 35 Based on the foregoing, we discern no error in the court’s

determination that the Department accommodated mother’s

disability and made reasonable efforts to rehabilitate her and

reunite her with the child.

15 2. Fit Within a Reasonable Time

¶ 36 Mother also contends that the juvenile court erred by finding

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

¶ 37 A parent must have a reasonable amount of time to work on 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). The determination of a reasonable period is necessarily fact

specific, and thus, what constitutes a reasonable time to comply

with a treatment plan may vary from case to case. Id. In

determining whether a parent can become fit in a reasonable time,

the juvenile court may consider whether any change has occurred

during the pendency of the proceeding. K.D. v. People, 139 P.3d

695, 700 (Colo. 2006). A reasonable time is not an indefinite time,

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

emotional conditions and needs of the child. People in Interest of

S.Z.S., 2022 COA 133, ¶ 24.

¶ 38 Additionally, when a child is under six years old, the juvenile

court must consider the expedited permanency planning (EPP)

provisions, which require that the child be placed in a permanent

16 home as expeditiously as possible. See §§ 19-1-102(1.6), 19-1-123,

19-3-702(5)(c), C.R.S. 2025.

b. Analysis

¶ 39 The juvenile court considered whether mother could become fit

within a reasonable amount of time but ultimately concluded she

couldn’t. The court noted that this EPP case had been open for

“almost three years” and that the child had been in out-of-home

placement for “almost the entire time.” The court found that

mother hadn’t been able to make significant progress in therapy or

demonstrate an ability to keep the child safe. The court was also

concerned that mother continued to be involved in the criminal

justice system. Based on those findings, the court found that it

wasn’t in the child’s best interests to keep the case open any longer.

¶ 40 The record supports these findings. By the time of

termination, over two years had passed since the court adopted

mother’s initial treatment plan, and approximately one year had

passed since the Department added the final component to it. But

mother still hadn’t successfully resolved the Department’s

concerns.

17 ¶ 41 Mother’s therapist testified that although mother was very

engaged when she attended therapy, her attendance had been

inconsistent. The therapist noted that mother had several “no call

no shows” and had attended only three therapy sessions in the

prior three months. Similarly, mother’s former therapist testified

that mother was discharged from therapy after cancelling and

rescheduling (but not attending) her therapy appointments for “a

couple of months.”

¶ 42 The caseworker testified that throughout the case, mother

demonstrated a pattern of poor decision-making “around

relationships and th[e] people that she [brought] around her

children and into her home.” Indeed, despite the juvenile court’s

order for the child to have no contact with mother’s ex-boyfriend,

mother had allowed him to move in with her and requested that he

be part of her family time. Then, after the termination hearing had

already started, mother was charged with domestic violence and

harassment for sending the same ex-boyfriend threatening

messages. Based on those patterns, the caseworker said she didn’t

believe that mother would be able to mitigate the Department’s

18 concerns about her protective capacities in a reasonable amount of

time.

¶ 43 Further, the caseworker testified that the case had been “open

for a very long time” and opined, as an expert in social casework

with an emphasis in child protection, that mother had been “given

multiple opportunities and [an] ample amount of time” to comply

with her treatment plan. The caseworker also opined that it was in

the child’s best interests to terminate mother’s rights because the

child was young and vulnerable and needed the security of a stable

and safe household.

¶ 44 Based on the foregoing, we conclude that the juvenile court

properly analyzed whether mother could become fit within a

reasonable time. And because the court’s findings are supported by

the record, we decline to disturb its determination.

C. Father’s Appeal

1. Treatment Plan

¶ 45 Father first contends that the juvenile court erred by finding

that his treatment plan was appropriate. We discern no basis for

reversal.

19 a. Applicable Law

¶ 46 An appropriate treatment plan is one that relates to the child’s

needs and is reasonably calculated to render the parent fit to

provide adequate parenting to the child within a reasonable time.

§ 19-1-103(12). The appropriateness of a treatment plan must be

assessed in light of the facts existing at the time of the plan’s

approval. People in Interest of A.N-B., 2019 COA 46, ¶¶ 25-26. In

determining whether a treatment plan is appropriate, the court

must consider whether the plan’s objectives adequately address the

safety concerns that led to the filing of the petition. People in

Interest of K.B., 2016 COA 21, ¶ 14. The fact that a treatment plan

is ultimately unsuccessful doesn’t mean that it was inappropriate.

Id.

¶ 47 Father asserts that his treatment plan was inappropriate

because he didn’t have the ability to comply with it. Specifically, he

argues that he couldn’t engage in family time because of his

incarceration and technical issues with his facility’s video software,

and that he couldn’t engage in sex offender treatment because his

facility didn’t offer it. Thus, he asserts, both the family time and

20 sex offender treatment objectives of his treatment plan were

inappropriate. We disagree.

¶ 48 At the time the juvenile court adopted father’s treatment plan,

father had been convicted of a sex crime involving a child and was

serving a twenty-year prison sentence in Oklahoma. Father had

never met or had any contact with the child. Thus, the treatment

plan addressed the Department’s concerns at the time it was

adopted — concerns about his ability to parent the child in light of

his conviction and concerns about his lack of a relationship with

the child. See A.N-B., ¶¶ 25-26; K.B., ¶ 14. When the juvenile

court adopted the treatment plan, neither the Department nor the

court could have predicted that father’s facility would be unable to

provide family time over video or wouldn’t provide any sex offender

treatment.

¶ 49 To the extent father argues that his treatment plan became

inappropriate and that the Department should have modified it

after learning about the video software issues and the lack of sex

offender treatment, we conclude that he failed to preserve this

argument. Although father argued that the Department failed to

provide him with the services necessary to comply with his

21 treatment plan, he never moved the juvenile court to modify his

treatment plan. Nor did he argue at the termination hearing that

his treatment plan should have been modified at some point during

the proceedings. Thus, we decline to address this argument on

appeal. See People in Interest of K.L-P., 148 P.3d 402, 403 (Colo.

App. 2006) (arguments never presented to, considered by, or ruled

upon by a juvenile court may not be raised for the first time on

appeal).

2. Reasonable Efforts

¶ 50 Next, father argues that the juvenile court erred by finding

that the Department made reasonable efforts to rehabilitate him

and reunite him with the child. We conclude that any error was

harmless.

¶ 51 As noted above, a 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). The

juvenile court should consider whether the services provided were

appropriate to support the parent’s treatment plan, S.N-V., 300 P.3d

at 915, by “considering the totality of the circumstances and

22 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.

¶ 52 A parent’s incarceration doesn’t excuse a department from

making reasonable efforts. See § 19-3-508(1)(e), C.R.S. 2025.

When a department learns of a parent’s incarceration, it must

communicate with the facility where the parent is held regarding

the requirements of the parent’s treatment plan and provide

information to the court detailing the services and treatment

available to the parent at that facility. § 19-3-508(1)(e)(I)-(III). If the

caseworker is unable to determine any treatment or services

available to the parent, they must still report their efforts to obtain

such information. § 19-3-508(1)(e)(III).

¶ 53 The juvenile court found that the Department made

reasonable efforts to rehabilitate father. Specifically, it found that

the Department “did what [it] could” but that it was “extremely

difficult” to work with father’s facility. But father asserts that the

court’s reasonable efforts finding was erroneous because (1) the

Department failed to provide any family time; (2) the second

23 caseworker failed to communicate with the facility to arrange

treatment services; and (3) the second caseworker failed to regularly

communicate with him.

¶ 54 It’s undisputed that father never had any family time with the

child. And we agree that the record doesn’t show that the second

caseworker made significant efforts to communicate with father or

his facility. To be sure, that caseworker testified that in the year he

worked on the case, he sent only one introductory email to the

facility’s case manager and spoke to father during two

administrative reviews of the case.

¶ 55 Nonetheless, the record indicates, and father testified, that the

first caseworker maintained ongoing contact with him and sent him

monthly updates and photos of the child. The record also shows

that the first caseworker had extensive and ongoing conversations

with the case manager at father’s facility. That caseworker made

two family time referrals, one of which remained open at the time of

termination. And the Department transported the child to the

library on several occasions to participate in virtual family time, but

the video software at father’s facility didn’t work.

24 ¶ 56 The second caseworker testified that, although he did not

speak with the case manager at father’s facility, he learned during

an administrative review of the case that “there wasn’t a whole lot of

programming available” at father’s facility. The second caseworker

also testified that father told him the issues with the video software

hadn’t been resolved. The second caseworker further testified that

he asked the Department’s service navigator if the Department

could provide father any virtual treatment, but the navigator told

him that wasn’t possible.

¶ 57 Moreover, nothing in the record suggests that, if the second

caseworker had contacted father or the facility more regularly, it

would have made a difference in the outcome of the case. This is

especially true given father’s testimony on the last day of the

termination hearing, that the video software still hadn’t been fixed

and there was still no sex offender treatment available to him.

Thus, even if the second caseworker’s efforts were lacking, any error

in the court’s determination that the Department made reasonable

efforts to rehabilitate father was harmless. See C.A.R. 35(c);

C.R.C.P. 61; People in Interest of M.H-K., 2018 COA 178, ¶ 21 (an

error is harmless if it can be said with fair assurance that it did not

25 substantially influence the outcome of the case or impair the basic

fairness of the trial itself).

3. Finding of Unfitness

¶ 58 Father next contends that the juvenile court erred by finding

that he was unfit. He asserts that the finding was improperly based

on his incarceration and that he was fit because he had complied

with his treatment plan. We aren’t persuaded.

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

unable or unwilling to give a child reasonable parental care.

S.R.N.J-S., ¶ 9. “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.” Id. In

determining a parent’s unfitness, a juvenile court may consider,

among other factors, the length of the child’s foster care placement.

§ 19-3-604(2)(k).

¶ 60 Parental incarceration alone is an insufficient basis on which

to terminate parental rights. K.D., 139 P.3d at 700. But the

juvenile court “may, and in some cases must, consider parental

incarceration in determining fitness.” Id. at 701.

26 b. Analysis

¶ 61 As a threshold matter, we reject father’s argument that the

juvenile court was prohibited from considering his incarceration in

determining unfitness because the legislature repealed the

subsection of 19-3-604 that allowed termination of a parent’s rights

based solely on extended incarceration. See Ch. 191, sec. 7,

§ 19-3-604, 2023 Colo. Sess. Laws 957 (repealing former section

19-3-604(1)(b)(III)). S.B. 23-039’s legislative declaration states, in

relevant part, that “decisions to terminate parental rights should be

based on the needs of the child, and not solely on the status of the

parent as incarcerated or the length of the sentence.” 2023 Colo.

Sess. Laws at 953 (emphasis added). Thus, S.B. 23-039 doesn’t

contradict the supreme court’s holding in K.D. — that a juvenile

court may not base termination solely on a parent’s incarceration,

but it may consider incarceration as one factor in determining

whether a parent is fit. See K.D., 139 P.3d at 700.

¶ 62 In determining that father was unfit, the court stated that the

length of father’s sentence and the nature of his conviction — a sex

offense involving a child — contributed to its finding. To that end,

the juvenile court found that father was unfit because he wouldn’t

27 be available to parent the child “for a very long time,” and, even if

he was released from prison, he would still need to do “a great deal

of treatment” to become a fit parent. The court found that the

“main treatment” necessary for father to become fit was sex offender

treatment, which wasn’t available to him at his prison facility.

Moreover, the court found that father didn’t have a relationship

with the child or the ability to build one. Ultimately, noting that the

child had been in out-of-home placement for the entire case, the

court concluded that father couldn’t become fit within a timeframe

that was reasonable to meet the child’s needs.

¶ 63 The record supports those findings. It shows that father had

been convicted of a sex crime involving a child and was serving a

twenty-year prison sentence. Indeed, father testified that he

believed that he wouldn’t be released from prison until 2039.

Further, the caseworker opined that father would, at a minimum,

need to be enrolled in sex offender treatment before the Department

could appropriately assess whether he could be a safe parent. And

father confirmed that his facility didn’t offer sex offender treatment

or allow out-of-state agencies to provide such treatment.

28 ¶ 64 True, the caseworker admitted that father had no control over

the technical issues with the facility’s video software, and thus, had

no control over whether he could participate in family time and

develop a relationship with the child. Even so, father admitted that

the Department also had no control over those issues and that his

facility wouldn’t allow him to use any other video software for family

time. The caseworker opined that termination was in the child’s

best interests because, as a result of father’s lack of relationship

with the child, he didn’t understand the child’s needs. And,

because of the length of father’s sentence, the caseworker opined

that father couldn’t meet the child’s needs for the “foreseeable

future.”

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

finding he was unfit even though he complied with his treatment

plan to the best of his abilities. The court acknowledged that father

“participated as much as [he] could.” But partial or even

substantial compliance may not be sufficient to render a parent fit.

K.B., ¶ 26. The juvenile court found, with record support, that

father’s compliance didn’t render him fit.

29 ¶ 66 Based on the foregoing, we conclude that, although father’s

incarceration informed the juvenile court’s decision, it wasn’t the

sole reason that the court 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”). And because the record supports the court’s unfitness

finding, we won’t disturb it.

4. Less Drastic Alternatives

¶ 67 Last, father contends that the juvenile court erred by

determining that there were no less drastic alternatives to

termination. We disagree.

¶ 68 The consideration and elimination of less drastic alternatives

are implicit in the statutory criteria for termination. People in

Interest of A.M. v. T.M., 2021 CO 14, ¶ 40. In considering less

drastic alternatives, a juvenile court must give primary

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

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

¶ 29.

30 ¶ 69 For a less drastic alternative to be viable, it must do more than

adequately meet the child’s needs; it must be in the child’s best

interests. A.M., ¶ 27. Long-term or permanent placement with a

family member, short of termination, may not be in the child’s best

interests if it doesn’t provide the permanence that adoption would

provide or otherwise meet the child’s needs. People in Interest of

A.R., 2012 COA 195M, ¶ 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 alternative and order

termination. A.M., ¶ 32.

¶ 70 Father argues that an allocation of parental responsibilities

(APR) to mother was a less drastic alternative to termination. But

father’s argument is essentially a challenge to the court’s findings

that mother was unfit and unlikely to change within a reasonable

time. To be sure, the majority of father’s argument is about the

Department’s alleged failure to accommodate mother’s intellectual

disability and make reasonable efforts to rehabilitate her. However,

father lacks standing to challenge the propriety of the juvenile

court’s termination of mother’s parental rights. See People in

31 Interest of J.A.S., 160 P.3d 257, 261 (Colo. App. 2007). And, as

discussed in Part III.B, we reject those challenges advanced by

mother.

¶ 71 To the extent father has standing to challenge the juvenile

court’s rejection of an APR to mother as a less drastic alternative to

termination, we discern no basis for reversal. The court found that

mother was unfit based on her inability to protect the child, her

lack of progress in mental health therapy, her recent and ongoing

involvement in the criminal justice system, and the child’s need for

permanency. Because the record supports the court’s finding that

mother was an unfit parent, it necessarily follows that an APR to

mother wasn’t viable as a less drastic alternative.

¶ 72 Finally, we decline to address father’s argument that the

Department failed to investigate whether placement with any of his

relatives could be a less drastic alternative to termination because

father raises this argument for the first time on appeal. See K.L-P.,

148 P.3d at 403.

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

finding that there were no less drastic alternatives to termination,

we discern no basis for reversal. See People in Interest of B.H., 2021

32 CO 39, ¶ 80 (when a juvenile court considers less drastic

alternatives but instead finds that termination is in the child’s best

interests, we are bound to affirm the decision so long as the record

supports its findings).

IV. Disposition

¶ 74 The judgment is affirmed.

JUDGE TOW and JUDGE LIPINSKY concur.