26CA0011 Peo in Interest of OLJ 07-30-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 26CA0011 Mesa County District Court Nos. 23JV41 & 24JV25 Honorable Craig P. Henderson, Judge
The People of the State of Colorado,
Appellee,
In the Interest of O.L.J. and A.T., Children,
and Concerning J.R.T.,
Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE LIPINSKY Yun and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 30, 2026
Todd M. Starr, County Attorney, John Rhoads, Assistant County Attorney, Grand Junction, Colorado, for Appellee
Josie L. Burt, Guardian Ad Litem
Andrew A. Gargano, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant ¶1 J.R.T. (father) appeals the judgment terminating his parent-
child legal relationship with O.L.J. and A.T. (the children). We
affirm.
I. Background
¶2 The Mesa County Department of Human Services (the
Department) filed a petition in dependency or neglect concerning
then fourteen-day-old A.T. The petition alleged substance use by
mother during her pregnancy and that A.T. tested positive for
methamphetamine at birth. A.T. has high special needs; she
experiences severe emotional dysregulation and sensory overload
that lead to emotional breakdowns and tantrums that can last for
hours at a time. She requires extensive therapy and care.
¶3 The court awarded temporary custody of A.T. to the
Department, which placed her with father. Four months later,
however, father was arrested for a protection order violation, and
the Department moved A.T. into a certified foster home.
¶4 Father entered a no-fault admission, and the juvenile court
adjudicated A.T. dependent or neglected. The court then adopted a
treatment plan for father that required him to (1) attend family time
and demonstrate an ability to understand and meet A.T.’s needs;
1 (2) complete an assessment and follow reasonable
recommendations to address all identified substance abuse and
mental health issues; (3) follow the requirements of his probation
and criminal case; and (4) comply with a case management
objective.
¶5 Nearly one year later, the Department filed a separate petition
in dependency or neglect concerning then eighteen-day-old O.L.J.
The petition alleged that O.L.J. had also tested positive for
methamphetamine at birth. Like A.T., O.L.J. has high special
needs. He was diagnosed with a rare enzyme disorder that prevents
his body from breaking down most sugars that occur naturally in
many foods. Untreated, this disorder causes extreme
gastrointestinal issues, and he must adhere to a very restricted diet
and take expensive medication. Moreover, like A.T., O.L.J. has
issues with emotional dysregulation and overstimulation.
¶6 Father entered a no-fault admission as to O.L.J., and the
juvenile court adjudicated O.L.J. dependent or neglected. The court
then adopted the same treatment plan for father as in A.T.’s case.
¶7 The juvenile court subsequently amended father’s treatment
plans to require him, as relevant here, to (1) complete thirty-six
2 sessions of substance abuse therapy; (2) “complete a hair follicle
test”; and (3) attend all medical and therapy appointments. Later,
the court further amended father’s treatment plans, requiring him
to complete a “[c]apacity to [p]arent” evaluation and follow all
reasonable recommendations of the evaluation.
¶8 The Department then moved to terminate father’s parental
rights regarding both children, and the juvenile court scheduled a
joint termination trial. Following a two-day trial, the juvenile court
terminated father’s parental rights. As relevant to this appeal, the
court found that, although father made some progress, he failed to
comply with some components of his treatment plans and was unfit
and unlikely to become fit within a reasonable time.
II. Termination Criteria and Standard of Review
¶9 To terminate a parent-child legal relationship, the juvenile
court must find by clear and convincing evidence that (1) the child
has been adjudicated dependent and neglected; (2) the parent has
not reasonably 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
within a reasonable time. § 19-3-604(1)(c), C.R.S. 2025.
3 ¶ 10 A treatment plan seeks to preserve the parent-child legal
relationship by helping the parent overcome the problems that
required government intervention. K.D. v. People, 139 P.3d 695,
699 (Colo. 2006). A plan is successful if it renders a parent fit or
corrects the conduct or condition that led to the intervention.
People in Interest of C.A.K., 652 P.2d 603, 611 (Colo. 1982).
¶ 11 When a child is under six years old, as in this case, the
juvenile court must consider the expedited permanency planning
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. 2025. In such cases, the court may not find
that a parent is in reasonable compliance with, or has been
successful at, a treatment plan if the parent (1) exhibits the same
problems addressed in the treatment plan without adequate
improvement and (2) is unable or unwilling to provide nurturing
and safe parenting adequate to meet the child’s physical, emotional,
and mental health needs and conditions. § 19-3-604(1)(c)(I)(B).
¶ 12 A parent is unfit if the parent’s conduct or condition renders
them unable or unwilling to give their child reasonable parental
care. People in Interest of D.P., 160 P.3d 351, 353 (Colo. App.
4 2007). “The reasonable parental care standard requires, at a
minimum, that the parent provide nurturing and protection
adequate to meet the child’s physical, emotional, and mental health
needs.” People in Interest of A.J., 143 P.3d 1143, 1152 (Colo. App.
2006).
¶ 13 When deciding whether a parent’s conduct or condition is
likely to change within 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 S.Z.S., 2022
COA 133, ¶ 24, 524 P.3d 1209, 1216. What constitutes a
reasonable time is fact-specific and must be determined by
considering the child’s physical, mental, and emotional conditions
and needs. Id. at ¶ 25, 524 P.3d at 1216. But a “reasonable time”
is not an indefinite time. Id. (quoting A.J., 143 P.3d at 1152). And
even when a parent has made progress, the court is not required to
give the parent additional time to become fit. See id. at ¶¶ 24-25,
524 P.3d at 1216.
¶ 14 Whether the juvenile court properly terminated parental rights
is a mixed question of fact and law. People in Interest of A.M. v.
5 T.M., 2021 CO 14, ¶ 15, 480 P.3d 682, 686. 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, 486 P.3d 1201, 1204-05.
A. Treatment Plan Compliance
¶ 15 Father argues that the juvenile court erred by finding that he
failed to comply with his treatment plans. We disagree.
¶ 16 As an initial matter, father implies that certain conditions in
the treatment plans were inappropriate. But other than asserting
that hair follicle testing was unnecessary and that he had
previously completed substance use treatment, he does not develop
any argument that the treatment plans were not appropriate. We
therefore will not address the appropriateness of the plans. S.Z.S.,
¶ 29, 524 P.3d at 1217 (declining to address assertion not
developed with factual or legal argument).
¶ 17 In considering father’s compliance with the treatment plans,
the juvenile court acknowledged that he consistently engaged in
family time, complied with the case management requirement, and
adhered to the conditions of probation. But the court found that
father had not reasonably complied with the treatment plans
6 because (1) father had not completed substance abuse treatment or
hair follicle testing; (2) his attendance at the children’s medical and
therapy appointments “was inconsistent at best”; and (3) he had “an
unfortunate tendency to minimize [the] children’s needs.” The court
concluded that father had “no real plan to take care of these high
needs children, and it would take years for [father] to become fit.”
¶ 18 The record supports the court’s findings. The caseworker
testified that the assessment recommended “around [thirty]
sessions of substance abuse therapy.” But those sessions had not
been “completed”, “started”, or even “scheduled.” The caseworker
explained that hair follicle testing had been ordered because father
did not like the frequency of urinalysis (UA) testing, and the
Department agreed to reduce UA frequency if father took a hair
follicle test. The caseworker also testified that the Department
requested hair follicle testing because it was not receiving UA
results “in a timely manner” and was therefore unable “to verify
sobriety.” The caseworker authorized hair follicle testing fourteen
months before the termination hearing and spoke with father
“[s]everal times” about the “importance and agreement of
completing the hair follicle,” but father did not complete it.
7 ¶ 19 Father testified that he did not have an issue with hair follicle
testing, but that he “really did forget.” See People in Interest of K.T.,
129 P.3d 1080, 1082 (Colo. App. 2005) (concluding that mother’s
refusal to submit to UA testing showed she was not committed to
meeting the child’s needs and was unfit); People in Interest of M.H-
K., 2018 COA 178, ¶ 69 n.5, 433 P.3d 627, 638 n.5 (noting that
father’s noncompliance with court-ordered drug testing was
“objectively unreasonable”).
¶ 20 Next, the caseworker testified that father inconsistently
attended the children’s medical and therapy appointments.
Specifically, the caseworker testified that father did not “participate
in all medical and therapy appointments that [father was] able to,”
and clarified that she was not referring to “the ones that [were] in
the foster placement’s home.” Foster mother testified that father
attended many therapy appointments in the beginning, but that, for
unknown reasons, “[h]e ha[d]n’t attended in several months.” She
explained that although father was not allowed in the foster home
for in-home therapy, some of the therapies were at a facility in
Fruita. And at least one of the children “attend[ed] a doctor’s
appointment every single month” at either the pediatrician’s office
8 in Grand Junction, at Children’s Hospital in Denver, or via
telehealth. Father testified that it had “been at least three months,
maybe four” since he had last attended a therapy appointment.
Father also testified that he stopped going to medical appointments
a year before the termination hearing because he “[d]idn’t really
agree with the doctor.”
¶ 21 The children’s pediatrician described the children’s needs and
opined that the children “definitely” had greater needs than those of
an average child. The pediatrician testified that it was “not clear”
that father had “knowledge and understanding of the needs of the[]
children.” When with the children, father exposed them to
“increased overstimulation[,] which ma[de] it very difficult for [the
children] to move forward with their therapy sessions.” And
therapists reported “that they were not able to make headway when
[father] was in attendance.”
¶ 22 The family time supervisor testified that parenting the children
alone would be “too much” for father. Foster mother testified that
she was “not sure that [father] understands [the children’s] medical
and emotional needs and physical needs.” The caseworker testified
that she was concerned “about [father]’s minimization of the
9 children’s needs.” Father did not “see what the doctors or
therapists [were] seeing” and “believe[d] that everything [was] fine.”
The caseworker concluded that father was unable to meet the
children’s needs.
¶ 23 Father argues that the record did not support the juvenile
court’s finding that he did not follow the capacity to parent
recommendations, including fetal alcohol spectrum disorder (FAS)
“training through [Dominica] Steele,” a FAS expert, and sobriety
groups. The caseworker testified that father completed the capacity
to parent evaluation but did not follow through on its
recommendations. The caseworker explained that she spoke with
father about scheduling a training with Steele, but she did not
“know if that got completed or not,” only that it had been set up.
¶ 24 Father indeed testified that he “learned . . . about fetal alcohol
syndrome” through “Dominic Castile.” However, the caseworker
testified that she reached out to the FAS expert and to father’s
parent advocate for verification but had not received a response.
And the case management objective of the treatment plans noted
that “the burden [was] on [father] to comply with this plan and
10 advise [the Department] of the steps taken by [father] in
compliance.”
¶ 25 In discussing sobriety groups, the caseworker testified that
father “explained to [the caseworker] that he doesn’t like
participating in groups like that.” In his opening brief, father
asserts that he believed attendance at sobriety group meetings
would be “too risky for him” because “being around other people”
was a “trigger” for him. The record does not support this statement,
however. Father testified that he did not attend such meetings
because he “[d]idn’t really care to be involved in all that
discussion[].” He said that participating in a sobriety group did not
assist him in keeping sober because “a lot of times” the participants
in the group “just talk about war stories and stuff like that.” In any
event, father’s treatment plans did not allow him to disregard the
requirement that he complete thirty-six sessions of substance
abuse therapy because he thought he could maintain sobriety
without attending a support group.
¶ 26 Based on these facts, the caseworker opined that father had
not complied with his treatment plans and that the plans had not
11 been successful in rehabilitating him. Because the record supports
this conclusion, the juvenile court did not err in so finding.
B. Fitness
¶ 27 For similar reasons, we reject father’s contention that the
juvenile court erred by finding that he was unfit and could not
become fit within a reasonable time. Father argues that he
complied with his treatment plans and demonstrated that he
understood and could meet the children’s needs. But despite
noting some treatment plan compliance, the juvenile court found
otherwise, especially in light of the expedited permanency planning
provisions. In particular, the court found that father was “not
ultimately willing or able to meet the significant needs of [the]
children without significant help” and that “[t]wo and a half years of
[father]’s lack of effort makes it clear that he [was] unlikely to
change his conduct or condition within a reasonable time.”
¶ 28 Again, the record supports the court’s findings. As noted
above, the record contained testimony that father could not meet
the children’s extraordinary needs, and the caseworker opined that
father was not a fit parent. The caseworker testified that this was
“an expedited case,” father might become a fit parent in years, but
12 that waiting such a long time for father to become fit would not be
“fair to the children.”
¶ 29 Thus, because the record supports the juvenile court’s
determinations that father was unfit and unlikely to become fit
within a reasonable time, we discern no error.
C. Conclusion
¶ 30 Because the court’s findings enjoy record support, the court
did not err by concluding that father did not comply with his
treatment plans and was unfit. In the absence of error, we need not
consider father’s contention that we should apply the constitutional
harmless error standard of reversal. See People in Interest of T.M.S.,
2019 COA 136, ¶¶ 25-26, 454 P.3d 375, 381 (“[The] supreme court
has not addressed whether the constitutional harmless error
standard applies with respect to a parent’s constitutional rights in
dependency or neglect proceedings.”).
III. Ineffective Assistance of Counsel
¶ 31 Father alleges that his counsel provided ineffective assistance
because counsel failed to raise a purported lack of compliance with
the Indian Child Welfare Act (ICWA) and reasonable efforts. We are
not persuaded.
13 A. Applicable Law
¶ 32 A parent has a statutory right to appointed counsel in
dependency and neglect proceedings. §§ 19-1-105(2), 19-3-202(1),
C.R.S. 2025. A parent’s statutory right to counsel includes the
right to effective assistance of counsel. A.R. v. D.R., 2020 CO 10,
¶ 47, 456 P.3d 1266, 1278.
¶ 33 When evaluating ineffective assistance of counsel claims in
dependency and neglect proceedings, we apply the same test as in
criminal cases. See id. at ¶¶ 48, 60, 456 P.3d at 1278, 1280 (citing
Strickland v. Washington, 466 U.S. 668 (1984)). Under this test, to
establish an ineffective assistance claim, the parent must show that
(1) counsel’s performance was outside the wide range of
professionally competent assistance, and (2) the parent was
prejudiced by counsel’s deficient performance — that is, there is a
reasonable probability that but for counsel’s unprofessional errors,
the outcome of the proceeding would have been different. Id. at
¶¶ 48-49, 60, 456 P.3d at 1278, 1280. “If the parent fails to
establish either prong of this test, the claim fails.” People in Interest
of C.B., 2019 COA 168, ¶ 26, 456 P.3d 92, 96.
14 ¶ 34 We must remand for an evidentiary hearing to address an
ineffective assistance of counsel claim if the parent’s allegations are
sufficiently specific and compelling to constitute a prima facie
showing of counsel’s ineffectiveness. A.R., ¶ 63, 456 P.3d at 1281.
But if the parent’s allegations lack specificity, we may summarily
deny the ineffective assistance claim. Id.
B. The Indian Child Welfare Act
¶ 35 Father contends that counsel was deficient by failing to object
to the lack of ICWA placement hearings and by not raising the
Department’s failure to use active efforts to enroll the children in
the Cherokee Nation. See §§ 19-1.2-101 to -132, C.R.S. 2025
(requiring compliance with federal ICWA statute).
1. Additional Background
¶ 36 Mother declared that the children had no American Indian or
Alaska Native heritage through her side of the family. Father
reported that his late father (paternal grandfather) was a member of
the Cherokee Nation.
¶ 37 Early in the case, the Department reported that A.T. had been
traced in the Cherokee Nation’s tribal records and found to be
related to persons associated with the Cherokee Nation, including
15 paternal grandfather, who was an enrolled member of the tribe.
But the tribe reported that, based on current information, it could
not recognize the child as an Indian child. The tribe later provided
the same information regarding O.L.J. Based on this information,
the juvenile court found that the children “may be” Indian children
and ordered the Department to make active efforts and to send
notices to the tribe.
¶ 38 The Department then unsuccessfully attempted to enroll the
children in the Cherokee Nation. The Department filed a motion for
ICWA determination, informing the court that the tribe had
determined that the children were not Indian children and that
efforts to enroll the children were unsuccessful.
¶ 39 The court ultimately determined that the Department made
“diligent efforts” to obtain information from the Cherokee Nation
and that “the requirements of [ICWA] ha[d] been complied with.”
But because those efforts were unsuccessful, the court determined
that the children were not Indian children or eligible to enroll in an
Indian tribe.
16 2. Analysis
¶ 40 Once a juvenile court knows, or has reason to know, that a
child is an Indian child, it must conduct a placement hearing before
it can place the child in foster care. 25 U.S.C. § 1912(e) (“No foster
care placement may be ordered in such proceeding” absent “a
determination, supported by clear and convincing evidence,
including testimony of qualified expert witnesses, that the
continued custody of the child by the parent or Indian custodian is
likely to result in serious emotional or physical damage to the
child.”). Father contends that counsel was ineffective by failing to
object to the lack of ICWA placement hearings. But contrary to
father’s contention, the court did not “know[] or [have] reason to
know that an Indian child [was] involved.” See 25 U.S.C. § 1912(a).
¶ 41 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). Active efforts require “affirmative,
active, thorough, and timely efforts intended primarily to maintain
or reunite an Indian child with [their] family.” 25 C.F.R. § 23.2
(2025). “‘Indian child’ means any unmarried person who is under
17 age eighteen and is either (a) a member of an Indian tribe or (b) is
eligible for membership in an Indian tribe and is the biological child
of a member of an Indian tribe.” 25 U.S.C. § 1903(4). Section
19-1-126(1)(a)(II)(A)-(F), C.R.S. 2024, which was in effect at the time
the children were placed in foster care, listed additional reasons to
know that a child was an Indian child, but none of its provisions
applied.
¶ 42 Regardless of whether the Department was required to make
diligent or active efforts, we conclude that the Department used
active efforts to enroll father and the children in the Cherokee
Nation, but those efforts proved unsuccessful. Thus, the
information before the juvenile court established that neither father
nor the children were members of the Cherokee Nation and the
children did not meet the definition of “Indian child.” See 25 U.S.C.
§ 1903(4); H.J.B. v. People in Interest of A-J.A.B., 2023 CO 48
¶¶ 61, 65, 535 P.3d 67, 81 (concluding that the child of a parent
who believed she had Cherokee and Lakota Sioux heritage, but who
never claimed tribal membership or that she was a member of a
tribe, could not be the biological child of a member of an Indian
18 tribe). Because the hearing requirement of 25 U.S.C. § 1912(e) did
not apply, counsel was not ineffective for failing to raise it.
¶ 43 Second, father argues that the Department failed to make
active efforts to enroll the children in the tribe. The record,
however, shows that the Department made many efforts to enroll
the children in the Cherokee Nation.
¶ 44 Early in the case, the Department mailed the completed
citizenship application for A.T. to the Cherokee Nation. The
Department later also completed an application for O.L.J. To
process the application, the Cherokee Nation required paternal
grandfather’s death certificate. The Department acquired the
certificate and mailed it to the tribe. The Cherokee Nation then
requested a copy of father’s birth certificate. The caseworker
assisted father with requesting and paying for his birth certificate.
However, father’s birth certificate did not identify paternal
grandfather as his father.
¶ 45 The tribe informed the Department that it needed father to
amend his birth certificate to include paternal grandfather. The
Department attempted to modify father’s birth certificate, but the
caseworker testified that the Office of Vital Records could not add
19 paternal grandfather to father’s birth certificate because paternal
grandfather was deceased.
¶ 46 Seven months before the termination hearing, the tribe stated
that, because father’s birth certificate could not be amended to add
paternal grandfather, the children were not eligible to be enrolled in
the tribe.
¶ 47 Based on this record, the Department met its obligations
under ICWA, and father’s counsel was not ineffective for failing to
raise issues regarding the Department’s enrollment efforts.
C. Reasonable Efforts
¶ 48 With respect to any purported lack of reasonable efforts, even
if we were to assume, without deciding, that counsel’s performance
fell below the range of professionally competent assistance by not
advocating that the Department perform certain additional efforts,
father has not shown that he was prejudiced. His assertions do not
specifically show that, but for his counsel’s failures to timely
challenge the Department’s purported lack of efforts, the result of
the termination hearing would have been different. See A.R., ¶ 60,
456 P.3d at 1280.
20 ¶ 49 First, father asserts that the Department never offered him
family time in his home and never offered to have the children’s
in-home therapy conducted there. He also contends that the
Department made no efforts to expand his family time or lower the
level of supervision.
¶ 50 Considering the juvenile court’s findings regarding father’s
inability to acknowledge or meet the children’s needs, as discussed
above, father does not explain how his counsel’s advocacy for in-
home family time, expanded family time, or in-home therapy
services would have changed the evidence at the termination
hearing or the court’s related findings regarding father’s inability to
meet the children’s needs. See People in Interest of R.J.B., 2021
COA 4, ¶ 35, 482 P.3d 519, 525 (explaining that we will not
consider a claim which is “merely a bald assertion without
argument or development”).
¶ 51 Next, father argues that his counsel should have objected to
the Department’s efforts because (1) father did not have input in
scheduling the children’s appointments; (2) the caseworker did not
inquire with probation about the specifics of father’s substance use
treatment to confirm compliance and avoid duplicative services; and
21 (3) the caseworker did not verify with the FAS expert that father
attended FAS training.
¶ 52 However, based on father’s testimony at the termination
hearing, scheduling was not a barrier to attending appointments.
He testified that he did not attend medical appointments because
he disagreed with the doctors. He also testified that he tried to
access doctor’s appointments online by trying “to make a
password,” but “wasn’t able to complete that.” The duplicative
services of which father complains relate to substance abuse
treatment, and he does not explain how raising this issue would
have changed the outcome of the termination hearing; the court’s
termination judgment rested on father’s inability to meet the
children’s needs, not on his substance use. And the record refutes
father’s FAS training argument. The caseworker testified that she
attempted to contact the FAS expert to confirm father’s
participation in FAS training. Even if the caseworker had verified
father’s participation, the record still supported the court’s
conclusion that father could not meet the children’s needs.
¶ 53 Finally, father contends that his treatment plans were not
tailored to reunification, but to “the interests of the foster
22 placement,” because the treatment plans required that parenting
time be conditioned on “the preservation of any foster
placement.” Father does not cite, and we are not aware of, any
authority that prohibits a treatment plan from providing family time
in a manner that preserves children’s stability in foster placement,
especially considering that any disposition must serve the best
interests of the child. See § 19-3-507(1)(a), C.R.S. 2025. Nor does
father explain how this provision would have jeopardized
reunification if he had complied with the treatment plans. As noted
above, father does not challenge the appropriateness of his
treatment plans. See S.Z.S., ¶ 29, 524 P.3d at 1217.
¶ 54 We therefore conclude that father has not raised sufficiently
specific and compelling allegations to constitute a prima facie
showing of ineffective assistance of counsel. See A.R., ¶ 63, 456
P.3d at 1281; see also People v. Sherman, 172 P.3d 911, 914 (Colo.
App. 2006) (noting that an ineffective assistance claim that is too
speculative will not satisfy the prejudice prong). Thus, we decline to
disturb the termination judgment.
IV. Disposition
¶ 55 The judgment is affirmed.
23 JUDGE YUN and JUDGE SCHUTZ concur.