24CA0857 Peo in Interest of R-GJM 03-06-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0857 Mesa County District Court No. 21JV236 Honorable Richard T. Gurley, Judge
The People of the State of Colorado,
Appellee,
In the Interest of R-G.J.M., a Child,
and Concerning T.M.,
Appellant.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE DUNN Tow and Graham*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 6, 2025
Todd Starr, County Attorney, Brad Junge, Assistant County Attorney, Grand Junction, Colorado, for Appellee
Jenna L. Mazzucca, Guardian Ad Litem
Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 T.M. (mother) appeals the juvenile court’s judgment
terminating her parent-child legal relationship with R-G.J.M. (the
child). Because we conclude that the Mesa County Department of
Human Services did not make active efforts to reunite mother and
the child as required by the Indian Child Welfare Act of 1978
(ICWA), 25 U.S.C. §§ 1901-1963, we reverse and remand for further
proceedings.
I. Background
A. Pre-ICWA Period
¶2 In November 2021, mother gave birth to the child while
incarcerated. Mother was transferred to the hospital, where she
told a caseworker that she was “mentally disabled” and having
paranoid delusions. The juvenile court granted emergency
protective custody of the child to the Department. The Department
placed the child in a kinship placement and filed a petition in
dependency and neglect.
¶3 In March 2022, the court adjudicated the child dependent or
neglected. Meanwhile, the Department learned that mother was an
enrolled member of the Chippewa Cree of the Rocky Boy’s
Reservation (the Tribe). In response to the Department’s inquiry,
1 the Tribe said that the child was neither enrolled in the Tribe nor
eligible for enrollment. In April 2022, the court determined the
child was not an Indian child under ICWA.
¶4 Shortly after, the court adopted a treatment plan for mother.
The plan required her to (1) complete a parenting evaluation and
follow all recommendations; (2) complete a mental health and
substance abuse evaluation and follow all recommendations;
(3) submit to random substance screenings; (4) engage in family
time with the child and complete a parenting class; (5) maintain
safe and stable housing; (6) gain and maintain employment;
(7) comply with all terms and conditions of any criminal case or
probation; and (8) sign releases of information and maintain contact
with case professionals.
¶5 Months into the treatment plan, mother stopped participating
and stated that she wanted to relinquish her parental rights. After
several months with no engagement, the Department filed a motion
to terminate parental rights.
B. Post-ICWA Period
¶6 But in October 2023, at the scheduled termination hearing,
mother informed the Department that the child was eligible for
2 enrollment in the Tribe. Though now having reason to know the
child was an Indian child, the Department didn’t ask to vacate the
termination hearing; instead, at the Department’s request, the court
continued the termination hearing for two months to December
2023. The court then continued the termination hearing another
three months to March 2024, again at the Department’s request, so
that the Department could arrange for a qualified expert witness to
testify. In January 2024, the child became an enrolled member of
the Tribe.
¶7 In February 2024, the Department filed a motion asking the
court to find that, as required by ICWA, it had made active efforts to
reunite mother and the child. At the review hearing, mother argued
that the Department had not made active efforts because it had not
provided in-person family time with the child and had not
recommended a parenting class until that month. Additionally,
mother, mother’s counsel, and mother’s guardian ad litem
explained that, since October 2023 when there was reason to know
the child was an Indian child, mother had been consistently
engaging in services, had completed a neuropsychological
evaluation, had stable housing and income, was successfully
3 managing her mental health and substance use, was enrolled in
school, was complying with her probation, and was volunteering at
a homeless shelter.
¶8 In response, the Department didn’t dispute mother’s recent
compliance with these portions of the treatment plan (though the
child’s guardian ad litem emphasized mother’s previous lack of
compliance). Instead, though ICWA clearly applied, the Department
expressed that “it’s unreasonable for anybody to request that we
make active efforts” because “for . . . two and a half years [the child]
has been out of placement.” Even though many months had
passed since there was reason to know the child was an Indian
child, concerning active efforts, the Department reported that it was
“look[ing] into” getting a parenting class authorized for mother “as
soon as possible,” “discussing about getting [mother] out for visits”
to a different county where the child was located, and working “to
get information from [mother’s] providers since being aware now
that [mother] has changed her mind.” Deferring its ruling, the
court set a six-hour active efforts and review hearing for May 2024.
¶9 Yet the March 2024 termination hearing remained scheduled.
At that hearing, mother and father appeared, but the judge
4 assigned to the case (and who set the active efforts hearing) wasn’t
available, so a different judge presided. At the outset of the
hearing, the parties argued about whether, in light of the pending
active efforts hearing, the court should continue the termination
hearing. The Department asked the court to consolidate the two
hearings and proceed with termination. Father’s counsel countered
that the roughly five months that active efforts “should have been in
place” was insufficient to satisfy ICWA. The court proceeded with
the termination hearing, granted the Department’s motion, and
terminated mother’s parental rights.1
II. The Department Did Not Make Active Efforts
¶ 10 At the termination hearing, there was no real dispute that
mother was managing her mental health and substance use, was
compliant with probation, and had stable housing and income.
Indeed, the juvenile court acknowledged mother’s recent efforts
toward her treatment plan. Given mother’s compliance with these
aspects of her treatment plan, it appears that family time and
1 The juvenile court denied the motion to terminate father’s parental
rights, finding that the Department had not made active efforts to rehabilitate father and reunify the family.
5 parenting were the remaining treatment plan areas where mother
was lagging.
¶ 11 But citing the case’s thirty-month lifespan, mother’s previous
intent to relinquish her parental rights, her failure to comply with
the treatment plan in a reasonable amount of time, and the child’s
need for permanency, the court generally found beyond a
reasonable doubt that “active efforts were made” regarding mother
(without identifying any specific efforts that it found satisfied
ICWA).
¶ 12 Mother contends that the juvenile court erred by finding that,
after ICWA’s requirements were triggered in October 2023, the
Department made active efforts to reunify the family. On this
record, we agree.
A. Applicable Law and Standard of Review
¶ 13 In non-ICWA cases, an agency must make “reasonable efforts”
to rehabilitate the parents and reunite the family. §§ 19-1-
103(114), 19-3-100.5(1), 19-3-208, 19-3-604(1)(c), (2)(h), C.R.S.
2024. Reasonable efforts mean the “exercise of diligence and care”
to reunify parents with their children. § 19-1-103(114).
6 Reasonable efforts are satisfied when an agency provides services in
accordance with section 19-3-208. § 19-1-103(114).
¶ 14 But ICWA requires that an agency make “active efforts . . . to
provide remedial services and rehabilitative programs designed to
prevent the breakup of the Indian family.” 25 U.S.C. § 1912(d).
Active efforts require “affirmative, active, thorough, and timely
efforts intended primarily to maintain or reunite an Indian child
with his or her family.” 25 C.F.R. § 23.2 (2024). Active efforts are
“a more demanding standard than the reasonable efforts standard
applied in non-ICWA cases.” People in Interest of My.K.M. v. V.K.L.,
2022 CO 35, ¶ 31. And though ICWA doesn’t outline what an
agency must do to satisfy the active efforts standard, federal
regulations outline non-exhaustive examples of active efforts:
• conducting “a comprehensive assessment of the
circumstances of the Indian child’s family, with a focus on
safe reunification as the most desirable goal”;
• identifying “appropriate services and helping the parents to
overcome barriers, including actively assisting the parents
in obtaining such services”;
7 • identifying, notifying, and inviting “representatives of the
Indian child’s Tribe to participate in providing support and
services to the Indian child’s family and in family team
meetings, permanency planning, and resolution of
placement issues”;
• conducting or causing to be conducted “a diligent search for
the Indian child’s extended family members, and contacting
and consulting with extended family members to provide
family structure and support for the Indian child and the
Indian child’s parents”;
• offering and employing “all available and culturally
appropriate family preservation strategies and facilitating
the use of remedial and rehabilitative services provided by
the child’s Tribe”;
• taking steps to “keep siblings together whenever possible”;
• supporting “regular visits with parents or Indian custodians
in the most natural setting possible as well as trial home
visits of the Indian child during any period of removal,
consistent with the need to ensure the health, safety, and
welfare of the child”;
8 • identifying “community resources including housing,
financial, transportation, mental health, substance abuse,
and peer support services and actively assisting the Indian
child’s parents or, when appropriate, the child’s family, in
utilizing and accessing those resources”;
• monitoring “progress and participation in services”;
• considering “alternative ways to address the needs of the
Indian child’s parents and, where appropriate, the family, if
the optimum services do not exist or are not available”; and
• providing “post-reunification services and monitoring.”
25 C.F.R. § 23.2; see also My.K.M., ¶ 28. At minimum, active
efforts require an agency to identify and secure the resources and
services parents need to successfully satisfy court treatment plan
objectives and to support the parents through the treatment plan.
My.K.M., ¶ 32.
¶ 15 We analyze an agency’s active efforts “by considering the
totality of the circumstances and accounting for all services and
resources provided to a parent to ensure the completion of the
entire treatment plan.” Id. at ¶ 33. In doing so, we measure an
agency’s efforts “holistically rather than in isolation with respect to
9 specific treatment plan objectives.” Id. at ¶ 35. Ultimately, active
efforts “should be ‘tailored to the facts and circumstances of the
case.’” Id. at ¶ 32 (quoting 25 C.F.R. § 23.2).
¶ 16 Whether an agency satisfied ICWA’s active efforts requirement
is a mixed question of fact and law, meaning we review the juvenile
court’s factual findings for clear error but review de novo whether
those findings satisfy ICWA’s active efforts requirement. Id. at ¶ 20.
B. Family Time
¶ 17 Relying on 25 C.F.R. § 23.2(7), mother contends that the
Department did not make active efforts because it did not support
the child’s “regular visits with parents . . . in the most natural
setting possible as well as trial home visits of the Indian child
during any period of removal, consistent with the need to ensure
the health, safety, and welfare of the child.”
¶ 18 To the extent mother contends that the services outlined in
the regulation are required to satisfy the active efforts standard, we
disagree. Rather, the regulation “include[s] a non-exhaustive list of
examples illustrating active efforts.” My.K.M., ¶ 28.
¶ 19 But we agree with mother’s related contention that the
Department “failed to make active efforts to facilitate” in-person
10 family time between her and the child. At the start of the case (and
before ICWA applied), mother was incarcerated. Upon her release,
she lived in Mesa County. But the Department placed the child
with a family that lived many hours away by car — first in
Gunnison County and then in Douglas County. No agencies were
willing to provide in-person family time supervision between these
counties, and “[t]ransportation was an issue.” Thus, because in-
person visits were “going to take a lot . . . to facilitate” “due to the
distance,” the Department required mother to consistently attend
virtual family time before authorizing an in-person visit. This was
so despite the fact that, as one caseworker admitted, the child was
an infant and a parent “really can’t build a meaningful relationship
over virtual” visits “with an infant.” Not to mention that the record
doesn’t contain any evidence regarding safety concerns that would
justify the Department’s failure to offer mother in-person family
time for months after her release from jail. See People in Interest of
E.S., 2021 COA 79, ¶ 23 (“[A]bsent health and safety concerns, a
juvenile court may not approve a treatment plan that does not
provide for face-to-face visitation.”); accord People in Interest of D.G.,
140 P.3d 299, 302 (Colo. App. 2006).
11 ¶ 20 To be sure, mother struggled to maintain consistent virtual
family time visits. She eventually disengaged from her treatment
plan and decided to relinquish her parental rights. The Department
then moved to terminate her parental rights. Before the scheduled
termination hearing, mother had a single in-person visit with the
infant child.
¶ 21 We needn’t consider, however, whether the Department’s
efforts up to that point satisfied the reasonable efforts standard
because, after learning that the child was eligible for tribal
enrollment, ICWA was triggered, and mother decided against
relinquishment and expressed motivation to work toward
reunification. From then onward, the Department was required to
make active efforts — that is, “affirmative, active, thorough, and
timely efforts intended primarily to maintain or reunite an Indian
child with his or her family.” 25 C.F.R. § 23.2. That included
assisting mother “through the steps of a case plan and with
accessing or developing the resources necessary to satisfy the case
plan.” Id.
¶ 22 Yet the Department’s family time services offered after October
2023 were not much different than the services offered before ICWA
12 applied. To illustrate, in October 2023, the Department referred
mother to virtual family time to ensure, again, that she could be
consistent before offering in-person visits. Mother missed her
intake and her first virtual visit but was generally consistent with
family time for approximately two months before the termination
hearing. By February 2024, the Department determined that it was
in the child’s best interest to have an in-person visit (but
nevertheless planned to pursue termination the following month).
Though mother initially stated she couldn’t see the child in person
until April 2024 because she wanted to focus on school, she had a
second in-person visit a week before the termination hearing in
March 2024.
¶ 23 We don’t see how the Department’s wait-and-see approach
concerning in-person visits — which remained unchanged between
the periods when ICWA applied and didn’t apply — establishes
“affirmative, active, thorough, and timely efforts intended” to
reunite mother and the child. Id.; see also My.K.M., ¶ 31
(“[W]hereas ‘reasonable efforts’ may include passive efforts, the
phrase ‘active efforts’ denotes something more . . . .”).
13 ¶ 24 We recognize that the qualified expert witness opined generally
that the Department made active efforts to rehabilitate mother and
that the court found active efforts.2 But neither the court nor the
expert witness identified what those efforts were — especially with
respect to facilitating family time — and how they satisfied the
Department’s active efforts obligation. Cf. My.K.M., ¶¶ 15, 37-45
(upholding the juvenile court’s active efforts determination because
the juvenile court “heavily credited” the qualified expert witness,
who outlined the extensive efforts made).
¶ 25 Even more than that, the expert witness testified that active
efforts would include “making sure [the Indian family] had the
transportation” for appointments and “working to facilitate the bond
between the parents.” But no evidence was presented that the
Department did that once ICWA applied. Indeed, besides the
physical distance between mother and the child, the expert could
not explain why the Department had not made efforts to arrange
transportation for in-person visits but noted that the Department
2 The qualified expert witness also opined that the Department
made active efforts with respect to father, but the juvenile court rejected that opinion.
14 had — at some unspecified point — given mother “[b]us passes,
stuff like that.” When asked whether virtual visits “help[ed] the
bond” between mother and the child, the expert admitted, “It’s
better than nothing, but . . . it’s hard at that age.”
¶ 26 As to facilitating visits, one caseworker testified that she
periodically drove out to check on the child. When asked why she
couldn’t “facilitate a visit when” she went to see the child, she
admitted, “I could do it, but as far as driving out there . . . just to do
a visitation, that doesn’t make much sense.”
¶ 27 Thus, even considering the family time services offered
throughout the case, the record doesn’t demonstrate that the
Department made “affirmative, active, thorough, and timely efforts”
to facilitate family time once ICWA applied. 25 C.F.R. § 23.2.
C. Parenting Class
¶ 28 We also agree with mother that the Department did not make
active efforts because it did not timely refer her to a parenting class.
¶ 29 Per her treatment plan, mother was required to “attend a
parenting class approved by [the Department].” But the
Department did not even authorize a parenting class for mother
until February 2024 — months after it learned ICWA applied and
15 one month before the termination hearing. At the termination
hearing, one caseworker candidly admitted that, when mother
resumed services in October 2023, the caseworker “kind of
overlooked the parenting class recommendation.” And the qualified
expert witness stated that she was unaware the Department had
not authorized a parenting class until February 2024 and agreed
that the Department’s failure to authorize portions of the treatment
plan would not satisfy active efforts.
¶ 30 Under these circumstances, we can’t conclude that the
Department’s provision of a parenting class one month before the
termination hearing satisfied its obligation to make affirmative,
timely, and thorough efforts. See 25 C.F.R. § 23.2; see also
My.K.M., ¶ 32 (explaining that, at minimum, active efforts require
an agency “to identify and secure the resources and services
parents need to successfully satisfy court treatment plan objectives
and support the parents through the treatment plan goals”).
D. Reversal Is Required
¶ 31 Without a doubt, the circumstances here are unique. ICWA
didn’t apply to the case for twenty-three months, mother struggled
at the beginning of the case, and she contemplated relinquishment.
16 But once this became an ICWA case and mother sought to
reengage, the Department was required to make active efforts before
seeking “termination of parental rights to a Native American child.”
My.K.M., ¶ 23.
¶ 32 But even after learning that ICWA applied, the Department
didn’t think it was “reasonable” to engage in active efforts and,
without apparent regard to the policies underlying ICWA, seemingly
pushed forward to the termination of parental rights. See id. at
¶¶ 21-22 (outlining the history and purpose of ICWA). To illustrate,
despite the need for active efforts beginning in October 2023, the
Department didn’t withdraw its motion to terminate parental rights
but instead simply asked the court for a two-month continuance of
the termination hearing. When the Department again asked to
continue the hearing for three more months, it did so not for
additional time to support mother and reunite her with the child
but because of scheduling conflicts and the continued search for a
qualified expert witness to testify at the termination hearing. Given
this drive toward termination, we are hard-pressed to conclude that
the Department was focused on providing services “that would
permit the Indian child to remain or be reunited with [his] parents,
17 whenever possible.” Id. at ¶ 26 (explaining Congress’s intent when
designing the active efforts standard) (citation omitted).
¶ 33 We recognize, of course, that we must review the Department’s
actions “holistically rather than in isolation with respect to specific
treatment plan objectives.” Id. at ¶ 35. But no one appears to
dispute that, in the five months ICWA governed this case, mother
managed to become compliant with most of her treatment plan
goals. That is, she was managing her mental health and substance
use, was complying with probation, and had stable housing and
income. In fact, the record indicates that, in those five months,
mother accomplished most (if not all) of the progress toward the
treatment plan on her own and without assistance from the
Department. Because mother had addressed her other treatment
plan components, what was left — and where she required the
Department’s assistance — was family time and parenting skills.
It’s unclear how mother could become fit unless the Department
provided these specific active efforts. After all, mother and the child
lived many hours apart by car, and everyone seemed to agree that
the virtual visits the Department had provided so far were less than
ideal to build a meaningful bond between mother and the child.
18 ¶ 34 To the extent the Department argues that it made active
efforts by pointing to other services it offered before ICWA applied
(such as “mental health services, a neurological exam, housing
applications, life skills worker, bus passes and financial
assistance”), it doesn’t expand on the timing and nature of these
services or otherwise explain how the services were “designed to
prevent the breakup of the Indian family.” 25 U.S.C. § 1912(d).
Likewise, the qualified expert witness didn’t provide specific details
about any of the Department’s services or describe how those
services constituted active efforts. Thus, even considering the
totality of the circumstances and assessing the Department’s efforts
holistically, we don’t see how the Department made “affirmative,
active, thorough, and timely efforts” to reunite mother with the
child. 25 C.F.R. § 23.2.
¶ 35 For these reasons, we conclude that the evidence presented
didn’t support the juvenile court’s finding that the Department
satisfied the active efforts standard.
III. Other Contentions
¶ 36 Having so concluded, and because they may not arise on
remand, we needn’t reach mother’s separate contentions that the
19 juvenile court erred by (1) concluding she was unfit to parent
despite substantial compliance with her treatment plan; and
(2) terminating her parental rights without finding, as required by
ICWA, that “the continued custody of the child by the parent . . . is
likely to result in serious emotional or physical damage to the
child.” 25 U.S.C. § 1912(f); see also People in Interest of D.B., 2017
COA 139, ¶¶ 13-14. On remand, should the case proceed to
another termination hearing, the juvenile court should make the
findings required by § 1912(f) before it may terminate mother’s
parental rights. Cf. People in Interest of R.L., 961 P.2d 606, 609
(Colo. App. 1998) (reversing because the juvenile court failed to
make the “predicate” termination findings under § 1912(d) & (f)).
IV. Disposition
¶ 37 We reverse the judgment and remand for further proceedings.
JUDGE TOW and JUDGE GRAHAM concur.