25CA1651 Peo in Interest of RB 07-16-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA1651 El Paso County District Court No. 22JV30323 Honorable Diana May, Judge
The People of the State of Colorado,
Appellee,
In the Interest of R.B., a Child,
and Concerning K.S. and C.B.,
Appellants.
JUDGMENT AFFIRMED
Division III Opinion by JUDGE KUHN Freyre and Johnson, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 16, 2026
Kenny Hodges, County Attorney, Melanie Gavisk, Senior County Attorney, Colorado Springs, Colorado, for Appellee
Josi McCauley, Guardian Ad Litem
Ainsley E. Baum, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant K.S.
Harald Van Gaasbeek, Office of Respondent Parents’ Counsel, Fort Collins, Colorado, for Appellant C.B. ¶1 In this dependency and neglect proceeding, C.B. (father) and
K.S. (mother) appeal the judgment terminating their parent-child
legal relationships with R.B. (the child). We affirm.
I. Background
¶2 The El Paso County Department of Human Services filed a
petition in dependency or neglect alleging that the child tested
positive for methamphetamines at birth, along with other concerns.
The parents admitted to the petition and the juvenile court
adjudicated the child dependent or neglected. The court also
adopted treatment plans for both parents. The parents were each
subsequently incarcerated, and the court amended the treatment
plans to account for their incarcerations.
¶3 Later, the Department filed a motion to terminate parental
rights. Following a contested hearing, the juvenile court granted
the motion.
II. Analysis
¶4 The parents contend that the juvenile court erred by
(1) finding that they were unfit and could not become fit within a
reasonable time; (2) improperly basing its fitness findings on their
incarceration status; (3) finding that the Department made
1 reasonable efforts to rehabilitate them and reunite the family; and
(4) failing to consider a less drastic alternative to termination of
their parental rights. We consider these contentions in turn.
A. Standard of Review
¶5 “Whether a juvenile court properly terminated parental rights
presents a mixed question of fact and law because it involves
application of the termination statute to evidentiary facts.” People
in Interest of L.M., 2018 COA 57M, ¶ 17. We review the court’s
factual findings for clear error, and we review de novo its legal
conclusions based on those facts. People in Interest of S.R.N.J-S.,
2020 COA 12, ¶ 10. The credibility of the witnesses; sufficiency,
probative value, and weight of the evidence; and the inferences and
conclusions drawn from the evidence are within the juvenile court’s
discretion. People in Interest of A.J.L., 243 P.3d 244, 249-50 (Colo.
2010).
B. Fitness Within a Reasonable Time
¶6 Both parents contend that the juvenile court erred by finding
that they were unfit and would not become fit within a reasonable
time. Both argue that they substantially complied with their
treatment plans and demonstrated that they were fit parents.
2 Additionally, they assert that the juvenile court erred by primarily
relying on their incarceration status — not their parenting — in
terminating their parental rights. We are unpersuaded.
1. Applicable Law
¶7 A 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 has not reasonably complied
with an appropriate, court-approved treatment plan, or the
treatment 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.
¶8 When, as here, a child is under six years old at the time a
dependency neglect petition is filed, the juvenile court must
consider the statutory expedited permanency planning (EPP)
provisions, which require that the child be placed in a permanent
home as expeditiously as possible. §§ 19-1-102(1.6), 19-1-123,
19-3-702(5)(c), C.R.S. 2025; see People in Interest of S.Z.S., 2022
COA 133, ¶ 25.
¶9 A parent is unfit if their conduct or condition renders them
“unable or unwilling to give the child reasonable parental care to
3 include, at a minimum, nurturing and safe parenting sufficiently
adequate to meet the child’s physical, emotional, and mental health
needs and conditions.” § 19-3-604(2). “In determining whether a
parent’s conduct or condition is likely to change within a reasonable
time, the 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.” S.Z.S.,
¶ 24.
¶ 10 What constitutes a reasonable time is fact specific and must
be determined by considering each particular child’s physical,
mental, and emotional conditions and needs. Id. at ¶ 25. A
“reasonable time” isn’t an indefinite time. Id. And even when a
parent has made recent progress on a treatment plan, the court is
not required to give the parent additional time to comply. See id. at
¶¶ 24-25.
2. Additional Background
¶ 11 During the proceedings, it was discovered that the child had
significant medical needs stemming from a rare chromosomal
disorder that caused the child to have, among other things, seizure
activity, physical delays, developmental delays, speech delays,
4 attention-deficit hyperactivity disorder, and neurodivergent traits.
The child regularly participated in nine weekly therapies to assist
with his physical and mental development.
3. The Court Did Not Err by Finding that the Parents Were Unfit and Could Not Become Fit Within a Reasonable Time
¶ 12 The juvenile court found that the parents were unfit and were
unlikely to become fit within a reasonable time. True, the court
found that the parents substantially complied with their amended
treatment plans “to the best of both parents’ ability” while they were
in custody. But the court put significant weight on the child’s
extensive medical needs and the parents’ failure to comply with
their original treatment plans while out of custody. It also found
that the parents had not sufficiently developed a release plan
detailing how they would meet the child’s needs once free from
incarceration, as required by their amended treatment plans. As
this was an EPP case, the court noted that the child required the
“stability, safety, [and] consistency” that could only be achieved
through termination of parental rights. The record supports the
court’s findings.
5 ¶ 13 The caseworker testified that the parents complied with their
amended treatment plans to the best of their ability and actively
engaged in services, such as life skills, therapy, and family time.
But “even substantial compliance” may not be enough “to render
the parent fit.” People in Interest of S.L., 2017 COA 160, ¶ 11. To
that end, the caseworker — who the court qualified as an expert in
the areas of child protection and child welfare — opined that the
parents were not fit and unlikely to become fit within a reasonable
time because they “hardly did anything” to engage with the case
while out of custody. Indeed, the caseworker had concerns about
their ability to continue their engagement and maintain sobriety
once they returned to the community. She stated that the parents
failed to engage in substance use treatment or consistent sobriety
monitoring prior to their incarceration, and they did not
consistently attend family time.
¶ 14 The caseworker also indicated that mother had not sent her a
detailed release plan. While father had a basic plan, the caseworker
deemed it insufficient given the child’s extensive medical needs and
because it involved changing the child’s necessary and complicated
therapy schedule to accommodate father. The caseworker
6 explained that the parents did a “fabulous job” during family time
sessions, but parenting the child “24 hours a day, 7 days a week”
would look much different, especially as the child’s needs increased.
¶ 15 Still, father contends that he “would soon be able to parent
[the child] upon his entry in[to] community corrections” and thus
would be available to parent in a reasonable time. But he admitted
in his testimony that he was not “100 percent” certain he would be
accepted into community corrections. An expert in incarcerated
parenting further reported that the first phase of community
corrections required strict adherence to a schedule and that father
would not be available for “[m]uch of anything.” The expert opined
that father could “not expect to be a full-time parent” while in the
program. Moreover, the caseworker testified that, even if father was
discharged to community corrections, she did not believe father
could become a fit parent within a reasonable period of time
because of the amount of time she knew the program required. Nor
did she believe it was in the child’s best interest to wait for father to
be released.
¶ 16 The caseworker also testified that she did not know if there
was any amount of additional time to allow the parents to become
7 fit. She thought this because the case had “already been open for
two years” and “time hasn’t stopped for [the child],” meaning his
medical complexities were “only getting worse.” Ultimately, the
caseworker believed that termination was in the child’s best interest
because the child needed the permanency and stability that
termination would provide.
¶ 17 Based on this testimony, the record supports the juvenile
court’s finding that the parents would not become fit within a
reasonable time, and therefore, we will not disturb it.1 See S.Z.S.,
¶ 27.
4. The Court Did Not Err When It Considered the Parents’ Incarceration
¶ 18 The parents further argue that the juvenile court improperly
based its fitness findings on their incarceration status. We
disagree.
¶ 19 As the parents assert, the General Assembly in 2023 repealed
subsection (1)(b) of section 19-3-604, which allowed consideration
1 We reject mother’s argument that the juvenile court’s reliance on
her prior dependency and neglect history was error. Section 19-3-604(2)(l), C.R.S. 2025, explicitly allows the court to consider a parent’s past involvement with a department of human services.
8 of a parent’s long-term confinement status in the termination of
parental rights. See Ch. 191, sec. 7, § 19-3-604, 2023 Colo. Sess.
Laws 957 (repealing former section 19-3-604(1)(b)(III)). Indeed, 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). In other words, the General Assembly
confirmed that, while a court cannot rely on a parent’s
incarceration as the sole reason for termination, it may still
consider incarceration as a factor in its decision.
¶ 20 Here, the juvenile court explicitly acknowledged this by stating
that, while it was “not making its finding based on [the parents’]
incarceration, the law does allow [the court] to use that as one
factor and the [c]ourt does take that into consideration.” As
described above, the court also considered the parent’s historical
lack of compliance; the child’s age, need for permanency, and
significant needs; and the parents’ lack of a sufficient release plan.
¶ 21 Therefore, although a factor in the juvenile court’s decision,
the court did not use the parents’ incarceration status as the sole
9 reason for finding the parents unfit. See K.D. v. People, 139 P.3d
695, 703 (Colo. 2006) (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.”). Accordingly, we conclude that the
court did not err.
C. Reasonable Efforts
¶ 22 Both parents assert that the Department failed to make
reasonable efforts to rehabilitate them and reunite the family. We
discern no reversible error.
1. Preservation
¶ 23 The Department and the guardian ad litem contend that the
parents failed to preserve the reasonable efforts issue that they now
raise on appeal. We disagree as to mother but conclude father
waived his reasonable efforts claim.
¶ 24 While mother did not address the issue of reasonable efforts
during the termination hearing, she did file a motion for a lack of
reasonable efforts finding shortly before the termination hearing.
Thus, mother brought the issue to the juvenile court’s attention and
appropriately preserved her claim. See S.Z.S., ¶ 18 (noting that to
10 preserve an issue, a party must present “the court with an adequate
opportunity to make findings of fact and legal conclusions”).
¶ 25 However, father explicitly waived his reasonable efforts claim.
See People in Interest of D.P., 160 P.3d 351, 355 (Colo. App. 2007)
(“Statutory rights accorded to respondent parents in dependency
and neglect proceedings are subject to waiver.”). In closing
argument, father’s counsel said that he was “not making an
argument today about reasonable efforts” and that “the testimony of
[the caseworker] is clear that she has made excellent efforts and
[went] above and beyond for [father].” See People in Interest of E.C.,
259 P.3d 1272, 1276 (Colo. App. 2010) (holding that a parent
waives their right to raise reasonable efforts on appeal when they do
not assert that a department’s efforts were deficient and do not
bring the matter to the court’s attention in any other way).
2. Applicable Law
¶ 26 A human services department must make reasonable efforts
before a juvenile court may terminate parental rights under section
19-3-604(1)(c). §§ 19-1-103(114), 19-3-100.5(1), 19-3-208, C.R.S.
2025; § 19-3-604(2)(h). “Reasonable efforts” means the “exercise of
11 diligence and care” for a child who is in out-of-home placement.
§ 19-1-103(114).
¶ 27 To that end, services that are provided in accordance with
section 19-3-208 are consistent with reasonable efforts.
§ 19-1-103(114). As relevant here, the services that “must be
available and provided” include family time. § 19-3-208(2)(b). A
child is entitled to in-person family time unless a court finds that
the child’s health and safety is endangered by face-to-face contact.
People in Interest of D.G., 140 P.3d 299, 305 (Colo. App. 2006). A
parent’s incarceration, in and of itself, does not excuse a
department from making reasonable efforts, including providing
family time services. See §§ 19-3-507(1)(f)(I), 19-3-508(1)(e), C.R.S.
2025.
¶ 28 To evaluate whether a department made reasonable efforts,
the court should consider whether the services provided were
appropriate to support the parent’s treatment plan. People in
Interest of S.N-V., 300 P.3d 911, 915 (Colo. App. 2011). Whether a
department made reasonable efforts “must be measured holistically
rather than in isolation with respect to specific treatment plan
objectives.” People in Interest of My.K.M. v. V.K.L., 2022 CO 35,
12 ¶ 35. The parent is ultimately responsible for using the services
provided to obtain the assistance needed to comply with the
treatment plan. People in Interest of J.C.R., 259 P.3d 1279, 1285
(Colo. App. 2011). The court may therefore consider a parent’s
unwillingness to participate in treatment when determining whether
a department made reasonable efforts. People in Interest of A.V.,
2012 COA 210, ¶ 12.
3. Any Initial Failure in Reasonable Efforts Was Harmless
¶ 29 Mother argues that the Department failed to provide
reasonable efforts because it did not: (1) timely amend her
treatment plan to account for her incarceration; (2) provide services
or facilitate virtual and in-person family time for months after her
incarceration; and (3) maintain caseworker contact for nearly a
year.
¶ 30 The juvenile court acknowledged that the Department “was
not actively engaging” mother when she was initially incarcerated.
Still, the court found that “even if [the Department] had engaged
sooner” mother “would not be in a different position.” Specifically,
the court noted that the Department’s failure “wouldn’t have
13 changed [mother’s] ability to parent and address her substance
abuse issues any sooner.” Ultimately, the court found that the
Department made reasonable efforts.
¶ 31 To be sure, the record shows that when mother was first
incarcerated the Department’s attempts to provide reasonable
efforts were lacking. The former caseworker failed to timely amend
mother’s treatment plan to reflect her incarceration, keep in contact
with mother, set up family time visits, or investigate services
available to mother at her facility. The current caseworker agreed
that the Department did very little when the former caseworker
worked on the case.
¶ 32 However, we “must disregard any error or defect in the
proceeding which does not affect the substantial rights of the
parties.” C.R.C.P. 61. “An error affects a substantial right only if ‘it
can be said with fair assurance that the error substantially
influenced the outcome of the case or impaired the basic fairness of
the trial itself.’” People in Interest of C.C., 2022 COA 81, ¶ 20
(citation omitted). And we are not persuaded that the Department’s
failure to provide reasonable efforts during mother’s initial
incarceration impacted the outcome here.
14 ¶ 33 Importantly, the record shows that the Department’s efforts
quickly improved when the current caseworker was assigned to the
case over a year prior to the termination hearing. The caseworker
testified that she knew of the deficiencies in the former caseworker’s
efforts and quickly rewrote mother’s treatment plan, investigated
and provided referrals for services, maintained consistent contact
with mother, communicated with mother’s case manager, and set
up regular in-person family time visits in addition to mother’s
virtual family time sessions.
¶ 34 Notably, mother does not argue these subsequent Department
efforts were lacking, and the court credited mother’s engagement
with her amended treatment plan while in custody. But ultimately,
as described above, the juvenile court found mother unfit based on
her noncompliance prior to her incarceration — as well as the
child’s age and medical needs, mother’s failure to provide a release
plan, and her historical dependency and neglect involvement.
¶ 35 Given this evidence and the court’s findings, the Department’s
initial failure to provide services to mother while incarcerated was
harmless. See C.R.C.P. 61.
15 D. Less Drastic Alternatives
¶ 36 Both parents argue that the juvenile court erred by failing to
consider an allocation of parental responsibilities (APR) as a less
drastic alternative to termination of their parental rights. We
¶ 37 Before terminating parental rights, the juvenile court must
consider and eliminate less drastic alternatives. People in Interest of
A.M. v. T.M., 2021 CO 14, ¶ 40. In doing so, it 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. The court may consider, among other things, (1) whether an
ongoing relationship with the parent would benefit the children,
J.C.R., 259 P.3d at 1285; (2) whether the children are bonded to the
parent, People in Interest of D.P., 181 P.3d 403, 408-09 (Colo. App.
2008); and (3) whether the alternative placement option favors
adoption rather than an APR, S.N-V., 300 P.3d at 920.
¶ 38 A less drastic alternative is not viable simply because it is
“adequate.” A.M., ¶ 27. Rather, it must be in the child’s best
interests. Id. Thus, if the juvenile court considers less drastic
16 alternatives but finds instead that termination is in the child’s best
interests, it must reject the alternatives and order termination. Id.
at ¶ 32. And we must affirm that decision if the court’s findings are
supported by the record. People in Interest of B.H., 2021 CO 39,
¶ 80.
2. The Court Did Not Err by Finding No Less Drastic Alternative
¶ 39 The juvenile court found that the child “deserves stability,
safety, and consistency,” which could only be achieved through
termination of the parents’ parental rights. The court further found
that termination was in the child’s best interest, noting that this
was an EPP case. And the court determined that “[e]ven if the
foster parents were willing to take [an APR] the [c]ourt would not
change [its] ruling.” See S.Z.S., ¶ 25.
¶ 40 The record supports the court’s findings. The caseworker
opined that the child “needs permanency” and “the stability that
[the child’s] placement is able to provide to him especially with his
ongoing medical needs.” She testified that an APR was not an
option for the foster family. An expert in the field of child
development and attachment further opined that the child needed
17 consistency and structure. The expert believed that the child’s
primary attachment was to the foster family and that “it would be a
significant detriment for him to be removed from his only
attachment figure that he’s ever known.” This was especially true
considering the child’s medical needs and that the child was
neuroatypical. The court found this testimony credible. See A.J.L.,
243 P.3d at 249-50.
¶ 41 We also reject father’s argument that “keeping the case open,
without an [APR]” was in the child’s best interests. The caseworker
believed there would be “significant harm” to the child if the case
remained open because of how dysregulating family time visits were
to him and his need for stability. And the expert witness opined
that the sooner the child resolved the uncertainties around his
attachment figures “the faster or more efficiently he can gain his
autonomy and independence and work on the skills that he’s
working on.”
¶ 42 Accordingly, because the juvenile court’s finding that there
was no less drastic alternative to termination is supported by the
record, we have no basis to disturb it on appeal. See B.H., ¶ 80.
18 III. Disposition
¶ 43 The judgment is affirmed.
JUDGE FREYRE and JUDGE JOHNSON concur.