26CA0718 Peo in Interest of SW 09-10-2026 COLORADO COURT OF APPEALS
Court of Appeals No. 26CA0718 Arapahoe County District Court No. 23JV286 Honorable Shay Whitaker, Judge
The People of the State of Colorado, Appellee, In the Interest of S.W., a Child, and Concerning D.W., Appellant.
JUDGMENT AFFIRMED
Division III
Opinion by JUDGE NAVARRO* Dunn and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 10, 2026
John Christofferson, Interim County Attorney, Alison A. Bettenberg, Assistant County Attorney, Aurora, Colorado, for Appellee
Josi McCauley, Guardian Ad Litem
Harald Van Gaasbeek, Office of Respondent Parents’ Counsel, Fort Collins, 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. 2026.
¶1 In this dependency or neglect action, D.W. (father) appeals the judgment terminating his parent-child legal relationship with S.W. (the child). We affirm.
I. Background
¶2 The Arapahoe Department of Human Services (the Department) filed a petition in dependency or neglect raising concerns about father’s alcohol use while caring for the newborn child. The child was removed from the home. The juvenile court adjudicated the child dependent or neglected and adopted treatment plans for both parents.
¶3 One year later, the Department moved to terminate both parents’ parental rights.1 The court, however, found good cause to continue the termination hearing several times. Two and a half years after the petition was filed, the court terminated father’s parental rights following a contested hearing.
II. Reasonable Efforts
¶4 Father contends that the juvenile court erred by finding that the Department made reasonable efforts to rehabilitate him.
1 Mother confessed the termination motion and is not a party to this appeal.
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A. Standard of Review and Applicable Law
¶5 Before the juvenile court may terminate parental rights under section 19-3-604(1)(c), C.R.S. 2026, the court must find that the parent is unfit and the parent’s conduct or condition is unlikely to change within a reasonable time, see § 19-3-604(1)(c)(II)-(III). In determining a parent’s unfitness, conduct, or condition, a court shall consider — among many other factors — “[r]easonable efforts by child-caring agencies which have been unable to rehabilitate the parent.” § 19-3-604(2)(h). Reasonable efforts means the “exercise of diligence and care” for a child who is in out-of-home placement, and the reasonable efforts standard is satisfied when appropriate services are provided in accordance with section 19-3-208, C.R.S. 2026. § 19-1-103(114), C.R.S. 2026.
¶6 To evaluate whether a department made reasonable efforts, the court should consider whether the provided services 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 should be “measured holistically.” People in Interest of E.D., 2025 COA 11, ¶ 11 (citation omitted). A parent is ultimately responsible for using the services
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offered by a department, and the court “may therefore consider a parent’s unwillingness to participate in treatment when determining whether a department made reasonable efforts.” Id. at ¶ 12.
¶7 The juvenile court, as the trier of fact, determines the sufficiency, probative effect, and weight of the evidence and assesses witness credibility. People in Interest of A.J.L., 243 P.3d 244, 249-50 (Colo. 2010). We review the court’s factual findings for clear error but review de novo its legal determination, based on those findings, as to whether a department satisfied its reasonable efforts obligation. E.D., ¶ 13.2 B. Analysis
¶8 Father first contends that the juvenile court erred by finding that the Department provided reasonable efforts to rehabilitate him.
2 The child’s guardian ad litem (GAL) argues that we should review
the juvenile court’s reasonable efforts determination for clear error, and the GAL cites People in Interest of I.J.O., 2019 COA 151, ¶ 22. The Colorado Supreme Court has recently granted review to consider whether an appellate court errs by failing to apply the clearly erroneous standard of review (rather than de novo review) to a lower court’s finding that reasonable efforts were made. See People v. R.J.F., (Colo. No. 26SC177, June 23, 2026) (unpublished order). The supreme court has not yet issued its decision. We apply de novo review because it is more favorable to father’s appellate arguments and they still do not persuade us.
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In particular, he says the Department failed to provide him with meaningful family time both when he was incarcerated and when he was not.
¶9 The juvenile court found “no question that there were lapses of visitation throughout this case.” The caseworker testified that the Department did not make its first referral for family time between father and the child until four months after the petition was filed. She opined that she did not think a four-month period without visitation was reasonable, but she also said she could not “speak to what happened before [she] was assigned” to this case. And the record shows that father was incarcerated for half of this four- month period.
¶ 10 After the first referral for family time, father was incarcerated again, received one family time session, and did not have another family time session until almost six months later — although he was not incarcerated for all this six-month period. The caseworker was uncertain if father engaged in more than one family time opportunity during the four months that he was out of custody.
¶ 11 Father was then incarcerated yet again, this time at the Arapahoe County Jail, where he was provided at least one virtual
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family time session. Father did not receive any in-person family time opportunity during the six months he was later incarcerated in the Department of Corrections (DOC), although there was at least one virtual family time occasion toward the end of his sentence.
¶ 12 Accordingly, the court found that some of the family time lapses were due to the Department’s failure to act or to the DOC’s failure to respond to caseworker attempts to set up family time.
¶ 13 The juvenile court also found, however, that some of the lapses in family time were attributable to father. The record supports this finding. The caseworker testified that father was not in communication with one agency and failed to return necessary paperwork, resulting in family time sessions beginning almost two months after she made the referral. The family time supervisor testified that father had attended only half of the family time sessions offered and had asked that family time be shorter than the four hours scheduled.
¶ 14 The juvenile court acknowledged the Department’s shortcomings but found that, on balance, the Department made reasonable efforts to provide family time. In particular, the court found, with record support, that the caseworker made efforts —
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albeit unsuccessful — to set up family time while father was in the custody of the DOC and attempted to provide family time when father was out of custody. The court appropriately weighed the Department’s efforts against the uncontested evidence of father’s limited engagement in the services that were offered while he was in the community. See People in Interest of A.V., 2012 COA 210, ¶ 12 (the court may consider a parent’s unwillingness to participate in treatment in determining whether a department made reasonable efforts). And the court found that the Department otherwise provided reasonable efforts by making appropriate referrals, working with father’s established providers through parole, and utilizing family time providers located close to his residence. The record supports these broader reasonable efforts findings, which father does not challenge.
¶ 15 Father also contends that the Department failed to make reasonable efforts because it did not pay for his mental health and substance use treatment during a two-month gap in his Medicaid coverage. But father did not ask the juvenile court to find that declining to pay for his treatment amounted to a lack of reasonable efforts, and we have no findings to review on this matter. We
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therefore will not address it now. See People in Interest of T.E.R., 2013 COA 73, ¶ 30 (concluding that issues not raised in the juvenile court will generally not be considered on appeal).
¶ 16 In sum, we conclude that the juvenile court did not err by finding that the Department made reasonable efforts to rehabilitate father. Furthermore, we note again that whether the Department made reasonable efforts to facilitate family time was one of many factors the court was required to assess to determine whether father had reasonably complied with the treatment plan and become a fit parent. As the GAL points out, father does not challenge any of the other grounds for the court’s findings that he was unfit and unlikely to become fit within a reasonable time or that he failed to comply with his treatment plan. Consequently, any error by the Department in failing to make reasonable efforts was harmless under the circumstances, and we see no basis to reverse the court’s decision. See B.B. v. People, 785 P.2d 132, 141 (Colo. 1990) (concluding that harmless error analysis applies to a district court’s termination decision); People in Interest of E.S., 2021 COA 79, ¶ 27 (recognizing that a court’s erroneous failure to allow a parent to have visitation time could be harmless in light of the
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parent’s noncompliance with other parts of the treatment plan); see also C.A.R. 35(c) (“The appellate court may disregard any error or defect not affecting the substantial rights of the parties.”); People in Interest of R.J., 2019 COA 109, ¶ 22 (noting that an error affects a substantial right only if it can be said with fair assurance that it substantially influenced the outcome of the case or impaired the basic fairness of the trial itself).
III. Ineffective Assistance of Counsel
¶ 17 Father next contends that his counsel provided ineffective assistance because she (1) did not subpoena his parole officer or relevant parole records and (2) failed to properly investigate his peer and family support specialist before calling her to testify and allegations that he relapsed (drank alcohol) on the third day of the termination hearing. We conclude that father has not alleged sufficient facts to warrant further consideration of this claim.
A. Relevant Law
¶ 18 A parent has a statutory right to the effective assistance of counsel in dependency or neglect proceedings. §§ 19-1-105(2), 19- 3-202(1), C.R.S. 2026; A.R. v. D.R., 2020 CO 10, ¶ 47. A parent may raise an ineffective assistance claim for the first time on
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appeal. People in Interest of C.H., 166 P.3d 288, 291 (Colo. App. 2007).
¶ 19 To prevail on a claim of ineffective assistance of counsel, a parent must show that (1) counsel’s performance was “outside the wide range of professionally competent assistance”; and (2) “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 690, 694 (1984); see A.R., ¶¶ 48, 60 (the Strickland standard applies to claims of ineffective assistance of counsel in dependency or neglect proceedings). “If the parent fails to establish either prong of this test, the claim fails.” People in Interest of C.B., 2019 COA 168, ¶ 26.
¶ 20 Applying this standard, we will remand a case for further factual findings only if the parent’s allegations are “sufficiently specific to constitute a prima facie showing of ineffective assistance of counsel.” A.R., ¶ 63. If the allegations lack sufficient specificity or do not meet this standard, we may summarily deny the claim. Id.
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B. Parole Compliance
¶ 21 We first consider father’s claims that his counsel should have requested his records from the DOC and subpoenaed his parole officer. At the beginning of the termination hearing, father’s counsel made a record that she directed her agent to serve a subpoena to father’s parole officer, believed her agent successfully enacted service, and was seeking the affidavit of service from her agent. But father’s parole officer did not appear and, although also disclosed by the Department, was not called as a witness by any party. It is undisputed that father’s counsel did not request his DOC records.
¶ 22 We need not decide, however, whether trial counsel’s representation in these respects fell below an objective standard of reasonableness because father fails to allege facts that, if proved, would demonstrate prejudice. See C.B., ¶ 26. Father claims that testimony from his parole officer, the DOC records, or both, was necessary to demonstrate his compliance with parole, including a history of providing clean urinalysis testing. But any such evidence would have been cumulative; the caseworker offered uncontroverted
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evidence that father complied with the terms of his parole, including requirements for regular urinalysis.
C. Allegations of Intoxication
¶ 23 Next, father claims that he received ineffective assistance of counsel related to allegations that he was intoxicated on the third day of the hearing.
1. Additional Background
¶ 24 Partway through the third day of the hearing, father — who appeared virtually — began interrupting the proceedings. The Department observed that father was “markedly different today than he has been over the last two days of testimony” and expressed concern that father may be intoxicated. All parties expressed concern about proceeding without father’s meaningful participation and requested a continuance. The court agreed that “there’s been just a very different interaction today” and characterized father’s participation after the lunch break as “kind of almost incessant interruptions.” The court found that father’s “interactions with the court were very slurred, very jumbled, very hard to understand, [and] somewhat incoherent.” The court
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continued the matter to the next day and ordered father to appear in person.
¶ 25 The next day, father did not appear in person as ordered. Nevertheless, the juvenile court encouraged father’s virtual participation, cautioning that they would need to separately address virtual testimony if father wanted to appear as a witness. Father participated virtually, although he interrupted the proceeding multiple times and logged out for an extended period of time. On the same day, his peer and family support specialist testified that she knew father had consumed alcohol the prior day.
2. Analysis
¶ 26 On this matter, father contends that “if [his counsel] had spoken to him,” he would have refuted allegations that he was intoxicated in court, leading to his testimony to that effect. But the record is clear that his counsel did speak with father. Father does not allege that he told his counsel that (1) he had not consumed alcohol on the day in question, (2) he had not disclosed such drinking to the peer and family support specialist, or (3) he wished to testify to this effect. Absent such allegations, we cannot fault his counsel’s decision not to call father to give such testimony. See
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People v. Rodriguez, 914 P.2d 230, 295-96 (Colo. 1996) (“Trial counsel’s alleged failure to investigate or present mitigating evidence does not constitute ineffective assistance ‘when the essential and foundational information required to trigger such an investigation is withheld from the defendant’s attorney by the defendant himself.’”) (citation omitted); see also Dooley v. Petsock, 816 F.2d 885, 890-91 (3d Cir. 1987) (holding that “trial counsel cannot be ineffective for failing to raise claims as to which his client has neglected to supply the essential underlying facts . . . clairvoyance is not required of effective trial counsel”).
¶ 27 Moreover, the record is clear that father’s decision not to appear in court (contrary to the court’s order) presented barriers to his ability to testify. Thus, to the extent father asserts that counsel’s decision not to call him as a witness fell outside the wide range of professionally competent assistance, the record does not support such an assertion. This is especially true given that father does not allege that he expressed a desire to testify, much less that his counsel prevented him from doing so.
¶ 28 Relatedly, father asserts that his counsel failed to adequately investigate the peer and family specialist before she testified on his
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behalf. But the record belies this claim. The peer and family specialist testified that she began communicating with counsel after the termination motion was filed. Presumably based on those conversations, counsel submitted a disclosure of the peer and family specialist’s expected testimony and elicited that testimony during direct examination. Nonetheless, father contends that, had counsel more thoroughly investigated the peer and family specialist, counsel would have known that the witness was going to testify on cross-examination that she “kn[ew] he did drink, unfortunately, yesterday.” In so doing, father appears to contend that counsel’s performance was unprofessionally deficient because counsel did not investigate the peer and family support specialist’s anticipated testimony in the hours before the testimony in addition to the investigation done before trial.
¶ 29 In any event, father fails to demonstrate the necessary prejudice stemming from either the peer and family support specialist’s testimony or the lack of his own testimony related to sobriety. Although father claims that the “juvenile court relied heavily on” the peer and family support specialist’s testimony, the record demonstrates otherwise. Instead, the court made numerous
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observations and findings about father’s behavior before the peer and family support specialist’s testimony. In its termination judgment, the court found that it “has to look at the behavior throughout the course of this hearing” in the light of sobriety being a major concern throughout the dependency or neglect action. The court found it was “clear to the court, after yesterday’s conversations and then confirmed today as well, that [father] was intoxicated yesterday.” Father urges us to read the “confirmation” as the testimony from the peer and family support specialist. But even if we do so, we cannot say that the court relied heavily on that testimony. Instead, the court made clear that it was relying primarily on its own observations of father, finding that it had “seen over the course of the last couple of days continued concerns in regard to sobriety.”
¶ 30 Therefore, we summarily deny father’s ineffective assistance claim.
IV. Disposition
¶ 31 The judgment is affirmed.
JUDGE DUNN and JUDGE SCHUTZ concur.