25CA1992 Peo in Interest of VD 05-07-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA1992 Arapahoe County District Court No. 23JV81 Honorable Bonnie McLean, Judge
The People of the State of Colorado,
Appellee,
In the Interest of V.D., a Child,
and Concerning T.L. and W.D.,
Appellants.
JUDGMENT AFFIRMED
Division A Opinion by JUDGE BERNARD* Román, C.J., and Ashby*, J., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 7, 2026
Ron Carl, County Attorney, Kiley Schaumleffel, Assistant County Attorney, Aurora, Colorado for Appellee
Sheena Knight, Guardian Ad Litem
Andrew A. Gargano, Office of Respondent Parents’ Counsel, Denver, Colorado for Appellant T.L.
Harald Van Gaasbeek, Office of Respondent Parents’ Counsel, Fort Collins, Colorado for Appellant W.D.
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 This is a dependency and neglect case. A mother, T.L., and a
father, W.D., appeal the judgment terminating their parent-child
legal relationships with the child, V.D.. We affirm.
I. Background
¶2 After receiving a referral stating the child had been exposed to
controlled substances before it was born, a caseworker spoke with
hospital personnel. They said mother and father tried to deny the
child necessary medical care and they posed a “flight risk.”
¶3 Because mother and father lived in Arapahoe County, the
Arapahoe County Department of Human Services filed a petition in
dependency or neglect. The juvenile court, at the department’s
request, temporarily placed the child in the department’s custody
for placement with a foster family.
¶4 The court adjudicated the child to be dependent and neglected
after mother’s admission and father’s failure to appear. It then
adopted treatment plans for both parents requiring them to (1)
cooperate with the department; (2) establish consistent legal
income; (3) obtain and maintain safe and adequate housing for the
child; (4) complete substance use evaluations and follow any
1 recommendations; (5) demonstrate a lifestyle free of illegal activity;
and (6) consistently attend family time.
¶5 Two years after the case began, the department asked the
court to terminate mother’s and father’s parental rights. The court
did so.
II. Colorado Indian Child Welfare Act
¶6 Mother asserts the court did not comply with the Colorado
Indian Child Welfare Act (CICWA), §§ 19-1.2-101 to -132, C.R.S.
2025. Specifically, she contends the court erred by terminating her
parental rights before the department had “exhaust[ed] efforts” to
enroll the child into the Cherokee Nation. We disagree.
A. Applicable Law and Standard of Review
¶7 The federal Indian Child Welfare Act (ICWA) establishes
“minimum Federal standards for the removal of Indian children
from their families and the placement of such children in foster or
adoptive homes which will reflect the unique values of Indian
culture.” 25 U.S.C. § 1902. For ICWA to apply in a dependency or
neglect case, it must involve an Indian child. See People in Interest
of A.G.-G., 899 P.2d 319, 321 (Colo. App. 1995). “Indian child” is
defined as “any unmarried person who is under age eighteen” and is
2 either (a) “a member of an Indian tribe,” or (b) “eligible for
membership in an Indian tribe” and “the biological child of a
member of an Indian tribe.” 25 U.S.C. § 1903(4); § 19-1.2-103(10),
C.R.S. 2025.
¶8 Before August 6, 2025, “neither federal nor state law impose[d]
on the Department any obligation to assist in enrolling eligible
children in a tribal nation.” People in Interest of K.C. v. K.C., 2021
CO 33, ¶ 39. But, effective August 6, 2025, the General Assembly
enacted CICWA to “ensure consistent and reliable compliance with
the federal ICWA for the protection of Indian children within
Colorado and to ensure that Indian children in this state are
protected.” § 19-1.2-102(2)(a)(II), C.R.S. 2025. CICWA not only
codified the ICWA into Colorado law, but it also “provide[s]
additional protections for Indian children.” § 19-1.2-102(3). As is
relevant to our analysis, section 19-1.2-109(1), C.R.S. 2025,
requires a department to “assist in enrolling an Indian child . . . in a
tribe with which the child is eligible for enrollment.”
¶9 Whether ICWA applies to a proceeding, and whether a court
correctly applied a legal standard to the particular facts of a case,
are questions of law we review de novo. People in Interest of M.V.,
3 2018 COA 163, ¶ 32, overruled on other grounds by People in
Interest of E.A.M. v. D.R.M., 2022 CO 42, ¶ 56 n.10; M.A.W. v. People
in Interest of A.L.W., 2020 CO 11, ¶ 31.
¶ 10 Statutory interpretation is also an issue of law we review de
novo. People in Interest of L.M., 2018 CO 34, ¶ 13. When
interpreting a statute, we consider the entire statute to give
“consistent, harmonious, and sensible effect to all of its parts.”
K.C., ¶ 21. We interpret words and phrases “in accordance with
their plain and ordinary meanings.” Id. And, if the language is
unambiguous, we do not resort to other rules of statutory
construction. Foiles v. Whittman, 233 P.3d 697, 699 (Colo. 2010).
B. Additional Background
¶ 11 At the shelter hearing in March 2023, father claimed he had
Cherokee heritage through his father’s side of his family. Two
months later, the department sent notice to the three federally
recognized Cherokee tribes. Two of the tribes replied the child was
not an Indian child and she was not registered or eligible to register
as a member of the tribe. But the Cherokee Nation responded,
although the child did not meet the definition of an Indian child as
4 of the time of the inquiry, she nonetheless qualified for enrollment
in the tribe.
C. Analysis
¶ 12 We conclude, for the following reasons, the court complied
with CICWA.
¶ 13 To begin, mother incorrectly asserts the department had a
duty to assist with enrolling the child in the Cherokee Nation.
Recall that, before August 6, 2025, departments had no duty to
assist with enrolling children as members of tribes. See K.C., ¶ 39.
¶ 14 Even after August 6, 2025, departments only had a duty to
assist in enrolling Indian children. See § 19-1.2-109(1). In that
regard, neither father nor the record suggests the child is an Indian
child as defined by CICWA. Neither parent asserted the child is a
member of any tribe. See § 19-1.2-103(10)(a). And, since neither
parent is a member of a tribe, even though the child is eligible for
membership with the Cherokee Nation, she could not be the
“biological child of a member of an Indian tribe.” See § 19-1.2-
103(10)(b).
¶ 15 The department therefore did not have a duty to assist with
the child’s tribal enrollment. Concluding otherwise would be
5 contrary to the plain language of the statute. See K.C., ¶ 21 (“[W]e
strive to avoid statutory constructions that either render words or
provisions superfluous or ineffective or that lead to absurd
results.”). (We recognize, in some cases, assisting a child to enroll
in a tribe may be “the best practice.” See id. at ¶ 53.)
¶ 16 Because the department argued CICWA required it to assist in
enrolling the child in a tribe, mother cites the invited error doctrine
to contend the department “must abide the consequences of [its]
acts.” People v. Rediger, 2018 CO 32, ¶ 34.
¶ 17 But mother’s reliance on the invited error doctrine is
misplaced. “The invited error doctrine applies when a party invites
or injects an error in the proceedings and later claims that the error
should be a basis for reversal on appeal.” People in Interest of S.N-
V., 300 P.3d 911, 916 (Colo. App. 2011). Contrary to mother’s
position, the department is not using its prior statement about
CICWA and enrolling children in tribes to justify reversing the
court’s order or to claim the court’s application of section 19-1.2-
109 was error. Rather, the department asks us to affirm the court’s
order.
6 ¶ 18 Even assuming, without deciding, the department was
required to assist with enrolling the child in the tribe, the court
concluded, with support in the record, the department made efforts
to enroll the child in the Cherokee Nation:
• The caseworker called the Cherokee Nation several
times but did not reach anyone.
• The caseworker tried to complete an enrollment
application, but she did not have the paternal great-
grandfather’s death certificate, which was necessary to
submit the application.
• The caseworker requested the death certificate from
Oklahoma six days after CICWA took effect. (Mother’s
submission that the caseworker asked the tribe rather
than the State for the death certificate is contradicted
by the record.)
• Once she received the death certificate, she planned to
contact the Cherokee Nation to help her submit the
enrollment application.
¶ 19 Mother asserts the court erred by (1) finding the department
complied with the statute when it had not “exhaust[ed]” efforts to
7 enroll the child or proceed with diligence and care; and (2)
terminating her parental rights before the child was enrolled in the
Cherokee Nation. But the statute does not require a department to
exhaust all efforts or succeed in enrolling a child before a court may
terminate parental rights. See § 19-1.2-109(1) (requiring a
department to “assist in enrolling an Indian child”) (emphasis
added); § 19-1.2-125, C.R.S. 2025 (identifying the findings a
juvenile court must make under CICWA before terminating parental
rights, which does not include enrollment findings).
¶ 20 The General Assembly could have required a department to
exhaust all efforts to enroll an Indian child in a tribe or conditioned
termination on a child’s enrollment, but it did not. See Springer v.
City & County of Denver, 13 P.3d 794, 804 (Colo. 2000) (“Where the
legislature could have chosen to restrict the application of a statute,
but chose not to, we do not read additional restrictions into the
statute.”). It is also unclear what additional efforts mother expected
the department to make to enroll the child before receiving the
required death certificate.
8 III. Continuance
¶ 21 Mother contends the court erred when it denied her request to
continue the termination hearing. We disagree.
¶ 22 At a minimum, a parent must be given adequate notice of the
proceedings and an opportunity to protect her rights. People in
Interest of J.A.S., 160 P.3d 257, 262 (Colo. App. 2007). “[I]n
assessing fairness, ‘the trial court [must] give primary consideration
to the child’s physical, mental, and emotional needs.’” People in
Interest of L.S., 2023 CO 3M, ¶ 30 (quoting A.M., ¶ 20). A parent
must establish “actual prejudice resulting from the juvenile court’s
denial of [a] requested continuance” to succeed on a due process
claim. People in Interest of E.B., 2022 CO 55, ¶ 22.
¶ 23 The Colorado Children’s Code directs courts to “proceed with
all possible speed to a legal determination that will serve the best
interests of the child.” § 19-1-102(1)(c), C.R.S. 2025. When ruling
on a motion to continue, a juvenile court “should balance the need
for orderly and expeditious administration of justice against the
facts underlying the motion and the child’s need for permanency.”
People in Interest of R.J.B., 2021 COA 4, ¶ 11.
9 ¶ 24 In an expedited permanency planning case, such as this one,
in which a child is under six years of age when the petition is filed,
a juvenile court cannot grant a continuance unless the moving
party establishes good cause for the continuance and the
continuance will serve the child’s best interests. § 19-3-104, C.R.S.
2025. If a court grants a continuance under this section, it must
reschedule the case within thirty days. Id.
¶ 25 We review the denial of a motion to continue a hearing for an
abuse of discretion. R.J.B., ¶ 13. A court abuses its discretion
“when its decision is manifestly arbitrary, unreasonable, or unfair,
or when it misapplies or misconstrues the law.” E.B., ¶ 14. We
review the underlying procedural due process claims de novo.
R.J.B., ¶ 26.
B. Analysis
¶ 26 The record in this case shows that mother was arrested in
Texas about six months before the termination hearing. She was
transported to Colorado, where she was imprisoned. She was
paroled on the morning of the termination hearing. Her attorney
asked the court to continue the termination hearing so mother
10 could work on the conditions of her parole and reunify with the
child.
¶ 27 The court denied the request. The court said there was not
good cause to continue the hearing, noting this case had been open
for two-and-a-half years.
¶ 28 We conclude mother has not shown the court abused its
discretion. See id. at ¶ 13. The court properly weighed the need for
orderly and expeditious administration of justice against the
reasons underlying the motion. See id. at ¶ 11.
¶ 29 Mother did not explain why a continuance was in the child’s
best interests. See § 19-3-104. The case had been open for two-
and-a-half years, mother had made minimal progress on her
treatment plan during that time, and the child had substantial
needs. Since the court could only continue the hearing for thirty
days, and since nothing in the record suggests, even if mother
immediately began to comply with all aspects of her treatment plan,
she could become fit within that time, we conclude the record
supports the court’s ruling. See id.
¶ 30 To the extent mother asserts her due process rights were
violated, we disagree. Generally, “due process requires the state to
11 provide fundamentally fair procedures to a parent facing
termination,” which include (1) notice of the hearing; (2) advice of
counsel; and (3) the opportunity to be heard and defend. R.J.B.,
¶ 27. In this case, the record shows mother received these three
things.
¶ 31 Also, mother does not tell us what other evidence she would
have presented had the court continued the hearing. We therefore
“are unable to discern that the [hearing was] affected in any
appreciable way” by the denial of her request for a continuance.
People in Interest of C.G., 885 P.2d 355, 358 (Colo. App. 1994).
Because mother has not shown she was prejudiced by the court’s
decision to deny her request for a continuance, we conclude she
has not established a violation of her due process rights. E.B., ¶
22.
IV. Issues Concerning the Court’s Decision to Terminate Mother’s and Father’s Parental Rights
A. General Principles: Termination Criteria and Standard of Review
¶ 32 A juvenile court may terminate parental rights if it finds, by
clear and convincing evidence, (1) the child was adjudicated
dependent or neglected; (2) the parent has not complied with an
12 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 in a reasonable time. § 19-3-
604(1)(c), C.R.S. 2025.
¶ 33 Whether the juvenile court properly terminated parental rights
is a mixed question of fact and law. A.M., ¶ 15; see also People in
Interest of A.S.L., 2022 COA 146, ¶ 8 (applying the same standard of
review to whether a department of human services satisfied its
obligation to make reasonable efforts). We review the court’s factual
findings for clear error, but we review de novo its legal conclusion
based on those facts. People in Interest of S.R.N.J-S., 2020 COA 12,
¶ 10.
B. Reasonable Efforts
¶ 34 Mother asserts the juvenile court erred by finding the
department made reasonable efforts to rehabilitate her. We
disagree.
1. Applicable Law
¶ 35 Before a juvenile court may terminate parental rights under
section 19-3-604(1)(c), the department must make reasonable
efforts to rehabilitate the parent and reunite the family. §§ 19-1-
13 103(114), 19-3-100.5(1), 19-3-208, 19-3-604(2)(h), C.R.S. 2025.
Reasonable efforts means the “exercise of diligence and care” for
children who are in out-of-home placement. § 19-3-103(114).
¶ 36 Appropriate services provided in accordance with section 19-3-
208 satisfy the reasonable efforts standard. § 19-1-103(114).
Among the services required under section 19-3-208 are screenings,
assessments, and individual case plans for the provision of services;
home-based family and crisis counseling; information and referral
services to available public and private assistance resources; family
time services; and placement services. § 19-3-208(2)(b).
¶ 37 In assessing a department’s efforts, the juvenile court should
consider whether the services provided were appropriate to support
the parent’s treatment plan, S.N-V., 300 P.3d at 915, by
“considering the totality of the circumstances and accounting for all
services and resources provided to a parent to ensure the
completion of the entire treatment plan,” People in Interest of
My.K.M. v. V.K.L., 2022 CO 35, ¶ 33. But the parent is ultimately
responsible for using those services to comply with their treatment
plan. People in Interest of J.C.R., 259 P.3d 1279, 1285 (Colo. App.
2011).
14 2. Preservation
¶ 38 The department and the child’s guardian ad litem contend
mother did not adequately preserve her reasonable efforts challenge
and, therefore, we should not consider it. But we need not decide
this issue because, even if we assume mother preserved her claim,
we conclude the court did not err when it decided the department
made reasonable efforts to rehabilitate her and those efforts were
ultimately unsuccessful. See L & R Expl. Venture v. Grynberg, 271
P.3d 530, 536 (Colo. App. 2011) (declining to resolve an issue where
the outcome would not change).
3. Analysis
¶ 39 The court found mother had numerous opportunities to
engage in treatment, work with the department, and comply with
her treatment plan, but she did not ameliorate the concerns initially
leading to the department’s involvement. We conclude the record
supports these findings.
¶ 40 The caseworker testified mother had inpatient substance
abuse treatment available to her at times throughout the case, but
she did not engage in the treatment even though a coordinator
offered to take her to the treatment facility. See J.C.R., 259 P.3d at
15 1285. The department also gave mother bus passes and family
time throughout the case.
¶ 41 Even so, mother asserts the department’s efforts were
insufficient because it did not assist her with housing or provide
her with referrals for service providers during her time in Texas.
When the case began, the record shows mother was working with
different resources to get a housing voucher. A few months later,
the caseworker tried to meet with mother to assess her housing
needs but could not reach her.
¶ 42 A short time after that, mother was arrested, and she was
incarcerated for about three months. Upon her release, she lived
with her sister until she left for Texas, where she reported having
more support while living with a friend. About ten months later,
mother was rearrested and remained incarcerated until the
termination hearing.
¶ 43 In other words, for most of the case mother either had access
to housing resources, lived with family or friends, or was
incarcerated. See § 19-3-208(2)(b) (requiring referrals to public and
private assistance resources only if they are determined to be
necessary and appropriate). Additionally, after mother went to
16 Texas, the record shows she was provided with the names of
treatment providers in her area. She said she found a treatment
facility.
C. Fit Within a Reasonable Time
¶ 44 Mother asserts the court erred when it found she could not
become a fit parent within a reasonable time because, in her view,
she made substantial progress in her treatment plan objectives. We
disagree, and we conclude, for the following reasons, the court did
not err when it decided mother could not become a fit parent within
a reasonable time.
¶ 45 An unfit parent is one whose conduct or condition renders her
unable to give a child reasonable parental care. People in Interest of
D.P., 160 P.3d 351, 353 (Colo. App. 2007). At a minimum,
reasonable parental care requires the parent to provide nurturing
and safe parenting 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).
¶ 46 In determining whether a parent’s conduct or condition is
likely to change within a reasonable time, “the court may consider
17 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. What constitutes a reasonable time is fact specific
and must be determined by considering the physical, mental, and
emotional conditions and needs of each child. Id. at ¶ 25. A
“reasonable time” is not an indefinite time. Id. When, as here, the
action is subject to the statutory expedited permanency planning
provisions, the court must consider the child’s need to be placed in
a permanent home as expeditiously as possible. §§ 19-1-102(1.6),
19-1-123, C.R.S. 2025.
2. Analysis
¶ 47 The court decided mother was unfit, she had only minimally
complied with her treatment plan, she exhibited the same problems
addressed in her treatment plan without adequate improvement,
and she was unlikely to become fit within a reasonable time.
¶ 48 To buttress these findings, the court noted, during the two-
and-one-half years the case had been pending, mother had not
secured stable housing, had not complied with substance abuse
treatment, and had not consistently attended family time meetings.
18 Then, focusing on the child, the court considered her special needs,
determining she needed immediate stability and permanency.
¶ 49 The record supports these findings even though, as mother
points out, she engaged in substance use treatment and completed
classes regarding substance abuse, anger management, life skills,
and parenting during her incarceration. According to the
caseworker:
• The department was still concerned about mother’s
substance abuse because she had not shown sobriety
outside of a controlled environment.
• Mother had not shown she could obtain and maintain
safe and appropriate housing.
• Despite the treatment mother had received, she still
demonstrated the problems that originally led to the
treatment plan.
• Mother was unlikely to become a fit parent within a
reasonable time.
¶ 50 The caseworker added the child had substantial needs, and
she needed to be in a permanent and stable situation as soon as
possible. The caseworker therefore did not think it was in the
19 child’s best interest to give mother more time to show she could
comply with the treatment plan. See S.Z.S., ¶ 25.
¶ 51 Mother maintains that she “made substantial progress and
had a clear path to success set before her that would allow her to
become stable in two to six months.” But it was for the court to
consider and weigh the evidence and resolve any evidentiary
conflicts. See People in Interest of A.J.L., 243 P.3d 244, 250 (Colo.
2010) (“[I]t is important to defer to the [juvenile] court, particularly
when it hears contradictory testimony on material issues . . . .”).
Mother’s contention essentially asks us to reweigh the evidence or
to substitute our judgment for the court’s, neither of which we can
do. See S.Z.S., ¶ 29.
D. Less Drastic Alternatives
¶ 52 Mother and father both contend the court erred by finding
there were no less drastic alternatives to termination. We are not
persuaded. We conclude, rather, the record supports the court’s
finding there was no less drastic alternative in the child’s best
interests, so we will not disturb that finding.
20 1. Applicable Law and Standard of Review
¶ 53 Before terminating parental rights under section 19-3-
604(1)(c), the juvenile court must consider and eliminate less
drastic alternatives. People in Interest of M.M., 726 P.2d 1108, 1122
(Colo. 1986). In considering less drastic alternatives, a court must
give primary consideration to the child’s physical, mental, and
emotional conditions and needs. § 19-3-604(3); People in Interest of
D.B-J., 89 P.3d 530, 531 (Colo. App. 2004). A court may also
consider, among other things, (1) whether an ongoing relationship
with a parent would be beneficial to the child, People in Interest of
A.R., 2012 COA 195M, ¶ 38; (2) whether the child is bonded with
the parent, see People in Interest of N.D.V., 224 P.3d 410, 421 (Colo.
App. 2009); and (3) whether an allocation of parental
responsibilities (APR) provides adequate permanence and stability
for the child, People in Interest of T.E.M., 124 P.3d 905, 910 (Colo.
App. 2005).
¶ 54 For a less drastic alternative to be viable, it must do more than
adequately meet a child’s needs; rather, it must be in the child’s
best interests. A.M., ¶ 27. If, therefore, the juvenile court considers
a less drastic alternative but instead finds termination is in the
21 child’s best interests, it must reject the less drastic alternative and
order termination. Id. at ¶ 32.
¶ 55 “We review a juvenile court’s less drastic alternatives findings
for clear error.” People in Interest of E.W., 2022 COA 12, ¶ 34. So,
when a juvenile court considers less drastic alternatives but instead
finds termination is in the child’s best interests, we are bound to
affirm the decision if the record supports the court’s findings.
People in Interest of B.H., 2021 CO 39, ¶ 80.
¶ 56 The court found termination was in the child’s best interests
and there was no less drastic alternative that would meet the child’s
physical, emotional, and mental health needs. While making these
findings, the court focused on (1) the child’s “very serious” and
“significant” mental, physical, and emotional needs; (2) the child’s
age; (3) the length of the case and the child’s out-of-home
placement; and (4) the child’s overall need for permanency and
stability.
¶ 57 The record supports these findings. In addition to the child’s
special needs, the caseworker described the child’s need for
consistency, agreeing “any little change” adversely impacted her.
22 Given her special needs, the pressing need for permanency and
stability, and mother’s tendency to push boundaries, the
caseworker thought termination and adoption was in the child’s
best interests. See J.C.R., 259 P.3d at 1285 (“Permanent placement
is not a viable less drastic alternative to termination if the children
need a stable, permanent home that can only be assured by
adoption.”).
¶ 58 Mother and father assert the department did not make
“ongoing and diligent efforts to explore relative placement options.”
Specifically, they assert the department did not explore maternal
great-grandfather as a placement option beyond “a single text
message.” Mother adds the department did not (1) follow-up with
maternal uncle after the denial of the Interstate Compact on the
Placement of Children study of his home; (2) explore mother’s sister
as a placement option after January 2024; or (3) try to contact
paternal grandfather or paternal great-grandmother after November
2024. (In support of these contentions, mother and father rely on
evidence no one introduced into the record during the termination
hearing. We do not consider evidence that “was not presented to
the trial court.” In re Edilson, 637 P.2d 362, 364 (Colo. 1981).)
23 ¶ 59 The department is obligated to investigate a “reasonable
number” of placement options. D.B-J., 89 P.3d at 532. In this case,
the caseworker (1) followed-up with maternal uncle after the home
study, and he responded that he was no longer willing to be
considered as a placement option; (2) requested necessary
documentation to start the home study process for maternal great-
grandfather, who did not respond; (3) spoke with paternal
grandmother and maternal great-uncle, who were not able to be
placement options; (4) spoke to maternal aunt in February 2024,
who said she “needed to take a step back”; and (5) left a message for
paternal grandfather in November 2024, who did not respond.
¶ 60 Neither mother nor father direct us to any authority requiring
the department to repeatedly contact relatives who have already
declined placement. Rather, mother relies on section 19-3-
507(1)(d), C.R.S. 2025, which prohibits the court from denying
placement with a relative on the sole basis that the relative
previously declined consideration as a placement. But here, the
court did not deny an allocation of parental rights to a family
member who previously had withdrawn from placement
consideration. The court found, instead, there was no alternative to
24 termination, including an allocation of parental rights. See A.M.,
¶ 32. Even if the department had engaged in a more diligent search
for relatives, it would not change the court’s ultimate finding that
termination was the best option for the child. See People in Interest
of H.L.B., 2025 COA 86, ¶ 23 (“[W]hether a less drastic alternative is
available is a distinct consideration from a court’s later finding of
whether that alternative is in the child’s best interests.”).
¶ 61 Mother and father next submit the court erred by finding an
allocation of parental rights, in general, was not a viable less drastic
alternative. In support, they focus on mother’s positive visits with
the child, mother’s treatment plan progress, and testimony
indicating contact between the child and the parents was in her
best interests. Father adds the order lacked support because there
was “[n]o evidence” continued contact with him would “disrupt the
child’s stability and permanency.”
¶ 62 While it is true these are some of the factors the court may
weigh when determining if a less drastic alternative is appropriate,
see A.R., ¶ 38, no single factor is dispositive. Id. (noting the court
may consider “various factors”). And we cannot reweigh the
evidence or substitute our judgment for the court’s. S.Z.S., ¶ 29.
25 E. Ineffective Assistance of Counsel
¶ 63 Father contends he received ineffective assistance of counsel
because his counsel did not (1) request an amended treatment plan
following his incarceration; and (2) advocate for the department to
make reasonable efforts during his incarceration to render him a fit
parent. We disagree.
¶ 64 A parent has a statutory right to effective counsel in
dependency and neglect proceedings. §§ 19-1-105(2), 19-3-202(1),
C.R.S. 2025; A.R. v. D.R., 2020 CO 10, ¶ 47. A parent can raise a
claim of ineffective assistance of counsel in a dependency and
neglect proceeding for the first time on appeal. People in Interest of
C.H., 166 P.3d 288, 291 (Colo. App. 2007).
¶ 65 We employ the same Strickland test that is used in criminal
cases to evaluate ineffective assistance of counsel claims in
dependency and neglect proceedings. A.R. v. D.R., ¶ 60 (citing
Strickland v. Washington, 466 U.S. 668 (1984)). Under this test, to
establish a claim, the parent must show (1) counsel’s performance
was outside the wide range of professionally competent assistance,
and (2) the parent was prejudiced by counsel’s deficient
26 performance — in other words, there is a reasonable probability,
but for counsel’s unprofessional errors, the outcome of the
proceeding would have been different. Id. at ¶¶ 48, 60. “If the
parent fails to establish either prong of this test, the claim fails.”
People in Interest of C.B., 2019 COA 168, ¶ 26.
¶ 66 If the parent’s allegations lack sufficient specificity, we may
summarily deny the ineffective assistance claim. See C.H., 166
P.3d at 291. In other words, a remand for an evidentiary hearing is
only required if the parent’s allegations are sufficiently specific and
compelling to constitute a prima facie showing of ineffective
assistance of counsel.
2. Additional Background
¶ 67 During the shelter hearing in March 2023, the court appointed
counsel for father. Six months later, father’s counsel moved to
withdraw. Considering father’s lack of involvement, the court
granted counsel’s motion. In January 2024, father was arrested
and incarcerated until July 2024.
¶ 68 When father appeared at a permanency planning hearing in
April 2024, the court reappointed his former counsel and directed
father to communicate with his counsel. Six months later, father’s
27 counsel again requested to withdraw. The court granted this
request.
¶ 69 After father’s reincarceration in January 2025, the court again
reappointed father’s former counsel, and she remained his counsel
through the termination hearing. Father was transferred to a
different incarceration facility in July 2025, and he remained
incarcerated through the termination hearing.
3. Appropriate Treatment Plan
¶ 70 Father asserts he received ineffective assistance from counsel
because she did not request an amended treatment plan following
his incarceration despite his inability to complete some of his
treatment plan objectives — such as obtaining legal income,
maintaining stable housing, and participating in substance use
disorder treatment — while incarcerated. We need not decide
whether counsel’s failure to make such a request amounted to
deficient performance, because, even if it did, father has not shown,
but for this failure, the result of the proceeding would have been
different. See A.R. v. D.R., ¶ 60.
¶ 71 Father asserts that “[w]ith proper advocacy from his attorney,
[he] would have been provided an appropriate treatment plan based
28 on his incarceration, would have received family time with his
daughter, would have obtained relevant services and treatment to
become a fit parent while incarcerated, and . . . was likely to
become fit.” But he does not explain how he could have addressed
the safety concerns identified in this case, particularly the
substance use concerns, without completing the action steps listed
in his treatment plan. See People in Interest of K.B., 2016 COA 21,
¶ 14 (“In determining whether a treatment plan is appropriate, the
court must consider whether the plan’s objectives adequately
address the safety concerns identified during the assessment of the
family.”). Indeed, he does not explain how a treatment plan without
legal income, stable housing, and substance use treatment, would
have rendered him a fit parent in a reasonable time. Nor does he
explain why, even if his incarceration served as a barrier for a
portion of the case, his treatment plan was overall inappropriate
considering he was out of custody for about half of the case.
¶ 72 Based on these factors, father’s claim — with an appropriate
treatment plan he was likely to become fit — is too speculative to
establish prejudice. See People v. Sherman, 172 P.3d 911, 914
29 (Colo. App. 2006) (holding a speculative claim does not satisfy the
prejudice prong of Strickland).
4. Reasonable Efforts
¶ 73 Father submits he received ineffective assistance because his
counsel did not ask the court to order the department to make
reasonable efforts while he was incarcerated to render him a fit
parent. He specifically points to departmental efforts concerning
family time, services, and attendance at family engagement
meetings. But, even if we assume, without deciding, counsel’s
performance fell below the range of professionally competent
assistance, father has not shown he was prejudiced by the putative
error.
¶ 74 For example, father asserts he “never received the family time
to which he was entitled” during his incarceration, which “led to the
juvenile court’s finding that [he] was inconsistent in his visitation
and that there was a lack of attachment between [father] and the
[child].” But, in finding father’s family time participation “very
inconsistent,” the court focused mainly on “the time that he was not
in custody.” Indeed, the caseworker testified the department
30 continued to offer family time before father was incarcerated, but he
had not seen the child for several months.
¶ 75 And, during father’s incarceration, the caseworker reported
the department worked to facilitate family time, but the facilities
reported several barriers, including technology and staff limitations.
Yet, despite these barriers, the department set up virtual family
time, but father only attended two of the visits. After his transfer to
another facility, approximately two months before the termination
hearing, he requested the visits be put on hold.
¶ 76 Father also contends his counsel did not investigate the
services and treatment available to him during his incarceration,
which, father continues, “led to the juvenile court finding . . . that
[father] did not reasonably comply with his treatment plan, and that
[he] provided no evidence of any substance use disorder evaluation
or treatment.” But this contention overlooks (1) father’s own
statements to the caseworker reflecting his knowledge of services
available to him during his incarceration; and (2) the approximately
fifteen months when he was out of custody and did not complete a
substance abuse evaluation or treatment.
31 ¶ 77 Finally, father submits, without participating in family
engagement meetings, he “could not adequately participate in the
case, achieve the requirements of his treatment plan, []or
understand the child’s medical and emotional needs.” Aside from
the family engagement meetings, however, the caseworker
continued to meet with father during his incarceration, and they
discussed, among other things, father’s options, group and class
attendance during his incarceration, and the child’s progress.
¶ 78 In short, father’s contentions do not specifically demonstrate
prejudice, and, thus, he has not made a prima facie showing of
ineffective assistance of counsel. A.R. v. D.R., ¶ 63 (“If the parent’s
allegations lack sufficient specificity, then the ineffective assistance
of counsel claim may be summarily denied.”). Consequently,
because father has not satisfied the second prong of the Strickland
test, his claims must fail. See C.B., ¶ 26.
¶ 79 The judgment is affirmed.
CHIEF JUDGE ROMÁN and JUDGE ASHBY concur.