25CA0216 Peo in Interest of WMS 08-14-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0216 Montrose County District Court No. 23JV30006 Honorable D. Cory Jackson, Judge
The People of the State of Colorado,
Appellee,
In the Interest of W.M.S., a Child,
and Concerning W.R.S. and J.N.R.,
Appellants.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE TOW Yun and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 14, 2025
Julie R. Andress, County Attorney, Montrose, Colorado, for Appellee
Jenna L. Mazzucca, Guardian Ad Litem
Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant W.R.S.
James West, Office of Respondent Parents’ Counsel, Longmont, Colorado, for Appellant J.N.R. ¶1 In this dependency and neglect proceeding, J.N.R. (mother)
and W.R.S. (father) appeal the judgment terminating their parent-
child legal relationships with W.M.S. (the child). We affirm.
I. Background
¶2 The Montrose County Department of Human Services filed a
petition in dependency and neglect regarding the child due to
concerns about the parents’ substance use and domestic violence.
The juvenile court adjudicated the child dependent and neglected
and adopted treatment plans for the parents. Father moved to
Ketchikan, Alaska, before the case opened and remained there for
the duration of the case.
¶3 The child and father are enrolled members of the Ketchikan
Indian Community (the KIC), which intervened in this case. And
because the child is an “Indian child” as defined by 25 U.S.C.
§ 1903(4), these proceedings were subject to the Indian Child
Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963.
¶4 The child was placed with mother early in the case for a trial
home visit, while the Department remained his legal custodian.
Mother then took the child to Alaska without the Department’s
authorization. Approximately two weeks later, the child was
1 returned to Montrose and placed in foster care. Mother came back
to Colorado about three weeks after the child had returned. About
eight months later, the child was placed with his paternal great-
uncle in Texas.
¶5 Later, the Department moved for termination. Following a
three-day hearing held twenty months after the case opened, the
court terminated mother’s and father’s parental rights.
II. Mother’s Appeal
¶6 Mother’s sole contention is that the juvenile court lost
jurisdiction over the matter “when she left for Alaska,” and thus
lacked jurisdiction to terminate her parental rights. We disagree.
A. Legal Framework and Standard of Review
¶7 The Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA) addresses subject matter jurisdiction, which a party may
challenge for the first time on appeal. See People in Interest of B.H.,
2021 CO 39, ¶ 27. We review the juvenile court’s subject matter
jurisdiction de novo. People in Interest of S.A.G., 2021 CO 38, ¶ 21.
¶8 The UCCJEA sets out a comprehensive framework that
Colorado courts must use to determine whether they may exercise
jurisdiction in child custody matters. People in Interest of C.L.T.,
2 2017 COA 119, ¶ 16. And, significantly, “[t]he primary aim of the
UCCJEA is to prevent competing and conflicting custody orders by
courts in different jurisdictions that would put all parties at risk of
uncertainty and unilateral removals of children from or to various
jurisdictions.” People in Interest of M.M.V., 2020 COA 94, ¶ 17.
¶9 The UCCJEA offers courts two ways to exercise jurisdiction to
make an initial child-custody determination — temporary
emergency jurisdiction under section 14-13-204, C.R.S. 2024, and
non-emergency jurisdiction under section 14-13-201, C.R.S. 2024.
S.A.G., ¶¶ 24-26. A Colorado court may exercise non-emergency
jurisdiction to enter an initial child-custody determination if it
successfully navigates one of the four paths to jurisdiction from
section 14-13-201(1), including, as relevant here, home-state
jurisdiction. See S.A.G., ¶ 26.
¶ 10 A Colorado court has home-state jurisdiction if Colorado was
“the home state of the child on the date of the commencement of
the proceeding.” § 14-13-201(1)(a). “Home state” means “the state
in which a child lived with a parent or a person acting as a parent
for at least one hundred eighty-two consecutive days immediately
3 before the commencement of a child-custody proceeding.”
§ 14-13-102(7)(a), C.R.S. 2024.
B. Application
¶ 11 While the juvenile court did not make a finding that Colorado
was the child’s home state when the proceeding commenced, no
party disputes that Colorado was the child’s home state at the time
of the initial custody determination. Nor does the record reveal that
the child lived in any state other than Colorado or was subject to a
prior custody order in any other state before the proceeding started.
¶ 12 Mother asserts, without citation to the record, that the court’s
jurisdiction ceased under section 14-13-202(1)(b), C.R.S. 2024,
when the court “found that the child and parents no longer resided
in Colorado.” See C.A.R. 28(a)(7)(B) (argument section of appellant’s
brief must contain citations to the parts of the record on which
appellant relies). But the court made no such finding. Rather, the
court acknowledged mother’s self-report that she was in Alaska
with father and directed the Department to facilitate the child’s
return to Colorado.
¶ 13 Having clarified that, we address what remains of mother’s
argument — that her departure from Colorado divested the court of
4 jurisdiction. Mother acknowledges that her position is contrary to
the Colorado Supreme Court’s holding in R.W. v. People in Interest
of E.W., 2022 CO 51, but urges that we “revisit” this decision.
¶ 14 In R.W., the Colorado Supreme Court determined that “[a]
court that has obtained initial jurisdiction to adjudicate a child-
custody proceeding under the UCCJEA does not automatically lose
jurisdiction under section 14-13-202(b) by virtue of all parties
leaving the state.” R.W., ¶ 24. Rejecting the same argument
mother makes here, the Colorado Supreme Court explained that the
juvenile court “had properly acquired initial jurisdiction when the
proceeding commenced, and it retained exclusive, continuing
jurisdiction because no alternate state asserted a competing, valid
claim.” Id. at ¶ 21. We are bound by this decision. See Willhite v.
Rodriguez-Cera, 2012 CO 29, ¶ 9 (The Colorado Supreme Court is
“the final authority on questions of Colorado law.”); People v. Allen,
111 P.3d 518, 520 (Colo. App. 2004) (The Court of Appeals is
“bound by the decisions of the Colorado Supreme Court.”).
¶ 15 In sum, mother and the child’s mere brief absence from
Colorado — unauthorized by the child’s legal custodian — had no
impact on the juvenile court’s jurisdiction. See R.W., ¶ 24.
5 Accordingly, we reject mother’s argument that her and the child’s
departure from Colorado divested the court of jurisdiction.1
III. Father’s Appeal
¶ 16 Father first contends that the juvenile court erred by
concluding that the Department made active efforts to rehabilitate
him and prevent the breakup of his family. He next contends that
the Department failed to make active efforts to engage with possible
kin placements and, as a result, failed to present sufficient evidence
to show that termination was warranted “relative to a less drastic
alternative.” We address, and reject, each contention in turn.
A. Active Efforts
1. Legal Framework and Standard of Review
¶ 17 A juvenile court may terminate a parent’s parental rights if it
finds, by clear and convincing evidence, that (1) the child was
adjudicated dependent and neglected; (2) the parent has not
reasonably complied with an appropriate, court-approved treatment
plan or the plan has not been successful; (3) the parent is unfit;
1 We also reject mother’s contention that retaining the case in
Colorado somehow deprived her of her statutory right to counsel.
6 and (4) the parent’s conduct or condition is unlikely to change in a
reasonable time. § 19-3-604(1)(c), C.R.S. 2024.
¶ 18 In addition, ICWA requires that any party seeking termination
of parental rights to an Indian child must “satisfy the court that
active efforts have been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of the
Indian family and that these efforts have proved unsuccessful.”
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). A department must, at a minimum, “provide a
parent with the services necessary to achieve each objective of the
treatment plan” and “support the parents through the treatment
plan goals.” People in Interest of My.K.M. v. V.K.L., 2022 CO 35, ¶
32. The active efforts standard in ICWA cases is more demanding
than the reasonable efforts standard applied in non-ICWA cases.
Id. at ¶ 31.
¶ 19 Federal regulations include a non-exhaustive list of examples
illustrating active efforts, including identifying appropriate services
and “actively assisting the parents in obtaining such services”;
7 inviting tribal representatives to participate in providing support
and services to the family; contacting extended family members;
offering culturally appropriate family preservation strategies;
supporting regular family time; identifying community resources;
and monitoring progress in services. 25 C.F.R. § 23.2.
¶ 20 Because “there is no one-size-fits-all formula,” active efforts
“should be ‘tailored to the facts and circumstances of the case.’”
My.K.M., ¶ 32 (quoting 25 C.F.R. § 23.2). As a result, a department
has “discretion to prioritize certain services or resources to address
a family’s most pressing needs in a way that will assist the family’s
overall completion of the treatment plan.” Id. at ¶ 33. To that end,
“[c]ourts should 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. Likewise, a court should measure the
department’s efforts “holistically rather than in isolation with
respect to specific treatment plan objectives.” Id. at ¶ 35.
¶ 21 Whether a department satisfied ICWA’s active efforts
requirement presents a mixed question of fact and law. Id. at ¶ 20.
We review the juvenile court’s factual findings for clear error but
8 review de novo whether those factual findings satisfy ICWA’s active
efforts requirement. Id.
2. Application
¶ 22 The juvenile court determined, based on the totality of the
circumstances, that the “agencies . . . involved in this case took
affirmative, active, thorough and timely steps to assist the
respondents through the steps of the treatment plans, and therefore
made active efforts.” The court found that the Department’s efforts
went beyond mere referrals or encouragement but instead “included
coordination between child protective agencies in different states,
arranging services in different states, [and] providing supports for
transportation.” The court also relied on the expert testimony of the
KIC’s deputy tribal administrator, whom it designated as an ICWA
qualified expert witness (QEW), and found the QEW’s testimony was
“very persuasive” regarding the active efforts made by the
Department. See 25 U.S.C. § 1912(f) (requiring testimony of a QEW
before the court may enter an order terminating parental rights in
an ICWA case).
¶ 23 The record supports the court’s findings.
9 ¶ 24 Father’s treatment plan required, among other things, that he
engage in parenting education and address his mental health,
anger, and substance use. In consideration of father’s residence in
Alaska, his treatment plan allowed services to be provided by the
KIC. The record shows: (1) the Department coordinated with the
KIC to identify the available services for father; (2) the caseworker
located community providers; and (3) father could access all the
necessary services locally through tribal or other community
providers. See 25 C.F.R. § 23.2 (active efforts may include
identifying community resources).
¶ 25 However, the caseworker and the social worker from the KIC
struggled to reach father and had only minimal contact with him.
For instance, the caseworker noted that the “[s]uccessful contacts”
with father were limited to three to four calls during the
fourteen-month period she had worked on the case. The
caseworker and social worker therefore brainstormed “creative
solutions for engagement,” like “try[ing] to get [father] involved even
if he wasn’t wanting to talk to the Department.” See 25 C.F.R.
§ 23.2 (active efforts may include helping parents overcome barriers
to obtaining services). Without receiving verification from father
10 about his engagement in services, the caseworker reached out to
the social worker to see if he had seen any engagement. Ultimately,
father never verified his participation in any services or provided
any signed releases to the Department.
¶ 26 The QEW testified that father was “well aware of what need[ed]
to be done” on his treatment plan, but that in more than a year’s
time, he had not been able to get that completed. The QEW opined
that while father had been provided the opportunity to complete the
services offered, he was not successful in that endeavor. The QEW
also opined that the Department had made active efforts. See
My.K.M., ¶¶ 37-45 (affirming the juvenile court’s decision that the
department made active efforts and relying, in part, on the QEW’s
opinion that the department had made active efforts, which was
heavily credited by the juvenile court).
¶ 27 Still, father asserts that the Department did not do enough to
assist him with accessing services, specifically suggesting that it did
not accommodate his work schedule or help him overcome barriers
to treatment. (Father testified that he worked in the concrete
industry 365 days per year, with days beginning at 6:00 a.m. and
ending at 6:00 p.m.) Yet, the social worker testified that all the
11 local programs were usually offered in the evening or at night to
accommodate working parents, and that an online parenting class
was available for father. Father never notified the caseworker of
barriers to accessing services but maintained he would engage with
services soon. And, crucially, when asked at the termination
hearing why he had not completed the services required by his
treatment plan, father testified that he believed “[mother] would
figure out her stuff soon enough to where it would have made it to
where I wouldn’t have had to selfishly do any of this, and that’s why
nothing has been done on my end.” Father essentially conveyed the
same message to the caseworker during the case, admitting that he
knew he had not been working on his treatment plan and that he
had been counting on mother to do the work. Thus, it was father’s
own unwillingness to participate, rather than any alleged deficiency
in the Department’s efforts, that resulted in his lack of engagement
in services. See People in Interest of A.V., 2012 COA 210, ¶ 12
(stating that “active efforts under the ICWA does not mean
persisting with futile efforts,” and noting that a court may “consider
a parent’s unwillingness to participate in treatment as a factor in
determining whether the Department made active efforts”).
12 ¶ 28 Father next claims that the Department’s efforts came up
short because it did not offer “necessary modifications” (which he
does not describe) that would have allowed him to consistently
attend virtual visits, despite his demanding work schedule. The
record indeed shows father did not consistently attend virtual visits.
Father missed over a third of visits, was taken off the visitation
schedule six times, used significantly less time than allotted for
visits, and last saw the child over three months before the
termination hearing. The caseworker testified that father would go
through spurts of consistency with visits but then would “fall off the
map” and be unreachable. While father claims it was too difficult
for him to confirm visits at 6:00 a.m., he admitted at the hearing
that he could have been checking in at that time, which coincided
with the start of his workday. Accordingly, we are unpersuaded by
father’s claim concerning virtual visits.
¶ 29 Father also asserts the Department failed to coordinate
in-person visits for him and the child in Alaska. True, the only
in-person contact father and the child shared was during the brief
period when the child was in Alaska during mother’s unauthorized
trip.
13 ¶ 30 However, father never traveled to Colorado or Texas for
in-person family time. Moreover, for the child to visit Ketchikan
from the child’s placements in Colorado or Texas, the child, who
was four years old when this case opened, would have had to fly
first to Seattle and then to Ketchikan. And the visits would have to
be supervised because (1) father did not progress beyond
supervised virtual visits and (2) according to the caseworker, it was
not safe for father to have unsupervised visits due to ongoing
concerns of domestic violence and substance use. See 25 C.F.R.
§ 23.2 (active efforts includes supporting regular visits in the “most
natural setting possible as well as trial home visits . . . consistent
with the need to ensure the health, safety, and welfare of the
child”). Similarly, the social worker testified that the KIC was
concerned about domestic violence while the child was in Alaska.
¶ 31 Even so, father had access to virtual visits throughout the
case but, as we described above, he missed visits often, used little
of the allotted time, and was typically unreachable by the
Department, despite its attempts. See A.V., ¶ 12 (noting that active
efforts does not mean persisting with futile efforts). Accordingly, we
14 are unpersuaded that the Department failed to make active efforts
with respect to visitation.
¶ 32 Finally, father contends that the Department did not make
active efforts because it did not adequately identify and engage with
kinship placements. Assuming without deciding that the active
efforts standard applies to placement, we disagree.
¶ 33 The Department initially identified the child’s paternal great-
uncle as a possible placement, and the KIC supported this
placement. Paternal great-uncle was a member of the child’s
extended family, eligible for membership in the KIC, and a member
of the Central Council of the Tlingit and Haida Indian Tribes.
Therefore, paternal great-uncle (who the child was placed with at
the time of termination) was a preferred placement under ICWA.
See 25 U.S.C. § 1915(b) (enumerating placement preferences for
Indian children in foster care, including “a member of the Indian
child’s extended family”); see also People in Interest of A.R., 2012
COA 195M, ¶ 47 (noting that courts have interpreted this statute as
“expressing a presumption that the child’s best interests are served
by placement with an extended family member who also has Indian
heritage”).
15 ¶ 34 Further, the record reflects the Department’s efforts to identify
and locate family placements for the child:
• The Department sent out letters, talked to both parents, and
requested two Interstate Compact on Placement of Children
(ICPC) home studies, one of which was for paternal great-
uncle.
• The other ICPC home study the Department requested was for
a member of the KIC, who was like a sister to father, but the
ICPC was denied due to her moving to a different state, and
she did not reengage with the process thereafter.
• The Department and the KIC coordinated to investigate tribal
placements while the child was in Alaska in an effort to allow
him to remain there.
• The QEW spoke with community members to discern possible
placements, including family members of paternal great-uncle.
We are not otherwise persuaded by father’s claim that the
Department did not adequately explore placement with paternal
grandmother or grandfather. Both family members received letters
inquiring about their interest in acting as a placement. Yet, father
concedes that paternal grandfather refused to be a placement early
16 in the case, and nothing in the record suggests anyone
recommended him as a placement thereafter. Moreover, while the
Department and the KIC discussed paternal grandmother, the KIC
did not support that placement due to a safety concern.
¶ 35 Thus, the Department’s efforts, under the totality of the
circumstances, demonstrate affirmative, active, thorough, and
timely efforts to rehabilitate father’s parental fitness and reunite
him with the child as ICWA requires. See My.K.M., ¶ 47.
B. Less Drastic Alternatives
¶ 36 Before terminating parental rights under section 19-3-
604(1)(c), the juvenile court must also consider and eliminate less
drastic alternatives. People in Interest of L.M., 2018 COA 57M, ¶ 24.
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); see L.M., ¶ 29. For a less
drastic alternative to be viable, it must do more than “adequately”
meet a child’s needs; rather, the less drastic alternative must be the
“best” option for the child. People in Interest of A.M. v. T.M., 2021
CO 14, ¶ 27. Therefore, if the court considers a less drastic
17 alternative but finds instead that termination is in the child’s best
interests, it must reject the less drastic alternative and order
termination. Id. at ¶ 32. Under those circumstances, we must
affirm the court’s decision if its findings are supported by the
record. B.H., ¶ 80.
¶ 37 Father argues that as a direct result of the Department’s
deficient efforts to locate kinship placements, it presented
insufficient evidence that termination was “preferable to placement
with an Alaska relative and an [allocation of parental
responsibilities] involving one or both parents.”
¶ 38 However, we have already rejected father’s argument that the
Department made deficient efforts to engage with kin placements.
See Part A.3. Further, we are unpersuaded by father’s less drastic
alternative arguments.
¶ 39 The juvenile court considered whether any less drastic
alternative to termination existed and concluded that
(1) termination was in the child’s best interests, and (2) custody of
the child with the parents would result in serious emotional or
physical harm to him. See 25 U.S.C. § 1912(f). The court found
18 that “there [was] scant, if any, evidence” that an allocation of
parental responsibilities (APR) “[wa]s an actual alternative in this
case,” and that permanency, which was long overdue for the child,
could only be achieved by termination and adoption. See People in
Interest of Z.M., 2020 COA 3M, ¶ 30 (“Permanent placement is not a
viable less drastic alternative if the child needs a stable, permanent
home that can only be assured by adoption.”); see also L.M., ¶ 29
(noting that a juvenile court may consider the child’s need for
permanency when determining whether there is a viable less drastic
alternative to termination).
¶ 40 The record supports the court’s findings.
¶ 41 The caseworker, noting that the child had just turned six,
opined that he “needs permanency and APR doesn’t grant
permanency that he is in desperate need of,” but would instead “put
him at risk for bouncing around again,” and opined that the child
“can’t afford to continue to go through the same things he’s been
going through the past two years.” Moreover, paternal great-uncle
wished to adopt the child. See Z.M., ¶ 31 (providing that the court
may consider whether the placement favors adoption rather than an
APR). And the court found, with record support, that the adoptive
19 family would “support and maintain the child’s cultural ties to his
tribal communities.” Indeed, paternal great-uncle planned to travel
to Alaska shortly after the termination hearing for the child to
connect with his culture and visit with family. Finally, though
father raises concerns that, at times during the case, paternal
great-uncle was experiencing financial and marital struggles, the
caseworker testified at the termination hearing that those issues
had been resolved.
¶ 42 Lastly, to the extent father asserts the court could have
granted an APR to paternal grandmother or grandfather, the KIC
deemed placement with paternal grandmother inappropriate, and
there was no indication paternal grandfather was an available
placement.
¶ 43 Because the record supports the court’s findings, we must
affirm its determination. See B.H., ¶ 80.
IV. Disposition
¶ 44 The judgment is affirmed.
JUDGE YUN and JUDGE SULLIVAN concur.