Peo in Interest of HBR

24CA1293 Peo in Interest of HBR 02-27-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1293
El Paso County District Court No. 20JV528
Honorable Robin Chittum, Judge

The People of the State of Colorado,

Appellee,

In the Interest of H.B.R., a Child,

and Concerning K.B.R.,

Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE FOX
Román, C.J., and Lum, J., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 27, 2025

Kenneth Hodges, County Attorney, Amy Fitch, Assistant Chief Deputy County
Attorney, Colorado Springs, Colorado, for Appellee

Jenna L. Mazzucca, Guardian Ad Litem

Robin Tieman, Office of Respondent Parents’ Counsel, Boulder, Colorado, for
Appellant
¶1 In this dependency and neglect action, K.B.R. (mother) appeals

the judgment terminating her parent-child legal relationship with

H.B.R. (the child). We affirm.

I. Background

¶2 The El Paso Department of Human Services (the Department)

filed a petition in dependency and neglect, alleging that mother’s

substance use disorder placed the then-newborn child at risk. The

child was adjudicated dependent and neglected, and mother joined

the Family Treatment Drug Court program just ten days after the

petition was filed. The child was initially placed with mother but

was moved to the maternal aunt one month later because mother

had not established sobriety. Although the first phase of Family

Treatment Drug Court is designed to last only thirty days, mother

remained at phase one for eight months before being discharged

from the program.

¶3 The Department first moved to terminate the parent-child legal

relationship between mother and the child sixteen months after the

petition was filed. However, the motion was continued, withdrawn,

and refiled several times while the juvenile court addressed

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parentage and the child’s possible eligibility for enrollment in the

Chickasaw Nation.

¶4 The Department enrolled the child in the Chickasaw Nation

and, almost three years after the petition’s filing, the Chickasaw

Nation intervened in the dependency case. The Department also

completed and sent the paperwork necessary to enroll mother in the

Chickasaw Nation.

¶5 Almost four years after the petition was filed, the juvenile

court terminated mother’s parental rights following a contested

hearing.

II. Active Efforts

¶6 Mother contends that the juvenile court erred by finding that

the Department made active efforts, as required by the Indian Child

Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963, to rehabilitate her

after the child was enrolled in the Chickasaw Nation. We disagree.

A. Preservation

¶7 Mother agrees that she did not object, at any time, either

before or during the termination hearing, to the services provided

by the Department, and did not contend that the Department’s

efforts did not rise to the active efforts standard. Divisions of this

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court have addressed unpreserved challenges to the juvenile court’s

findings related to the statutory criteria for termination. See People

in Interest of S.N-V., 300 P.3d 911, 913 (Colo. App. 2011) (holding

that a parent’s failure to object to services does not bar appellate

review of a reasonable efforts finding). The county attorney and the

child’s guardian ad litem encourage us not to consider the

Department’s active efforts because no challenge was preserved.

But we need not resolve the preservation issue because whether we

conclude that mother has failed to preserve her active efforts claim

for appellate review or whether we address the issue, the outcome is

the same. See L&R Expl. Venture v. Grynberg, 271 P.3d 530, 536

(Colo. App. 2011) (declining to resolve an issue where outcome

would not change); People in Interest of R.R., 607 P.2d 1013, 1015

n.2 (Colo. App. 1979).

B. Relevant Law and Standard of Review

¶8 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. In other words, ICWA

establishes minimum federal standards for an “Indian

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child” involved in a “child custody proceeding.” 25 U.S.C. § 1903(1),

(4); People in Interest of E.A.M. v. D.R.M., 2022 CO 42, ¶ 2.

¶9 A juvenile court may terminate parental rights if it finds that

(1) the child was adjudicated dependent and neglected; (2) the

parent has not complied with an 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. 2024.

¶ 10 In addition, under ICWA, any party seeking to terminate

parental rights to an Indian child must show that it made “active

efforts” to “provide remedial services and rehabilitative programs

designed to prevent the breakup of the Indian family.” 25 U.S.C. §

1912(b).

¶ 11 Active efforts must be “affirmative, active, thorough, and

timely,” and must be “tailored to the facts and circumstances of the

case.” 25 C.F.R. § 23.2 (2024). To analyze an agency’s active

efforts, the court should consider “the totality of the circumstances

and account[] 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. Thus, a department

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“retain[s] 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.

¶ 12 Federal regulations include a non-exhaustive list of examples

illustrating active efforts, including comprehensive assessments;

identifying appropriate services and “actively assisting the parents

in obtaining such services”; 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 and

participation in services. 25 C.F.R. § 23.2.

¶ 13 The active efforts standard does not require an agency to

persist in futile efforts. People in Interest of T.E.R., 2013 COA 73,

¶ 33; People in Interest of A.V., 2012 COA 210, ¶ 12. A court may

consider a parent’s unwillingness to participate in treatment or

engage with a resource as part of its active efforts inquiry. A.V.,

¶ 12.

¶ 14 Whether the Department satisfied ICWA’s active efforts

requirement is a mixed question of fact and law. My.K.M., ¶ 20. We

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review the court’s factual findings for clear error; however, whether

those findings satisfy ICWA’s active efforts requirement is a

question of law that we review de novo. Id.

C. Analysis

¶ 15 The juvenile court found that “the Department absolutely

carried” mother and provided active efforts to rehabilitate her and

reunify the family. In doing so, the court found that the

Department:

• held “very frequent” staffings, many in person, for

mother’s benefit;

• coordinated the many professionals involved including

representatives from the Chickasaw Nation;

• facilitated ongoing group text messages among mother

and her personal and professional supports;

• provided phones, phone cards, bus passes, gas cards,

and attempted to provide funding to repair mother’s car;

• made referrals to and attempted to encourage mother’s

engagement with twelve different substance abuse

treatment providers, seven different life skills providers,

and eight different family time providers; and

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• offered to pay for two to three months of rent in a sober

living home.

¶ 16 In addition, the juvenile court found that the caseworker

personally dedicated his time to mother, “took on the DMV” to get

mother a driver’s license, helped mother apply for membership in

the Chickasaw Nation, and supervised family time when mother

was discharged from family time facilities.

¶ 17 Importantly, the juvenile court found that the Department’s

“active efforts [were] tempered by [mother]’s unwillingness to take . .

. advantage of the help that has been offered to her.” The court

noted that multiple referrals for services can be appropriate

because “sometimes a provider just isn’t the right fit . . . but there

were twelve [substance abuse] providers here. There is a point

where it ceases being about the providers, and it becomes about

[mother].” The court found that mother was not consistent with

providers, did not follow through with recommendations from

evaluators, did not attend family time, and “even while this

termination has been hanging over her head she couldn’t get herself

to do what she could to show [the court] what she’s trying to do

here.”

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¶ 18 The record supports these findings. The caseworker testified

that, over the nearly four years that the case was open, mother was

routinely discharged from substance abuse, mental health, life

skills, and family time service providers because of her failure to

engage in services, despite consistent and intensive efforts to

support her. The caseworker testified that the Department “r[an]

out of different providers within town” that would accept mother for

services. When testimony began for the termination hearing, the

caseworker testified that the referral for mother’s substance abuse

provider at that time had been open for four months. The

caseworker also testified that mother recently made “a few

appointments” with that provider, resulting in “one of the longer

periods of time [mother] has been engaged.” The termination

hearing was continued for three months; when testimony resumed,

the caseworker testified that mother had not engaged in further

treatment with that provider and was facing discharge.

¶ 19 Furthermore, we determine that these findings satisfy ICWA’s

active efforts requirements.

¶ 20 Mother claims that the active efforts standard was not met

because, during the four years the case was open, “the

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[D]epartment provided the same efforts regardless of whether ICWA

applied and regardless of whether [m]other indicated she needed

more or different help.” Mother appears to suggest that making

referrals for the same kinds of services precludes a finding of active

efforts. But a department must develop an appropriate treatment

plan to address a parent’s needs and may properly prioritize and

address a parent’s most pressing problems so as to support

successful reunification of the family. Id. at ¶ 33.

¶ 21 Mother’s substance dependence was “the primary concern in

this case.” To that end, the Department facilitated mother’s

immediate participation in the Family Treatment Drug Court

program, which the caseworker described as “intensive wraparound

services” and “basically an active effort” provided before either

mother or the child were enrolled in the Chickasaw Nation. When

mother was discharged from Family Treatment Drug Court, the

Department made referrals to more than a dozen providers offering

a wide array of services at many levels to address the primary

barrier to reunification: mother’s substance dependence. The

referrals included crisis services, wraparound services, outpatient

substance abuse and mental health, intensive outpatient treatment

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programs, inpatient substance abuse and mental health treatment,

detox, sober living homes, and independent sobriety monitoring

services.

¶ 22 The Department made referrals to services provided in person

and online, services that mother requested, and services that were

provided by members of the Native American Community. One

Native American-run organization would not accept a referral

because it was a nonprofit; in lieu of a referral, the Department and

mother’s professional team “tried to impress [on mother] that [the

service] would be something good for her to do.”

¶ 23 In addition to referrals for services, the Department

maintained a “pretty intensive team throughout” the case to assist

mother with transportation, planning, and crisis management. One

of mother’s mental health and substance dependence providers

testified that they “offered significant resources” to mother, but

mother did not take advantage of those resources. That provider

testified, “we can provide the resources but it’s really up to the

client to follow through,” and mother failed to follow through. One

of mother’s life skills providers testified that mother made “a lot of

crisis calls for support” when she was first referred to them, but “it

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was hard for [life skills] to help her when there was no follow

through and she wouldn’t show up” to receive help. That provider,

who also attempted to supervise family time for mother, testified

that she reached out to mother up to three times a week to support

and reengage her, but that mother’s lack of sobriety kept her from

engaging in services.

¶ 24 The qualified expert witness from the Chickasaw Nation

testified that active efforts were “definitely” made by the

Department, but there was “an active failure every time on mom’s

part” to follow through on the services offered to her through her

treatment plan.

¶ 25 Given this record, we determine that the Department provided

active efforts to mother, which were tempered by mother’s failure to

engage in the many types of services offered to her.

D. Americans With Disabilities Act

¶ 26 Citing only law related to protections against discrimination,

mother appears to contend that the juvenile court erred by failing to

provide her with accommodations under the Americans with

Disabilities Act, its related amendments, and its implementing

regulations (the ADA). See § 19-3- 208(2)(g), C.R.S. 2024.

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¶ 27 We decline to address any contention under the ADA because

mother did not preserve this issue. T.E.R., ¶ 30 (generally, issues

not raised in the trial court will not be considered on appeal)

¶ 28 The Department made referrals for, and mother completed,

three neuropsychological evaluations over the nearly four years that

the dependency and neglect case was open. During a permanency

planning hearing, mother requested that the Department make a

single case contract with mother’s preferred provider for the third

neuropsychological evaluation and asserted that she would file a

motion under the ADA for any accommodations that might be

needed after the evaluation. The third neuropsychological

evaluation was completed, but no ADA-related motion was filed.

The neuropsychological evaluation is not in the record before us,

but the caseworker testified that its results were much like prior

reports and did not include recommendations for accommodations

under the ADA. The caseworker testified that mother did not make

even informal requests for accommodations based on its results.

¶ 29 When a parent is found to be a qualified individual, the

juvenile court must consider whether the Department made

reasonable accommodations for a parent’s disability when

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determining whether it made reasonable efforts. People in Interest

of S.K., 2019 COA 36, ¶ 34; see 42 U.S.C. § 12102 (defining

“disability” under the ADA); see also 42 U.S.C. § 12131(2) (defining

“qualified individual” under the ADA). But mother did not ask the

juvenile court to determine whether she was a qualified individual

under the ADA and did not request that any accommodation be

made for her. Thus, the juvenile court did not have an opportunity

to make any specific findings of fact or legal conclusions about the

applicability of the ADA, leaving us with nothing to review. See

People in Interest of S.Z.S., 2022 COA 133, ¶ 18.

III. Disposition

¶ 30 The judgment is affirmed.

CHIEF JUDGE ROMÁN and JUDGE LUM concur.

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