Peo in Interest of MB

24CA0102 Peo in Interest of MB 05-01-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0102
Arapahoe County District Court No. 21JV709
Honorable Bonnie H. Mclean, Judge

The People of the State of Colorado,

Appellee,

In the Interest of M.B. and A.B., Children,

and Concerning L.B.,

Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE WELLING
Kuhn and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 1, 2025

Ron Carl, County Attorney, Sarah Simchowitz, Assistant County Attorney,
Aurora, Colorado, for Appellee

Sheena Knight, Counsel for Youth, Brighton, Colorado, for M.B. and A.B.

Gregory Lansky, Office of Respondent Parents’ Counsel, Aurora, Colorado, for
Appellant
¶1 In this dependency and neglect action, L.B. (father) appeals

the judgment terminating his parent-child legal relationships with

M.B. and A.B. (the youths). We affirm.

I. Background

¶2 The Arapahoe County Department of Human Services filed a

petition in dependency and neglect alleging that K.S. (mother) left

the youths with the maternal grandmother in Colorado after fleeing

the state of Alabama to avoid ongoing involvement with child

protective services there. The Department alleged concerns about

mother’s substance dependence and ability to provide for the

emotional and physical needs of the youths, who were eleven and

thirteen at that time. The Department also alleged that the

maternal grandmother was estranged from mother, didn’t have a

relationship with either youth, and couldn’t provide ongoing

placement to the youths.

¶3 After establishing jurisdiction under the Uniform Child-

custody Jurisdiction and Enforcement Act (UCCJEA), the juvenile

court adjudicated the youths dependent and neglected and adopted

treatment plans for both parents.

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¶4 The Department later moved to terminate both parents’

parental rights. The youths both supported the termination

motion. Nearly two years after the petition was filed, the juvenile

court terminated mother’s and father’s rights following a contested

hearing. Mother never appeared or participated in the dependency

action and isn’t a party to this appeal.

II. Subject Matter Jurisdiction

¶5 Father first contends that the juvenile court lacked subject

matter jurisdiction under the UCCJEA. We disagree.

A. Standard of Review and Relevant Law

¶6 We review de novo whether the juvenile court had subject

matter jurisdiction under the UCCJEA. People in Interest of B.H.,

2021 CO 39, ¶ 27. When a juvenile court makes factual findings

informing the determination of jurisdiction, we defer to such

findings unless they are clearly erroneous. People in Interest of

S.A.G., 2021 CO 38, ¶ 21.

¶7 “The primary aim of the UCCJEA is to prevent competing and

conflicting custody orders by courts in different jurisdictions” and

to “avoid jurisdictional competition over child-custody matters in an

increasingly mobile society.” People in Interest of M.M.V., 2020 COA

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94, ¶ 17. “To effectuate this purpose, [the UCCJEA] establishes a

comprehensive framework that a Colorado court must follow to

determine whether it may exercise jurisdiction in a child-custody

matter or whether it must defer to a court of another state.” Id.

¶8 A juvenile court may exercise temporary emergency

jurisdiction when “necessary in an emergency to protect the child

because the child . . . is subjected to or threatened with

mistreatment or abuse.” § 14-13-204(1), C.R.S. 2024. Temporary

emergency jurisdiction is limited in time and scope, and “continues

‘only for as long as the emergency exists’ or the child remains

abandoned.” S.A.G., ¶ 30 (citations omitted).

¶9 A court may not terminate parental rights while exercising

temporary emergency jurisdiction unless it finds there is a

continuing abandonment or emergency. Id. at ¶ 35. To otherwise

enter a permanent custody disposition, a juvenile court must assert

non-emergency jurisdiction. Id. at ¶ 26.

¶ 10 When there is an existing child-custody determination made

by another state, as was the case here, the relevant non-emergency

jurisdiction that a juvenile court in Colorado may pursue is

modification jurisdiction. § 14-13-207, C.R.S. 2024. To obtain

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modification jurisdiction, the court must determine that it has

either home state or significant connection jurisdiction and (1) a

court of the other state determines it no longer has exclusive,

continuing jurisdiction under that state’s law in conformity with

section 14-13-202; (2) a court of the other state determines that a

Colorado court would be a more convenient forum under that

state’s law in conformity with section 14-13-207; or (3) a court of

either state determines that the child and the child’s parents do not

reside in the other state. § 14-13-203, C.R.S. 2024; see also B.H.,

¶¶ 29-33. A Colorado court must communicate with the other state

before obtaining non-emergency jurisdiction and modifying the

existing child-custody determination. People in Interest of C.L.T.,

2017 COA 119, ¶ 23.

¶ 11 Termination of parental rights isn’t a new child-custody

proceeding that requires the juvenile court to re-assess its

jurisdiction under the UCCJEA. S.A.G., ¶ 39 n.3 (“[I]n Colorado, a

motion to terminate parental rights after a child has been

adjudicated dependent and neglected is a request for a remedy, not

the start of a second proceeding.” (citing § 19-3-502(3)(a), C.R.S.

2021)). Thus, if a court properly obtained modification jurisdiction

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prior to entering adjudications, it need not re-assess jurisdiction

under the UCCJEA before entering a termination judgment. Id.

B. Additional Background

¶ 12 At the shelter hearing, father reported that there was a child-

custody determination made in Indiana as part of his and mother’s

dissolution of marriage. Father later asserted that after the child-

custody determination was made, the youths resided in Alabama

with mother between 2013 and 2018, in Florida with father between

2018 and 2020, and in Alabama with mother between 2020 and

2021. In the fall of 2021, human services in Alabama became

involved with the family and opened a child-protection

investigation. Mother brought the youths to Colorado and left them

with her estranged mother in December 2021. The petition was

filed just a few days later. At that time, father reported that he lived

in South Carolina.

¶ 13 The juvenile court exercised emergency temporary jurisdiction

at the shelter hearing and regularly reviewed and renewed the

emergency temporary jurisdiction while actively working to resolve

the jurisdictional issue.

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¶ 14 Based on information provided by the parties, the juvenile

court then communicated, or attempted to communicate, with

judicial officers from four states: Indiana, Florida, Alabama, and

South Carolina. The court initially issued an order under the

UCCJEA reporting on the results of the four UCCJEA conferences

and finding that each state had deferred jurisdiction to Colorado.

The court found that the youths had not resided in Colorado for

182 days and that there was an out-of-state custody determination.

But the first UCCJEA order also had a box checked finding, in

contradiction with its other findings, that Colorado was the youths’

home state. See § 14-13-201(1)(a) (designating “home state” as the

state in which a child lived with a parent or a person acting as a

parent for at least 182 consecutive days immediately before the

commencement of a child-custody proceeding).

¶ 15 Father then moved to dismiss for lack of jurisdiction under the

UCCJEA, the Department and youths’ GAL responded, and father

provided an offer of proof with the timeline of the youths’

residences. Through pleadings, all parties agreed that Colorado

couldn’t properly be found to be the home state of either youth as

stated in the first UCCJEA order.

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¶ 16 The juvenile court issued a second UCCJEA order, finding that

“all relevant states have been contacted and all have declined to

take jurisdiction” and determining that Colorado had significant

connection and most convenient forum jurisdiction.

C. Analysis

¶ 17 Father first contends that the juvenile court erred because it

couldn’t properly exercise emergency jurisdiction at the time of the

termination hearing. Because the court didn’t purport to be

exercising temporary emergency jurisdiction at that time, we don’t

address this contention.

¶ 18 Relying on S.A.G., Father next asserts that the juvenile court

was required, and failed, to determine whether any state had home

state jurisdiction. But father’s reliance on S.A.G. is misplaced. In

S.A.G., the juvenile court was required to “navigate one of the four

paths to jurisdiction from section 14-13-201(1)” because there were

no prior child-custody determinations. S.A.G., ¶¶ 14, 26; see § 14-

13-202. Instead the Colorado Supreme Court opinion in B.H.

controls cases like this one where there are, or might be, child-

custody determinations establishing exclusive, continuing

jurisdiction with another state. B.H., ¶ 3. In such cases, the

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juvenile court is required to obtain modification jurisdiction as

described in section 14-13-203. Id. at ¶¶ 3, 29-33.

¶ 19 Here, the court properly recognized that there was a prior

custody determination in Indiana. The court found that Colorado

had significant connection jurisdiction, conferred with an

appropriate judicial officer in Indiana, and reported to the parties

that the Indiana court declined to continue its jurisdiction. Father

doesn’t appear to challenge the juvenile court’s communication with

Indiana, or its findings supporting modification jurisdiction under

section 14-13-203.

¶ 20 Because the court didn’t need to confer with the other states

where the children may have resided after Indiana entered a child-

custody determination, we decline to address father’s contentions

related to those conferences.

III. Due Diligence Regarding Potential Indian Heritage

¶ 21 Father next contends that the juvenile court erred by failing to

make findings related to the Department’s due diligence

requirement under section 19-1-126, C.R.S. 2024, Colorado’s

statute implementing the Indian Child Welfare Act (ICWA). We

conclude that any error is harmless.

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A. Standard of Review and Relevant Law

¶ 22 ICWA’s provisions and, by extension, the Colorado

implementing statute, are aimed at the protection and preservation

of Indian tribes and of children who are members of or eligible for

membership in an Indian tribe. 25 U.S.C. § 1901(2), (3).

¶ 23 To that end, ICWA requires the court to ensure that the

petitioning party give notice of a dependency and neglect proceeding

to any identified Indian tribes if the court “knows or has reason to

know” that a child in the proceeding is an Indian child. 25 U.S.C.

§ 1912(a); § 19-1-126(1)(b).

¶ 24 “[M]ere assertions of a child’s Indian heritage (including those

that specify a tribe or multiple tribes by name), without more, are

not enough to give a juvenile court ‘reason to know’ that the child is

an Indian child.” People in Interest of E.A.M. v. D.R.M., 2022 CO 42,

¶¶ 6, 48 (emphasizing that the statutory definition of “Indian child”

applies based on the child’s political ties to a federally recognized

Indian tribe, not on the child’s or her parents’ Indian ancestry).

¶ 25 Such assertions don’t trigger provisions in ICWA, but rather

the statutory due diligence requirements in section 19-1-126(3).

H.J.B. v. People in Interest of A-J.A.B., 2023 CO 48, ¶ 5. Due

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diligence requires a department to “earnestly endeavor to

investigate the basis” for an assertion that the child may be an

Indian child, contact any family members or others specifically

identified by a parent as having knowledge of Indian heritage, and

learn if there is further information that would help the court in

determining if there is a reason to know that the child is an Indian

child. Id. at ¶ 57. Due diligence doesn’t require a department “to

succeed in its efforts or exhaust every possible option in attempting

to do so.” Id. at ¶ 58.

¶ 26 Whether the Department has satisfied its due diligence

obligation is ultimately left to the sound discretion of the juvenile

court because a due diligence finding “necessarily requires the

court to make credibility determinations regarding the source of the

information and the basis for the source’s knowledge.” Id.

B. Additional Background

¶ 27 The Department’s motion for temporary custody included an

assertion that “the family believes there may be affiliation with the

Sioux Tribe.” Father repeatedly denied that the children had any

Native American heritage or that ICWA would apply to the

proceedings and filed a declaration of non-Indian heritage with the

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court. Mother never participated in the dependency and neglect

proceedings. No party asserted Native American heritage during the

proceedings. The juvenile court found that ICWA didn’t apply.

¶ 28 The Department requested, and this court granted, a limited

remand of this appeal “for further proceeding[s] to exercise due

diligence related to the ICWA inquiry of mother, or mother’s family,

pursuant to [section] 19-1-126(3).”

¶ 29 On remand, the juvenile court held several hearings to address

the Department’s due diligence efforts required under section

19-1-126(3). The Department reported that it was unsure where

the “note about ICWA” contained in the initial proceeding came

from. Still, the Department reported that it reached out to the

maternal grandmother who responded by text message that her

grandmother was “Sue [sic] Indian from Texas.” The Department

requested more information about this family member, but the

maternal grandmother didn’t respond. The youths reported that

“they were told that they were part of a Native American tribe” but

didn’t have any other information to provide to the court.

¶ 30 Although it may not have been required to do so, the

Department sent notice of the proceedings to the recognized Sioux

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tribes using the limited relevant information they were able to

gather from the maternal grandmother. See id. at ¶ 51 (disagreeing

that due diligence requires formal notice in every case where a child

may be an Indian child). The Department then followed up with the

Sioux tribes that didn’t respond to the notices.

C. Analysis

¶ 31 On remand, the juvenile court found that the Department

(1) “made continuing inquiries to determine whether [the youths]

are Indian children”; (2) “made efforts to contact Respondent

Mother’s Family to inquire about Indian heritage”; (3) sent notices

to thirteen Sioux tribes, the Bureau of Indian Affairs, and the

Department of the Interior; (4) received responses from most tribes

that the youths weren’t enrolled and weren’t eligible for enrollment;

and (5) followed up with the tribes that didn’t respond. As a result,

the court found there was no reason to know that youths were

Indian children and therefore, ICWA didn’t apply.

¶ 32 The juvenile court did not make any express due diligence

findings, despite the Department requesting a limited remand

specifically to obtain them.

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¶ 33 In any event, the Department exercised clearly adequate due

diligence by communicating with the maternal grandmother and

then sending formal notice and communicating directly with each of

the tribes encompassed by the maternal grandmother’s general

claim of Sioux heritage. See id. at ¶¶ 51, 55.

¶ 34 Father claims that the Department failed to comply with the

due diligence requirements because it didn’t send formal notice to

non-Sioux tribes in Texas or include the date and place of birth of

the possible tribal ancestor on the notices it sent. But father

doesn’t explain how these notice requirements under ICWA

regulations applied to this case where there was no reason to know

that the youths were Indian children. See id. at ¶ 65.

¶ 35 Father also contends that the Department should have

followed up with the youths after they reported they were part of a

tribe. Father doesn’t explain, and we can’t discern, what additional

information may have materialized from an off-the-record

conversation between the Department caseworker and the youths.

¶ 36 In any event, any error in the juvenile court’s failure to make

explicit due diligence findings during the proceedings held on

limited remand is harmless because, as in H.J.B., “we now know,

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definitively” that the youths are not Indian children under ICWA.

Id. at ¶ 64. No party has claimed, at any point in these

proceedings, that either the youths, mother, or father were

members or eligible for membership in an Indian tribe. See id. at

¶ 65. And under such circumstances, there is no reason to know or

believe that the youth are Indian children. Id.

IV. Reasonable Efforts

¶ 37 Father next contends that the Department failed to make

reasonable efforts to rehabilitate him and reunify him with the

youths. We aren’t persuaded.

A. Relevant Law and Standard of Review

¶ 38 Before a court may terminate parental rights under section

19-3-604(1)(c), C.R.S. 2024, the county department of human

services must make reasonable efforts to rehabilitate parents and

reunite families. §§ 19-1-103(114), 19-3-100.5(1), 19-3-208, 19-3-

604(2)(h), C.R.S. 2024. Reasonable efforts means the “exercise of

diligence and care . . . for children and youth who are in foster care

or out-of-home placement.” § 19-1-103(114).

¶ 39 If adequate services are provided in accordance with section

19-3-208, the reasonable efforts standard is satisfied. § 19-1-

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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).

¶ 40 The juvenile 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).

The parent is ultimately responsible for using those services to

obtain the assistance needed to comply with the treatment plan.

People in Interest of J.C.R., 259 P.3d 1279, 1285 (Colo. App. 2011).

¶ 41 Whether a department satisfied its obligation to make

reasonable efforts to reunify the family is a mixed question of fact

and law. People in Interest of A.S.L., 2022 COA 146, ¶ 8. We review

the juvenile court’s factual findings related to reasonable efforts for

clear error but review de novo the court’s legal determination, based

on those findings, as to whether a department satisfied its

reasonable efforts obligation. Id.

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B. Mental Health and Substance Abuse Treatment

¶ 42 First, father contends that the Department failed to make

reasonable efforts because it didn’t make any referrals for him to

mental health or substance abuse services. We determine that

father waived this issue and therefore, we discern no basis for

reversal.

¶ 43 The juvenile court found that the Department made

reasonable efforts, “but father . . . lied to the caseworker. He told

her that he was in treatment, that he was complying with his

treatment plan, and he did not need any additional resources.” The

court reasoned that “parents, ultimately, are responsible for

completing their treatment plan. Father [i]s responsible to be

honest, and to let the caseworker know if he needs assistance. If he

is dishonest, if he is purposefully deceitful and consistently turns

down any offers for assistance by the caseworker, . . . [h]ow could

she possibly do more when he is just bold face lying to her?”

¶ 44 The record supports the juvenile court’s findings. When the

case opened in December 2021, father told the Department he was

“awaiting a treatment program in South Carolina.” Father

represented to the Department that he had been attending an

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intensive outpatient program that included parenting classes in

September 2022. However, shortly after making that

representation, father was incarcerated in a different county jail,

from approximately October 2022 until March 2023. Father

reported attending an inpatient rehabilitation center directly after

his release from the county jail, followed by an extended stay with a

sober living home beginning in April 2023. Father’s counsel

reported that father had successfully discharged from the sober

living program and continued to participate in outpatient services

with that same provider. But when the caseworker followed up with

the provider in the month between her conversation with father and

the termination hearing, the provider reported that father was only

engaged with them for one week in April 2023 and didn’t

successfully complete any services.

¶ 45 Waiver is the intentional relinquishment of known right.

People v. Rediger, 2018 CO 32, ¶ 39. When a party waives an issue

below, we won’t review it on appeal. Id. at ¶ 40.

¶ 46 The record makes clear that father consistently asserted that

he was engaged in the substance abuse and mental health services

required by his treatment plan. The caseworker testified that, had

17
father reported that he wasn’t engaged in services, the Department

would have made appropriate referrals for him. Father may not

now claim that the caseworker’s reliance on his statements about

substance abuse and mental health treatment constituted a lack of

reasonable efforts by the Department. This argument was waived,

and we therefore don’t address its merits.

C. The Relationship Between Father and the Youths

¶ 47 Father next contends that the juvenile court erred by finding

that the Department made reasonable efforts to rehabilitate him

because it didn’t make referrals for therapeutic services to rebuild

the relationship between him and the youths or “make any plans for

any type of remediation for Father’s strained relationship with his

children.”

¶ 48 The juvenile court noted that the Department made efforts to

facilitate contact between father and the youths but “father was

inappropriate” during that contact and “has not been willing or

able” to participate in reunification therapy.

¶ 49 The services listed in section 19-3-208(2)(b) “must be available

and provided, as determined necessary and appropriate by

individual case plans.” § 19-3-208(2)(b). Father’s case plan

18
required him to participate in an assessment to determine what

level of supervision would be appropriate, and to consistently

participate in family time with the youths. It’s unclear if a referral

for the assessment was made or if father participated in one. It

doesn’t appear from the record before us that father’s family time

was ever restricted by the court or the Department as a result of an

assessment or otherwise.

¶ 50 At the time the petition was filed, father hadn’t been involved

in the youths’ lives for about a year. The testimony at the

termination hearing suggested that the Department made referrals

for facilitated family time at the beginning of the case. The

caseworker also facilitated some phone calls between father and the

youths. Additional contact with both parents was independently

initiated by the youths, who were fifteen and thirteen years old by

the time the termination motion was filed. However, the caseworker

testified that this contact “ended poorly,” the youths decided to stop

reaching out to father, and “regular, consistent phone calls did not

continue to happen.”

¶ 51 At the termination hearing, father’s expert in reasonable

efforts opined that the Department should have provided

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reunification therapy to father. But the expert agreed that

reunification therapy wasn’t included in father’s treatment plan,

although the court could have ordered it had it been presented with

that request and found that such therapy would have been helpful

to the family. And father’s expert agreed that, although the youths

had been engaged in individual mental health treatment facilitated

by the Department, there was no documentation that father

completed any individual therapy to facilitate successful

participation in reunification therapy.

¶ 52 Instead, the caseworker testified, father didn’t take any

accountability for the abuse that the youths suffered while they

were in his care or provide any indication that he would be an

appropriate candidate for reunification therapy. And, in any event,

when the caseworker tried to discuss services with father the month

before the termination hearing, father reported he was “not in a

good place” to work on the components of his treatment plan.

¶ 53 Taken together, the testimony at the termination hearing

reveals that, although father now contends that the Department

should have provided more supportive services for contact with the

youths, father never asked the juvenile court to determine if a

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restriction of his family time or more supportive services was

appropriate or necessary under his case plan. And father appeared

unwilling to engage in additional services to support reunification.

See People in Interest of A.V., 2012 COA 210, ¶ 12 (the juvenile

court may consider a parent’s unwillingness to participate in

treatment when determining whether a department made

reasonable efforts). We therefore discern no error in the juvenile

court’s findings or conclusions regarding reasonable efforts.

D. Contact with the Department

¶ 54 Finally, father contends that the juvenile court erred by

finding that the Department made reasonable efforts because, over

the course of the case, it “only reached out to [f]ather on five

occasions.” We aren’t persuaded.

¶ 55 The juvenile court considered and rejected father’s specific

contention that the Department should have established contact

with him more often. The court found, with record support, that it

was father who failed to maintain contact with the Department.

The caseworker testified that it was difficult to maintain contact

with father because he was in and out of jail and the hospital.

Father’s expert testified that her review of documentation revealed

21
that the Department set up a “contact schedule” with father for

calls every ten to fourteen days and then reached out to father’s

mother, with whom he sometimes lived, when he stopped

responding to the Department’s outreach attempts.

¶ 56 Nothing in section 19-3-208 requires the Department to make

or even attempt monthly contacts to satisfy its reasonable efforts

obligations. And father provides no legal authority to support his

claim that a caseworker’s inability to maintain monthly contact

violates the Department’s reasonable efforts obligations.

V. Father’s Other Contentions

¶ 57 Next, father contends that his custodial status, his time in

inpatient treatment centers, and a brief hospitalization prevented

him from having “an adequate and fair opportunity to comply” with

the treatment plan. But father didn’t present this claim to the

juvenile court and doesn’t develop it here beyond a mere assertion.

We therefore decline to address it. See People in Interest of T.E.R.,

2013 COA 73, ¶ 30 (generally, issues not raised in the trial court

will not be considered on appeal); see also People in Interest of

R.J.B., 2021 COA 4, ¶ 35 (we will not consider claims that are

“merely a bald assertion without argument or development”).

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¶ 58 Father concludes with a reference to the less drastic

alternative of an allocation of parental responsibilities (APR). He

asserts that (1) the placement providers for both of the youths were

“open to APR” and (2) the paternal grandmother was willing to be a

placement provider and was “also open to APR.” Father doesn’t

provide any law or argument related to these assertions. We

therefore decline to review either the juvenile court’s finding that

“[a]t this point in their life, after all of the abuse and neglect that

they have been through, [the youths] absolutely need, and they

absolutely deserve, permanency and stability, neither of which they

had with either parent” or the court’s determination that it

considered and ruled out the less drastic alternatives presented.

See People in Interest of D.B-J., 89 P.3d 530, 531 (Colo. App. 2004)

(where an appellant does not identify supporting facts, make

specific arguments, or set forth specific authorities to support a

contention, the contention is not properly before the appellate court

and will not be addressed).

VI. Disposition

¶ 59 The judgment is affirmed.

JUDGE KUHN and JUDGE SCHUTZ concur.

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