Peo in Interest of LA

24CA0969 Peo in Interest of LA 06-05-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0969
Jefferson County District Court No. 22JV30121
Honorable Ann Gail Meinster, Judge

The People of the State of Colorado,

Appellee,

In the Interest of L.A., N.G., and D.A., Children,

and Concerning M.A. and D.G.,

Appellants.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE KUHN
Welling and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 5, 2025

Kimberly Sorrells, County Attorney, Claire M. Czajkowski, Assistant County
Attorney, Golden, Colorado, for Appellee

Jeffrey C. Koy, Jordan Oates, and Lauren Dingboom, Guardians Ad Litem

The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for
Appellant M.A.

Beth Padilla, Office of Respondent Parents’ Counsel, Durango, Colorado, for
Appellant D.G.
¶1 In this dependency and neglect proceeding, M.A. (mother) and

D.G. (father) appeal the juvenile court’s judgment terminating their

parent-child legal relationships with their children. We affirm the

judgment.

I. Background

¶2 The Jefferson County Division of Children, Youth and Families

filed a petition in dependency and neglect regarding ten-year-old

D.A., four-year-old N.G., and two-year-old L.A. (the children). The

petition alleged concerns about neglect and the condition of the

home. The petition also alleged that father was incarcerated.

¶3 The Division placed the children together in a foster home

where they remained throughout the proceeding. However, the

foster home was not a permanent placement option.

¶4 The juvenile court adjudicated the children dependent and

neglected. The court adopted a treatment plan for mother requiring

that she, among other things, (1) complete a psychological

evaluation and engage in recommended treatment; (2) attend a

parenting class; (3) maintain a safe and stable living environment;

and (4) regularly attend family time. Father’s treatment plan

required that he, among other things, (1) participate in any

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recommended therapeutic or behavioral services; (2) maintain a safe

and stable home; (3) attend a parenting class; (4) regularly

participate in family time; and (5) comply with his parole and

refrain from further criminal activity. Father’s treatment plan was

later amended to include a requirement that he complete a

substance use assessment and treatment, if recommended.

¶5 The Division later moved to terminate mother’s and father’s

parental rights. The court held a three-day hearing over the course

of two months and, ultimately, terminated the parent-child legal

relationships between the parents and the children.

II. Analysis

¶6 Father contends that the juvenile court erred by violating the

Indian Child Welfare Act (ICWA) of 1978, 25 U.S.C. §§ 1901-1963.

Father and mother also jointly contend that the juvenile court erred

by concluding that the Division made reasonable efforts to

rehabilitate them and by concluding that there was no less drastic

alternative to termination. We address these issues in turn.

A. ICWA

¶7 Father asserts that the juvenile court violated ICWA’s notice

provisions. However, father does not assert anything more than a

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mere assertion of heritage, and the record does not establish that

the court had reason to know the children were “Indian children.”

Thus, we perceive no error.

1. Applicable Law and Standard of Review

¶8 Under ICWA, when the court “knows or has reason to know”

that a child who is the subject of a dependency and neglect

proceeding is an “Indian child,” it has an obligation to ensure that

the Division gives notice of the proceeding to any identified tribes.

25 U.S.C. § 1912(a); see also 25 U.S.C. § 1903(4) (defining “Indian

child” as “any unmarried person who is under age eighteen” and

who is either (1) “a member of an Indian tribe” or (2) “eligible for

membership in an Indian tribe” and “the biological child of a

member of an Indian tribe”). However, a mere assertion of Native

American heritage, without more, is insufficient to give the 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, ¶ 56.

¶9 We review de novo whether the juvenile court complied with

ICWA. People in Interest of T.M.W., 208 P.3d 272, 274 (Colo. App.

2009).

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2. The Juvenile Court Did Not
Violate ICWA’s Notice Provisions

¶ 10 Mother submitted an affidavit indicating Navajo heritage and

father’s affidavit indicated Apache heritage. The Division sent

notice to the tribes affiliated with the Navajo and Apache tribal

ancestral groups. Most of the tribes responded that the children

were not enrolled or eligible to enroll.

¶ 11 A few weeks before the termination hearing began, maternal

grandmother moved to intervene. In her motion she noted that the

children are either Navajo or “Leguna.” When the juvenile court

granted maternal grandmother’s motion, it also asked her about

Native American heritage. Grandmother responded, “I do believe

they have Native American heritage, we just don’t know what tribe.”

The court then asked if she had any new information that “we

haven’t already looked into” and maternal grandmother responded,

“not at this time.”

¶ 12 On appeal, father argues that the juvenile court did not

comply with ICWA because it did not send notice to the Pueblo of

Laguna, a federally recognized tribe located in New Mexico. But

maternal grandmother’s statements in her motion to intervene and

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at the hearing amount to, at most, a mere assertion of heritage,

which, standing alone, does not trigger a requirement to send

notice. See E.A.M., ¶ 56.

¶ 13 Moreover, during the briefing in this case, the Division filed

ICWA notices with the juvenile court showing that it sent notice to

the Pueblo of Laguna.1 About a month later, the Division filed

responses from the tribe showing that none of the children were

eligible for tribal membership.

¶ 14 Accordingly, we cannot conclude that the juvenile court erred

when it found that it did not know or have reason to know the

children were “Indian children” and when it did not direct the

Division to send notice to the Pueblo of Laguna tribe.2

1 The Division filed a motion to supplement the record, which was

deferred to this division. Given that this case is now at issue, we
take judicial notice of these filings in the juvenile court. See People
v. Sa’ra, 117 P.3d 51, 55-56 (Colo. App. 2004) (“A court may take
judicial notice of the contents of court records in a related
proceeding.”). Accordingly, we deny the Division’s motion as moot.

2 Even if the court had erred, the tribe’s responses showing that the

children were not eligible for membership would render any such
error harmless. See People in Interest of R.D., 2012 COA 35, ¶ 25
(“[E]rror in a civil case is harmless if id did not affect a substantial
right of a party.”).

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B. Father’s Request For a Continuance

¶ 15 Father also asserts that the juvenile court erred when it

denied his request for a continuance. We are not persuaded.

1. Applicable Law and Standard of Review

¶ 16 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. 2024. Thus, when

ruling on a motion to continue, the 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.

¶ 17 The expedited permanency planning (EPP) provisions of the

Children’s Code, which apply in any case where, as here, at least

one of the subject children is under six years of age at the time the

petition is filed, provide that a juvenile court cannot grant a

continuance unless the moving party establishes (1) good cause for

the continuance and (2) that the continuance will serve the child’s

best interests. § 19-3-104, C.R.S. 2024. If a court does grant a

continuance under this section, then it must reschedule the matter

within thirty days. Id.

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¶ 18 We review the denial of a continuance motion for an abuse of

discretion. See C.S. v. People in Interest of I.S., 83 P.3d 627, 638

(Colo. 2004). We will not disturb the juvenile court’s decision

absent a showing that it was manifestly arbitrary, unreasonable,

unfair, or based on a misapplication of the law. People in Interest of

M.B., 2020 COA 13, ¶ 41.

2. The Juvenile Court Did Not Abuse Its
Discretion By Denying Father’s Motion

¶ 19 Prior to the termination hearing, father requested a

continuance because he received the Division’s response to his

discovery request late and that response consisted of thousands of

pages. The juvenile court denied the requested continuance noting

that the EPP provisions applied, that it would have to reset within

thirty days, which it could not do because of counsel’s scheduling

conflicts, and that it could not find good cause or that a

continuance would be in the children’s best interests.

¶ 20 Father renewed his motion for a continuance on the first day

of the termination hearing arguing that his counsel had not had

time to review discovery and that he had just received the results of

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mother’s psychological and neuropsychological evaluation that

morning.

¶ 21 The juvenile court denied father’s motion but delayed the start

of the hearing until the afternoon, allowed father’s counsel to meet

with the therapist who conducted mother’s evaluations, added an

additional hearing day several weeks later, and informed father’s

attorney that if, after the close of evidence, she still needed more

time it would “entertain a request.”

¶ 22 We perceive no abuse of discretion in the juvenile court’s

rulings. See C.S., 83 P.3d at 638. The court properly weighed the

need for orderly and expeditious administration of justice against

the facts underlying the motions and the children’s need for

permanency. R.J.B., ¶ 11. The case had been open for nearly two

years, the juvenile court allowed father time to prepare for

testimony about mother’s psychological and neuropsychological

evaluations, and the court informed father that, by the close of

evidence, if he still needed additional time, he could ask. The

termination hearing spanned two months and, at the close of

evidence, father did not ask for additional time.

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¶ 23 Father asserts on appeal that because his counsel did not

have sufficient time to review discovery responses, his due process

rights were violated when his counsel “did not have an opportunity

to call witnesses and engage in cross examination.” But he does

not explain what witnesses he would have called, what expert

witnesses he would have retained, or how their testimony might

have changed the outcome of the proceeding. Nor does he explain

why he was not able to identify the necessary witnesses in the two

months between when the court denied his motion to continue and

its ruling on the motion to terminate or why counsel did not ask for

additional time at the close of evidence. See People in Interest of

R.J.B., 2021 COA 4, ¶ 35. Counsel’s decision not to request

additional time at the close of evidence belies any contention that

he was prejudiced by the court’s denial of his initial request for a

continuance. Accordingly, the court’s denial of a continuance was

not an abuse of discretion.

C. Reasonable Efforts

¶ 24 Mother and father both argue that the juvenile court erred

when it found the Division made reasonable efforts to rehabilitate

them and reunify the family. We disagree.

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1. Applicable Law and Standard of Review

¶ 25 When a court decides whether parents are unfit or whether

their conduct or condition will change, the court must evaluate

whether the Division’s reasonable efforts have been unable to

rehabilitate them. § 19-3-604(2)(h), C.R.S. 2024; People in Interest

of S.N-V., 300 P.3d 911, 915 (Colo. App. 2011). “‘Reasonable efforts’

. . . means the exercise of diligence and care . . . for children and

youth who are in . . . out-of-home placement . . . .”

§ 19-1-103(114), C.R.S. 2024.

¶ 26 The Division makes reasonable efforts if appropriate services

are provided in accordance with section 19-3-208, C.R.S. 2024.

See People in Interest of J.A.S., 160 P.3d 257, 262 (Colo. App. 2007).

Such reasonable efforts include screening, assessments,

home-based family and crisis counseling, information and referral

services to available public and private assistance resources, family

time services for parents with children in out-of-home placement,

and placement services including foster care and emergency shelter.

§ 19-3-208(2)(b). Additional services should be made available if

they are determined to be necessary and appropriate by the case

plan and adequate funding exists. § 19-3-208(2)(d). Examples of

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these additional efforts include providing transportation to required

services when other transportation is not available, mental health

services, and drug and alcohol treatment services. Id. Moreover,

services provided by the Division must comply with the provisions

of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.

§§ 12101-12134, and its related amendments and implementing

regulations. § 19-3-208(2)(g).

¶ 27 Whether the Division satisfied its obligation to make

reasonable efforts 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 for clear error but review de novo its legal

determination that the Division made reasonable efforts to

rehabilitate a parent. Id.

2. Father’s Contentions

¶ 28 Father argues that the Division did not make reasonable

efforts because it did not arrange family time or provide “court

ordered services” while he was incarcerated.

¶ 29 Father was incarcerated from the beginning of the case until

November of 2022 and again from September 2023 until the entry

of the termination order in April 2024.

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¶ 30 The record establishes the following:

• During father’s initial time in prison, his paternity was in

question and family time was not started.

• Once father was released from prison and he was

adjudicated the children’s legal father, the Division

provided an assessment with family intervention services.

• After father’s release, the caseworker supervised several

visits between him and the children until a third party

was available to supervise family time.

• Father participated in family time for another few months

but stopped visiting the children in July 2023.

• After father was reincarcerated the caseworker submitted

a referral, and the family intervention services therapist

sent letters to father attempting to schedule an intake

appointment.

• The Division could not arrange virtual visits while father

was incarcerated in Arapahoe County because the

visitation form required disclosure of personal

information about the caseworker. The caseworker “tried

phone calls” but was not able to arrange them.

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• While father was in the Jefferson County jail, the family

intervention services therapist was able to meet with him

in person.

• While father was in Arrowhead Correctional Facility, the

caseworker met with him and attempted to contact his

case manager several times about family time options but

was unable to make contact.

¶ 31 In sum, the record indicates that the Division attempted to

provide father with family time services throughout the case and

that any lack of services was attributable to either father’s or the

facilities’ noncooperation. See People in Interest of A.V., 2012 COA

210, ¶ 12 (court may consider a parent’s unwillingness to

participate in treatment as a factor when considering reasonable

efforts).

¶ 32 We are not persuaded to reach a different conclusion based on

provisions in the recently enacted S.B. 23-039. For example, the

bill added section 19-3-507(1)(f)(I)(B), C.R.S. 2024, which now

requires a department of human services to provide “[o]pportunities

for meaningful family time between” children and incarcerated

parents. Ch. 191, sec. 5, § 19-3-507(1)(f)(I)(B), 2023 Colo. Sess.

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Laws 955. The statute also requires a department to communicate

with a facility to ascertain its ability to facilitate family time

“through audio-visual communication technology and arrange for

available virtual family time.” Id. As described above, the record

shows that the caseworker and the family intervention services

therapist, at the caseworker’s request, attempted to contact the

Arapahoe County jail, the Jefferson County jail, and the Arrowhead

Correctional Facility but received little response.

¶ 33 Father also argues that the Division did not comply with

section 19-3-508(1)(e)(III), C.R.S. 2024, which requires the

caseworker to investigate the services and treatment available at

the prison or detail the efforts to obtain that information. The

record shows that the caseworker attempted to contact individuals

at the prison with little success. She met with father at the prison

to discuss the services available at the facility and provided a list of

available programs and an explanation of the prison case manager’s

role. And the caseworker documented these efforts in her reports to

the juvenile court. Therefore, the Division complied with section

19-3-508(1)(e)(III).

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¶ 34 That is not to say that a county department of human services

fulfills its reasonable efforts requirement by simply reaching out

once to a correctional facility and documenting any response (or

non-response) in the caseworker’s report. Indeed, the changes to

the statute indicate an intent to promote communication between

all of the involved entities to establish various procedures and

processes to ensure family time and other services for incarcerated

parents. See § 17-42-105(3), C.R.S. 2024 (requiring that the

Department of Corrections ensure that children and parents who

are incarcerated “have access to opportunities that facilitate

continued relationships”); § 19-1-131, C.R.S. 2024 (the state

Department of Human Services shall “promulgate rules” to facilitate

communication and family time between children and their parents

who are incarcerated).

¶ 35 But here, the record shows the caseworker reached out

multiple times to more than one facility because father changed

locations. And she requested that the family intervention specialist

also communicate with the facilities to arrange family time.

Moreover, while we recognize that once father was reincarcerated,

the Division needed to continue providing reasonable efforts,

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including continued communication efforts with father and case

managers or others at the facility where he was housed, the

ultimate question is whether the Division made reasonable efforts

under the totality of the circumstances. Here, we are satisfied that

the caseworker provided required referrals and services while father

was not in custody and adequately attempted to continue those

services once father was reincarcerated.

3. Mother’s Contentions

¶ 36 Mother contends that the Division did not provide “a readily

available support service” and that the Division “failed to perform

its duty under the ADA to reasonably accommodate a disability.”

We are not persuaded that the Division failed to provide reasonable

efforts or to make a reasonable accommodation under the ADA.

¶ 37 The record supports the juvenile court’s finding that the

Division made reasonable efforts to rehabilitate mother. The

Division referred mother for a psychological evaluation and a

subsequent neuropsychological evaluation. As a result of those

evaluations, mother was diagnosed with an unspecified major

cognitive disorder with behavioral disturbance. The evaluation

recommended “provider support,” meaning that the evaluation

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would be shared with mother’s medical providers, therapists, and

other professionals. The evaluation also recommended cognitive

rehabilitation therapy, occupational therapy, daily supports,

individual psychotherapy, medication management, and medical

support. The caseworker testified that in response to these

recommendations, the Division provided a life skills worker to assist

mother with daily supports and filing for Social Security Disability

benefits. The Division placed a referral for occupational therapy

and a second referral when mother’s therapist went on parental

leave. With mother’s approval, the caseworker shared mother’s

evaluation with mother’s doctor, life skills coach, and individual

therapist. The Division also arranged a parent-child interactional

study. And the caseworker worked with mother’s medical team to

schedule tests to try to pinpoint the cause of mother’s cognitive

decline.

¶ 38 On appeal, mother argues that the Division did not provide

required support services to mother in the form of “maternal

grandmother.” She argues that “[w]orking with maternal

grandmother so that she could be a support to Mother and the

children was an accommodation that should have been made to

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assist Mother in reunifying with the children.” But mother does not

describe what services the Division should have provided to

maternal grandmother. And she does not provide, nor are we aware

of, any authority establishing that services for maternal

grandmother were required as part of the Division’s reasonable

efforts obligation under section 19-3-208.

¶ 39 And mother has not preserved any argument that the

assistance of maternal grandmother was a reasonable

accommodation under the ADA.

¶ 40 It’s true that mother filed a “Notice of Americans with

Disabilities Act Applicability” alleging that she had a physical or

mental impairment that substantially limits a major life activity.

However, she did not assert that she required any accommodations,

identify such accommodations, or provide any evidence or argument

that any accommodations were reasonable. To the contrary, the

notice indicated that “[s]hould [mother] require any

accommodations or modifications, undersigned counsel w[ould]

confer with counsel and motion the Court.” Mother points to no

subsequent request for accommodations. Accordingly, the juvenile

court did not make any findings about mother’s disability or

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required reasonable accommodations. See People in Interest of S.K.,

2019 COA 36, ¶ 21 n.2 (noting that whether a parent is a qualified

individual with a disability under the ADA requires a fact-specific

determination that a juvenile court must resolve).

¶ 41 Nevertheless, the caseworker testified that the Division

incorporated all of the recommendations from mother’s

neuropsychological evaluation, including talking with mother about

moving to an assisted living facility or having daily visits from a

home nurse or other person. Mother declined these offers.

¶ 42 On appeal, mother appears to argue that the assistance of

maternal grandmother to care for her and the children’s needs was

required as a reasonable accommodation under the ADA. But she

never made this argument to the juvenile court, and therefore we

will not address it for the first time on appeal. See People in Interest

of S.Z.S., 2022 COA 133, ¶ 18; see also M.B., ¶ 14 (“[A]ppellate

courts review only issues presented to and ruled on by the lower

court.”).

¶ 43 To the extent that mother asserts that the Division was

required to provide additional services to maternal grandmother so

that she could either take placement of the children or be of

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assistance to mother while she cared for the children, we interpret

these contentions as support for her argument that the juvenile

court erred when it found no available less drastic alternative,

which we address next.

D. Less Drastic Alternative

¶ 44 Both mother and father assert that the juvenile court erred

when it found no available less drastic alternative to termination.

They both argue that maternal grandmother was available to care

for the children either on her own or by moving in with mother to

care for them together. We disagree.

1. Applicable Law and Standard of Review

¶ 45 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 A.M. v. T.M., 2021 CO

14, ¶ 19. When considering a less drastic alternative, a court must

give primary consideration to the child’s physical, mental, and

emotional conditions and needs. § 19-3-604(3). In doing so, the

court may consider, among other things, whether an ongoing

relationship between the parent and child would be beneficial or

detrimental. People in Interest of A.R., 2012 COA 195M, ¶ 38.

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¶ 46 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. Therefore, if the juvenile court considers

a less drastic 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. And under those circumstances, we

must affirm the court’s decision if its findings are supported by the

record. People in Interest of B.H., 2021 CO 39, ¶ 80.

2. The Juvenile Court Did Not Err
in Its Less Drastic Alternatives Finding

¶ 47 The juvenile court found no available less drastic alternative to

termination. The court found the children’s therapists persuasive

when they opined that “any caregiver in the home would have to be

fully able to validate the children’s trauma and understand what

they need to move forward.” Accordingly, the court found that an

allocation of parental responsibilities (APR) to maternal

grandmother was not a viable option. The record supports the

court’s findings.

¶ 48 The caseworker testified that at the time of removal all of the

children were malnourished; D.A., who was then ten years old,

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could not read or write, did not know the letters of the alphabet and

could not identify numbers; N.G., who was then four, was

nonverbal, not toilet trained, and also could not identify letters or

numbers; and L.A., who was then two and a half, could not walk,

did not eat any solid foods, and could not hold his bottle on his

own. The children’s therapists diagnosed each of them with post-

traumatic stress disorder. The caseworker testified that all of the

children had developmental delays but had made progress since

coming into the Division’s custody.

¶ 49 The children’s therapists testified about the importance of a

caregiver who could validate the children’s past traumatic

experiences. The therapists each expressed concerns about

mother’s minimization of the severity of the children’s symptoms

and delays and inability to take responsibility for the trauma and

neglect the children had experienced. The caseworker also testified

that mother “very much” downplayed and was not able to recognize

her part in the neglect the children experienced and that mother

was unable to recognize that the children had delays.

¶ 50 The two younger children’s therapist testified that if the

children’s caregiver was not able to validate their experiences, they

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were at significantly higher risk for a variety of negative long-term

health outcomes related to trauma, physical health, emotional

health, and social-emotional well-being. And D.A.’s therapist

testified about her concerns that he would regress without a

caregiver who could acknowledge his trauma and emotions.

¶ 51 The caseworker also testified that maternal grandmother did

not fully understand the children’s developmental delays or

recognize any concerns when the children visited her immediately

before the petition was filed. The caseworker had concerns about

the emotional impact of the children living with mother, even with

grandmother’s assistance, because of mother’s inability to

acknowledge the abuse and trauma they experienced. And she had

concerns that grandmother also did not recognize mother’s

limitations or the impact those limitations had on the children’s

development.

¶ 52 The caseworker testified that although the children had a

relationship with mother, she was unable to emotionally or

physically meet their needs and, accordingly, an ongoing

relationship was not in their best interests. Further, the

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caseworker opined that placement with maternal grandmother

either alone or with mother was not a “viable option.”

¶ 53 Both mother and father argue that the court erred when it

found no less drastic alternative because the children were not in a

permanent home. But the existence of a permanent home is not an

element the court must find prior to termination. See § 19-3-604.

And the fact that the Division was still investigating a permanent

home does not in itself make an APR an available or viable

alternative. Termination of parental rights freed the children to be

adopted once a permanent option was found or approved, and the

caseworker testified that the children were adoptable.

¶ 54 Based on this evidence, the juvenile court did not err when it

found no less drastic alternative to termination.

III. Disposition

¶ 55 The judgment is affirmed.

JUDGE WELLING and JUDGE SCHUTZ concur.

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