Peo in Interest of CMS

25CA1467 Peo in Interest of CMS 04-09-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA1467
City and County of Denver Juvenile Court No. 23JV30436
Honorable Laurie Clark, Judge

The People of the State of Colorado,

Appellee,

In the Interest of C.M.S., a Child,

and Concerning T.P.S.,

Appellant.

JUDGMENT AFFIRMED

Division A
Opinion by JUDGE GRAHAM*
Román, C.J., and Ashby*, J., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 9, 2026

Miko Brown, City Attorney, Christina R. Kinsella, Assistant City Attorney,
Denver, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem

Beth Padilla, Office of Respondent Parents’ Counsel, Durango, Colorado, for
Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 In this dependency and neglect proceeding, T.P.S. (mother)

appeals the judgment terminating her parent-child legal

relationship with C.M.S. (the child). We affirm.

I. Background

¶2 Denver Human Services (the Department) filed a petition in

dependency or neglect concerning then four-year-old C.M.S. and

her two-year-old brother. The petition alleged substance use by

mother and that the children, who were developmentally delayed,

had not received regular medical care.

¶3 Mother entered a no-fault admission, and the juvenile court

adjudicated the children dependent and neglected. The court then

adopted a treatment plan for mother requiring her to (1) attend

family time and learn about the children’s needs; (2) complete a

mental evaluation and follow treatment recommendations;

(3) participate in a substance abuse evaluation, follow

recommendations, and submit to sobriety monitoring; and

(4) cooperate with professionals.

¶4 The Department then moved to terminate mother’s parental

rights regarding C.M.S. Her younger child, who was also subject to

a termination motion, is not affected by this appeal. Over two years

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after the petition was filed, following a hearing held over three days

in the span of a month, the court terminated mother’s parental

rights.

II. The Indian Child Welfare Act (ICWA)

¶5 Mother asserts that the case, having first been remanded for

ICWA certification, must again be remanded because the juvenile

court and the Department failed to comply with the due diligence

provisions of Colorado’s statute implementing ICWA. See

§§ 19-1.2-101 to -132, C.R.S. 2025 (requiring compliance with

federal ICWA statute). We disagree that a further remand is

required.

A. Applicable Law

¶6 ICWA establishes “minimum Federal standards for the removal

of Indian children from their families and the placement of such

children in foster or adoptive homes which will reflect the unique

values of Indian culture.” 25 U.S.C. § 1902. For ICWA to apply in a

dependency or neglect proceeding, the case must involve an Indian

child. See People in Interest of A.G.-G., 899 P.2d 319, 321 (Colo.

App. 1995). An “Indian child” is “any unmarried person . . . under

the age of eighteen” who is either (a) “a member of an Indian tribe”

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or (b) “eligible for membership in an Indian tribe” and “the biological

child of a member of an Indian tribe.” 25 U.S.C. § 1903(4);

§ 19-1.2-103(10).

¶7 A mere assertion of Indian heritage, without more, is

insufficient to give the juvenile court reason to know that the child

is an Indian child and trigger the provisions of ICWA. People in

Interest of E.A.M. v. D.R.M., 2022 CO 42, ¶ 56. However, Colorado’s

ICWA statute places additional requirements upon a department

when it has information that “the child may have Indian heritage.”

§ 19-1.2-107(4)(a). Under those circumstances, the court must

direct the department to “exercise due diligence in gathering

additional information that would assist the court in determining

whether there is reason to know that the child is an Indian child.”

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

B. Analysis

¶8 After mother filed her opening brief, the parties jointly

requested a limited remand to allow the juvenile court and the

Department to comply with the inquiry requirements of ICWA. We

remanded the case for the limited purpose of resolving the ICWA

issues.

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¶9 In mother’s reply brief, she argues that a second remand is

required because due diligence was not exercised when the

Department failed to contact the Cherokee Nation “as instructed,”

and because of “an unclear record as to the applicability of ICWA,”

caused by the court’s failure to “issue any order that is included in

the record.” But the juvenile court issued a thorough written order

concluding that ICWA’s due diligence requirements were satisfied,

that the child was not an Indian child, and that the proceedings

were therefore not governed by ICWA.

¶ 10 The record supports the court’s findings. Mother maintained

throughout the proceedings that she did not have American Indian

or Alaska Native heritage and filed a declaration disclaiming such

heritage. Father did not participate in the proceedings, so there

was no information as to any relevant paternal heritage.

¶ 11 Early in the case, maternal grandmother reported Cherokee

heritage but that no family members were enrolled in a tribe.

Grandmother later explained that her own grandmother either lived

on a reservation or was a member of a tribe, but that she did not

know which tribe and that her “older brother ha[d] that

information . . .”

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¶ 12 On remand, the caseworker attempted to contact mother,

maternal grandmother, maternal grandmother’s boyfriend, and

maternal great-uncle, but received no responses. The Department

sent certified mailings to the Eastern Band of Cherokee Indians and

United Keetoowah Band of Cherokee Indians. The Eastern Band of

Cherokee Indians responded that the child was not a member of the

tribe or eligible for membership. The United Keetoowah Band of

Cherokee Indians received the Department’s certified mailing but

sent no response.

¶ 13 The record contains an email notice from the Cherokee Nation

informing the Department that the child was not a member of the

tribe or eligible for membership. The email included instructions on

how to “receive an official response letter.” Mother argues that the

Department did not request an official response letter, but we are

not aware of any authority that the Cherokee Nation’s email was

insufficient to satisfy the due diligence requirement. See

§ 19-1.2-107(4)(b)(VI) (due diligence includes “[c]ontacting the tribal

representative or representatives by e-mail, phone call, letter, or any

other means agreed to by the parties . . .”) (emphasis added).

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¶ 14 Based on this record, we conclude that the juvenile court and

Department have sufficiently complied with ICWA. Because the

child is not an Indian child, ICWA does not apply. Therefore, we

discern no basis to again return the matter to the juvenile court for

additional investigation.

III. Continuance

¶ 15 Mother contends that the juvenile court erred in denying her

counsel’s request for a continuance. We disagree.

A. 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. 2025. 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 When, as in this case, a child is under six years old at the time

a petition in dependency or neglect is filed, the expedited

permanency planning (EPP) provisions of the Children’s Code

provide that a juvenile court cannot grant a continuance unless the

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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. 2025.

¶ 18 A continuance motion is left to the sound discretion of the trial

court, and its ruling will not be disturbed on appeal absent a clear

abuse of that discretion. People in Interest of A.J., 143 P.3d 1143,

1150 (Colo. App. 2006). A court abuses its discretion when its

decision was manifestly arbitrary, unreasonable, unfair, or based

on a misapplication or misconstruction of the law. People in

Interest of E.B., 2022 CO 55, ¶ 14.

¶ 19 We review procedural due process claims de novo. R.J.B.,

¶ 26. But a parent is not entitled to relief on a due process claim

absent a showing of harm or prejudice. People in Interest of J.A.S.,

160 P.3d 257, 262 (Colo. App. 2007).

B. Additional Background

¶ 20 Mother did not attend any court proceedings for nearly a year

before the termination hearing. At a hearing held approximately

four and a half months before the termination hearing, mother’s

counsel conceded that mother “ha[d] not been fully engaged in this

case.”

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¶ 21 At the start of the termination hearing, mother’s counsel

requested a continuance “on behalf of [mother] given that she is not

here . . . .” Mother’s counsel requested “about a thirty-day

continuance” and explained that she had received an email from

mother “indicating [mother’s] intention to be in court.” The juvenile

court denied the request. On the second day of the hearing, the

juvenile court asked mother’s counsel about mother’s failure to

appear, but mother’s counsel declined to make a further record.

Mother did not appear for any of the three days of the termination

hearing.

¶ 22 Mother’s counsel also requested the continuance because “due

to some of the communication difficulties” with mother, her counsel

“was not able to subpoena” mother’s treatment providers, and

“[mother] might have wanted [her counsel] to have done that.” But

mother’s counsel requested the continuance “primarily due to

[mother’s] nonappearance.”

¶ 23 On the second day of the termination hearing, held four days

after the first, mother’s counsel called maternal grandmother to

testify. Mother’s counsel did not call any other witnesses but

cross-examined both Department witnesses. On the third day of

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the hearing, held one month after the first day, the court asked

mother’s counsel if she had any further witnesses, but she had

none.

C. Analysis

¶ 24 Mother argues that the juvenile court abused its discretion in

denying her request for a continuance because her counsel was not

prepared, thus her due process rights were violated because she

was not able to call witnesses that could have demonstrated her

compliance with the treatment plan. Mother also argues that it was

in the child’s best interests to continue the case to ensure that

mother received adequate representation.

¶ 25 The juvenile court denied mother’s request, finding that it was

not in the child’s best interests and that mother knew about the

hearing. But the court told mother’s counsel that if she obtained

“additional information with documentation . . . in regards to the

reason why [mother]” was not there, the court would “address that

once [it was] made aware of it.”

¶ 26 The record supports these findings. The guardian ad litem

(GAL) objected to a continuance, telling the court that the child had

“asked about permanency and about whether or not she can feel

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stable in her current placement.” Because this was an EPP case

and the child was “well aware . . . about her lack of permanency,”

the GAL argued that a continuance would not be in the child’s best

interest. Furthermore, mother had established a pattern of not

appearing for court or engaging in the case.

¶ 27 Mother also argues that her attorney “called no witnesses on

her behalf, which could have occurred if a continuance was

granted.” But the record refutes this argument because mother’s

attorney called maternal grandmother on mother’s behalf. Mother

further argues that “[i]f the trial court would have given mother’s

attorney a few weeks to get the therapists under subpoena, the

delay would have been de minimis.” But the court offered mother’s

attorney another opportunity to call witnesses a full month after the

request for a continuance. Added to that was the opportunity to

appear at one of the hearing dates over the course of that month

but she failed to appear.

¶ 28 While mother generally asserts that “[t]he fact that her

attorney broached the subject of having the treatment providers

testify demonstrates that the missing testimony could have been

helpful to mother,” mother’s counsel did not make any offer of proof

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or provide any specifics allowing us to discern how “the termination

proceedings would have been affected in any appreciable way” by a

treatment providers’ testimony. E.B., ¶ 22 (citing People in Interest

of C.G., 885 P.2d 355, 358 (Colo. App. 1994)).

¶ 29 We therefore determine that the court did not abuse its

discretion by denying mother’s continuance request. And because

mother has failed to demonstrate any actual prejudice resulting

from the juvenile court’s orders, we conclude that her due process

claim must fail. See J.A.S., 160 P.3d at 262.

IV. Ineffective Assistance of Counsel

¶ 30 Mother alleges that her counsel provided ineffective assistance

by failing to subpoena and call her treatment providers to testify

about her treatment plan compliance. We are not persuaded.

A. Applicable Law

¶ 31 A parent has a statutory right to appointed counsel in

dependency and neglect proceedings. §§ 19-1-105(2), 19-3-202(1),

C.R.S. 2025. A parent’s statutory right to counsel includes the

right to effective assistance of counsel. A.R. v. D.R., 2020 CO 10,

¶ 47.

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¶ 32 We employ the same Strickland test that is used in criminal

cases to evaluate ineffective assistance of counsel claims in

dependency and neglect proceedings. See id. at ¶¶ 48, 60 (citing

Strickland v. Washington, 466 U.S. 668 (1984)). Under this test, to

establish a claim, the parent must show that (1) counsel’s

performance was outside the wide range of professionally competent

assistance, and (2) the parent was prejudiced by counsel’s deficient

performance — that is, there is a reasonable probability that but for

counsel’s unprofessional errors, the outcome of the proceeding

would have been different. Id. at ¶¶ 48-49, 60. “If the parent fails

to establish either prong of this test, the claim fails.” People in

Interest of C.B., 2019 COA 168, ¶ 26.

¶ 33 We must remand for an evidentiary hearing if the parent’s

allegations are sufficiently specific and compelling to constitute a

prima facie showing of ineffective assistance of counsel. A.R., ¶ 63.

But if the parent’s allegations lack specificity, we may summarily

deny the ineffective assistance claim. Id.

B. Analysis

¶ 34 Even assuming, without deciding, that mother’s counsel’s

performance fell below the range of professionally competent

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assistance, mother has not shown that she was prejudiced by

counsel’s deficient performance such that, but for counsel’s failure

to subpoena certain witnesses, the result of the proceeding would

have been different. See A.R., ¶ 28.

¶ 35 Mother argues that her treatment providers could have

testified that she engaged in treatment throughout the case because

she (1) completed a signal evaluation; (2) participated in sessions at

the Denver Recovery Center; (3) reported to the court, nearly a year

before the termination hearing, that she was engaging in therapy;

and (4) engaged in a new therapy intake five months before the

termination hearing. But mother concedes in her opening brief that

the “details” of the treatment providers’ potential testimony “are

widely unknown.”

¶ 36 As we discussed above, mother’s broad assertion that “the

missing testimony could have been helpful,” does not allow us to

discern how the proceedings would have been affected by the

treatment providers’ testimony, especially given that the

Department presented evidence on all issues raised by mother in

her opening brief.

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¶ 37 The caseworker testified that mother completed the signal

evaluation, but that she did not follow its recommendations. The

termination report referenced mother’s treatment at the Denver

Recovery Center, but also that she stopped engaging nearly ten

months before the termination hearing. The caseworker testified

that mother worked with a therapist on her mental health earlier in

the case, but that mother had not had any contact with the

therapist “for quite a few months.”

¶ 38 Regarding the therapy intake, the caseworker explained that

mother completed an intake for substance use and mental health

treatment, but that the caseworker had to make a new referral

because “[t]here was somewhat of an incident where [the treatment

provider] then would no longer take [mother] as a client there.” But

mother did not complete the second intake.

¶ 39 Even if treatment providers testified to some additional

compliance, the record shows that mother did not comply with

many aspects of her treatment plan. The caseworker testified that

mother reported throughout the case that she was not sober and

had been using substances including methamphetamine and

fentanyl. And mother missed most of her urinalysis tests. The

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caseworker reported that she had not seen mother in person for

approximately nine months, had not had email contact for four

months, and had not spoken with mother for two months. The

caseworker also testified that mother had not seen the child for over

eighteen months.

¶ 40 Ultimately, the caseworker opined that mother did not comply

with her treatment plan. And the juvenile court concluded that

mother did not comply with her treatment plan and had not

internalized the services provided. See A.J., 143 P.3d at 1151

(partial or even substantial compliance with a treatment plan “may

not be sufficient to correct or improve the parent’s conduct or

condition”).

¶ 41 For these reasons, we conclude that mother has not raised

sufficiently specific and compelling allegations of prejudice to

constitute a prima facie showing of ineffective assistance of counsel.

A.R., ¶ 63. We therefore reject her claim.

V. Child’s Best Interests

¶ 42 Relying on section 19-7-203, C.R.S. 2025 (addressing the

rights of siblings in foster care), mother argues that termination of

parental rights was not in the child’s best interests because the

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child was separated from her younger brother and did not have

contact with family members.

¶ 43 We acknowledge that section 19-7-203 evinces the

legislature’s expressed importance of placing siblings together in

foster homes when it is in the best interests of each sibling. Here,

however there was a sharp contrast between the needs of C.M.S.

and her younger sibling who had special needs, required special

care and had not yet been placed in a permanent home. The court

considered the special needs of C.M.S.’s younger brother and

circumstances of her other half-siblings and determined that the

permanency of adoption for the C.M.S supplanted the possible

placement with the special needs brother. The court recognized

that children under the age of six are at a critical stage of

development and without timely permanency will suffer emotional

damage. This argues in favor of placement in a permanent home as

quickly as possible and, on balance, is in the best interest of the

child.

¶ 44 The trial court made factual findings as to why joint

placement of C.M.S. with her younger brother or other half-siblings

was not in her best interests. And those findings are supported by

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the record. Consequently, we conclude that the court did not abuse

its discretion in concluding that C.M.S.’s separate permanent

placement was in her best interests.

VI. Disposition

¶ 45 The judgment is affirmed.

CHIEF JUDGE ROMÁN and JUDGE ASHBY concur.

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