Peo in Interest of VD

25CA1992 Peo in Interest of VD 05-07-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA1992
Arapahoe County District Court No. 23JV81
Honorable Bonnie McLean, Judge

The People of the State of Colorado,

Appellee,

In the Interest of V.D., a Child,

and Concerning T.L. and W.D.,

Appellants.

JUDGMENT AFFIRMED

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

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 7, 2026

Ron Carl, County Attorney, Kiley Schaumleffel, Assistant County Attorney,
Aurora, Colorado for Appellee

Sheena Knight, Guardian Ad Litem

Andrew A. Gargano, Office of Respondent Parents’ Counsel, Denver, Colorado
for Appellant T.L.

Harald Van Gaasbeek, Office of Respondent Parents’ Counsel, Fort Collins,
Colorado for Appellant W.D.

*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 This is a dependency and neglect case. A mother, T.L., and a

father, W.D., appeal the judgment terminating their parent-child

legal relationships with the child, V.D.. We affirm.

I. Background

¶2 After receiving a referral stating the child had been exposed to

controlled substances before it was born, a caseworker spoke with

hospital personnel. They said mother and father tried to deny the

child necessary medical care and they posed a “flight risk.”

¶3 Because mother and father lived in Arapahoe County, the

Arapahoe County Department of Human Services filed a petition in

dependency or neglect. The juvenile court, at the department’s

request, temporarily placed the child in the department’s custody

for placement with a foster family.

¶4 The court adjudicated the child to be dependent and neglected

after mother’s admission and father’s failure to appear. It then

adopted treatment plans for both parents requiring them to (1)

cooperate with the department; (2) establish consistent legal

income; (3) obtain and maintain safe and adequate housing for the

child; (4) complete substance use evaluations and follow any

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recommendations; (5) demonstrate a lifestyle free of illegal activity;

and (6) consistently attend family time.

¶5 Two years after the case began, the department asked the

court to terminate mother’s and father’s parental rights. The court

did so.

II. Colorado Indian Child Welfare Act

¶6 Mother asserts the court did not comply with the Colorado

Indian Child Welfare Act (CICWA), §§ 19-1.2-101 to -132, C.R.S.

2025. Specifically, she contends the court erred by terminating her

parental rights before the department had “exhaust[ed] efforts” to

enroll the child into the Cherokee Nation. We disagree.

A. Applicable Law and Standard of Review

¶7 The federal Indian Child Welfare Act (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 case, it must involve an Indian child. See People in Interest

of A.G.-G., 899 P.2d 319, 321 (Colo. App. 1995). “Indian child” is

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

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either (a) “a member of an Indian tribe,” 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),

C.R.S. 2025.

¶8 Before August 6, 2025, “neither federal nor state law impose[d]

on the Department any obligation to assist in enrolling eligible

children in a tribal nation.” People in Interest of K.C. v. K.C., 2021

CO 33, ¶ 39. But, effective August 6, 2025, the General Assembly

enacted CICWA to “ensure consistent and reliable compliance with

the federal ICWA for the protection of Indian children within

Colorado and to ensure that Indian children in this state are

protected.” § 19-1.2-102(2)(a)(II), C.R.S. 2025. CICWA not only

codified the ICWA into Colorado law, but it also “provide[s]

additional protections for Indian children.” § 19-1.2-102(3). As is

relevant to our analysis, section 19-1.2-109(1), C.R.S. 2025,

requires a department to “assist in enrolling an Indian child . . . in a

tribe with which the child is eligible for enrollment.”

¶9 Whether ICWA applies to a proceeding, and whether a court

correctly applied a legal standard to the particular facts of a case,

are questions of law we review de novo. People in Interest of M.V.,

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2018 COA 163, ¶ 32, overruled on other grounds by People in

Interest of E.A.M. v. D.R.M., 2022 CO 42, ¶ 56 n.10; M.A.W. v. People

in Interest of A.L.W., 2020 CO 11, ¶ 31.

¶ 10 Statutory interpretation is also an issue of law we review de

novo. People in Interest of L.M., 2018 CO 34, ¶ 13. When

interpreting a statute, we consider the entire statute to give

“consistent, harmonious, and sensible effect to all of its parts.”

K.C., ¶ 21. We interpret words and phrases “in accordance with

their plain and ordinary meanings.” Id. And, if the language is

unambiguous, we do not resort to other rules of statutory

construction. Foiles v. Whittman, 233 P.3d 697, 699 (Colo. 2010).

B. Additional Background

¶ 11 At the shelter hearing in March 2023, father claimed he had

Cherokee heritage through his father’s side of his family. Two

months later, the department sent notice to the three federally

recognized Cherokee tribes. Two of the tribes replied the child was

not an Indian child and she was not registered or eligible to register

as a member of the tribe. But the Cherokee Nation responded,

although the child did not meet the definition of an Indian child as

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of the time of the inquiry, she nonetheless qualified for enrollment

in the tribe.

C. Analysis

¶ 12 We conclude, for the following reasons, the court complied

with CICWA.

¶ 13 To begin, mother incorrectly asserts the department had a

duty to assist with enrolling the child in the Cherokee Nation.

Recall that, before August 6, 2025, departments had no duty to

assist with enrolling children as members of tribes. See K.C., ¶ 39.

¶ 14 Even after August 6, 2025, departments only had a duty to

assist in enrolling Indian children. See § 19-1.2-109(1). In that

regard, neither father nor the record suggests the child is an Indian

child as defined by CICWA. Neither parent asserted the child is a

member of any tribe. See § 19-1.2-103(10)(a). And, since neither

parent is a member of a tribe, even though the child is eligible for

membership with the Cherokee Nation, she could not be the

“biological child of a member of an Indian tribe.” See § 19-1.2-

103(10)(b).

¶ 15 The department therefore did not have a duty to assist with

the child’s tribal enrollment. Concluding otherwise would be

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contrary to the plain language of the statute. See K.C., ¶ 21 (“[W]e

strive to avoid statutory constructions that either render words or

provisions superfluous or ineffective or that lead to absurd

results.”). (We recognize, in some cases, assisting a child to enroll

in a tribe may be “the best practice.” See id. at ¶ 53.)

¶ 16 Because the department argued CICWA required it to assist in

enrolling the child in a tribe, mother cites the invited error doctrine

to contend the department “must abide the consequences of [its]

acts.” People v. Rediger, 2018 CO 32, ¶ 34.

¶ 17 But mother’s reliance on the invited error doctrine is

misplaced. “The invited error doctrine applies when a party invites

or injects an error in the proceedings and later claims that the error

should be a basis for reversal on appeal.” People in Interest of S.N-

V., 300 P.3d 911, 916 (Colo. App. 2011). Contrary to mother’s

position, the department is not using its prior statement about

CICWA and enrolling children in tribes to justify reversing the

court’s order or to claim the court’s application of section 19-1.2-

109 was error. Rather, the department asks us to affirm the court’s

order.

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¶ 18 Even assuming, without deciding, the department was

required to assist with enrolling the child in the tribe, the court

concluded, with support in the record, the department made efforts

to enroll the child in the Cherokee Nation:

• The caseworker called the Cherokee Nation several

times but did not reach anyone.

• The caseworker tried to complete an enrollment

application, but she did not have the paternal great-

grandfather’s death certificate, which was necessary to

submit the application.

• The caseworker requested the death certificate from

Oklahoma six days after CICWA took effect. (Mother’s

submission that the caseworker asked the tribe rather

than the State for the death certificate is contradicted

by the record.)

• Once she received the death certificate, she planned to

contact the Cherokee Nation to help her submit the

enrollment application.

¶ 19 Mother asserts the court erred by (1) finding the department

complied with the statute when it had not “exhaust[ed]” efforts to

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enroll the child or proceed with diligence and care; and (2)

terminating her parental rights before the child was enrolled in the

Cherokee Nation. But the statute does not require a department to

exhaust all efforts or succeed in enrolling a child before a court may

terminate parental rights. See § 19-1.2-109(1) (requiring a

department to “assist in enrolling an Indian child”) (emphasis

added); § 19-1.2-125, C.R.S. 2025 (identifying the findings a

juvenile court must make under CICWA before terminating parental

rights, which does not include enrollment findings).

¶ 20 The General Assembly could have required a department to

exhaust all efforts to enroll an Indian child in a tribe or conditioned

termination on a child’s enrollment, but it did not. See Springer v.

City & County of Denver, 13 P.3d 794, 804 (Colo. 2000) (“Where the

legislature could have chosen to restrict the application of a statute,

but chose not to, we do not read additional restrictions into the

statute.”). It is also unclear what additional efforts mother expected

the department to make to enroll the child before receiving the

required death certificate.

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III. Continuance

¶ 21 Mother contends the court erred when it denied her request to

continue the termination hearing. We disagree.

A. Applicable Law and Standard of Review

¶ 22 At a minimum, a parent must be given adequate notice of the

proceedings and an opportunity to protect her rights. People in

Interest of J.A.S., 160 P.3d 257, 262 (Colo. App. 2007). “[I]n

assessing fairness, ‘the trial court [must] give primary consideration

to the child’s physical, mental, and emotional needs.’” People in

Interest of L.S., 2023 CO 3M, ¶ 30 (quoting A.M., ¶ 20). A parent

must establish “actual prejudice resulting from the juvenile court’s

denial of [a] requested continuance” to succeed on a due process

claim. People in Interest of E.B., 2022 CO 55, ¶ 22.

¶ 23 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. When ruling

on a motion to continue, a 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.

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¶ 24 In an expedited permanency planning case, such as this one,

in which a child is under six years of age when the petition is filed,

a juvenile court cannot grant a continuance unless the moving

party establishes good cause for the continuance and the

continuance will serve the child’s best interests. § 19-3-104, C.R.S.

2025. If a court grants a continuance under this section, it must

reschedule the case within thirty days. Id.

¶ 25 We review the denial of a motion to continue a hearing for an

abuse of discretion. R.J.B., ¶ 13. A court abuses its discretion

“when its decision is manifestly arbitrary, unreasonable, or unfair,

or when it misapplies or misconstrues the law.” E.B., ¶ 14. We

review the underlying procedural due process claims de novo.

R.J.B., ¶ 26.

B. Analysis

¶ 26 The record in this case shows that mother was arrested in

Texas about six months before the termination hearing. She was

transported to Colorado, where she was imprisoned. She was

paroled on the morning of the termination hearing. Her attorney

asked the court to continue the termination hearing so mother

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could work on the conditions of her parole and reunify with the

child.

¶ 27 The court denied the request. The court said there was not

good cause to continue the hearing, noting this case had been open

for two-and-a-half years.

¶ 28 We conclude mother has not shown the court abused its

discretion. See id. at ¶ 13. The court properly weighed the need for

orderly and expeditious administration of justice against the

reasons underlying the motion. See id. at ¶ 11.

¶ 29 Mother did not explain why a continuance was in the child’s

best interests. See § 19-3-104. The case had been open for two-

and-a-half years, mother had made minimal progress on her

treatment plan during that time, and the child had substantial

needs. Since the court could only continue the hearing for thirty

days, and since nothing in the record suggests, even if mother

immediately began to comply with all aspects of her treatment plan,

she could become fit within that time, we conclude the record

supports the court’s ruling. See id.

¶ 30 To the extent mother asserts her due process rights were

violated, we disagree. Generally, “due process requires the state to

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provide fundamentally fair procedures to a parent facing

termination,” which include (1) notice of the hearing; (2) advice of

counsel; and (3) the opportunity to be heard and defend. R.J.B.,

¶ 27. In this case, the record shows mother received these three

things.

¶ 31 Also, mother does not tell us what other evidence she would

have presented had the court continued the hearing. We therefore

“are unable to discern that the [hearing was] affected in any

appreciable way” by the denial of her request for a continuance.

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

Because mother has not shown she was prejudiced by the court’s

decision to deny her request for a continuance, we conclude she

has not established a violation of her due process rights. E.B., ¶

22.

IV. Issues Concerning the Court’s Decision to Terminate Mother’s
and Father’s Parental Rights

A. General Principles: Termination Criteria and Standard of Review

¶ 32 A juvenile court may terminate parental rights if it finds, by

clear and convincing evidence, (1) the child was adjudicated

dependent or neglected; (2) the parent has not complied with an

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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. 2025.

¶ 33 Whether the juvenile court properly terminated parental rights

is a mixed question of fact and law. A.M., ¶ 15; see also People in

Interest of A.S.L., 2022 COA 146, ¶ 8 (applying the same standard of

review to whether a department of human services satisfied its

obligation to make reasonable efforts). We review the court’s factual

findings for clear error, but we review de novo its legal conclusion

based on those facts. People in Interest of S.R.N.J-S., 2020 COA 12,

¶ 10.

B. Reasonable Efforts

¶ 34 Mother asserts the juvenile court erred by finding the

department made reasonable efforts to rehabilitate her. We

disagree.

1. Applicable Law

¶ 35 Before a juvenile court may terminate parental rights under

section 19-3-604(1)(c), the department must make reasonable

efforts to rehabilitate the parent and reunite the family. §§ 19-1-

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103(114), 19-3-100.5(1), 19-3-208, 19-3-604(2)(h), C.R.S. 2025.

Reasonable efforts means the “exercise of diligence and care” for

children who are in out-of-home placement. § 19-3-103(114).

¶ 36 Appropriate services provided in accordance with section 19-3-

208 satisfy the reasonable efforts standard. § 19-1-103(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).

¶ 37 In assessing a department’s efforts, the juvenile court should

consider whether the services provided were appropriate to support

the parent’s treatment plan, S.N-V., 300 P.3d at 915, by

“considering the totality of the circumstances and accounting for all

services and resources provided to a parent to ensure the

completion of the entire treatment plan,” People in Interest of

My.K.M. v. V.K.L., 2022 CO 35, ¶ 33. But the parent is ultimately

responsible for using those services to comply with their treatment

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

2011).

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2. Preservation

¶ 38 The department and the child’s guardian ad litem contend

mother did not adequately preserve her reasonable efforts challenge

and, therefore, we should not consider it. But we need not decide

this issue because, even if we assume mother preserved her claim,

we conclude the court did not err when it decided the department

made reasonable efforts to rehabilitate her and those efforts were

ultimately unsuccessful. See L & R Expl. Venture v. Grynberg, 271

P.3d 530, 536 (Colo. App. 2011) (declining to resolve an issue where

the outcome would not change).

3. Analysis

¶ 39 The court found mother had numerous opportunities to

engage in treatment, work with the department, and comply with

her treatment plan, but she did not ameliorate the concerns initially

leading to the department’s involvement. We conclude the record

supports these findings.

¶ 40 The caseworker testified mother had inpatient substance

abuse treatment available to her at times throughout the case, but

she did not engage in the treatment even though a coordinator

offered to take her to the treatment facility. See J.C.R., 259 P.3d at

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1285. The department also gave mother bus passes and family

time throughout the case.

¶ 41 Even so, mother asserts the department’s efforts were

insufficient because it did not assist her with housing or provide

her with referrals for service providers during her time in Texas.

When the case began, the record shows mother was working with

different resources to get a housing voucher. A few months later,

the caseworker tried to meet with mother to assess her housing

needs but could not reach her.

¶ 42 A short time after that, mother was arrested, and she was

incarcerated for about three months. Upon her release, she lived

with her sister until she left for Texas, where she reported having

more support while living with a friend. About ten months later,

mother was rearrested and remained incarcerated until the

termination hearing.

¶ 43 In other words, for most of the case mother either had access

to housing resources, lived with family or friends, or was

incarcerated. See § 19-3-208(2)(b) (requiring referrals to public and

private assistance resources only if they are determined to be

necessary and appropriate). Additionally, after mother went to

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Texas, the record shows she was provided with the names of

treatment providers in her area. She said she found a treatment

facility.

C. Fit Within a Reasonable Time

¶ 44 Mother asserts the court erred when it found she could not

become a fit parent within a reasonable time because, in her view,

she made substantial progress in her treatment plan objectives. We

disagree, and we conclude, for the following reasons, the court did

not err when it decided mother could not become a fit parent within

a reasonable time.

1. Applicable Law

¶ 45 An unfit parent is one whose conduct or condition renders her

unable to give a child reasonable parental care. People in Interest of

D.P., 160 P.3d 351, 353 (Colo. App. 2007). At a minimum,

reasonable parental care requires the parent to provide nurturing

and safe parenting adequate to meet the child’s physical, emotional,

and mental health needs. People in Interest of A.J., 143 P.3d 1143,

1152 (Colo. App. 2006).

¶ 46 In determining whether a parent’s conduct or condition is

likely to change within a reasonable time, “the court may consider

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whether any change has occurred during the proceeding, the

parent’s social history, and the chronic or long-term nature of the

parent’s conduct or condition.” People in Interest of S.Z.S., 2022

COA 133, ¶ 24. What constitutes a reasonable time is fact specific

and must be determined by considering the physical, mental, and

emotional conditions and needs of each child. Id. at ¶ 25. A

“reasonable time” is not an indefinite time. Id. When, as here, the

action is subject to the statutory expedited permanency planning

provisions, the court must consider the child’s need to be placed in

a permanent home as expeditiously as possible. §§ 19-1-102(1.6),

19-1-123, C.R.S. 2025.

2. Analysis

¶ 47 The court decided mother was unfit, she had only minimally

complied with her treatment plan, she exhibited the same problems

addressed in her treatment plan without adequate improvement,

and she was unlikely to become fit within a reasonable time.

¶ 48 To buttress these findings, the court noted, during the two-

and-one-half years the case had been pending, mother had not

secured stable housing, had not complied with substance abuse

treatment, and had not consistently attended family time meetings.

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Then, focusing on the child, the court considered her special needs,

determining she needed immediate stability and permanency.

¶ 49 The record supports these findings even though, as mother

points out, she engaged in substance use treatment and completed

classes regarding substance abuse, anger management, life skills,

and parenting during her incarceration. According to the

caseworker:

• The department was still concerned about mother’s

substance abuse because she had not shown sobriety

outside of a controlled environment.

• Mother had not shown she could obtain and maintain

safe and appropriate housing.

• Despite the treatment mother had received, she still

demonstrated the problems that originally led to the

treatment plan.

• Mother was unlikely to become a fit parent within a

reasonable time.

¶ 50 The caseworker added the child had substantial needs, and

she needed to be in a permanent and stable situation as soon as

possible. The caseworker therefore did not think it was in the

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child’s best interest to give mother more time to show she could

comply with the treatment plan. See S.Z.S., ¶ 25.

¶ 51 Mother maintains that she “made substantial progress and

had a clear path to success set before her that would allow her to

become stable in two to six months.” But it was for the court to

consider and weigh the evidence and resolve any evidentiary

conflicts. See People in Interest of A.J.L., 243 P.3d 244, 250 (Colo.

2010) (“[I]t is important to defer to the [juvenile] court, particularly

when it hears contradictory testimony on material issues . . . .”).

Mother’s contention essentially asks us to reweigh the evidence or

to substitute our judgment for the court’s, neither of which we can

do. See S.Z.S., ¶ 29.

D. Less Drastic Alternatives

¶ 52 Mother and father both contend the court erred by finding

there were no less drastic alternatives to termination. We are not

persuaded. We conclude, rather, the record supports the court’s

finding there was no less drastic alternative in the child’s best

interests, so we will not disturb that finding.

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1. Applicable Law and Standard of Review

¶ 53 Before terminating parental rights under section 19-3-

604(1)(c), the juvenile court must consider and eliminate less

drastic alternatives. People in Interest of M.M., 726 P.2d 1108, 1122

(Colo. 1986). In considering less drastic alternatives, a court must

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

emotional conditions and needs. § 19-3-604(3); People in Interest of

D.B-J., 89 P.3d 530, 531 (Colo. App. 2004). A court may also

consider, among other things, (1) whether an ongoing relationship

with a parent would be beneficial to the child, People in Interest of

A.R., 2012 COA 195M, ¶ 38; (2) whether the child is bonded with

the parent, see People in Interest of N.D.V., 224 P.3d 410, 421 (Colo.

App. 2009); and (3) whether an allocation of parental

responsibilities (APR) provides adequate permanence and stability

for the child, People in Interest of T.E.M., 124 P.3d 905, 910 (Colo.

App. 2005).

¶ 54 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. If, therefore, the juvenile court considers

a less drastic alternative but instead finds termination is in the

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child’s best interests, it must reject the less drastic alternative and

order termination. Id. at ¶ 32.

¶ 55 “We review a juvenile court’s less drastic alternatives findings

for clear error.” People in Interest of E.W., 2022 COA 12, ¶ 34. So,

when a juvenile court considers less drastic alternatives but instead

finds termination is in the child’s best interests, we are bound to

affirm the decision if the record supports the court’s findings.

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

2. Analysis

¶ 56 The court found termination was in the child’s best interests

and there was no less drastic alternative that would meet the child’s

physical, emotional, and mental health needs. While making these

findings, the court focused on (1) the child’s “very serious” and

“significant” mental, physical, and emotional needs; (2) the child’s

age; (3) the length of the case and the child’s out-of-home

placement; and (4) the child’s overall need for permanency and

stability.

¶ 57 The record supports these findings. In addition to the child’s

special needs, the caseworker described the child’s need for

consistency, agreeing “any little change” adversely impacted her.

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Given her special needs, the pressing need for permanency and

stability, and mother’s tendency to push boundaries, the

caseworker thought termination and adoption was in the child’s

best interests. See J.C.R., 259 P.3d at 1285 (“Permanent placement

is not a viable less drastic alternative to termination if the children

need a stable, permanent home that can only be assured by

adoption.”).

¶ 58 Mother and father assert the department did not make

“ongoing and diligent efforts to explore relative placement options.”

Specifically, they assert the department did not explore maternal

great-grandfather as a placement option beyond “a single text

message.” Mother adds the department did not (1) follow-up with

maternal uncle after the denial of the Interstate Compact on the

Placement of Children study of his home; (2) explore mother’s sister

as a placement option after January 2024; or (3) try to contact

paternal grandfather or paternal great-grandmother after November

2024. (In support of these contentions, mother and father rely on

evidence no one introduced into the record during the termination

hearing. We do not consider evidence that “was not presented to

the trial court.” In re Edilson, 637 P.2d 362, 364 (Colo. 1981).)

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¶ 59 The department is obligated to investigate a “reasonable

number” of placement options. D.B-J., 89 P.3d at 532. In this case,

the caseworker (1) followed-up with maternal uncle after the home

study, and he responded that he was no longer willing to be

considered as a placement option; (2) requested necessary

documentation to start the home study process for maternal great-

grandfather, who did not respond; (3) spoke with paternal

grandmother and maternal great-uncle, who were not able to be

placement options; (4) spoke to maternal aunt in February 2024,

who said she “needed to take a step back”; and (5) left a message for

paternal grandfather in November 2024, who did not respond.

¶ 60 Neither mother nor father direct us to any authority requiring

the department to repeatedly contact relatives who have already

declined placement. Rather, mother relies on section 19-3-

507(1)(d), C.R.S. 2025, which prohibits the court from denying

placement with a relative on the sole basis that the relative

previously declined consideration as a placement. But here, the

court did not deny an allocation of parental rights to a family

member who previously had withdrawn from placement

consideration. The court found, instead, there was no alternative to

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termination, including an allocation of parental rights. See A.M.,

¶ 32. Even if the department had engaged in a more diligent search

for relatives, it would not change the court’s ultimate finding that

termination was the best option for the child. See People in Interest

of H.L.B., 2025 COA 86, ¶ 23 (“[W]hether a less drastic alternative is

available is a distinct consideration from a court’s later finding of

whether that alternative is in the child’s best interests.”).

¶ 61 Mother and father next submit the court erred by finding an

allocation of parental rights, in general, was not a viable less drastic

alternative. In support, they focus on mother’s positive visits with

the child, mother’s treatment plan progress, and testimony

indicating contact between the child and the parents was in her

best interests. Father adds the order lacked support because there

was “[n]o evidence” continued contact with him would “disrupt the

child’s stability and permanency.”

¶ 62 While it is true these are some of the factors the court may

weigh when determining if a less drastic alternative is appropriate,

see A.R., ¶ 38, no single factor is dispositive. Id. (noting the court

may consider “various factors”). And we cannot reweigh the

evidence or substitute our judgment for the court’s. S.Z.S., ¶ 29.

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E. Ineffective Assistance of Counsel

¶ 63 Father contends he received ineffective assistance of counsel

because his counsel did not (1) request an amended treatment plan

following his incarceration; and (2) advocate for the department to

make reasonable efforts during his incarceration to render him a fit

parent. We disagree.

1. Applicable Law

¶ 64 A parent has a statutory right to effective counsel in

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

C.R.S. 2025; A.R. v. D.R., 2020 CO 10, ¶ 47. A parent can raise a

claim of ineffective assistance of counsel in a dependency and

neglect proceeding for the first time on appeal. People in Interest of

C.H., 166 P.3d 288, 291 (Colo. App. 2007).

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

cases to evaluate ineffective assistance of counsel claims in

dependency and neglect proceedings. A.R. v. D.R., ¶ 60 (citing

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

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

was outside the wide range of professionally competent assistance,

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

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performance — in other words, there is a reasonable probability,

but for counsel’s unprofessional errors, the outcome of the

proceeding would have been different. Id. at ¶¶ 48, 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.

¶ 66 If the parent’s allegations lack sufficient specificity, we may

summarily deny the ineffective assistance claim. See C.H., 166

P.3d at 291. In other words, a remand for an evidentiary hearing is

only required if the parent’s allegations are sufficiently specific and

compelling to constitute a prima facie showing of ineffective

assistance of counsel.

2. Additional Background

¶ 67 During the shelter hearing in March 2023, the court appointed

counsel for father. Six months later, father’s counsel moved to

withdraw. Considering father’s lack of involvement, the court

granted counsel’s motion. In January 2024, father was arrested

and incarcerated until July 2024.

¶ 68 When father appeared at a permanency planning hearing in

April 2024, the court reappointed his former counsel and directed

father to communicate with his counsel. Six months later, father’s

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counsel again requested to withdraw. The court granted this

request.

¶ 69 After father’s reincarceration in January 2025, the court again

reappointed father’s former counsel, and she remained his counsel

through the termination hearing. Father was transferred to a

different incarceration facility in July 2025, and he remained

incarcerated through the termination hearing.

3. Appropriate Treatment Plan

¶ 70 Father asserts he received ineffective assistance from counsel

because she did not request an amended treatment plan following

his incarceration despite his inability to complete some of his

treatment plan objectives — such as obtaining legal income,

maintaining stable housing, and participating in substance use

disorder treatment — while incarcerated. We need not decide

whether counsel’s failure to make such a request amounted to

deficient performance, because, even if it did, father has not shown,

but for this failure, the result of the proceeding would have been

different. See A.R. v. D.R., ¶ 60.

¶ 71 Father asserts that “[w]ith proper advocacy from his attorney,

[he] would have been provided an appropriate treatment plan based

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on his incarceration, would have received family time with his

daughter, would have obtained relevant services and treatment to

become a fit parent while incarcerated, and . . . was likely to

become fit.” But he does not explain how he could have addressed

the safety concerns identified in this case, particularly the

substance use concerns, without completing the action steps listed

in his treatment plan. See People in Interest of K.B., 2016 COA 21,

¶ 14 (“In determining whether a treatment plan is appropriate, the

court must consider whether the plan’s objectives adequately

address the safety concerns identified during the assessment of the

family.”). Indeed, he does not explain how a treatment plan without

legal income, stable housing, and substance use treatment, would

have rendered him a fit parent in a reasonable time. Nor does he

explain why, even if his incarceration served as a barrier for a

portion of the case, his treatment plan was overall inappropriate

considering he was out of custody for about half of the case.

¶ 72 Based on these factors, father’s claim — with an appropriate

treatment plan he was likely to become fit — is too speculative to

establish prejudice. See People v. Sherman, 172 P.3d 911, 914

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(Colo. App. 2006) (holding a speculative claim does not satisfy the

prejudice prong of Strickland).

4. Reasonable Efforts

¶ 73 Father submits he received ineffective assistance because his

counsel did not ask the court to order the department to make

reasonable efforts while he was incarcerated to render him a fit

parent. He specifically points to departmental efforts concerning

family time, services, and attendance at family engagement

meetings. But, even if we assume, without deciding, counsel’s

performance fell below the range of professionally competent

assistance, father has not shown he was prejudiced by the putative

error.

¶ 74 For example, father asserts he “never received the family time

to which he was entitled” during his incarceration, which “led to the

juvenile court’s finding that [he] was inconsistent in his visitation

and that there was a lack of attachment between [father] and the

[child].” But, in finding father’s family time participation “very

inconsistent,” the court focused mainly on “the time that he was not

in custody.” Indeed, the caseworker testified the department

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continued to offer family time before father was incarcerated, but he

had not seen the child for several months.

¶ 75 And, during father’s incarceration, the caseworker reported

the department worked to facilitate family time, but the facilities

reported several barriers, including technology and staff limitations.

Yet, despite these barriers, the department set up virtual family

time, but father only attended two of the visits. After his transfer to

another facility, approximately two months before the termination

hearing, he requested the visits be put on hold.

¶ 76 Father also contends his counsel did not investigate the

services and treatment available to him during his incarceration,

which, father continues, “led to the juvenile court finding . . . that

[father] did not reasonably comply with his treatment plan, and that

[he] provided no evidence of any substance use disorder evaluation

or treatment.” But this contention overlooks (1) father’s own

statements to the caseworker reflecting his knowledge of services

available to him during his incarceration; and (2) the approximately

fifteen months when he was out of custody and did not complete a

substance abuse evaluation or treatment.

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¶ 77 Finally, father submits, without participating in family

engagement meetings, he “could not adequately participate in the

case, achieve the requirements of his treatment plan, []or

understand the child’s medical and emotional needs.” Aside from

the family engagement meetings, however, the caseworker

continued to meet with father during his incarceration, and they

discussed, among other things, father’s options, group and class

attendance during his incarceration, and the child’s progress.

¶ 78 In short, father’s contentions do not specifically demonstrate

prejudice, and, thus, he has not made a prima facie showing of

ineffective assistance of counsel. A.R. v. D.R., ¶ 63 (“If the parent’s

allegations lack sufficient specificity, then the ineffective assistance

of counsel claim may be summarily denied.”). Consequently,

because father has not satisfied the second prong of the Strickland

test, his claims must fail. See C.B., ¶ 26.

¶ 79 The judgment is affirmed.

CHIEF JUDGE ROMÁN and JUDGE ASHBY concur.

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