Peo in Interest of R-GJM

24CA0857 Peo in Interest of R-GJM 03-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0857
Mesa County District Court No. 21JV236
Honorable Richard T. Gurley, Judge

The People of the State of Colorado,

Appellee,

In the Interest of R-G.J.M., a Child,

and Concerning T.M.,

Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE DUNN
Tow and Graham*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 6, 2025

Todd Starr, County Attorney, Brad Junge, Assistant County Attorney, Grand
Junction, Colorado, for Appellee

Jenna L. Mazzucca, Guardian Ad Litem

Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr,
Office of Respondent Parents’ Counsel, Denver, 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. 2024.
¶1 T.M. (mother) appeals the juvenile court’s judgment

terminating her parent-child legal relationship with R-G.J.M. (the

child). Because we conclude that the Mesa County Department of

Human Services did not make active efforts to reunite mother and

the child as required by the Indian Child Welfare Act of 1978

(ICWA), 25 U.S.C. §§ 1901-1963, we reverse and remand for further

proceedings.

I. Background

A. Pre-ICWA Period

¶2 In November 2021, mother gave birth to the child while

incarcerated. Mother was transferred to the hospital, where she

told a caseworker that she was “mentally disabled” and having

paranoid delusions. The juvenile court granted emergency

protective custody of the child to the Department. The Department

placed the child in a kinship placement and filed a petition in

dependency and neglect.

¶3 In March 2022, the court adjudicated the child dependent or

neglected. Meanwhile, the Department learned that mother was an

enrolled member of the Chippewa Cree of the Rocky Boy’s

Reservation (the Tribe). In response to the Department’s inquiry,

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the Tribe said that the child was neither enrolled in the Tribe nor

eligible for enrollment. In April 2022, the court determined the

child was not an Indian child under ICWA.

¶4 Shortly after, the court adopted a treatment plan for mother.

The plan required her to (1) complete a parenting evaluation and

follow all recommendations; (2) complete a mental health and

substance abuse evaluation and follow all recommendations;

(3) submit to random substance screenings; (4) engage in family

time with the child and complete a parenting class; (5) maintain

safe and stable housing; (6) gain and maintain employment;

(7) comply with all terms and conditions of any criminal case or

probation; and (8) sign releases of information and maintain contact

with case professionals.

¶5 Months into the treatment plan, mother stopped participating

and stated that she wanted to relinquish her parental rights. After

several months with no engagement, the Department filed a motion

to terminate parental rights.

B. Post-ICWA Period

¶6 But in October 2023, at the scheduled termination hearing,

mother informed the Department that the child was eligible for

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enrollment in the Tribe. Though now having reason to know the

child was an Indian child, the Department didn’t ask to vacate the

termination hearing; instead, at the Department’s request, the court

continued the termination hearing for two months to December

2023. The court then continued the termination hearing another

three months to March 2024, again at the Department’s request, so

that the Department could arrange for a qualified expert witness to

testify. In January 2024, the child became an enrolled member of

the Tribe.

¶7 In February 2024, the Department filed a motion asking the

court to find that, as required by ICWA, it had made active efforts to

reunite mother and the child. At the review hearing, mother argued

that the Department had not made active efforts because it had not

provided in-person family time with the child and had not

recommended a parenting class until that month. Additionally,

mother, mother’s counsel, and mother’s guardian ad litem

explained that, since October 2023 when there was reason to know

the child was an Indian child, mother had been consistently

engaging in services, had completed a neuropsychological

evaluation, had stable housing and income, was successfully

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managing her mental health and substance use, was enrolled in

school, was complying with her probation, and was volunteering at

a homeless shelter.

¶8 In response, the Department didn’t dispute mother’s recent

compliance with these portions of the treatment plan (though the

child’s guardian ad litem emphasized mother’s previous lack of

compliance). Instead, though ICWA clearly applied, the Department

expressed that “it’s unreasonable for anybody to request that we

make active efforts” because “for . . . two and a half years [the child]

has been out of placement.” Even though many months had

passed since there was reason to know the child was an Indian

child, concerning active efforts, the Department reported that it was

“look[ing] into” getting a parenting class authorized for mother “as

soon as possible,” “discussing about getting [mother] out for visits”

to a different county where the child was located, and working “to

get information from [mother’s] providers since being aware now

that [mother] has changed her mind.” Deferring its ruling, the

court set a six-hour active efforts and review hearing for May 2024.

¶9 Yet the March 2024 termination hearing remained scheduled.

At that hearing, mother and father appeared, but the judge

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assigned to the case (and who set the active efforts hearing) wasn’t

available, so a different judge presided. At the outset of the

hearing, the parties argued about whether, in light of the pending

active efforts hearing, the court should continue the termination

hearing. The Department asked the court to consolidate the two

hearings and proceed with termination. Father’s counsel countered

that the roughly five months that active efforts “should have been in

place” was insufficient to satisfy ICWA. The court proceeded with

the termination hearing, granted the Department’s motion, and

terminated mother’s parental rights.1

II. The Department Did Not Make Active Efforts

¶ 10 At the termination hearing, there was no real dispute that

mother was managing her mental health and substance use, was

compliant with probation, and had stable housing and income.

Indeed, the juvenile court acknowledged mother’s recent efforts

toward her treatment plan. Given mother’s compliance with these

aspects of her treatment plan, it appears that family time and

1 The juvenile court denied the motion to terminate father’s parental

rights, finding that the Department had not made active efforts to
rehabilitate father and reunify the family.

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parenting were the remaining treatment plan areas where mother

was lagging.

¶ 11 But citing the case’s thirty-month lifespan, mother’s previous

intent to relinquish her parental rights, her failure to comply with

the treatment plan in a reasonable amount of time, and the child’s

need for permanency, the court generally found beyond a

reasonable doubt that “active efforts were made” regarding mother

(without identifying any specific efforts that it found satisfied

ICWA).

¶ 12 Mother contends that the juvenile court erred by finding that,

after ICWA’s requirements were triggered in October 2023, the

Department made active efforts to reunify the family. On this

record, we agree.

A. Applicable Law and Standard of Review

¶ 13 In non-ICWA cases, an agency must make “reasonable efforts”

to rehabilitate the parents and reunite the family. §§ 19-1-

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

2024. Reasonable efforts mean the “exercise of diligence and care”

to reunify parents with their children. § 19-1-103(114).

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Reasonable efforts are satisfied when an agency provides services in

accordance with section 19-3-208. § 19-1-103(114).

¶ 14 But ICWA requires that an agency make “active efforts . . . to

provide remedial services and rehabilitative programs designed to

prevent the breakup of the Indian family.” 25 U.S.C. § 1912(d).

Active efforts require “affirmative, active, thorough, and timely

efforts intended primarily to maintain or reunite an Indian child

with his or her family.” 25 C.F.R. § 23.2 (2024). Active efforts are

“a more demanding standard than the reasonable efforts standard

applied in non-ICWA cases.” People in Interest of My.K.M. v. V.K.L.,

2022 CO 35, ¶ 31. And though ICWA doesn’t outline what an

agency must do to satisfy the active efforts standard, federal

regulations outline non-exhaustive examples of active efforts:

• conducting “a comprehensive assessment of the

circumstances of the Indian child’s family, with a focus on

safe reunification as the most desirable goal”;

• identifying “appropriate services and helping the parents to

overcome barriers, including actively assisting the parents

in obtaining such services”;

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• identifying, notifying, and inviting “representatives of the

Indian child’s Tribe to participate in providing support and

services to the Indian child’s family and in family team

meetings, permanency planning, and resolution of

placement issues”;

• conducting or causing to be conducted “a diligent search for

the Indian child’s extended family members, and contacting

and consulting with extended family members to provide

family structure and support for the Indian child and the

Indian child’s parents”;

• offering and employing “all available and culturally

appropriate family preservation strategies and facilitating

the use of remedial and rehabilitative services provided by

the child’s Tribe”;

• taking steps to “keep siblings together whenever possible”;

• supporting “regular visits with parents or Indian custodians

in the most natural setting possible as well as trial home

visits of the Indian child during any period of removal,

consistent with the need to ensure the health, safety, and

welfare of the child”;

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• identifying “community resources including housing,

financial, transportation, mental health, substance abuse,

and peer support services and actively assisting the Indian

child’s parents or, when appropriate, the child’s family, in

utilizing and accessing those resources”;

• monitoring “progress and participation in services”;

• considering “alternative ways to address the needs of the

Indian child’s parents and, where appropriate, the family, if

the optimum services do not exist or are not available”; and

• providing “post-reunification services and monitoring.”

25 C.F.R. § 23.2; see also My.K.M., ¶ 28. At minimum, active

efforts require an agency to identify and secure the resources and

services parents need to successfully satisfy court treatment plan

objectives and to support the parents through the treatment plan.

My.K.M., ¶ 32.

¶ 15 We analyze an agency’s active efforts “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.” Id. at ¶ 33. In doing so, we measure an

agency’s efforts “holistically rather than in isolation with respect to

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specific treatment plan objectives.” Id. at ¶ 35. Ultimately, active

efforts “should be ‘tailored to the facts and circumstances of the

case.’” Id. at ¶ 32 (quoting 25 C.F.R. § 23.2).

¶ 16 Whether an agency satisfied ICWA’s active efforts requirement

is a mixed question of fact and law, meaning we review the juvenile

court’s factual findings for clear error but review de novo whether

those findings satisfy ICWA’s active efforts requirement. Id. at ¶ 20.

B. Family Time

¶ 17 Relying on 25 C.F.R. § 23.2(7), mother contends that the

Department did not make active efforts because it did not support

the child’s “regular visits with parents . . . in the most natural

setting possible as well as trial home visits of the Indian child

during any period of removal, consistent with the need to ensure

the health, safety, and welfare of the child.”

¶ 18 To the extent mother contends that the services outlined in

the regulation are required to satisfy the active efforts standard, we

disagree. Rather, the regulation “include[s] a non-exhaustive list of

examples illustrating active efforts.” My.K.M., ¶ 28.

¶ 19 But we agree with mother’s related contention that the

Department “failed to make active efforts to facilitate” in-person

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family time between her and the child. At the start of the case (and

before ICWA applied), mother was incarcerated. Upon her release,

she lived in Mesa County. But the Department placed the child

with a family that lived many hours away by car — first in

Gunnison County and then in Douglas County. No agencies were

willing to provide in-person family time supervision between these

counties, and “[t]ransportation was an issue.” Thus, because in-

person visits were “going to take a lot . . . to facilitate” “due to the

distance,” the Department required mother to consistently attend

virtual family time before authorizing an in-person visit. This was

so despite the fact that, as one caseworker admitted, the child was

an infant and a parent “really can’t build a meaningful relationship

over virtual” visits “with an infant.” Not to mention that the record

doesn’t contain any evidence regarding safety concerns that would

justify the Department’s failure to offer mother in-person family

time for months after her release from jail. See People in Interest of

E.S., 2021 COA 79, ¶ 23 (“[A]bsent health and safety concerns, a

juvenile court may not approve a treatment plan that does not

provide for face-to-face visitation.”); accord People in Interest of D.G.,

140 P.3d 299, 302 (Colo. App. 2006).

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¶ 20 To be sure, mother struggled to maintain consistent virtual

family time visits. She eventually disengaged from her treatment

plan and decided to relinquish her parental rights. The Department

then moved to terminate her parental rights. Before the scheduled

termination hearing, mother had a single in-person visit with the

infant child.

¶ 21 We needn’t consider, however, whether the Department’s

efforts up to that point satisfied the reasonable efforts standard

because, after learning that the child was eligible for tribal

enrollment, ICWA was triggered, and mother decided against

relinquishment and expressed motivation to work toward

reunification. From then onward, the Department was required to

make active efforts — that is, “affirmative, active, thorough, and

timely efforts intended primarily to maintain or reunite an Indian

child with his or her family.” 25 C.F.R. § 23.2. That included

assisting mother “through the steps of a case plan and with

accessing or developing the resources necessary to satisfy the case

plan.” Id.

¶ 22 Yet the Department’s family time services offered after October

2023 were not much different than the services offered before ICWA

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applied. To illustrate, in October 2023, the Department referred

mother to virtual family time to ensure, again, that she could be

consistent before offering in-person visits. Mother missed her

intake and her first virtual visit but was generally consistent with

family time for approximately two months before the termination

hearing. By February 2024, the Department determined that it was

in the child’s best interest to have an in-person visit (but

nevertheless planned to pursue termination the following month).

Though mother initially stated she couldn’t see the child in person

until April 2024 because she wanted to focus on school, she had a

second in-person visit a week before the termination hearing in

March 2024.

¶ 23 We don’t see how the Department’s wait-and-see approach

concerning in-person visits — which remained unchanged between

the periods when ICWA applied and didn’t apply — establishes

“affirmative, active, thorough, and timely efforts intended” to

reunite mother and the child. Id.; see also My.K.M., ¶ 31

(“[W]hereas ‘reasonable efforts’ may include passive efforts, the

phrase ‘active efforts’ denotes something more . . . .”).

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¶ 24 We recognize that the qualified expert witness opined generally

that the Department made active efforts to rehabilitate mother and

that the court found active efforts.2 But neither the court nor the

expert witness identified what those efforts were — especially with

respect to facilitating family time — and how they satisfied the

Department’s active efforts obligation. Cf. My.K.M., ¶¶ 15, 37-45

(upholding the juvenile court’s active efforts determination because

the juvenile court “heavily credited” the qualified expert witness,

who outlined the extensive efforts made).

¶ 25 Even more than that, the expert witness testified that active

efforts would include “making sure [the Indian family] had the

transportation” for appointments and “working to facilitate the bond

between the parents.” But no evidence was presented that the

Department did that once ICWA applied. Indeed, besides the

physical distance between mother and the child, the expert could

not explain why the Department had not made efforts to arrange

transportation for in-person visits but noted that the Department

2 The qualified expert witness also opined that the Department

made active efforts with respect to father, but the juvenile court
rejected that opinion.

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had — at some unspecified point — given mother “[b]us passes,

stuff like that.” When asked whether virtual visits “help[ed] the

bond” between mother and the child, the expert admitted, “It’s

better than nothing, but . . . it’s hard at that age.”

¶ 26 As to facilitating visits, one caseworker testified that she

periodically drove out to check on the child. When asked why she

couldn’t “facilitate a visit when” she went to see the child, she

admitted, “I could do it, but as far as driving out there . . . just to do

a visitation, that doesn’t make much sense.”

¶ 27 Thus, even considering the family time services offered

throughout the case, the record doesn’t demonstrate that the

Department made “affirmative, active, thorough, and timely efforts”

to facilitate family time once ICWA applied. 25 C.F.R. § 23.2.

C. Parenting Class

¶ 28 We also agree with mother that the Department did not make

active efforts because it did not timely refer her to a parenting class.

¶ 29 Per her treatment plan, mother was required to “attend a

parenting class approved by [the Department].” But the

Department did not even authorize a parenting class for mother

until February 2024 — months after it learned ICWA applied and

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one month before the termination hearing. At the termination

hearing, one caseworker candidly admitted that, when mother

resumed services in October 2023, the caseworker “kind of

overlooked the parenting class recommendation.” And the qualified

expert witness stated that she was unaware the Department had

not authorized a parenting class until February 2024 and agreed

that the Department’s failure to authorize portions of the treatment

plan would not satisfy active efforts.

¶ 30 Under these circumstances, we can’t conclude that the

Department’s provision of a parenting class one month before the

termination hearing satisfied its obligation to make affirmative,

timely, and thorough efforts. See 25 C.F.R. § 23.2; see also

My.K.M., ¶ 32 (explaining that, at minimum, active efforts require

an agency “to identify and secure the resources and services

parents need to successfully satisfy court treatment plan objectives

and support the parents through the treatment plan goals”).

D. Reversal Is Required

¶ 31 Without a doubt, the circumstances here are unique. ICWA

didn’t apply to the case for twenty-three months, mother struggled

at the beginning of the case, and she contemplated relinquishment.

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But once this became an ICWA case and mother sought to

reengage, the Department was required to make active efforts before

seeking “termination of parental rights to a Native American child.”

My.K.M., ¶ 23.

¶ 32 But even after learning that ICWA applied, the Department

didn’t think it was “reasonable” to engage in active efforts and,

without apparent regard to the policies underlying ICWA, seemingly

pushed forward to the termination of parental rights. See id. at

¶¶ 21-22 (outlining the history and purpose of ICWA). To illustrate,

despite the need for active efforts beginning in October 2023, the

Department didn’t withdraw its motion to terminate parental rights

but instead simply asked the court for a two-month continuance of

the termination hearing. When the Department again asked to

continue the hearing for three more months, it did so not for

additional time to support mother and reunite her with the child

but because of scheduling conflicts and the continued search for a

qualified expert witness to testify at the termination hearing. Given

this drive toward termination, we are hard-pressed to conclude that

the Department was focused on providing services “that would

permit the Indian child to remain or be reunited with [his] parents,

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whenever possible.” Id. at ¶ 26 (explaining Congress’s intent when

designing the active efforts standard) (citation omitted).

¶ 33 We recognize, of course, that we must review the Department’s

actions “holistically rather than in isolation with respect to specific

treatment plan objectives.” Id. at ¶ 35. But no one appears to

dispute that, in the five months ICWA governed this case, mother

managed to become compliant with most of her treatment plan

goals. That is, she was managing her mental health and substance

use, was complying with probation, and had stable housing and

income. In fact, the record indicates that, in those five months,

mother accomplished most (if not all) of the progress toward the

treatment plan on her own and without assistance from the

Department. Because mother had addressed her other treatment

plan components, what was left — and where she required the

Department’s assistance — was family time and parenting skills.

It’s unclear how mother could become fit unless the Department

provided these specific active efforts. After all, mother and the child

lived many hours apart by car, and everyone seemed to agree that

the virtual visits the Department had provided so far were less than

ideal to build a meaningful bond between mother and the child.

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¶ 34 To the extent the Department argues that it made active

efforts by pointing to other services it offered before ICWA applied

(such as “mental health services, a neurological exam, housing

applications, life skills worker, bus passes and financial

assistance”), it doesn’t expand on the timing and nature of these

services or otherwise explain how the services were “designed to

prevent the breakup of the Indian family.” 25 U.S.C. § 1912(d).

Likewise, the qualified expert witness didn’t provide specific details

about any of the Department’s services or describe how those

services constituted active efforts. Thus, even considering the

totality of the circumstances and assessing the Department’s efforts

holistically, we don’t see how the Department made “affirmative,

active, thorough, and timely efforts” to reunite mother with the

child. 25 C.F.R. § 23.2.

¶ 35 For these reasons, we conclude that the evidence presented

didn’t support the juvenile court’s finding that the Department

satisfied the active efforts standard.

III. Other Contentions

¶ 36 Having so concluded, and because they may not arise on

remand, we needn’t reach mother’s separate contentions that the

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juvenile court erred by (1) concluding she was unfit to parent

despite substantial compliance with her treatment plan; and

(2) terminating her parental rights without finding, as required by

ICWA, that “the continued custody of the child by the parent . . . is

likely to result in serious emotional or physical damage to the

child.” 25 U.S.C. § 1912(f); see also People in Interest of D.B., 2017

COA 139, ¶¶ 13-14. On remand, should the case proceed to

another termination hearing, the juvenile court should make the

findings required by § 1912(f) before it may terminate mother’s

parental rights. Cf. People in Interest of R.L., 961 P.2d 606, 609

(Colo. App. 1998) (reversing because the juvenile court failed to

make the “predicate” termination findings under § 1912(d) & (f)).

IV. Disposition

¶ 37 We reverse the judgment and remand for further proceedings.

JUDGE TOW and JUDGE GRAHAM concur.

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