Peo in Interest of R-GJM

25CA0352 Peo in Interest of R-GJM 11-06-25

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0352
Mesa County District Court No. 21JV236
Honorable Matthew D. Barrett, Judge

The People of the State of Colorado,

Appellee,

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

and Concerning J.D-T.,

Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE JOHNSON
Grove and Welling, JJ., concur

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

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

Jenna L. Mazzucca, Guardian Ad Litem

Beth Padilla, Office of Respondent Parents’ Counsel, Durango, Colorado, for
Appellant
¶1 J.D-T. (father) appeals the juvenile court’s judgment

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

child). We affirm.

I. Background

¶2 T.M. (mother) gave birth to the child while incarcerated. At the

time of the child’s birth, paternity was not established. Due to

mother’s custodial status and other concerns, the juvenile court

granted emergency protective custody of the child to the Mesa

County Department of Human Services (Department). The

Department placed the child in a kinship placement where he

remained throughout the entire case. The Department then filed a

petition in dependency and neglect.

¶3 A year later, genetic testing confirmed father’s paternity. At

that time, and throughout the remainder of the case, father was

incarcerated. His mandatory release date is in 2034.

¶4 The court subsequently adjudicated the child dependent and

neglected. Shortly after, the court adopted a treatment plan for

father.

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¶5 The Department later moved to terminate parental rights. The

Department also moved for a finding that no appropriate treatment

plan could be devised for father, which the court granted.

¶6 After an evidentiary hearing nearly two-and-a-half years after

the petition was filed, the court terminated mother’s parental rights

but denied the motion as to father finding the Department had not

made active efforts as required by the Indian Child Welfare Act

(ICWA).1 Following the hearing, the court adopted a second

treatment plan for father.

¶7 Seven months later, the Department again filed a motion to

terminate father’s parental rights. Following a two-day evidentiary

hearing, the court granted the motion.

II. ICWA Compliance

¶8 Father asserts the juvenile court committed reversible error

when it failed to follow ICWA provisions that require the court to,

before ordering that the child be placed in foster care, (1) hold a

foster care placement hearing; (2) place the child in a preferred

1 The judgment terminating mother’s parental rights was reversed

on appeal by another division of our court in People in Interest of R-
G.J.M., (Colo. App. No. 24CA857, March 6, 2025) (not published
pursuant to C.A.R. 35(e)).
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placement; and (3) obtain testimony from an ICWA qualified expert

witness — referred to as a QEW — that ongoing custody with a

parent or Indian custodian would likely result in serious emotional

or physical damage to the child. We reject his contentions.

A. Additional Facts

¶9 Around the time the court adjudicated the child dependent or

neglected as to mother, the Department learned that mother was an

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

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

Tribe said that the child was neither enrolled nor eligible for

enrollment. As a result, the court determined that the child was

not an Indian child under ICWA.

¶ 10 But a year later, mother informed the Department that the

child had become eligible for enrollment in the Tribe because of a

change in the Tribe’s membership requirements. The child became

an enrolled member effective January 4, 2024, and the child’s tribal

enrollment was filed with the court on March 28, 2024.

¶ 11 The Tribe was notified of both the first termination and second

termination hearings. And a QEW testified during both

proceedings.

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B, Standard of Review and Applicable Law

¶ 12 Whether a juvenile court complied with ICWA is a question of

law that we review de novo. In re Marriage of Stockwell and Dees,

2019 COA 96, ¶ 11.

¶ 13 For ICWA to apply in a dependency and 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). ICWA applies when an

Indian child is the subject of a “child custody proceeding.” 25

C.F.R. § 23.103(a). A “child custody proceeding” is defined as a

foster care placement, a proceeding to terminate parental rights, or

a preadoptive or adoptive placement. 25 U.S.C. § 1903(1). ICWA

also applies to an action that may result in one of these placement

outcomes, even if it ultimately does not. See 25 C.F.R. § 23.2

(2025).

C. Preservation

¶ 14 We disagree with the Department and Guardian ad Litem

(GAL) that father’s ICWA contentions were not preserved. On the

same day that documentation of the child’s tribal enrollment was

filed with the juvenile court — March 28, 2024 — the court held a

hearing in which father’s counsel argued that the court must hold a

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placement hearing to ensure the child is in a preferred placement

and to hear testimony from the QEW that there would be serious

injury if the child was placed with either parent. Father’s counsel

made these arguments as not just “procedural matters,” but said

that they must be addressed as “due process issues.”

D. Foster Care Placement Hearing

¶ 15 Father asserts the juvenile court erred when it failed to hold a

foster care placement hearing after learning the child was an Indian

child. We reject father’s argument.

¶ 16 For almost two years, the juvenile court did not have reason to

know the child was an Indian child because the Tribe had explicitly

reported the child was not enrolled and was not eligible to be

enrolled. Once the court learned the child was eligible, the next

scheduled child custody proceeding was the first termination

hearing. The Tribe received notice of the termination hearing and it

participated in that proceeding through a QEW. See 25 U.S.C. §

1903(1) (defining child custody proceedings under ICWA).

¶ 17 Additionally, the record shows the Tribe supported the child’s

placement. When the Tribe first became involved in the case, a

tribal representative reported to the caseworker that if the Tribe did

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take over the case, the child would likely not move from placement

because he had been in a kinship home from birth. The Tribe

continued to support the child’s placement through the first and

second termination hearings.

¶ 18 Thus, we conclude that, even if the court did not hold a

hearing that dealt solely with foster care placement, the court held

proceedings consistent with the requirements of ICWA for foster

care placement after court learned the child became eligible for

tribal enrollment.

E. ICWA Placement Preferences

¶ 19 Father next asserts the child was not in a preferred placement

because he was not placed with a member of his extended family,

other members of the Tribe, a foster home approved by the Tribe,

another Indian family or foster home, or an institution approved by

the Tribe. See 25 U.S.C. § 1915(a)-(b). ICWA defines “extended

family” as either “defined by the law or custom of the Indian child's

tribe,” or in the absence of such, “a person who has reached the age

of eighteen and who is the Indian child’s grandparent, aunt or

uncle, brother or sister, brother-in-law or sister-in-law, niece or

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nephew, first or second cousin, or stepparent.” 25 U.S.C. § 1903(2).

We reject father’s argument.

¶ 20 The child was placed with a maternal half-sibling. At the first

termination hearing, the QEW testified that the child’s placement

was appropriate given that the child was placed with a sibling,

thereby a member of his extended family as defined under ICWA,

and the placement met the child’s needs. Thus, the court did not

err when it found the child was in an ICWA preferred placement.

F. QEW Testimony

¶ 21 Finally, father argues that the court erred when it terminated

his parental rights because the QEW did not explicitly testify that

ongoing custody with one of the parents would result in serious

emotional or physical damage to the child. See 25 U.S.C. § 1912(f);

see also People in Interest of D.B., 2017 COA 139, ¶ 14.

¶ 22 But evidence established that the QEW believed the child

would face serious emotional or physical damage if he was in the

parents’ custody. At the first termination hearing, the QEW

testified that she believed father could not parent while incarcerated

and that the child would be at risk if he remained in the care of a

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parent. At the second termination hearing, a second QEW testified

much the same.

¶ 23 We acknowledge that the second QEW did not explicitly say

that ongoing custody with father would result in damage to the

child. But the second QEW opined that the child’s visits with father

were detrimental, that she had concerns about father’s ability to

parent, and that termination was in the child’s best interests.

¶ 24 Thus, the second QEW’s testimony demonstrates that she did

not support ongoing custody with father because of the emotional

harm it would cause to the child. Considering this, we conclude the

court did not err.

III. Active Efforts

¶ 25 Father next argues the Department failed to make active

efforts to prevent the breakup of his Indian family while he was

incarcerated. We are not persuaded.

A. Standard of Review and Applicable Law

¶ 26 Whether the Department made active efforts is a mixed

question of fact and law. People in Interest of A.V., 2012 COA 210,

¶ 13. We review the juvenile court’s factual findings for clear error

and its legal conclusions de novo. Id. The credibility of the

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witnesses, and the sufficiency, probative effect, and weight of the

evidence, and the inferences and conclusions to be drawn from it,

are within the juvenile court’s discretion. People in Interest of

A.J.L., 243 P.3d 244, 249-50 (Colo. 2010).

¶ 27 Under ICWA, a party seeking to terminate parental rights to an

Indian child must satisfy the court that (1) active efforts have been

made to provide remedial services and rehabilitative programs

designed to prevent the breakup of the Indian family; and (2) those

efforts have been unsuccessful. 25 U.S.C. § 1912(d); People in

Interest of A.V., 2012 COA 210, ¶ 7. 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. 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; see § 19-1-103,

C.R.S. 2025 (defining “reasonable efforts”); § 19-3-208, C.R.S. 2025

(listing services that must be provided to satisfy “reasonable

efforts”).

¶ 28 At a minimum, active efforts require an agency to identify and

secure the resources and services parents need to successfully

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satisfy treatment plan objectives and to support the parents

through the treatment plan. My.K.M., ¶ 32.

¶ 29 We analyze a department’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 a

department’s efforts “holistically rather than in isolation with

respect to 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).

B. Analysis

¶ 30 Father argues the Department should have set up mental

health and substance abuse evaluations for him and that it failed to

provide active efforts when it did not provide him with necessary

services, such as a psychological evaluation and substance abuse

treatment.

¶ 31 Although the juvenile court did not make specific factual

findings, it found “beyond a reasonable doubt that the Department

engaged in active efforts to reunify [the] family.” There is record

support for the court’s findings.

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¶ 32 The record shows that the Department of Corrections’ (DOC)

noncooperation and father’s lack of compliance prevented him from

accessing services, not the Department’s lack of active efforts. In

support, two caseworkers testified about the difficulty they had in

attempting to connect with father’s case manager at the DOC to see

what services were available to him. The caseworker also suggested

sending books for father to read to the child during virtual family

time, but the facility denied the request. The caseworker routinely

requested that father give her information on the services available

to him and who provided those services, but he never replied with

that information. The caseworker then searched for the information

herself, using old financial reports and an online handbook for the

facility, to create father’s treatment plan in line with services

available to him.

¶ 33 Father asserts the caseworker should have driven to the

facility to see his case manager in person, but the caseworker

reported the case manager would not answer requests for meetings.

Father also argues the caseworker should have offered referrals or

services for substance abuse but does not explain how the

Department would have forced the DOC to enact those services.

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And he maintains that the caseworker should have sent father

books “about parenting in prison, substance abuse recovery, child

development, educational materials about children, and how to co-

parent with someone that has mental health issues,” but the record

is devoid of father making any such requests.

¶ 34 The record also shows that the caseworker was unable to

facilitate any mental health services for father because father’s case

manager reported mental health services must be initiated by the

inmate due to Health Insurance Portability and Accountability Act

regulations, and father never did so. While father reported he

attended substance abuse and anger management classes, the

caseworker was unable to verify his attendance and father never

provided certificates showing he had completed them.

¶ 35 Father completed a Seven Habits of Highly Effective People

class and a parenting class but was unable to describe how he was

able to incorporate what he learned into his life. He reported he did

not write any letters to the child, as required by his treatment plan,

because he did not “want to say the wrong things.”

¶ 36 Yet, father contends the Department should have facilitated

in-person family time for him while he was incarcerated. The

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record shows the Department did not conduct in-person family time

visits because of concerns that the visits would be detrimental to

the child. The therapeutic family time supervisor opined that

transporting the child to the prison for in-person family time would

be “even more distressing to [the child] than” virtual visits already

were and that increasing visits would only be damaging to the child.

The caseworker testified that in-person family time would require

an eight-hour round trip car ride, which she did not believe was in

the child’s best interests. And the Tribe would not support any in-

person visits to the DOC because the Tribe believed it would cause

more trauma to the child.

¶ 37 While there was a delay in setting up virtual family time after

the first termination hearing, the Department was able to facilitate

twice-monthly visits between father and the child for the remainder

of the case. The child reportedly exhibited emotional dysregulation

related to the family time that caused the visits to end early and

impacted his behavior outside of family time.

¶ 38 Finally, based on a review of the entire case, including the type

and number of father’s visits, the QEW opined that the Department

had made active efforts to prevent the breakup of the Indian family.

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The court found this testimony credible. To the extent father

argues that the witness was not reliable given the length of time she

had been on the case, credibility determinations are for the juvenile

court, and not us, to make. See A.J.L., 243 P.3d at 249-50.

¶ 39 Considering the totality of the circumstances, we are

unpersuaded that the Department failed to make active efforts to

provide father with services to reunite him with his child. See

My.K.M., ¶ 12. Therefore, we decline to disturb the court’s

judgment.

IV. Less Drastic Alternatives

¶ 40 Father contends that the juvenile court erred by finding that

there were no less drastic alternatives to termination.

¶ 41 Standard of Review and Applicable Law

¶ 42 We review a court’s finding of whether there is a less drastic

alternative to termination and in the child’s best interest for clear

error. A.M. v. T.M., 2021 CO 14, ¶¶ 15, 44.

¶ 43 A juvenile court must consider and eliminate less drastic

alternatives before it terminates the parent-child legal relationship.

People in Interest of A.M. v. T.M., 2021, ¶ 40. In considering less

drastic alternatives, the court must base its decision on the best

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interests of the child, primarily considering the child’s physical,

mental, and emotional conditions and needs. § 19-3-604(3), C.R.S.

2025.

¶ 44 For a less drastic alternative to be viable, it must do more than

“adequately” meet the child’s needs; rather it must be in the child’s

best interests. A.M., ¶ 27. Therefore, if a 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 the court’s findings are supported

by the record. People in Interest of B.H., 2021 CO 39, ¶ 81.

A. Analysis

¶ 45 The juvenile court found that alternative placements had been

considered and rejected, that termination was in the child’s best

interests, and that no less drastic alternatives existed. The court

further found that the child’s need for permanency was

“paramount,” that he was doing well in his kin placement, and

removing the child from his placement would be “extremely

detrimental to him and for reasons that don’t outweigh his best

interests.” The record supports the court’s findings.

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¶ 46 The caseworker testified that at the beginning of the case

father gave the Department only three alternative placement options

to investigate ― paternal grandmother, father’s wife, and paternal

aunt. The caseworker reported that paternal grandmother and

father’s wife declined to be placement options. Paternal

grandmother was also later excluded due to her own child welfare

history. Paternal aunt expressed an interest in being a placement

but ultimately failed to reply to the caseworker’s calls and home

study inquiry attempts. Maternal grandfather was previously

investigated as well, and he reported he did not want to be a

placement. While he later changed his mind, the Department was

unable to place the child in his care because mother lived with him

and at the time her rights had been terminated.

¶ 47 The therapeutic family time supervisor testified that there

would be serious emotional harm to the child should his placement

be disrupted. One caseworker testified that she did not believe it

was in the child’s best interests to remove him from his current

placement. A second caseworker testified that she believed that

father viewed obtaining custody of the child “more of like a – a

possession than it is like actually caring for another human being,”

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which suggests that father was not taking into consideration what

might be in the child’s best interest. And a third caseworker

testified that she believed the longer the case dragged on the worse

it was for the child, and that she also believed termination was in

the child’s best interests.

¶ 48 The QEW opined that the child’s placement was an

appropriate kinship placement, and that the Tribe believed

termination was in the child’s best interests. She further testified

that the Tribe would not support removing the child from his

current placement as the Tribe believed it could be detrimental to

his well-being.

¶ 49 Father argues that the Department did not thoroughly

investigate paternal relatives as potential placement options. But,

as mentioned above, the Department investigated four relatives

identified early on. In addition to the above listed relatives, father

identified his half-sister, his previous foster mother, foster mother’s

daughter, a maternal aunt, and a paternal cousin as placement

options in his relative affidavit. At the second termination hearing.

a caseworker testified that she was ultimately able to get in touch

with all these candidates. The caseworker further reported that

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numerous relatives contacted the Department seeking placement

but would then not engage in meetings to further discuss what

transitioning the child would look like.

¶ 50 Father also contends the Department delayed investigating all

the relatives listed on his relative affidavit. This is true, and the

Department’s failure to timely consider other relatives is troubling.

For reasons unknown, the Department did not contact father’s half-

sister, his previous foster mother, foster mother’s daughter, a

maternal aunt, and a paternal cousin until after the first

termination hearing. Nonetheless, as mentioned above, the

Department was able to get in touch with all potential placements.

At the second termination hearing, father’s former foster mother

and half-sister each expressed an interest in being a placement

option but both conceded that they did not reach out to the

Department until after the first termination hearing. Father’s

former foster mother testified that she had no concerns about

removing the child from placement and a sibling he had been with

his entire life and believed it was in the child’s best interests for the

child to wait six to eight years for father to be released “because it’s

[the child’s] father.” While father’s half-sister did have concerns

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about moving the child, she testified she would return the child to

father when he was released.

¶ 51 The court considered this testimony and found that “the focus

from both potential placements seems to be that the risk to [the

child] is worth it for the purpose of keeping the family unit together”

and that “whatever emotional trauma might come to [the child] by

being taken from the only home he’s ever known . . . is worth it,” in

the hopes that when father is released from prison he “will be the

parent and person that everyone wants him to be” when he had

never before shown an ability to parent. The court found that it

was not in the child’s best interests.

¶ 52 While the Department may have failed to promptly investigate

other paternal kin and kin-like relatives, such omission does not,

under the facts and circumstances of this case, constitute a basis

for reversal of this termination order. Here, substantial evidence in

the record supports the court’s finding that removing the child from

his placement would not be in his best interests and that father had

not made meaningful progress as of the termination hearing.

Further, the child was in a kinship home supported by the Tribe

and was under the age of six at the time and needed immediate

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permanency. §§ 19-1-102(1.6), 19-1-123, 19-3-702(5)(c), C.R.S.

2025; see also People in Interest of S.Z.S., 2022 COA 133, ¶ 25.

Thus, based upon the foregoing, we conclude the court did not

reversibly err in finding no less drastic alternatives to termination

existed.

V. Conclusion

¶ 53 The judgment is affirmed.

JUDGE WELLING and JUDGE GROVE concur.

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