Peo in Interest of KS

25CA1645 Peo in Interest of KS 02-05-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA1645
Adams County District Court No. 24JV30106
Honorable Emily Lieberman, Judge

The People of the State of Colorado,

Appellee,

In the Interest of K.S., Jr., a Child,

and Concerning M.T. and K.S., Sr.,

Appellants.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE KUHN
Fox and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 5, 2026

Heidi Miller, County Attorney, Emily Platt, Assistant County Attorney,
Westminster, Colorado, for Appellee

Sheena Knight, Guardian Ad Litem

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

One Accord Legal, LLC, Katelyn B. Parker, Greenwood Village, Colorado, for
Appellant K.S., Sr.
¶1 In this dependency and neglect action, M.T. (mother) and K.S.

Sr. (father) appeal the judgment terminating their parent-child legal

relationships with K.S. Jr. (the child). We affirm.

I. Background

¶2 The Adams County Human Services Department filed a

petition in dependency and neglect when the child was five weeks

old. The petition alleged that mother and the child were

hospitalized after mother reported a relapse on alcohol and made

threats against herself and the child.

¶3 The juvenile court adjudicated the child dependent and

neglected and adopted treatment plans for both parents. After

mother again relapsed during an attempted return home, the

Department moved to terminate both parents’ parental rights. More

than a year after the petition was filed, the juvenile court

terminated mother’s and father’s parental rights following a

contested hearing.

II. Analysis

A. Mother’s Contentions

¶4 Mother contends that the juvenile court erred by (1) finding

that she could not become fit within a reasonable time and

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(2) concluding that an allocation of parental rights (APR) was not a

less drastic alternative to termination.

1. Fitness Within a Reasonable Time

¶5 Mother first contends that the juvenile court erred by finding

that she was unlikely to become fit within a reasonable time. We

are not persuaded.

a. Standard of Review and Applicable Law

¶6 An unfit parent is one whose condition or conduct renders

them unable to give a child reasonable parental care. People in

Interest of D.P., 160 P.3d 351, 353 (Colo. App. 2007). Reasonable

parental care “requires, at a minimum, that the parent provide

nurturing and protection 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).

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

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

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

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

emotional conditions and needs of each particular child. Id. at

¶ 25. A reasonable time is not an indefinite time. Id. And even

when a parent has made recent progress on a treatment plan, the

court is not required to give the parent additional time to comply.

See id. at ¶¶ 24-25.

b. The Record Supports the Court’s Conclusion That
Mother Had a Reasonable Time to Become Fit

¶8 Mother contends that the juvenile court’s conclusion that she

could not reunify with the child in a reasonable time “is not

supported by the record given [her] significant progress in

substance abuse treatment and her ability to achieve sobriety."

¶9 We disagree with mother’s argument because the record

supports the juvenile court’s findings that mother was not fit and

was unlikely to become fit within a reasonable period of time.

¶ 10 The court agreed that mother had demonstrated the ability to

achieve sobriety but found that the underlying child protection

concern was “the ability to maintain that sobriety in the long-term,”

which ability she hadn’t demonstrated during the case. (Emphasis

added.) The court found that there were “changes in sobriety

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status” but not in “the chronic condition of [mother’s] struggle with

sobriety.” In other words, mother demonstrated a long-standing

pattern of achieving sobriety and then returning to use. The court

found that “there’s no unreasonable period of time for you, [mother]

to [maintain sobriety] for yourself . . . but for [the child] even a few

additional months in an [expedited permanency planning] case, for

a fifteen-month-old-child who was removed at five weeks old, is not

reasonable.”

¶ 11 To be sure, mother’s ability to achieve sobriety was

uncontested. Mother’s longest period of sobriety during the case

was around 100 days, and she achieved and maintained sobriety

during her stays at an inpatient program and sober living home.

Accordingly, the court approved a transition plan for the child to

reside with mother in a kinship home. And at the time of the

termination hearing, mother testified that she was residing in a

different sober-living home and had achieved thirty-four days of

sobriety. She testified that she was also meeting with an individual

therapist for the first time.

¶ 12 However, mother also testified that, once the child had

transitioned to reside with mother in the kinship home, she

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maintained sobriety for only three days before she relapsed and left

the child and the kinship home they shared. She further agreed

that she had not completed any mental health or substance

dependence assessments or engaged in outpatient substance

dependence treatment.

¶ 13 Further, the first ongoing caseworker testified that she did not

have concerns about mother when mother was in treatment; her

concerns began “once those support systems [were] removed” when

mother transitioned into community settings. The second ongoing

caseworker offered similar testimony, opining that the main concern

was mother’s ability to stay sober in the community, rather than

getting sober while in intensive treatment. The caseworker also

testified that mother historically did not follow recommendations for

ongoing treatment when she was discharged from inpatient services

or sober living and had not demonstrated the ability to be sober in

the community at any point during the dependency action.

¶ 14 When a child is under six years old at the time the petition is

filed, the action is subject to the expedited permanency planning

provisions, and the court must place the child in a permanent home

as expeditiously as possible. §§ 19-1-102(1.6), 19-1-123, C.R.S.

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2025. Here, the child was fifteen months old at the time of the

termination hearing and — aside from the few days he spent in the

kinship home where mother was living — had been in out-of-home

placement since he was five weeks old. The second ongoing

caseworker — qualified as an expert in social work with an

emphasis in child protection — opined that the child experienced

“significant” trauma in those few days he was placed with mother in

the kinship home. The caseworker also opined that the child

needed caregivers who could consistently meet his needs and

provide stability and structure.

¶ 15 Accordingly, given this record, we discern no error in the

court’s findings that mother was unfit and unlikely to become fit

within a period of time that was reasonable for the child.

2. Allocation of Parental Responsibilities
Was Not a Less Drastic Alternative

¶ 16 Next, we reject mother’s contention that the juvenile court

“failed to adequately consider” an APR to the child’s placement

providers as a less drastic alternative to termination.

¶ 17 The juvenile court must consider and eliminate less drastic

alternatives before it terminates the parent-child legal relationship.

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People in Interest of L.M., 2018 COA 57M, ¶ 24. In considering less

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

interests of the child, giving primary consideration to the child’s

physical, mental, and emotional conditions and needs.

§ 19-3-604(3), C.R.S. 2025. The court may also consider a wide

range of other factors, including whether an ongoing relationship

with the parent would be beneficial or detrimental to the child.

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

¶ 18 We review a juvenile court’s less drastic alternative findings for

clear error. People in Interest of H.L.B., 2025 COA 86, ¶ 10. It is for

the juvenile court as the trier of fact to determine the sufficiency,

probative effect, and weight of the evidence and to assess witness

credibility. People in Interest of A.M. v. T.M., 2021 CO 14, ¶ 15.

¶ 19 Here, the record supports the conclusion that the juvenile

court expressly considered granting an APR to the placement

providers as a less drastic alternative to termination. The court

found that, because of the pattern of mother’s use and nonuse of

alcohol and substances, an APR would not provide the level of

permanency that only termination and adoption could provide for

the child. The court “weigh[ed] heavily” the age of the child, who

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was fifteen months old at the time of termination and remained in

out-of-home placement most of his young life. The court also

properly considered mother’s unfitness in determining that there

was not a less drastic alternative to termination. A.R., ¶ 38 (noting

that the less drastic alternative determination is “influenced by a

parent’s fitness to care for [the] child’s needs”).

¶ 20 Mother points to the fact that she was safe and appropriately

participated with the child when she attended family time.

Although mother’s conduct in supervised family time during periods

of sobriety is not in dispute, that fact does not necessarily demand,

as mother seems to suggest, a finding that preserving the child’s

legal relationship with her would be in the child’s best interests.

And in any event, a reviewing court may not reweigh the evidence or

substitute its judgment for that of the juvenile court merely because

there might be evidence supporting a different result. See People in

Interest of A.J.L., 243 P.3d 244, 256 (Colo. 2010). We conclude that

the juvenile court did not err by concluding that an APR was not a

less drastic alternative to termination.

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B. Father’s Contentions

1. Preservation of Father’s Claims Related
to the Statutory Criteria for Termination

¶ 21 Father did not appear at the termination hearing. Father’s

counsel reported that father had asked “to present no defense

today. So, [father’s attorney] will not be making a statement or

asking questions. [Father] did want the court to know he feels like

he is not in a place to care for [the child] right now.” The juvenile

court found that father was not contesting the termination of his

parental rights.

¶ 22 Father now claims that the juvenile court erred by finding that

(1) it adopted an appropriate treatment plan for him; (2) the

Department made reasonable efforts to rehabilitate him; and

(3) there was no less drastic alternative to termination.

¶ 23 Though father concedes that he did not preserve these issues,

he urges this court to nevertheless address his claims under the

miscarriage of justice exception to the preservation requirements.

See People in Interest of E.S., 2021 COA 79, ¶ 14. If an error by the

trial court involves a miscarriage of justice, we may consider an

unpreserved issue for the first time on appeal. In re R.G.B., 98 P.3d

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958, 959 (Colo. App. 2004). The miscarriage of justice exception

has a high bar and narrow scope. See People in Interest of M.B.,

2020 COA 13, ¶¶ 23-24. Accordingly, we have recognized the

exception in “rare cases, involving unusual or special

circumstances . . . to prevent an unequivocal and manifest

injustice.” In re E.R.S., 2019 COA 40, ¶ 38.

¶ 24 In support of his argument, father only asserts — though

correctly — that “[t]ermination of parental rights is a decision of

paramount gravity.” But father does not claim, and we cannot

discern, any unusual or special circumstances surrounding the

termination of his parental rights in this case. Therefore, we

decline to apply the miscarriage of justice exception to review his

unpreserved claims here.

¶ 25 Father also asserts that we should follow the reasoning of

some divisions of this court that have addressed specific arguments

regarding the appropriateness of a treatment plan and reasonable

efforts, even when those arguments were not raised before the

termination of parental rights hearing. See People in Interest of

K.B., 2016 COA 21, ¶ 21 (holding that the trial court erred by not

making explicit findings that the treatment plan was appropriate

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when mother raised the issue for the first time at the termination

hearing); see also People in Interest of S.N-V., 300 P.3d 911, 913

(Colo. App. 2011) (holding that the juvenile court must make

statutory findings even when a parent agreed at the dispositional

phase to the treatment plan). But in our view, father’s

circumstance is different than those presented by the cases he asks

us to follow — cases where parents made objections at the

termination hearings. By presenting no defense, father failed to

meet even this minimal preservation requirement. People in Interest

of T.E.R., 2013 COA 73, ¶ 30 (failing to take a position on an issue

presented to a juvenile court is insufficient to preserve it for review).

Moreover, father didn’t just fail to raise the issues in the juvenile

court, instead he affirmatively decided not to challenge the

termination. See D.P., 160 P.3d at 355-56 (noting that statutory

rights in a dependency and neglect proceeding are subject to

waiver).

¶ 26 Lastly, father contends that mother’s objection to the finding

that there was no less drastic alternative to termination is sufficient

for him to bring the same claim. We decline to address this

preservation issue because mother properly raised less drastic

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alternatives in her appeal, and we addressed and rejected the

merits of her argument, supra Part II.A.2. See People in Interest of

R.R., 607 P.2d 1013, 1015 n.2 (Colo. App. 1979); see also L&R Expl.

Venture v. Grynberg, 271 P.3d 530, 536 (Colo. App. 2011) (declining

to resolve an issue where outcome would not change).

¶ 27 We therefore decline to further address father’s treatment

plan, reasonable efforts, and less drastic alternatives contentions.

2. ICWA Due Diligence

¶ 28 Father contends that the juvenile court failed to follow the due

diligence requirements in Colorado’s statute implementing the

Indian Child Welfare Act (ICWA). We’re not persuaded.

¶ 29 As contemplated by the statute in effect at the time of the

termination hearing, due diligence required the Department to

“earnestly endeavor to investigate the basis” for an assertion that

the child may be an Indian child, contact any family members or

others specifically identified by a parent as having knowledge of

Indian heritage, and learn if there is further information that would

help the court in determining if there is a reason to know that the

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child is an Indian child. H.J.B. v. People in Interest of A-J.A.B., 2023

CO 48, ¶ 57 (citing § 19-1-126(3), C.R.S. 20241).

¶ 30 Here, after mother made a general claim of heritage, the

Department sent notices to the identified tribes. Father does not

claim that those notices were deficient. Instead, he claims that the

juvenile court erred by not (1) clearly ordering the Department to

complete due diligence; (2) requiring the Department to document

specific due diligence efforts; or (3) making written findings

pertaining to due diligence.

¶ 31 Father does not assert that he preserved this issue. Instead,

he appears to claim that no preservation was necessary because

“the notice requirements of the ICWA serve the interests of the

Indian tribes and, therefore, cannot be waived by a parent and may

be raised for the first time on appeal.” People in Interest of J.O., 170

P.3d 840, 842 (Colo. App. 2007).

¶ 32 We need not decide whether these claims can be raised for the

first time on appeal because father cannot prevail on them here in

1 After the order issued in this case, section 19-1-126(3), C.R.S.

2024, was repealed and relocated to section 19-1.2-107(3)(d), C.R.S.
2025. See Ch. 338, sec. 1, § 19-1-126, 2025 Colo. Sess. Laws
1179-81.

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any case. Father does not assert — and the record does not

suggest — that he or mother are members of an Indian tribe or the

child is an enrolled member of any tribe. See 25 U.S.C. § 1903(4)

(defining an Indian child as a “person who is under age eighteen

and is either (a) a member of an Indian tribe or (b) is eligible for

membership in an Indian tribe and is the biological child of a

member of an Indian tribe”). Given this circumstance, any errors in

the juvenile court’s due diligence findings are harmless because

there is no reason to believe that the child is an Indian child. See

H.J.B., ¶¶ 64-65; see C.R.C.P. 61 (noting that an appellate court

may disregard any error “which does not affect the substantial

rights of the parties”); see also People in Interest of M.V., 2018 COA

163, ¶ 66 (“An error affects a substantial right if it can be said with

fair assurance that it substantially influenced the outcome of the

case or impaired the basic fairness of the trial itself.”).

III. Disposition

¶ 33 The judgment is affirmed.

JUDGE FOX and JUDGE SULLIVAN concur.

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