Peo in Interest of DMR

25CA1993 Peo in Interest of DMR 04-30-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA1993
City and County of Denver Juvenile Court No. 22JV30544
Honorable Lisa Gomez, Judge

The People of the State of Colorado,

Appellee,

In the Interest of D.M.R., Child-Appellant,

and Concerning K.S.R.,

Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE JOHNSON
Pawar and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 30, 2026

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

Josi McCauley, Counsel for Youth, Superior, Colorado, for Child-Appellant
D.M.R.

The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for
Appellant K.S.R.
¶1 K.S.R. (father) and D.M.R. (the child)1 appeal the judgment

terminating the parent-child legal relationship between them. We

affirm.

I. Background

¶2 In August 2022, the Denver Department of Human Services

(the Department) received a report that mother had been involved in

a domestic violence incident with her boyfriend and that the couple

were smoking methamphetamine in the home. The Department

removed the child, placed her with father, and filed a petition in

dependency or neglect. Father made a no-fault admission and

agreed to a deferred adjudication under section 19-3-505(5), C.R.S.

2025.

¶3 In January 2023, the Department placed the child in maternal

aunt’s care because father did not have the financial resources to

care for the child at that time. Over the next two years, the parties

1 The child appeals through counsel for youth (CFY). But the child
turned twelve years old after the termination judgment entered.
Even though she is now represented by a CFY and refers to herself
as a “youth,” we refer to her as a “child.” Compare § 19-3-203(2),
C.R.S. 2025 (requiring the juvenile court to appoint counsel for
youth twelve years and over), with § 19-1-203(1) (requiring the
court to appoint a guardian ad litem for a child who is under twelve
years of age).

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discussed an allocation of parental responsibilities (APR) to

maternal aunt through the Relative Guardianship Assistance

Program (Program). See § 26-5-110, C.R.S. 2025. By the end of

2024, maternal aunt reported that she no longer wished to

participate in an APR because (1) the child would lose her Medicaid

coverage under the Program agreement and (2) maternal aunt could

not claim the child on her taxes if she applied for Medicaid

separately.

¶4 The juvenile court revoked the deferred adjudication in August

2023, adjudicating the child dependent and neglected, and adopted

a formal treatment plan for father. About a year and a half later,

the Department moved to terminate father’s parental rights. The

juvenile court held an evidentiary hearing in August 2025. After

hearing the evidence, the court terminated the parent-child legal

relationship between father and the child. The court then signed a

form order submitted by the Department, which purported to

terminate parental rights under both section 19-3-604(1)(a) and

(1)(c), C.R.S. 2025.

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II. Abandonment

¶5 Father and the child assert that the juvenile court erred by

terminating their parent-child legal relationship under section 19-3-

604(1)(a). We agree but conclude that any error is harmless.

A. Standard of Review and Applicable Law

¶6 Whether a juvenile court properly terminated parental rights

presents a mixed question of law and fact because it involves

application of the termination statute to evidentiary facts. People in

Interest of A.M. v. T.M., 2021 CO 14, ¶ 15. We set aside a court’s

termination order only “when the court’s findings do not conform to

statutory criteria and we cannot determine the basis for the court’s

order of termination.” People in Interest of T.L.B., 148 P.3d 450, 457

(Colo. App. 2006).

¶7 Section 19-3-604 sets forth three separate grounds for

terminating parental rights, two of which are pertinent in this case.

First, under subsection (1)(a), a juvenile court may terminate

parental rights when the parent has abandoned the child. Second,

under subsection (1)(c), a court may terminate parental rights if the

parent did not successfully comply with a treatment plan, is unfit,

and cannot become fit within a reasonable time. The statute

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permits the court to terminate parental rights on more than one

statutory criterion, but termination requires the Department to

prove only one. See People in Interest of D.C-M.S., 111 P.3d 559,

561 (Colo. App. 2005); see also § 19-3-604(1) (stating that a court

may order termination on “any one” of the criteria in subsections

(a)-(c)).

B. Analysis

¶8 The Department’s termination motion did not allege that

father’s parental rights should be terminated under subsection

(1)(a). To be sure, the motion listed all three criteria for

termination, but the supporting factual allegations related only to

whether father had complied with his treatment plan, was unfit,

and could become fit in a reasonable time. Notably, nothing in the

motion suggested that father had (1) “surrendered physical custody

of the child for a period of six months or more” and (2) failed to

“manifest[] during such period the firm intention to resume physical

custody of the child or to make permanent legal arrangements.”

§ 19-3-604(1)(a)(I); see People in Interest of M.H., 683 P.2d 807, 809

(Colo. App. 1984) (noting that the allegations in the motion must

put the parent on notice of the grounds for termination).

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¶9 At the termination hearing, the Department never suggested

that it intended to seek termination under subsection (1)(a).

Specifically, the Department did not present any evidence related to

abandonment but focused on whether father had failed to comply

with his treatment plan, was unfit, and could become fit within a

reasonable time. Likewise, the county attorney never asserted in

closing argument that father had abandoned the child or that

termination was appropriate under subsection (1)(a); the closing

argument focused only on the subsection (1)(c) criteria.

¶ 10 The juvenile court’s oral findings likewise did not address

subsection (1)(a). Indeed, the court never suggested that father

intended to abandon the child in this case; rather, the court’s

findings tracked the statutory criteria in subsection (1)(c).

Following the evidentiary hearing, however, the Department

submitted a form order for the court’s signature, which stated that

father had “surrendered physical custody of the child for a period of

six months or more” and had “not manifested during such period

the firm intention to resume physical custody of the child.” § 19-3-

604(1)(a)(I). The court signed the form order without making any

changes.

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¶ 11 On appeal, the Department acknowledges that it did not

include any specific allegations supporting termination under

subsection (1)(a) in its termination motion and that the juvenile

court made no specific oral findings suggesting that it intended to

terminate parental rights under subsection (1)(a). Still, the

Department attempts to defend termination under subsection (1)(a)

by trying to make the evidence fit into the subsection (1)(a)

criterion. We are not persuaded. Based on the foregoing

information, we can reach only one conclusion: the Department

inadvertently included the subsection (1)(a) criterion in its form

order, and the court did not recognize this mistake before signing

the order.

¶ 12 Therefore, we conclude that the juvenile court erred by

terminating the parent-child legal relationship between father and

the child under subsection (1)(a). That said, we conclude that any

error is harmless because section 19-3-604(1) requires that the

Department prove only one of the criteria, and no one challenges

the court’s explicit findings under section 19-3-604(1)(c), and as

discussed below, we reject the challenge to the court’s less drastic

alternatives determination. See C.A.R. 35(c) (“The appellate court

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may disregard any error or defect not affecting the substantial

rights of the parties.”); see also D.C-M.S., 111 P.3d at 561 (noting

that the termination statute “permits termination so long as at least

one of the statutory grounds has been established by clear and

convincing evidence”).

III. Less Drastic Alternatives

¶ 13 Father asserts that the juvenile court erred by finding that

there was no less drastic alternative to termination. We disagree.

A. Standard of Review and Applicable Law

¶ 14 We must affirm the juvenile court’s findings on less drastic

alternatives if they are supported by the record. See People in

Interest of B.H., 2021 CO 39, ¶ 81.

¶ 15 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).

¶ 16 A viable less drastic alternative must do more than adequately

meet a child’s needs; rather, it must be in the child’s best interests.

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A.M., ¶ 27. Therefore, if the 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.

B. Analysis

¶ 17 Recall that the child was placed with her maternal aunt in

January 2023. Both caseworkers who testified at the termination

hearing said that the Department did not have any safety concerns

with maternal aunt and that maternal aunt had provided for all the

child’s needs. The second caseworker explained that maternal aunt

had been open to an APR with father but ultimately rejected an APR

for the reasons described above. The second caseworker said that

she agreed with maternal aunt’s decision because it was “extremely

important” that the child have Medicaid for access to individual

therapy. The second caseworker also opined that termination and

adoption were in the child’s best interests because it would

“guarantee her stability, consistency, and safety.”

¶ 18 Based on this evidence, the juvenile court determined that

there was no less drastic alternative to termination. In doing so,

the court recognized that an “APR was, at some point in this case, a

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viable” alternative to termination but that an APR to maternal aunt

was no longer an option because the child’s “needs . . . must come

first.” Specifically, the court determined that the child’s “need for

Medicaid” and her “need to be in a safe, stable, loving place” were

“paramount” in the decision to reject an APR and enter termination.

¶ 19 Father asserts that the juvenile court erred by rejecting an

APR to maternal aunt because the evidence established that father

and the child had “a loving and positive relationship,” and even

though an APR would present “financial challenges” for maternal

aunt, it was still in the child’s best interests to preserve her legal

relationship with father. We are not persuaded for three reasons.

¶ 20 First, contrary to father’s argument, the juvenile court found

with record support that father did not make sufficient efforts to

build and maintain a relationship with the child. See People in

Interest of A.R., 2012 COA 195M, ¶ 37 (noting that a court may

consider whether an ongoing relationship with the parent would

benefit the child in considering the viability of a less drastic

alternative). The record shows that father had, at most, two in-

person visits with the child in over a year leading up to the

termination hearing. And although father would talk to the child on

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the phone about every two weeks, the evidence established that the

child had to reach out to father to initiate this contact. The court

found that “[a] sporadic phone call . . . is not the level of parenting

that [the child] needs in her life.”

¶ 21 Second, even if the evidence did support father’s position, the

benefit of an ongoing relationship with a parent is but one factor

that a court may consider when deciding if a less drastic alternative

is viable. See id. In this case, the court considered and rejected an

APR because (1) maternal aunt could not provide for the child’s

needs under an APR, see People in Interest of D.L.C., 70 P.3d 584,

589 (Colo. App. 2003) (rejecting an APR to a relative based on

financial considerations); and (2) an APR did not provide the child

with adequate permanency, see People in Interest of Z.M., 2020 COA

3M, ¶ 30 (stating that an APR is not a less drastic alternative “if the

child needs a stable, permanent home that can only be assured by

adoption”). Because the record supports those reasons, as

described above, we cannot disturb the court’s decision. See B.H.,

¶ 80; People in Interest of S.Z.S., 2022 COA 133, ¶ 29 (noting that

an appellate court may not reweigh the evidence or substitute its

judgment for that of the juvenile court).

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¶ 22 Finally, regardless of whether an ongoing relationship with

father would be beneficial to the child, father does not explain how

the juvenile court could have forced maternal aunt to accept an

APR. See People in Interest of P.D., 580 P.2d 836, 838 (Colo. App.

1978) (noting that a court cannot enter an APR to an unwilling

party who is not the child’s parent); see also People in Interest of

S.N-V., 300 P.3d 911, 920 (Colo. App. 2011) (permitting the court to

consider a placement’s preference for adoption over an APR). And

father does not suggest different relatives that would have accepted

an APR. See People in Interest of Z.P., 167 P.3d 211, 215 (Colo. App.

2007) (noting that a department has no obligation to consider

relatives for placement unless the parent identifies the person as a

placement option).

IV. Juvenile Court’s Duty to Ascertain a Child’s Position

¶ 23 The child asserts that the juvenile court erred by failing to

(1) consult with her about her permanency goals and (2) ascertain

her position with respect to termination. She maintains that, as a

result, the court violated her due process rights to a fair proceeding.

We are not persuaded.

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A. Preservation

¶ 24 To begin, the child acknowledges that she did not raise this

issue in the juvenile court. On that basis, the Department asserts

that we should decline to address her argument. See People in

Interest of M.B., 2020 COA 13, ¶ 14 (“[D]ependency and neglect

proceedings are subject to the limitation that except where

jurisdiction is implicated, generally appellate courts review only

issues presented to and ruled on by the lower court.”). In response,

the child maintains that we may address her appellate contention

under the miscarriage of justice exception to the preservation rule.

See People in Interest of E.S., 2021 COA 79, ¶ 14 (applying the

miscarriage of justice exception to consider whether the juvenile

court erred by allowing a blanket policy barring visitation). We

agree with the child that, under the circumstances presented here,

it would have been difficult, if not impossible, for her to properly

preserve this issue. We therefore exercise our discretion to consider

the child’s challenge.

B. Standard of Review and Applicable Law

¶ 25 We review procedural due process claims de novo. People in

Interest of R.J.B., 2021 COA 4, ¶ 26. But a party cannot prevail on

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a due process claim absent a showing of harm or prejudice. People

in Interest of J.A.S., 160 P.3d 257, 262 (Colo. App. 2007).

C. Analysis

¶ 26 We are not aware of any case law describing a child’s due

process rights in a dependency or neglect case, and the child has

not directed us to any. We therefore begin by discussing the due

process protections afforded to parents facing termination.

¶ 27 Generally, “[p]arents have a constitutionally protected liberty

interest in the care, custody, and management of their children,”

A.M., ¶ 17, and therefore the termination of the parent-child legal

relationship must satisfy due process by providing fundamentally

fair procedures, People in Interest of J.G., 2016 CO 39, ¶ 20. To

provide fundamentally fair procedures, a parent must be provided

with (1) notice of the allegations in the termination motion, (2) the

opportunity to be heard, (3) the opportunity to have counsel if

indigent, and (4) the opportunity to call witnesses and engage in

cross examination. People in Interest of E.B., 2022 CO 55, ¶ 16.

¶ 28 Within the last few years, the General Assembly passed

legislation intended to provide a “voice” to children involved in

dependency or neglect cases. Ch. 92, sec. 1(1)(b), 2022 Colo. Sess.

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Laws 430. Among other things, this new legislation provides that

“[a] child named in the petition shall be a party to the proceedings

and have the right to attend and fully participate in all hearings

related to the child’s case.” § 19-3-502(4.5), C.R.S. 2025. The child

is also entitled to “developmentally appropriate notice . . . of all

hearings related to the child’s case.” Id.

¶ 29 The new legislation also creates separate forms of

representation for children under and over twelve years old.

Specifically, a child over the age of twelve is now represented by a

CFY, “who provides specialized client-directed legal representation

. . . and who owes the same duties, including undivided loyalty,

confidentiality, and competent representation . . . as is due an adult

client.” § 19-1-103(41.5), C.R.S. 2025; see also § 19-3-203(2),

C.R.S. 2025 (describing appointment of a CFY for a child over

twelve years old). In contrast, a child under the age of twelve is not

entitled to client-directed counsel; rather, the child’s best interests

are represented by a guardian ad litem (GAL). See § 19-3-203(1),

(5).

¶ 30 As we noted above, the child was under twelve years old for

the duration of the juvenile court proceedings. After father

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appealed the termination judgment, the child turned twelve and

was entitled to a CFY on appeal. But because the child was under

twelve during the termination proceedings, she was only entitled to

the protections afforded to a child under the age of twelve. In other

words, although the Colorado Children’s Code now provides a child

under twelve with similar protections to those afforded a parent and

a child over twelve (i.e., notice, opportunity to be heard,

appointment of counsel, and ability to call witnesses and engage in

cross examination), those protections are limited by the nature of a

GAL’s representation. See, e.g., § 19-3-203(5) (directing a GAL to

call witnesses to represent the child’s best interests); § 19-3-

502(4.5) (requiring a GAL to provide notice of hearings in a

“developmentally appropriate” manner).

¶ 31 Nonetheless, the child first asserts that the juvenile court

erred by failing to consult with her about her permanency

preference at the permanency planning hearings. She directs our

attention to section 19-3-702(1)(a), C.R.S. 2025, which provides

that “[t]he court shall consult with the child . . . in a

developmentally appropriate manner regarding the child’s . . .

permanency goal” at each permanency planning hearing. The child

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acknowledges that she did not appear at five of the six permanency

hearings, and we cannot discern how the court could have

“consult[ed]” with her under those circumstances. As for the sixth

permanency hearing, which occurred after the termination

hearing’s conclusion, we discern no reversible error in the court’s

failure to consult with the child, considering that the only

permanency option at that point was adoption by a relative. See

§ 19-3-702(4)(a) (listing the different permanency options).

¶ 32 The child next maintains that the juvenile court should have

attempted to ascertain her position at the termination hearing. But

the child has not directed us to any specific authority — and we are

not aware of any — requiring the court to directly ask a child about

her position on termination. If the child wanted to express a

position counter to her GAL, we presume that the GAL would have

called her as a witness, see § 19-3-203(5), or requested an in-

camera hearing with the judge, see People in Interest of H.K.W.,

2017 COA 70, ¶ 17 (concluding that section 19-1-106, C.R.S. 2025,

permits in-camera interviews of children in dependency or neglect

cases). And although the court may call witnesses in its discretion,

CRE 614(a), we see nothing in the record surrounding the

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termination hearing that would have suggested to the judge that the

child wanted to state a position contrary to her GAL.

¶ 33 The child also argues that her GAL should have at least stated

her position at the termination hearing, as required by Chief Justice

Directive 04-06, Court Appointments Through the Office of the

Child’s Representative (effective Jan. 2023) (CJD 04-06). As

relevant here, this CJD requires the GAL to “[s]tate the child’s

position, when ascertainable,” unless the child informs the GAL not

to do so, and in that case, “the GAL may proceed without directly

stating such position.” CJD 04-06(V)(D)(1)(a)(i). Based on the

record before us, we cannot say for certain whether the GAL failed

to state the child’s position, the GAL could not ascertain her

position, or the child asked the GAL to not state her position. In

effect, the child’s argument would require us to determine that the

GAL provided something akin to ineffective assistance of counsel by

failing to state her position, or worse, by misleading the court about

her wishes. But the child does not allege facts suggesting

ineffective assistance of counsel, and we are unaware of any

authority that would allow a child to challenge a termination

judgment based on the ineffective assistance of a GAL.

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¶ 34 In sum, because the child has not demonstrated a due process

violation, we discern no basis for reversal. Regardless, we are not

convinced that the child has established any harm or prejudice

from any putative due process violation. See J.A.S., 160 P.3d at

262. Even if the juvenile court had information that the child

opposed termination, the record indicates that the juvenile court

would have still terminated the parent-child legal relationship

between father and the child, considering that (1) it is undisputed

that the Department proved the termination criteria in section 19-3-

604(1)(c) by clear and convincing evidence; (2) there were no less

drastic alternatives available to the court; and (3) the GAL believed

that termination was in the child’s best interests.

V. Conclusion

¶ 35 The judgment is affirmed.

JUDGE PAWAR and JUDGE GOMEZ concur.

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