Peo in Interest of DRM

24CA0893 Peo in Interest of DRM 02-13-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0893
Adams County District Court No. 22JV30109
Honorable Caryn A. Datz, Judge

The People of the State of Colorado,

Appellee,

In the Interest of D.R.M., a Child,

and Concerning D.M.,

Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE GROVE
Harris and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 13, 2025

Heidi Miller, County Attorney, Conor Hagerty, Assistant County Attorney,
Westminster, Colorado, for Appellee

Tausha Riley, Guardian Ad Litem

Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant
¶1 D.M. (father) appeals the judgment terminating his parent-

child legal relationship with D.R.M. (the child). We affirm.

I. Background

¶2 In November 2022, the Adams County Human Services

Department (Department) received a report that the child was born

substance-exposed and had to be treated in the neonatal intensive

care unit for withdrawal symptoms. Mother told the caseworker

that she had used controlled substances during her pregnancy; her

home did not have running water, heat, or electricity; and father

(who lived in the home with mother) was currently incarcerated in

the county jail. The Department also discovered that the parents’

parental rights with respect to the child’s older sister had previously

been terminated and the older child had been adopted by the

maternal grandparents.

¶3 The Department filed a petition in dependency and neglect,

assumed temporary legal custody of the child, and placed her in the

care of her maternal grandparents. Father contested paternity, and

the juvenile court ordered him to undergo genetic testing. He

completed the genetic testing while he was serving a community

corrections sentence, but shortly thereafter, he absconded from

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community corrections. Father did not contact the Department or

appear in court for several months; the court eventually entered an

adjudication by default judgment. The court then adopted a

treatment plan for father that required him to (1) address his

substance abuse, mental health, and criminal matters and

(2) develop a bond with the child and provide for her needs.

¶4 In February 2024, the Department moved to terminate father’s

parental rights. The juvenile court held a two-day evidentiary

hearing in April 2024. After hearing the evidence, the court entered

a thorough, written order granting the Department’s motion and

terminating the parent-child legal relationship between father and

the child under section 19-3-604(1)(c), C.R.S. 2024.

II. Indian Child Welfare Act

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

Department exercised due diligence as required by section 19-1-

126(3), C.R.S. 2024, of Colorado’s Indian Child Welfare Act (ICWA)

statute. We disagree.

A. Applicable Law and Standard of Review

¶6 For ICWA to apply in a dependency and neglect proceeding,

the case must involve an Indian child. See People in Interest of

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A.G.-G., 899 P.2d 319, 321 (Colo. App. 1995); see also 25 U.S.C.

§ 1903(4) (defining “Indian child” as “any unmarried person who is

under age eighteen” and (1) “a member of an Indian tribe,” or (2)

“eligible for membership in an Indian tribe” and “the biological child

of a member of an Indian tribe”). A mere assertion of Indian

heritage, without more, is insufficient to give the juvenile court

reason to know that the child is an Indian child and trigger the

provisions of ICWA. People in Interest of E.A.M. v. D.R.M., 2022 CO

42, ¶ 56. However, Colorado’s ICWA statute places additional

requirements upon a department when it has information that “the

child may have Indian heritage.” § 19-1-126(3). Under those

circumstances, the court must direct the department to “exercise

due diligence in gathering additional information that would assist

the court in determining whether there is reason to know that the

child is an Indian child.” Id.; see also H.J.B. v. People in Interest of

A-J.A.B., 2023 CO 48, ¶ 5.

¶7 To exercise due diligence under section 19-1-126(3), the

department should

earnestly endeavor to investigate the basis for
the parent or other participant’s assertion that
the child may be an Indian child, to contact

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those family members or others who are
specifically identified as having knowledge
regarding that assertion of general Indian
heritage, and to learn whether additional
information exists that will help the court
determine whether there is a reason to know
that the child is an Indian child.

H.J.B., ¶ 57. However, due diligence under section 19-1-126(3) is a

flexible standard that does not require the department to “succeed

in its efforts” or “exhaust every possible option in attempting to do

so.” H.J.B., ¶ 58. Nor does it require the department to contact

every tribe mentioned by the parent. Id. at ¶ 54.

¶8 Whether the department satisfied its due diligence obligation

is left to the juvenile court’s sound discretion, which necessarily

requires the court to make credibility determinations regarding the

source of the information and the basis for the source’s information.

Id. at ¶ 58.

B. Analysis

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

Department exercised due diligence under section 19-1-126(3)

because it did not follow up on information that the child might

have Apache, Navajo, or Ute heritage. We are not persuaded.

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¶ 10 At a hearing in January 2023, mother’s counsel noted that

there had been a “finding of non-ICWA in a previous case,” but

mother nevertheless “believe[d] that she may have Native American

heritage.” The court inquired of mother, who stated that maternal

grandmother “might have a better answer.” The court then turned

to the maternal grandparents, who attended the hearing. They

thought that the family might have Apache, Navajo, or Ute heritage,

but otherwise indicated that none of their relatives were members of

a tribe. Based on this discussion, the county attorney asked that

the maternal grandparents file an ICWA assessment form “so we

can fully investigate all those records made.”

¶ 11 A few weeks later, the guardian ad litem submitted an ICWA

assessment form completed by the maternal grandparents. On the

form, the maternal grandparents listed a few relatives, along with

dates and places of birth, but they did not provide any possible

tribes, including those that they had previously indicated. Because

the maternal grandparents did not provide any specific tribal

information on the assessment form, the Department sent notice

only to the Bureau of Indian Affairs.

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¶ 12 In March 2023, the juvenile court asked mother whether she

had any additional information, and she indicated that she did not.

The court then found that the Department had exercised due

diligence by following up on the representations previously made

and sending the appropriate notice. The court further found that it

did not have any information that the child was an Indian child and

therefore ICWA did not apply.

¶ 13 The record supports the juvenile court’s finding that that the

Department exercised due diligence under section 19-1-126(3).

Mother believed that she had Native American heritage and that the

maternal grandparents might have additional information. See

H.J.B., ¶ 57. Although the maternal grandparents initially

indicated that the family may have Apache, Navajo, or Ute heritage,

they did not identify any specific tribes when completing the ICWA

assessment form. And although they named other relatives, they

did not indicate that any of those people had additional

information, nor did they provide the Department with any contact

information for those individuals. See id. Because the Department

did not have any other information to further pursue, it sent notice

to the Bureau of Indian Affairs. In sum, because the court’s

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findings are supported by the record and the Department had no

duty to contact any tribes, we discern no error in the court’s

determination that the Department exercised due diligence under

section 19-1-126(3). See H.J.B., ¶¶ 54, 58.

III. Reasonable Efforts

¶ 14 Father contends that that juvenile court erred by finding that

the Department made reasonable efforts to rehabilitate him and

reunify him with the child.

A. Applicable Law and Standard of Review

¶ 15 Before a juvenile court may find a parent unfit, the county

department of human services must make reasonable efforts to

rehabilitate parents and reunite families. §§ 19-1-103(114),

19-3-208, 19-3-604(2)(h), C.R.S. 2024. Reasonable efforts means

the “exercise of diligence and care” to reunify parents with their

children. § 19-1-103(114).

¶ 16 Services provided in accordance with section 19-3-208 satisfy

the reasonable efforts standard. § 19-1-103(114). Among the

services required under section 19-3-208 are screenings,

assessments, and individual case plans for the provision of services;

home-based family and crisis counseling; information and referral

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services to available public and private assistance resources; family

time; and placement services. § 19-3-208(2)(b).

¶ 17 The juvenile court should consider whether the services

provided were appropriate to support the parent’s treatment plan,

People in Interest of S.N-V., 300 P.3d 911, 915 (Colo. App. 2011), by

“considering the totality of the circumstances and accounting for all

services and resources provided to a parent to ensure the

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

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

responsible for using the services to comply with the plan. People in

Interest of J.C.R., 259 P.3d 1279, 1285 (Colo. App. 2011). And the

court may consider a parent’s unwillingness to participate in

treatment in determining whether the department made reasonable

efforts. See People in Interest of A.V., 2012 COA 210, ¶ 12.

¶ 18 Whether a department satisfied its obligation to make

reasonable efforts is a mixed question of fact and law. People in

Interest of A.S.L., 2022 COA 146, ¶ 8. We review the juvenile

court’s factual findings for clear error and review de novo its legal

determination, based on those findings, as to whether the

department satisfied its reasonable efforts obligation. Id.

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B. Analysis

¶ 19 The juvenile court found that the Department made

reasonable efforts to rehabilitate father because the caseworker

made “ongoing attempts to engage” father “to utilize resources and

services.” The court noted that the Department had “made referrals

for various services,” including substance abuse and mental health

treatment, monitored sobriety, and family time services. However,

based on the evidence presented, the court determined that father

did not take “advantage of these services,” “only sporadically

exercised family time,” and “did not remain in consistent contact

with the caseworker.”

¶ 20 The record supports the juvenile court’s findings. The

caseworker testified that, at the beginning of the case, father was

incarcerated in the county jail, but the Department managed to

provide him with a dual diagnosis evaluation while he was in

custody. The evaluator recommended that father complete

inpatient treatment, but because he was sentenced to community

corrections and had to maintain employment, father could only

comply with the alternative recommendation of outpatient

treatment services. The caseworker said that she attempted to

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speak to father about the services that community corrections

required him to complete, so that the Department was not

duplicating services. However, father did not respond and

eventually absconded from community corrections supervision and

did not contact the Department for about six months. The

caseworker said that, after father was arrested, the Department

attempted to start family time while he was still in jail, but he was

moved to a prison facility before they could set it up. Thereafter,

father was in prison for about three months, and the caseworker

said that she was unable to contact father during that time.

¶ 21 Father was released from prison in January 2024. The

caseworker testified that, after father was released, she “was calling

and texting him approximately four times a week” to try to get

services and treatment set up as quickly as possible. The

caseworker said that the Department referred father for a new dual

diagnosis evaluation in February 2024, but he did not complete it.

The caseworker also set up family time for father, but father only

attended about ten hours of family time over the next three months.

Finally, the caseworker said that the Department made a referral

for father to complete drug screens, but he never did any.

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¶ 22 In sum, the record supports the juvenile court’s findings that

(1) the Department provided father with the appropriate resources

to engage with his treatment plan, but (2) he did not take advantage

of those resources and was therefore unsuccessful in becoming fit

within a reasonable time. See A.V., ¶ 12; J.C.R., 259 P.3d at 1285.

¶ 23 Nevertheless, father asserts that the Department did not make

reasonable efforts to provide him with substance abuse and mental

health services, the caseworker did not contact him, and he was not

provided adequate family time. But his assertions would require us

to reweigh the evidence, override the court’s credibility

determinations, and otherwise substitute our judgment for that of

the juvenile court. See People in Interest of S.Z.S., 2022 COA 133,

¶ 29; see also People in Interest of A.J.L., 243 P.3d 244, 249-50

(Colo. 2010). Because we cannot do so, we reject father’s assertion

and conclude that the court did not err by finding that the

Department made reasonable efforts.

IV. Fitness Within a Reasonable Time

¶ 24 Father argues that the juvenile erred by finding that he could

not become fit within a reasonable time. We disagree.

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A. Applicable Law and Standard of Review

¶ 25 An unfit parent is one whose conduct or condition renders the

parent unable or unwilling 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 safe parenting sufficiently adequate to meet

the child’s physical, emotional, and mental needs and conditions.

People in Interest of A.J., 143 P.3d 1143, 1152 (Colo. App. 2006). A

parent’s noncompliance with a treatment plan generally

“demonstrates a lack of commitment to meeting the child’s needs

and, therefore, may also be considered in determining unfitness.”

People in Interest of D.P., 181 P.3d 403, 408 (Colo. App. 2008).

¶ 26 When deciding whether a parent’s conduct or condition is

likely to change within a reasonable time, the juvenile 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 D.L.C., 70

P.3d 584, 588-89 (Colo. App. 2003). Where a parent has made little

to no progress on a treatment plan, the court need not give the

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parent additional time to comply. See People in Interest of R.B.S.,

717 P.2d 1004, 1006 (Colo. App. 1986).

¶ 27 The determination of a reasonable period is fact-specific and

varies from case to case. People in Interest of D.Y., 176 P.3d 874,

876 (Colo. App. 2007); see also S.Z.S., ¶ 24. However, a reasonable

time is not an indefinite time, and it must be determined by

considering the child’s physical, mental, and emotional conditions

and needs. S.Z.S., ¶ 24. As in this case, when a child is under six

years old, the juvenile court must also consider the expedited

permanency planning provisions, which require that the child be

placed in a permanent home as expeditiously as possible. See

§§ 19-1-102(1.6), 19-1-123, 19-3-702(5)(c), C.R.S. 2024.

¶ 28 Whether the juvenile court properly terminated parental rights

is a mixed question of fact and law. People in Interest of A.M. v.

T.M., 2021 CO 14, ¶ 15. We review the court’s factual findings for

clear error, but we review de novo its legal conclusions based on

those facts. People in Interest of S.R.N.J-S., 2020 COA 12, ¶ 10.

B. Analysis

¶ 29 The juvenile court found that father’s conduct or condition

was unlikely to change within a reasonable time. In so concluding,

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the court noted that the case had been open for seventeen months,

the entirety of the child’s life. During that time, father did not

consistently engage with services and made only “minimal progress”

on his treatment plan. The court also considered that father had a

“lengthy histor[y] of substance use” and this was “the second child

removed from [father’s] care due to substance use.”

¶ 30 The record supports the juvenile court’s findings. The

caseworker testified that father had a previous dependency and

neglect case with similar concerns that opened in June 2021 and

ended with termination of father’s parental rights a few months

before the child in this case was born. As noted above, father did

not participate in substance abuse or mental health treatment

during this case, and he only attended about ten hours of family

time. And although father testified that he had been sober for

about eight months, the caseworker said that, because father had

not complied with monitored sobriety, she could not confirm that

claim. The caseworker opined that, based on this information,

father’s conduct or condition was unlikely to change within a

reasonable time.

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¶ 31 Father maintains that the record compels the opposite

conclusion, pointing out that he completed the dual diagnosis

evaluation, began treatment through parole (including methadone

treatment and counseling), was employed, and had a stable home.

But the juvenile court specifically considered this evidence and still

concluded that father’s conduct or condition was unlikely to change

within a reasonable time. Thus, father’s appellate argument would

again require us to reweigh the evidence and substitute our

judgment for that of the juvenile court, which we cannot do. See

S.Z.S., ¶ 29. Rather, because the record supports the court’s

finding that father’s conduct or condition was unlikely to change

within a reasonable time, we reject father’s contention.

V. Less Drastic Alternative

¶ 32 Father maintains that the juvenile court erred by rejecting a

less drastic alternative to termination in the form of an allocation of

parental responsibilities (APR) to the maternal grandparents. We

disagree.

A. Applicable Law and Standard of Review

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

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

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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). In doing so, the

court may consider, among other things, whether (1) an ongoing

relationship between the parent and child would be beneficial,

People in Interest of A.R., 2012 COA 195M, ¶ 38; (2) an APR

provides adequate permanence and stability for the child, People in

Interest of T.E.M., 124 P.3d 905, 910-11 (Colo. App. 2005); and

(3) the placement prefers adoption over an APR, S.N-V., 300 P.3d at

920.

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

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

best interests. A.M., ¶ 27. 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. And under those circumstances, we

must affirm the court’s decision if its findings are supported by the

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

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B. Analysis

¶ 35 The juvenile court found that there was no less drastic

alternative to termination. In doing so, the court considered that

the child had been in the maternal grandparents’ care, together

with her sibling, for the entirety of the case. The court further

noted that the maternal grandparents wanted to adopt the child

and did not believe that an APR would be a viable option,

considering that they had a restraining order against father.

Ultimately, the court determined that, based on the child’s young

age and her need for permanency, adoption (rather than an APR)

was in the child’s best interests.

¶ 36 The record supports the juvenile court’s findings. The

maternal grandfather testified that the child was placed in maternal

grandparents’ home after her release from the hospital and that

they had recently adopted the child’s sibling. He also said that he

preferred adoption over an APR because it was important for the

child to know that she was in a stable home and that he had

“concerns” about the viability of an APR because of the protection

order against father. Based on this information, as well as father’s

lack of compliance with his treatment plan, the caseworker opined

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that termination, and not a less drastic alternative, was in the

child’s best interests.

¶ 37 In sum, the record shows that the juvenile court considered

less drastic alternatives but rejected them because they were not in

the child’s best interests. See A.M., ¶ 32. And because the record

supports the court’s finding, we cannot disturb it. See B.H., ¶ 80.

¶ 38 We are not otherwise convinced by father’s contention that a

less drastic alternative existed because he made progress in

treatment, had a bond with the child, and an APR would preserve

family ties. To be sure, a juvenile court can consider these issues

when deciding if there is a viable less drastic alternative to

termination. See, e.g., People in Interest of N.D.V., 224 P.3d 410,

421 (Colo. App. 2009). But they are just some of the factors that

are relevant in deciding whether a less drastic alternative is in the

child’s best interests. See A.R., ¶ 38 (noting that the court “may

consider various factors” in its analysis of less drastic alternatives).

And in this case, the court determined that there was no viable less

drastic alternative to termination based on father’s unfitness, the

maternal grandparents’ preference for adoption, and the child’s

need for permanency. We cannot reweigh the evidence or

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substitute our judgment to reach a different conclusion. See B.H.,

¶ 80; A.M., ¶ 32; see also S.Z.S., ¶ 29.

VI. Disposition

¶ 39 The judgment is affirmed.

JUDGE HARRIS and JUDGE PAWAR concur.

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