Peo in Interest of TD-JG-R

25CA0555 Peo in Interest of TD-JG-R 10-09-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0555
City and County of Denver Juvenile Court No. 23JV30171
Honorable Elizabeth McCarthy, Judge

The People of the State of Colorado,

Appellee,

In the Interest of T.D-J.G-R. and A.L-L.G-R., Children,

and Concerning A.R.R. and T.J.G.,

Appellants.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE BROWN
Fox and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 9, 2025

Michiko Ando Brown, City Attorney, Amy J. Packer, Assistant City Attorney,
Denver, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem

Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant A.R.R.

Gregory Lansky, Office of Respondent Parents’ Counsel, Aurora, Colorado, for
Appellant T.J.G.
¶1 In this dependency or neglect proceeding, T.J.G. (father) and

A.R.R. (mother) appeal the judgment terminating their parent-child

legal relationships with T.D-J.G-R. and A.L-L.G-R. (the children).

We affirm.

I. Background

¶2 The Denver Department of Human Services (the Department)

filed a petition in dependency or neglect based on concerns

regarding the parents’ substance abuse. The Department did not

initially seek custody, requesting only supervision and support for

the family. However, when the parents failed to communicate with

the Department and to cooperate with drug testing, the juvenile

court granted temporary custody to the Department. The children

were placed with paternal grandmother where they remained

throughout the case.

¶3 Following a lack of participation from mother and father, the

juvenile court adjudicated the children dependent or neglected by

default and adopted treatment plans requiring both parents to

maintain consistent contact with the children and to immediately

contact the Department to devise a detailed treatment plan. Eight

months later, father began participating, and the juvenile court

1
adopted a revised treatment plan requiring him to, among other

things, (1) cooperate with the Department; (2) obtain stable housing

and income; (3) attend mental health treatment and follow all

treatment recommendations; (4) complete a substance abuse

evaluation and follow all recommendations; (5) attend all scheduled

family time; and (6) comply with probation and parole requirements.

¶4 Twenty months after the case began, the Department moved to

terminate mother’s and father’s parental rights. Three days later,

mother appeared for the first time, and the juvenile court adopted a

revised treatment plan requiring her to, among other things,

(1) follow all recommendations from her substance abuse

evaluation, attend treatment, and complete drug testing; (2) obtain

and maintain stable housing and income; (3) participate in mental

health treatment and follow all treatment recommendations;

(4) participate in scheduled family time; and (5) cooperate with the

Department.

¶5 Nearly two years after the case opened and following two

continuances, the juvenile court held a termination hearing. In the

end, the court terminated mother’s and father’s legal relationships

with the children.

2
II. Indian Child Welfare Act

¶6 Father contends that the juvenile court did not comply with

the provisions of the Indian Child Welfare Act (ICWA) of 1978, 25

U.S.C. §§ 1901-1963, and Colorado’s ICWA statute, § 19-1-126,

C.R.S. 2024, repealed by, Ch. 338, sec. 1, § 19-1-126, 2025 Colo.

Sess. Laws 1779.1 Specifically, he contends that the court had

“reason to know” that the children were Indian children, such that

the Department should have provided formal notice to the identified

tribes. Alternatively, father argues that the court erred by

concluding that the Department properly exercised due diligence

under section 19-1-126. We disagree.

A. Applicable Law and Standard of Review

¶7 For ICWA to apply in a dependency or neglect proceeding, the

case must involve an Indian child. People in Interest of A.G.-G., 899

P.2d 319, 321 (Colo. App. 1995). “Indian child” is defined as an

unmarried person under the age of eighteen who is either (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.

1 Throughout this opinion, we cite the 2024 version of the statute,

as that was the version in effect at all relevant times.

3
25 U.S.C. § 1903(4); § 19-1-103(83), C.R.S. 2024.2 “Until the party

asserting the applicability of . . . ICWA establishes, on the record,

that the child meets one or both of these criteria, . . . ICWA is not

applicable.” A.G.-G., 899 P.2d at 321.

¶8 In a dependency or neglect proceeding in Colorado, a juvenile

court must inquire of the parties whether they know or have reason

to know that a child is an Indian child. § 19-1-126(1)(a)(I)(A). If the

court knows or has reason to know that a child is an Indian child,

ICWA’s notice provisions apply. § 19-1-126(1)(b).

¶9 A court has reason to know that the child is an Indian child if

one of several circumstances exist. See § 19-1-126(1)(a)(II). As

relevant here, a court has reason to know that a child is an Indian

child if any participant in the proceeding, officer of the court

involved in the proceeding, Indian tribe or organization, or agency

informs the court that it has discovered information indicating that

the child is an Indian child. § 19-1-126(1)(a)(II)(B).3

2 We also cite the 2024 version of this statute throughout.
3 Father does not assert the existence of any other circumstance

under section 19-1-126(1)(a)(II), C.R.S. 2024, that would have given
the juvenile court reason to know that either of the children is an
Indian child.

4
¶ 10 “[M]ere assertions of a child’s Indian heritage (including those

that specify a tribe or multiple tribes by name), without more, are

not enough to give a juvenile court reason to know that the child is

an Indian child.” People In Interest of E.A.M. v. D.R.M., 2022 CO 42,

¶ 56. As a result, “these types of more generalized assertions of

Indian heritage” do not trigger ICWA’s notice requirements; rather,

they “trigger the due diligence requirement” in section 19-1-126(3).

H.J.B. v. People in Interest of A-J.A.B., 2023 CO 48, ¶ 5.

¶ 11 Due diligence requires a 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 child is an Indian

child. Id. at ¶ 57. Due diligence does not require a department “to

succeed in its efforts or exhaust every possible option in attempting

to do so.” Id. at ¶ 58.

¶ 12 Whether the juvenile court and the Department complied with

ICWA is a question of law that we review de novo. People in Interest

of T.M.W., 208 P.3d 272, 274 (Colo. App. 2009). But whether the

5
Department satisfied its due diligence obligation is a decision within

the juvenile court’s sound discretion, H.J.B., ¶ 58, and we will not

disturb that decision absent and abuse of discretion.

B. Additional Background

¶ 13 The petition indicated that mother claimed Lakota Sioux

heritage on her maternal side and that father claimed some Indian

heritage, but the tribe and affiliation were unknown.

¶ 14 While father did not attend a court appearance for the first

eleven months of the case, his mother (paternal grandmother)

frequently appeared. She initially reported that her mother

(paternal great-grandmother) was “a fourth Potawatomi Indian.”

After the Department later informed the court that paternal

great-grandmother was reportedly enrolled in a Lakota Sioux tribe,4

but that mother and the children were not enrolled or eligible to be

enrolled in a tribe, the juvenile court ordered the Department to

investigate further.

4 It is possible this report was a mistake as the record otherwise

indicates possible Lakota Sioux heritage on mother’s side and
possible Potawatomi heritage on father’s side.

6
¶ 15 Four months later, the Department filed a declaration detailing

its efforts to determine if there was a reason to know the children

were Indian children. The efforts included:

• Five discussions with paternal grandmother who

indicated that paternal great-grandmother may have

been enrolled in the Potawatomi tribe but was deceased,

there were no other family members besides father who

would have additional information, no one in her family

lived on a reservation, and she doubted anyone was ever

enrolled in a tribe.

• Four discussions with mother’s sister (maternal aunt)

who reported that maternal great-grandmother, some of

her children, and some of her cousins were enrolled in

the Lakota Sioux tribe. But maternal aunt did not have

any enrollment numbers or contact information for any

other family members, and maternal great-grandmother

was deceased. Maternal aunt also confirmed that mother

and the children were not enrolled in a tribe and no one

in the family lived on a reservation.

7
¶ 16 At the next court proceeding, paternal grandmother again

disclosed that paternal great-grandmother had “a little bit” of

Potawatomi heritage. The juvenile court ordered the Department to

continue exercising due diligence. Three months later, during

father’s first court appearance, he stated on the record that he was

not a member of any tribe. A few months later, the Department

reported that mother had Lakota Sioux heritage on her mother’s

side but that she was not registered with the tribe.

¶ 17 Shortly before the termination hearing, the Department filed

another declaration of its efforts to determine if there was reason to

know the children were Indian children. In this declaration, the

Department explained that it sent (1) informal inquiries, including

an ancestry chart of mother’s family, by email or fax to the

Blackfeet Tribe, Lower Brule Sioux Tribe, Oglala Sioux Tribe,

Rosebud Sioux Tribe, and Rocky Mountain Regional Director;

(2) informal inquiries, including an ancestry chart of father’s family,

by email or fax to Citizen Potawatomi Nation, Forest County

Potawatomi Nation, Match-E-Be-Nash-She-Wish Band of

Potawatomi Indian Gun Lake Tribe, Nottawaseppi Huron Band of

Potawatomi Indians, Pokagon Band of Potawatomi Indians, the

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Midwest Regional Office, and the Southern Plains Regional Office;

and (3) informal inquiries, including father’s ancestry chart, by

certified mail to the Hannahville Indian Community and the Prairie

Band of Potawatomi Nation. At the time of the termination hearing,

only the Oglala Sioux Tribe and the Citizen Potawatomi Nation had

responded, stating that neither the children nor the parents were

members or eligible to be enrolled as members. In its response, the

Citizen Potawatomi Nation enclosed a list of eight other Potawatomi

Band tribes for reference.

¶ 18 At the termination hearing, the caseworker testified that,

based on the Department’s efforts, she had no reason to believe the

children were Indian children or that mother and father were

eligible to enroll as members of a tribe. Mother’s and father’s

attorneys also confirmed they had no new information related to

ICWA. The juvenile court concluded that the children were not

Indian children, there was no reason to know that the children were

Indian children, and the Department had exercised due diligence to

gather additional information that would assist the court in

determining if there was a reason to know that the children were

Indian children.

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C. Reason to Know

¶ 19 Father contends that the juvenile court erred by concluding

that there was no reason to know the children were Indian children

because the ICWA information provided “consisted of specific

representations” of the children’s tribal heritage as opposed to

“mere assertions.” We are not persuaded.

¶ 20 Assertions that a member of the child’s family may have

Indian heritage through a particular tribe or a tribal ancestry group

is not sufficient to give the juvenile court a reason to know that the

child is an Indian child. H.J.B., ¶ 4. As our supreme court

reasoned, section 19-1-126(1)(a)(II)(B) “doesn’t refer to information

indicating that the child may be an Indian child. It refers to

information indicating that the child is an Indian child.” E.A.M.,

¶ 46. And simply reporting that the child may have Indian heritage

because some of their relatives believe they have Indian ancestors is

insufficient to indicate to the court that the child is either (1) a

member of an Indian tribe or (2) both eligible to be a member and

the biological child of a member of an Indian tribe. Id. at ¶ 47; see

25 U.S.C. § 1903(4); § 19-1-103(83)

10
¶ 21 Here, the juvenile court had information that some of the

children’s ancestors may have had Indian heritage. This

information did not indicate that either child satisfied the statutory

definition of an Indian child. See 25 U.S.C. § 1903(4);

§ 19-1-103(83). On the contrary, the juvenile court had information

that mother was not registered with the Lakota Sioux tribe, father

was not a member of any tribe, and the children were not members

of any tribe.5 Based on the information it received, the juvenile

court did not have reason to know that the children were Indian

children. Thus, the juvenile court properly directed the Department

to exercise due diligence under section 19-1-126(3).

D. Due Diligence

¶ 22 The juvenile court’s conclusion that the Department exercised

due diligence is supported by the record, which reflects that the

Department communicated with the parents, paternal

5 True, as father asserts, tribal membership and eligibility are

matters within the exclusive control of each Indian tribe. People in
Interest of K.C. v. K.C., 2021 CO 33, ¶ 28. But in concluding it did
not have reason to know the children were Indian children, the
juvenile court did not substitute its own determination regarding
membership for that of the tribes. The juvenile court simply relied
on the information provided regarding the parents’ actual statuses.

11
grandmother, and maternal aunt, and sent informal inquiries to

fourteen tribes and organizations. Even so, father asserts that the

Department failed to comply with the due diligence requirement

because it did not (1) follow up with the tribes and organizations

that did not respond to the informal inquiries; (2) follow up with the

eight tribes identified in the Citizen Potawatomi Nation’s response

letter; and (3) identify, investigate, and contact any of mother’s

relatives that maternal aunt indicated were enrolled in the Lakota

Sioux Tribe. We disagree.

¶ 23 First, father does not direct us to any authority requiring a

department to follow up when a tribe or organization does not

respond to its inquiries.6 See H.J.B., ¶¶ 51, 58 (noting that due

6 While not controlling here, the General Assembly’s recent

enactment of the Colorado Indian Child Welfare Act provides useful
guidance regarding what actions it deems sufficient to fulfill the due
diligence obligation. See §§ 19-1.2-101, -102, C.R.S. 2025
(providing the title and legislative declaration for the Colorado
Indian Child Welfare Act); § 19-1.2-107(4)(b), C.R.S. 2025 (listing
six tasks the petitioning party shall undertake when exercising due
diligence). While the statute requires the petitioning party to
contact tribal representatives by email, phone call, letter, or other
agreed upon means, it does not include any follow-up requirements.
§ 19-1.2-107(4)(b)(VI).

12
diligence does not require a department to provide notice to tribes

or to “exhaust every possible option”).

¶ 24 Second, “ICWA applies only if the Tribe is a federally

recognized Indian Tribe.” People in Interest of L.L., 2017 COA 38,

¶ 36, overruled on other grounds by, E.A.M., ¶ 56 n.10. The record

indicates that the Department sent informal inquiries to all seven

federally recognized Potawatomi tribes. Nothing in the record

suggests that the response letter sent by the Citizen Potawatomi

Nation listed additional federally recognized tribes to whom no

informal inquiry was sent. And father does not identify any

federally recognized Potawatomi tribe not included in the

Department’s informal inquiries.

¶ 25 Finally, while maternal aunt informed the caseworker that

maternal great-grandmother, some of her children, and some of her

cousins were enrolled in the Lakota Sioux tribe, she also indicated

that she did not have contact information for other family members,

and that great-grandmother was deceased. The caseworker

followed up with maternal aunt three more times, and maternal

aunt did not have any additional information. The record also

reflects that mother’s mother was deceased. It appears from the

13
record that the Department exhausted all efforts to identify and

investigate relatives that may have had information regarding

mother’s heritage. And father does not identify any specific efforts

that the Department failed to pursue that could have provided this

information.

¶ 26 We conclude that the juvenile court did not abuse its

discretion when it determined that the Department exercised the

due diligence required by section 19-1-126(3). On this record, we

perceive no error in the juvenile court’s conclusions that the

children were not Indian children and that ICWA did not apply.

III. Virtual Testimony

¶ 27 Father contends that the juvenile court abused its discretion

when it allowed the Department to present the testimony of the

children’s therapists virtually. We discern no error.

A. Applicable Law and Standard of Review

¶ 28 Under C.R.C.P. 43(i)(1), a “party may request that testimony be

presented at a trial or hearing by a person absent from the

courtroom by means of telephone or some other suitable and

equivalent medium of communication.” The motion for absentee

testimony must include the reasons for allowing such testimony,

14
“[a] detailed description of all testimony which is proposed to be

taken” virtually, and copies of all documents or reports that will be

used during such testimony. Id.

¶ 29 The court “shall determine whether in the interest of justice

absentee testimony may be allowed.” C.R.C.P. 43(i)(3). In doing so,

the court must consider the following nonexclusive factors:

(1) whether there is a statutory right to absentee testimony; (2) the

cost savings to the parties of having absentee testimony versus the

cost of the witness appearing in person; (3) the availability of

appropriate equipment at the court to permit the presentation of

absentee testimony; (4) the availability of the witness to appear in

person; (5) the relative importance of the issue for which the

witness is offered to testify; (6) if credibility of the witness is an

issue; (7) whether the case is to be tried to the court or to a jury;

(8) whether the presentation of absentee testimony would inhibit

the ability to cross-examine the witness; and (9) the efforts of the

requesting parties to obtain the presence of the witness. Id.

¶ 30 We review de novo a trial court’s interpretation and application

of a rule of civil procedure. Garcia v. Schneider Energy Servs., Inc.,

2012 CO 62, ¶ 7. But we review the juvenile court’s decisions

15
regarding the orderly administration of a trial, including a decision

to allow absentee testimony under C.R.C.P. 43(i), for an abuse of

discretion. See People in Interest of M.W., 2022 COA 72, ¶ 12. The

juvenile court abuses its discretion when its decision is based on an

erroneous understanding or application of law, or if it is manifestly

arbitrary, unreasonable, or unfair. Id.

B. Analysis

¶ 31 Over father’s objection, the juvenile court granted the

Department’s motion requesting that the children’s therapists be

allowed to testify virtually at the termination hearing. Father asked

the juvenile court to reconsider, arguing that the Department’s

motion was insufficient under C.R.C.P. 43. At the start of the

termination hearing, the juvenile court allowed counsel to make an

additional record. Father’s counsel argued that the court failed to

make specific findings under C.R.C.P. 43, that father had the right

to confront the witnesses against him, and that father would have a

difficult time seeing the witnesses on a screen across the

courtroom.

¶ 32 The juvenile court concluded that there was no prejudice to

the parents, that the cases the parents cited related to the criminal

16
right of confrontation, that the request for virtual testimony was

allowable pursuant to the rules of civil procedure, that the

witnesses were unable to appear in person that day, and that

another continuance to allow them to appear in person was not in

the children’s best interests given that they had been in out-of-

home placement for 728 days. To alleviate the parents’ concerns

about seeing the witnesses, however, the court allowed them to use

its laptop to ensure they could see the witnesses during their

testimony.

¶ 33 Father asserts that the juvenile court erred by allowing the

therapists to testify virtually for three reasons. First, father

contends that the Department’s sole basis for requesting virtual

testimony for the therapists — that scheduling conflicts made it

difficult for the witnesses to appear in person — was insufficient.

Essentially, father argues that the witness must have been unable

to appear in person or unable to be subpoenaed before the court

could authorize absentee testimony.

¶ 34 But under C.R.C.P. 43(i)(3), “[t]he availability of the witness to

appear personally in court” is but one factor for the court to

consider. Had our supreme court intended to authorize a court to

17
permit absentee testimony only when a witness was unavailable to

testify in person, it would have said so. See People v. McLaughlin,

2023 CO 38, ¶ 27 (“[W]e do not add words to or subtract words

from rules.”); cf. People v. Laeke, 2018 COA 78, ¶ 16 (If the supreme

court intended a rule of criminal procedure to cover a particular

type of plea, “it certainly knew how to say so.” (citation omitted));

see also Colo. Const. art. VI, § 21 (granting the supreme court

authority to promulgate rules governing practice and procedure in

civil cases); Williams v. Crop Prod. Servs., Inc., 2015 COA 64, ¶ 17

(“The Colorado Rules of Civil Procedure are promulgated by the

Colorado Supreme Court, with input from the court’s Civil Rules

Committee.”).

¶ 35 Second, father contends that the Department failed to provide

a “detailed description of all testimony which is proposed to be

taken” as required by C.R.C.P. 43(i)(1)(B). True, the Department’s

motion did not contain a description of the proposed testimony for

each witness. But it did incorporate by reference the Department’s

previously filed witness list, which included a summary of the

witnesses’ possible testimony. Still, father argues that disclosure

was not sufficiently detailed to satisfy the rule.

18
¶ 36 Even assuming, without deciding, that the Department’s

disclosure lacked sufficient detail under C.R.C.P. 43(i)(1)(B), father

fails to articulate any prejudice stemming from this lack of

disclosure. As discussed further below, father’s claims of prejudice

focus on the consequential nature of the therapists’ testimony. And

much of this allegedly prejudicial testimony — including testimony

regarding the children’s behaviors after contact with the parents

and the children’s preferences for adoption — was cumulative of

other evidence presented by the Department.

¶ 37 Third, father contends that the juvenile court erred because it

failed to make an “interest of justice determination” and to fully

consider the nine factors in C.R.C.P. 43(i)(3). To be sure, the court

did not use the words “interest of justice” when granting the

Department’s motion, but its findings make clear it made that

determination. Indeed, the court focused on the length of time the

children had been in out-of-home placement — 728 days — and

determined that continuing the hearing to allow the witnesses to

appear in person was not in the children’s best interests under the

circumstances.

19
¶ 38 We acknowledge that the juvenile court also did not make

findings as to all nine of the factors listed in C.R.C.P. 43(i)(3). But

nothing in the rule or any case law of which we are aware requires

the court to make explicit findings as to every factor. See People in

Interest of A.M.K., 68 P.3d 563, 566 (Colo. App. 2003) (When a

statute directs the court to “consider” a list of factors, it “need not

make specific findings on each and every factor . . . so long as there

is some indication in the record that the pertinent factors were

considered.”). So long as it considers the relevant factors, the court

has broad discretion to determine whether absentee testimony

should be allowed based on those factors or others. See C.R.C.P.

43(i); M.W., ¶ 17 (noting that “trial courts are better positioned than

appellate courts to make the discretionary determination whether to

permit remote testimony”).

¶ 39 Notably, father’s only claim of prejudice resulting from the

witnesses’ video appearances is that “audio problems” occurred

during his counsel’s cross-examination of one of the children’s

therapists. We acknowledge that, at one point during the

cross-examination of this therapist, the court said “the audio is

coming in and out a little bit” and had the witness repeat her

20
answer. But there is no evidence that this minor audio issue

impeded father’s counsel’s ability to fully cross-examine the witness

or otherwise impacted the basic fairness of the trial itself. See

C.R.C.P. 61 (“The court at every stage of the proceeding must

disregard any error or defect in the proceeding which does not affect

the substantial rights of the parties.”); Bernache v. Brown, 2020

COA 106, ¶ 26 (“An error affects the substantial rights of the parties

if it ‘substantially influenced the outcome of the case or impaired

the basic fairness of the trial itself.’” (quoting Laura A Newman, LLC

v. Roberts, 2016 CO 9, ¶ 24)). Although father also claims he was

prejudiced because the therapists “provided consequential

testimony that was material to the court terminating [f]ather’s

parental rights,” that prejudice stems not from the juvenile court’s

decision to allow the therapists to testify virtually but from the

probative force of the substantive evidence.

¶ 40 Thus, we conclude that the juvenile court did not abuse its

discretion by allowing the witnesses to testify virtually.

IV. Fitness Within a Reasonable Time

¶ 41 Mother contends that the juvenile court erred by finding that

she could not become fit within a reasonable time. We disagree.

21
A. Applicable Law and Standard of Review

¶ 42 A parent must have a reasonable amount of time to work on a

treatment plan before the juvenile court terminates their parental

rights. People in Interest of D.Y., 176 P.3d 874, 876 (Colo. App.

2007). What constitutes a reasonable time to comply with a

treatment plan is necessarily fact specific and may vary from case

to case. Id. But a reasonable time is not an indefinite time; it must

be determined by considering the children’s physical, mental, and

emotional conditions and needs. People in Interest of S.Z.S., 2022

COA 133, ¶ 25. In determining whether a parent’s conduct or

condition is likely to change and whether the parent can become fit

within a reasonable time, the juvenile court may consider, among

other things, whether any change occurred during the dependency

or neglect proceeding, the parent’s social history, and the chronic or

long-term nature of the parent’s conduct or condition. K.D. v.

People, 139 P.3d 695, 700 (Colo. 2006).

¶ 43 Whether a juvenile court properly terminated parental rights is

a mixed question of fact and law. People in Interest of S.R.N.J-S.,

2020 COA 12, ¶ 10. We review the court’s factual findings for clear

error but review de novo its legal conclusions based on those facts.

22
Id. The credibility of witnesses; sufficiency, probative value, and

weight of the evidence; and the inferences and conclusions drawn

from the evidence are within the discretion of the juvenile court.

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

B. Analysis

¶ 44 The juvenile court found that mother’s conduct or condition

was unlikely to change within a reasonable time, noting that

mother had not demonstrated significant cooperation for the

duration of the two-year-long case. The record supports these

findings.

¶ 45 The caseworker testified that mother first began participating

in the case approximately twenty months after it began. And

during the two years the case was pending, mother did not have

stable housing, report any job or income source, seek treatment for

her mental health issues, or attend family time with the children.

The caseworker opined that it was unlikely, even with more time,

that mother would become fit.

¶ 46 Mother asserts that, considering her “substantial progress”

over the last four months of the case, she was “on track to being a

fit parent within months.” True, approximately four months before

23
the termination hearing, mother entered a residential treatment

program for substance abuse and remained sober during that time.

But, as the caseworker testified, mother had not demonstrated an

ability to maintain sobriety outside of residential treatment. And to

be considered fit, mother would need to demonstrate sobriety,

safety, and stability once she returned to the community.

¶ 47 In concluding that mother was unlikely to become fit within a

reasonable time, the juvenile court specifically considered the

evidence of her recent progress, acknowledging that she had “taken

responsibility and maintained sobriety for 127 days.” But the court

found that the children had been waiting 728 days for permanency

and that it was unknown if mother would be able to maintain

sobriety outside of residential treatment. Focusing on the

children’s needs, the court found that mother’s conduct or

condition was unlikely to change within a reasonable time. Mother

effectively asks us to reweigh the evidence and substitute our

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

¶ 29.

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V. Less Drastic Alternatives

¶ 48 Both parents contend that the juvenile court erred by finding

that termination was in the children’s best interests because an

allocation of parental responsibilities (APR) to paternal grandmother

was a viable less drastic alternative. We disagree.

A. Applicable Law and Standard of Review

¶ 49 Consideration and elimination of less drastic alternatives is

implicit in the statutory scheme for termination. A.M., ¶ 40. In

considering less drastic alternatives, a court must give primary

consideration to the children’s physical, mental, and emotional

conditions and needs. § 19-3-604(3), C.R.S. 2025; People in Interest

of D.B-J., 89 P.3d 530, 531 (Colo. App. 2004). A court may also

consider, among other things, (1) whether an ongoing relationship

with a parent would be beneficial to the children, which is

influenced by a parent’s ability to care for the children’s needs,

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

children are bonded with the parent, People in Interest of N.D.V.,

224 P.3d 410, 421 (Colo. App. 2009); and (3) whether an APR

provides adequate permanence and stability for the children, People

in Interest of T.E.M., 124 P.3d 905, 910 (Colo. App. 2005).

25
¶ 50 For a less drastic alternative to be viable, it must do more than

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

children’s best interests. A.M., ¶ 27. Consequently, if the juvenile

court considers a less drastic alternative but finds instead that

termination is in the children’s best interests, it must reject the less

drastic alternative and order termination. Id. at ¶ 32.

¶ 51 “We review a juvenile court’s less drastic alternatives findings

for clear error.” People in Interest of E.W., 2022 COA 12, ¶ 34, aff’d

sub nom., R.W. v. People in Interest of E.W., 2022 CO 51. When a

juvenile court considers less drastic alternatives but nonetheless

finds that termination is in the children’s best interests, we are

bound to affirm the decision so long as the record supports the

court’s finding. People in Interest of B.H., 2021 CO 39, ¶ 80.

B. Analysis

¶ 52 The juvenile court considered whether an APR to paternal

grandmother was in the children’s best interests but ultimately

concluded it was not. Specifically, the court found that paternal

grandmother and the children all preferred adoption. The court

also found that the children experienced trauma with their parents,

demonstrated behavioral issues after contact with their parents,

26
and deserved stability and structure that neither parent had

demonstrated. Ultimately, the court found that it was in the

children’s best interests to have the permanency that only adoption

could provide.

¶ 53 The record supports these findings. The caseworker testified

that paternal grandmother did not agree to an APR and that both

children expressed excitement about adoption. The children’s

therapists also testified that they had expressed interest in being

adopted. The caseworker testified that mother did not visit the

children during the two years the case was open and had only

occasional phone contact with them. The caseworker also testified

that, after contact with the parents, both children demonstrated

behavioral issues — T.D-J.G-R. would shut down and not talk, and

A.L-L.G-R. would have meltdowns.

¶ 54 The children’s therapists similarly described the children’s

regressions following contact with their parents. T.D-J.G-R.’s

therapist described that, following contact, he became very

dysregulated, angry, and irritable. And A.L-L.G-R.’s therapist

described that, following contact, she would exhibit “crisis

behaviors,” including property destruction, yelling, screaming,

27
crying, and losing the ability to communicate and calm down. Both

therapists expressed that the children needed routine and

structure.

¶ 55 Ultimately, the caseworker opined that (1) the children would

feel more comfortable and less triggered if they knew there was no

uncertainty about what could happen next; (2) continuing the

parent-child relationships would not be beneficial to the children;

and (3) adoption would be best for the children’s physical, mental,

and emotional needs.

¶ 56 We reject the parents’ arguments that, because paternal

grandmother’s opposition to an APR may have been based on

inaccurate information from the caseworker, the juvenile court

erred by eliminating an APR as a less drastic alternative. To the

extent the caseworker described an APR to paternal grandmother as

requiring consultation with the parents within twenty-four to

forty-eight hours of a decision or emergency regarding the children,

that description was incorrect. But the evidence reflects that

paternal grandmother also gave other reasons why she did not

agree with an APR, including a desire for permanency for the

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

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App. 1978) (noting that a court cannot allocate parental

responsibilities to an unwilling party who is not the child’s parent).

And regardless of paternal grandmother’s willingness to accept an

APR, the court found, with record support, that an APR was not the

best option for the children. See A.M., ¶ 32.

¶ 57 We are not persuaded by mother’s argument that an APR

would provide the children with sufficient stability because mother

would need to demonstrate that any future modification would be in

the children’s best interests. The court clearly considered an APR

as an alternative to termination and found that it was “in the best

interest of the children to have permanency that only an adoption

[could] provide.” As noted, the court’s finding enjoys record

support. “And it is not our role to reweigh the evidence or

substitute our judgment for that of the juvenile court.” People in

Interest of K.L.W., 2021 COA 56, ¶ 62.

¶ 58 Because the record supports the juvenile court’s finding that

there was no less drastic alternative to termination, we cannot

disturb it. See B.H., ¶ 80.

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VI. Ineffective Assistance of Counsel

¶ 59 Finally, both parents contend that they received ineffective

assistance of counsel. We are not persuaded.

A. Applicable Law

¶ 60 A parent has a statutory right to effective assistance of counsel

in dependency or neglect proceedings. §§ 19-1-105(2), 19-3-202(1),

C.R.S. 2025; A.R. v. D.R., 2020 CO 10, ¶ 47. To establish a claim of

ineffective assistance of counsel, a parent must show that

(1) counsel’s performance was deficient because it fell outside the

wide range of professionally competent assistance; and (2) there is a

reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different. A.R. v. D.R.,

¶¶ 48-51, 60; see also Strickland v. Washington, 466 U.S. 668, 687

(1984) (establishing the elements of an ineffective assistance of

counsel claim in a criminal proceeding). “If the parent fails to

establish either prong of this test, the claim fails.” People in Interest

of C.B., 2019 COA 168, ¶ 26. Under certain narrow circumstances,

such as when counsel is acting under a conflict of interest,

prejudice may be presumed. A.R. v. D.R., ¶ 66.

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¶ 61 We must remand for an evidentiary hearing if the parent’s

allegations are sufficiently specific and compelling to constitute a

prima facie showing of ineffective assistance of counsel. Id. at ¶ 63.

But if the parent’s allegations lack specificity, we may summarily

deny the ineffective assistance claim. Id. We “will generally be able

to resolve an ineffective assistance of counsel claim involving . . .

presumed prejudice without a remand.” Id. at ¶ 66.

B. Father’s Claims

¶ 62 Father contends that he received ineffective assistance from

(1) former counsel, who labored under a conflict of interest when

she was later appointed as mother’s guardian ad litem (GAL);

(2) trial counsel, when she did not object to former counsel’s

appointment as mother’s GAL; and (3) trial counsel, when she failed

to object to inadmissible hearsay testimony. We disagree.

1. Conflict of Interest

¶ 63 At the initial shelter hearing, the juvenile court appointed

counsel for father (former counsel) who indicated that she had

spoken to father, and he likely would not be able to appear. She

then objected to the Department’s request that father submit to a

hair follicle test. Former counsel appeared at the next hearing two

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weeks later, informed the court that she had been unable to speak

to father since the prior hearing, and asked to be dismissed from

the case. The court granted her request.

¶ 64 Twenty-one months later, mother’s counsel requested, and the

juvenile court appointed, a GAL for mother. But when that GAL

was unavailable for the scheduled termination hearing, the juvenile

court appointed former counsel as mother’s GAL. No one objected,

and former counsel served as mother’s GAL through the conclusion

of the termination hearing.

¶ 65 Although we need not go so far as to conclude that former

counsel had a conflict of interest or violated any rule of professional

conduct,7 we share the parents’ concerns that former counsel’s dual

roles were seemingly overlooked by counsel and the juvenile court.

Still, we need not determine whether former counsel performed

deficiently by laboring under the alleged conflict or if trial counsel

performed deficiently by not objecting, because father has not

alleged any adverse effect from former counsel’s representation.

7 For example, father’s arguments assume that his and mother’s

interests in the action were “materially adverse,” see Colo. RPC
1.9(a), a conclusion we need not reach to resolve father’s appeal.

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¶ 66 Instead, father asks us to simply presume prejudice. But

before we can presume prejudice, father must first establish that

(1) former counsel labored under a conflict of the kind contemplated

by Cuyler v. Sullivan, 446 U.S. 335, 349-50 (1980); and (2) the

conflict “adversely affected” counsel’s representation. Ybanez v.

People, 2018 CO 16, ¶ 27. To prove an “adverse effect,” father must

(1) identify a plausible alternative . . . strategy
or tactic that counsel could have pursued,
(2) show that the alternative strategy or tactic
was objectively reasonable under the facts
known to counsel at the time of the strategic
decision, and (3) establish that counsel’s
failure to pursue that strategy or tactic was
linked to the conflict.

Id.

¶ 67 Setting aside the fact that former counsel did not represent

father while serving as mother’s GAL and thus did not labor “under

a conflict of a kind to which the Sullivan prophylaxis applies,” id.,8

8 In Cuyler v. Sullivan, 446 U.S. 335, 337-38 (1980), counsel

simultaneously represented three defendants. The Court explained
that, because multiple representation does not violate the Sixth
Amendment unless it gives rise to a conflict of interest, a defendant
who does not object to the multiple representation at trial must
demonstrate that an actual conflict of interest adversely affected his
lawyer’s performance to establish a violation of the Sixth
Amendment. Id. at 348.

33
father does not assert any adverse effect that the alleged conflict

had on former counsel’s representation. And we do not discern any

adverse effect from the record. In fact, other than providing support

and reassurance to mother during the hearing, it appears former

counsel’s only other role was to negotiate a deal whereby mother

and father made statements to the juvenile court without being

subject to cross-examination from the Department or the children’s

GAL, which ultimately benefited father.

¶ 68 Seemingly recognizing that the alleged conflict did not

adversely affect former counsel’s representation, father asserts that

we should not engage in the “adverse effects” inquiry in dependency

or neglect cases because of the fundamental liberty interest

involved and the difficulties in conducting such an inquiry in civil

termination proceedings “that involve complex and multifaceted

issues with multiple parties and interests.” But our supreme court

has made clear that “the same standard for presumed prejudice [in

the criminal context] should apply in the termination of parental

rights context.” A.R. v. D.R., ¶ 66.

¶ 69 Absent a showing that the alleged conflict of interest adversely

affected former counsel’s representation of father, we will not

34
presume that father was prejudiced. As a result, father’s claim of

ineffective assistance related to former counsel fails. See C.B., ¶ 26

(if a parent fails to establish either prong of the test, the claim fails).

And because father has not shown any prejudice resulting from the

alleged conflict, his claim that trial counsel was ineffective for failing

to object to it likewise fails. See id.

2. Hearsay

¶ 70 Father next asserts that he received ineffective assistance from

trial counsel when she failed to object to hearsay testimony from

the caseworker and the children’s therapists regarding the

children’s and paternal grandmother’s preferences for adoption over

an APR. We need not decide whether counsel’s failure to object

amounted to deficient performance, because even if it did, father

has failed to show that, but for this failure to object, the result of

the proceeding would have been different. See A.R. v. D.R., ¶ 60.

¶ 71 Father asserts that the juvenile court “heavily relied” on the

inadmissible hearsay when finding that there were no less drastic

alternatives to termination such that, but for counsel’s failure to

object, there is a reasonable probability that the juvenile court

would have “found the less drastic alternative of an APR to

35
[p]aternal [g]randmother.” But, as discussed above, separate and

apart from acknowledging the stated preferences, the juvenile court

found that the children needed permanency that only adoption

could provide. On this record, we conclude that there is no

reasonable probability that the result of the proceeding would have

been different had trial counsel objected to the hearsay statements.

See id.

C. Mother’s Claim

¶ 72 Mother contends that she received ineffective assistance

because her counsel failed to timely disclose a retained expert

witness, resulting in the juvenile court’s disallowance of the expert’s

testimony. Mother argues that her expert’s testimony would have

described the adverse impact that a termination of parental rights

can have on children and swayed the court to find that the less

drastic alternative of an APR to paternal grandmother was in the

children’s best interests. We are not persuaded for two reasons.

¶ 73 First, regardless of when the disclosure was made, the record

reflects that the expert witness was unavailable to testify at the

hearing. In other words, mother cannot establish a reasonable

probability that the outcome of the hearing would have been

36
different had the disclosures been made on time because the

witness was still not available to testify.

¶ 74 Second, contrary to mother’s claim that the late disclosure

resulted in the “complete exclusion” of her expert witness’

testimony, the juvenile court accepted a summary of the witness’

testimony as an offer of proof. After considering the offer of proof,

the juvenile court determined that the expert’s testimony “would not

provide any additional persuasive information or helpful

information that would change the [c]ourt’s outcome in this matter.”

Because the record demonstrates that, even if the disclosure was

timely and the witness was allowed to testify, the outcome of the

proceeding would not have been different, mother’s ineffective

assistance of counsel claim fails. See C.B., ¶ 26.

VII. Disposition

¶ 75 The judgment is affirmed.

JUDGE FOX and JUDGE MEIRINK concur.

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