Peo in Interest of ZJ

25CA1119 Peo in Interest of ZJ 01-22-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA1119
Gunnison County District Court No. 23JV30000
Honorable Kellie L. Starritt, Judge

The People of the State of Colorado,

Appellee,

In the Interest of Z.J., a Child,

and Concerning D.R.S.,

Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE BROWN
Freyre and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 22, 2026

Matthew R. Hoyt, County Attorney, Sammy Obaid, Assistant County Attorney,
Gunnison, Colorado, for Appellee

Robert G. Tweedell, Guardian Ad Litem

James West, Office of Respondent Parents’ Counsel, Longmont, Colorado, for
Appellant
¶1 In this dependency and neglect action, D.R.S. (father) appeals

the judgment terminating his parent-child legal relationship with

Z.J. (the child). Father contends that (1) the juvenile court erred by

ruling on a motion to terminate his parental rights that the

Department filed more than a year before; (2) the court erred by

finding that his treatment plan was appropriate; and (3) the

evidence was not sufficient to support the court’s fitness and

reasonable efforts findings. Father also asserts a largely

undeveloped claim of ineffective assistance of counsel. We conclude

that any error by the court was harmless and that father failed to

sufficiently allege an ineffective assistance claim and therefore

affirm the judgment.

I. Background

¶2 In January 2023, the Gunnison County Department of Health

and Human Services (the Department) filed a petition in

dependency and neglect, raising concerns that the then-newborn

child was born affected by substances. Both parents entered

admissions, and the juvenile court adjudicated the child dependent

and neglected and adopted treatment plans for the parents.

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¶3 In February 2024, the Department moved to terminate both

parent’s parental rights, asserting that the child had been

adjudicated, the parents had not reasonably complied with

appropriate treatment plans, the parents were unfit, and their

conditions were unlikely to change within a reasonable time. See

§ 19-3-604(1)(c), C.R.S. 2025 (providing the statutory criteria for

termination of parental rights). The Department then moved for,

and the court granted, summary judgment on the termination

motions. Both parents appealed.

¶4 In January 2025, a division of this court reversed the order

granting summary judgment and remanded the case for further

proceedings. See People in Interest of Z.J., (Colo. App. No.

24CA0815, Jan. 9, 2025) (not published pursuant to C.A.R. 35(e)).

Later that month, the juvenile court set a hearing on the

Department’s original termination motion. In May 2025, following a

two-day contested hearing, the juvenile court terminated father’s

parental rights.1

1 After the reversal but before the termination hearing, mother

stipulated to the termination of her parental rights; she does not
participate in this appeal.

2
II. The Department’s Failure to File a New Termination Motion

¶5 As a preliminary matter, father contends that the juvenile

court erred by failing to require the Department to file a new

termination motion and instead ruling on the original termination

motion. We perceive no reversible error.

¶6 The juvenile court may consider a termination of parental

rights “only after the filing of a written motion alleging the factual

grounds for termination.” § 19-3-602(1), C.R.S. 2025. In cases

subject to expedited permanency planning like this one, “the court

shall hear the motion for termination within one hundred twenty

days after such motion is filed, and shall not grant a delay unless”

it finds both good cause and that the delay is in the child’s best

interests. Id.

¶7 Here, the Department moved for termination in January 2024

and did not file a new motion after summary judgment was reversed

and the matter was remanded. The juvenile court heard the motion

in April 2025.

¶8 Father concedes that he did not preserve this issue but urges

us to review his claim under what some divisions of this court have

called the “miscarriage of justice” exception to the preservation rule.

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The miscarriage of justice exception has a high bar and narrow

scope. People in Interest of M.B., 2020 COA 13, ¶¶ 23-24. We have

recognized the exception in “rare cases, involving unusual or special

circumstances, . . . to prevent an unequivocal and manifest

injustice.” People in Interest of E.R.S., 2019 COA 40, ¶ 38.

¶9 We need not determine whether father’s circumstances meet

such an exacting test because, even if we were to determine that the

court erred by ruling on the original motion, the error was

harmless. See L&R Expl. Venture v. Grynberg, 271 P.3d 530, 536

(Colo. App. 2011) (declining to resolve an issue where outcome

would not change). We reach this conclusion for four reasons.

¶ 10 First, holding the termination hearing outside of the

one-hundred-twenty-day period under section 19-3-602(1) did not

divest the juvenile court of jurisdiction. See People in Interest of

N.D.V., 224 P.3d 410, 414 (Colo. App. 2009) (failure to follow the

statute is an error but does not affect jurisdiction).

¶ 11 Second, the February 2024 termination motion did not allege

specific facts supporting the asserted statutory grounds for

termination under sections 19-3-604(1)(c) and (2). So it is not as

though the motion the court heard in April 2025 included stale

4
facts. Father does not claim that the statutory criteria had changed

or no longer applied when the motion was heard. And while the

better practice would be for the Department to allege specific facts

supporting the statutory criteria cited in the termination motion, we

are not aware of, and father does not provide citation to, any legal

requirement for the Department to do so.

¶ 12 Third, we are not persuaded by father’s claim that he lacked

appropriate notice absent the filing of a new motion. To the extent

father argues he lacked notice of the termination hearing, the

record belies the argument. Less than a week after the division

issued its opinion reversing summary judgment, father’s counsel

appeared at a hearing before the juvenile court at which setting the

termination hearing was discussed. Both father and his counsel

appeared ten days later when the hearing was set. And the court

issued a trial management order that included the dates and times

of the hearing.

¶ 13 To the extent father contends that he did not have notice of

what issues would be addressed at the termination hearing, we are

not persuaded. During closing arguments, father’s counsel made

clear that father was not contesting the statutory criteria listed in

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the original January 2024 termination motion — that he had not

reasonably complied with the treatment plan, attended family time

with the child, or remedied the problems addressed in the

treatment plan, and that he was unfit and unlikely to become fit in

a reasonable period of time — but rather was objecting to

termination on the grounds that the Department had not made

reasonable efforts. And the juvenile court terminated father’s

parental rights based on the previously identified statutory criteria,

not based on different criteria such as abandonment or the inability

to craft an appropriate treatment plan to address the parent’s

unfitness. Compare § 19-3-604(2)(c), with § 19-3-604(2)(a), (b).

¶ 14 Finally, to the extent father claims that a new termination

motion was required because the summary judgment reversal

effectively constituted a denial of the original termination motion,

we disagree. Father provides no support for this assertion. And it

is well established that “a denial of summary judgment ‘is strictly a

pretrial order that decides only one thing — that the case should go

to trial.’” Feiger, Collison & Killmer v. Jones, 926 P.2d 1244, 1247

(Colo. 1996) (citation omitted).

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¶ 15 We conclude that, even if the juvenile court erred by not

requiring the Department to file a new termination motion, the error

was harmless and therefore does not warrant reversal.

III. Appropriate Treatment Plan

¶ 16 Father contends that his treatment plan was not appropriate.

Father concedes this issue was not preserved but urges us to

nevertheless review it because the juvenile court made a clear

ruling at the termination hearing that his treatment plan was

appropriate. We need not decide if this is sufficient to preserve the

issue because, regardless, the outcome is the same. See L&R Expl.

Venture, 271 P.3d at 536. We see no error.

A. Relevant Law

¶ 17 The purpose of a treatment plan is to preserve the parent-child

legal relationship by assisting the parent in overcoming the

problems that required intervention into the family. People in

Interest of L.M., 2018 COA 57M, ¶ 25. Therefore, an appropriate

treatment plan is one that is approved by the court, relates to the

child’s needs, and provides treatment objectives that are reasonably

calculated to render the parent fit to provide adequate parenting to

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the child within a reasonable time. § 19-1-103(12), C.R.S. 2025;

People in Interest of K.B., 2016 COA 21, ¶ 13.

¶ 18 We measure the appropriateness of a treatment plan by its

likelihood of success in reuniting the family, which we assess in

light of the facts existing at the time the juvenile court approved the

plan. People in Interest of B.C., 122 P.3d 1067, 1071 (Colo. App.

2005). The fact that a treatment plan is not ultimately successful

does not mean that it was inappropriate when the court approved

it. People in Interest of M.M., 726 P.2d 1108, 1121 (Colo. 1986).

B. Analysis

¶ 19 The juvenile court found that, while there were “a lot of

boilerplate treatment plan components” in father’s treatment plan,

“the fundamental treatment plan components [we]re really geared

towards assisting [father] in becoming a fit parent and promoting

reunification.” The record supports this finding. When the

treatment plan was adopted, the child was a high-needs infant who

had never been in father’s care. Father had a history of criminal

involvement and substance dependence that would endanger the

child if continued. Father’s treatment plan included objectives that

required father to (1) meet the child’s physical, medical, and

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educational needs; (2) demonstrate a lifestyle free from all

controlled substance and alcohol use; (3) refrain from criminal

activity; and (4) develop the skills necessary to safely and

independently parent the child.

¶ 20 These objectives remained appropriate throughout the case.

At the termination hearing, father testified that, although he was

sober during his incarceration, there were times he relapsed during

the case. Father admitted that there were long stretches when he

did not participate in family time with the child. The caseworker’s

uncontested testimony was that, while there were times when father

participated in his treatment plan, father had not yet demonstrated

an ability to independently parent the child or meet her needs. The

caseworker testified that whatever progress father made early in the

case “ha[d] regressed” and that the treatment plan objectives still

remained necessary for reunification.

¶ 21 Father claims that his pending sentence to community

corrections at the time of the termination hearing rendered the

treatment plan no longer appropriate “almost by definition.” We

recognize that it can be difficult to secure particular services for

parents while they are incarcerated. However, father’s minimal

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treatment plan did not require participation in any specialized

services. Furthermore, there was no evidence before the juvenile

court suggesting that either father’s time spent in custody or his

pending community corrections sentence was a barrier to

completing his treatment plan. Instead, father testified that other

factors were to blame for his inability to complete the treatment

plan, including his difficulties with transportation and the child’s

status in the Department’s temporary custody. Thus, we conclude

that the juvenile court did not err by finding that father’s treatment

plan was appropriate.

¶ 22 To the extent father contends that he received ineffective

assistance of counsel because his attorney did not request a new

treatment plan after remand, we disagree. Father appears to claim

that his counsel’s assistance was deficient because his sentence to

community corrections was “a change of circumstances that

required a review of the treatment plan.” See A.R. v. D.R., 2020 CO

10, ¶¶ 48, 60 (to prevail on a claim of ineffective assistance of

counsel, a parent must show that counsel’s representation was

outside the wide range of professionally competent assistance and

that the deficient representation was prejudicial). But father does

10
not provide any authority, and we are aware of none, that suggests

a treatment plan must be amended when a parent’s in-custody

status changes. Furthermore, because father had not yet been

accepted into any community corrections program, it was unclear

even at the termination hearing what kind of programming might —

or might not — be available for him once he was transferred. Given

these circumstances, father does not allege facts with sufficient

specificity to be successful on an ineffective assistance claim. See

People in Interest of C.H., 166 P.3d 288, 291 (Colo. App. 2007).

IV. Father’s Status After the Remand

¶ 23 Father contends that the juvenile court erred by basing its

fitness and reasonable efforts findings solely on evidence of what

occurred before the remand. We disagree.

A. Standard of Review

¶ 24 Father presents his claims pertaining to the fitness and

reasonable efforts findings as a sufficiency of the evidence claim,

and urges us to review the claims de novo as prescribed in McCoy v.

People, 2019 CO 44, ¶ 22. But father’s reliance on McCoy, a

criminal case, is misplaced. Dependency and neglect actions are

civil in nature, and it is well established that, “at a termination

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hearing, . . . the sufficiency . . . of the evidence[] and the inferences

and conclusions to be drawn” from that evidence “are within the

discretion of the juvenile court, and we will not disturb these

conclusions unless they are so clearly erroneous as to find no

support in the record.” People in Interest of S.N-V., 300 P.3d 911,

912 (Colo. App. 2011); see also People in Interest of D.P., 181 P.3d

403, 408 (Colo. App. 2008) (“A trial court’s findings and conclusions

as to unfitness will not be disturbed on review if the record

supports them.”). We therefore review father’s sufficiency claim for

clear error.

B. Relevant Law

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

them “unable or unwilling to give the child reasonable parental care

to include, at a minimum, nurturing and safe parenting sufficiently

adequate to meet the child’s physical, emotional, and mental health

needs and conditions.” § 19-3-604(2). In determining whether a

parent’s conduct or condition is likely to change within a reasonable

time, “the court may consider whether any change has occurred

during the proceeding, the parent’s social history, and the chronic

or long-term nature of the parent’s conduct or condition.” People in

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Interest of S.Z.S., 2022 COA 133, ¶ 24. 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.” D.P., 181 P.3d at 408. In

determining unfitness, the court shall also consider the statutorily

prescribed factors, including as relevant here the parent’s past

involvement with a department of human services or the juvenile

court, the parent’s use of illegal substances, and a department’s

provision of reasonable efforts. § 19-3-604(2)(h)-(l).

C. Analysis

¶ 26 The juvenile court found, with record support, that father was

not fit and not likely to become fit within a reasonable period of

time. As part of its fitness finding, the court considered the

following:

• the adjudication of and termination of parental rights as to

father’s older children, see § 19-3-604(2)(l) and (m);

• father’s excessive use of controlled substances, see

§ 19-3-604(2)(e);

• the Department’s reasonable efforts, see § 19-3-604(2)(h);

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• father’s failure, without cause, to participate in family time

with the child, see § 19-3-604(1)(c)(I)(A); and

• father’s non-compliance with the treatment plan.

¶ 27 Father claims that the juvenile court made its fitness findings

“without any appreciable testimony as to [f]ather’s current

condition.” But the record belies this claim. In its judgment

terminating parental rights, the court considered the “two years and

four or five months” that made up “the entirety of this case.” The

court noted that, during that time, father “had periods of success

and then relapse,” and it specifically noted father’s testimony about

an inpatient substance recovery program he recently attended.

¶ 28 Furthermore, the record contains ample additional evidence of

father’s condition and lack of engagement after the remand. See In

re Marriage of Collins, 2023 COA 116M, ¶ 21 (we presume that the

court considered all the evidence presented). The caseworker

testified extensively about his unsuccessful efforts to reengage

father and provide family time after the remand. The Department

provided uncontested evidence that, although family time was made

available to father three times a week for the four months between

14
the remand and the termination hearing, father attended only five

of the available family time sessions.

¶ 29 The caseworker testified that, at the time of the termination

hearing, father was still at “a very initial step” of being able to

provide care for the child and that father’s inconsistency in

attending family time negatively affected the child and her ability to

recognize father or form a bond with him. The caseworker also

testified that his post-remand correspondence with father

demonstrated “deflection and . . . a scary lack of accountability”

about father’s lack of progress in becoming fit to parent the child.

This evidence is sufficient to support the court’s findings both that

the Department made reasonable efforts and that father remained

unfit at the time of the termination hearing.

¶ 30 While we agree that it may have been helpful for the juvenile

court to separately consider the Department’s reasonable efforts

after remand, father did not ask the court to do so. See Forgette v.

People, 2023 CO 4, ¶ 21 (to preserve an issue for appellate review, a

party must alert the court to the issue so that the court has an

adequate opportunity to make findings of fact and conclusions of

law). Instead, the majority of father’s testimony and argument at

15
trial was focused on his concerns about the Department’s efforts

made in 2023 and 2024, before the motion for summary judgment

was granted. Still, because the court considered the Department’s

post-remand efforts and father’s post-remand fitness, we reject

father’s single-sentence argument that his counsel was ineffective

for not moving for a finding that the Department failed to provide

reasonable efforts or objecting to the Department’s failure to

investigate father’s current fitness. See A.R., ¶¶ 48, 60; C.H., 166

P.3d at 291.

¶ 31 Under these circumstances, the record supports the court’s

finding that father was unfit, including its finding that the

Department provided reasonable efforts.

V. Disposition

¶ 32 The judgment is affirmed.

JUDGE FREYRE and JUDGE SCHUTZ concur.

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