Peo in Interest of ATGZKSB

25CA1539 Peo in Interest of ATGZKSB

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA1539
Arapahoe County District Court No. 24JV166
Honorable Bonnie H. McLean, Judge

The People of the State of Colorado,

Appellee,

In the Interest of A.T.G.Z.K.S.B., a Child,

and Concerning O.D.M.B.,

Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE SCHUTZ
Freyre and Brown, JJ., concur

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

Ron Carl, County Attorney, Kiley Schaumleffel, Assistant County Attorney,
Aurora, Colorado, for Appellee

Debra W. Dodd, Guardian Ad Litem

Beth Padilla, Office or Respondent Parents’ Counsel, Durango, Colorado, for
Appellant
¶1 In this dependency and neglect action, O.D.M.B. (father)

appeals the judgment terminating his parent-child legal

relationship with A.T.G.Z.K.S.B. (the child). He initially contends

that the juvenile court erred by finding that the Arapahoe County

Department of Human Services (the Department) fulfilled its

obligation to use due diligence in assessing whether the child was

an Indian child subject to the Indian Child Welfare Act (ICWA).

Father also contends that the juvenile court erred by finding that (1)

he was an unfit parent and unlikely to become fit in a reasonable

period of time; (2) there was no less drastic alternative to

termination; and (3) termination was in the child’s best interests.

We consider, and reject, each claim in turn, and therefore affirm the

judgment.

I. Background

¶2 The Department filed a petition in dependency and neglect

alleging that the child tested positive for methamphetamine,

fentanyl, amphetamine, methadone, and cocaine at birth. The

juvenile court granted temporary custody of the child to the

Department, which placed him in foster care, where he remained at

the time of the termination hearing.

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¶3 Father entered an admission, and the juvenile court

adjudicated the child dependent and neglected and adopted a

treatment plan for father. The Department later moved to terminate

father’s parent-child legal relationship with the child. The juvenile

court granted the motion following a contested hearing.

II. Due Diligence Under ICWA

¶4 Father first claims that the juvenile court erred by finding that

the Department exercised due diligence in assessing whether the

child was an Indian child. We disagree.

A. Standard of Review and Relevant Law

¶5 The provisions of ICWA and, by extension, the Colorado

implementing statute, are aimed at the protection and preservation

of Indian tribes and of Indian children who are members of or

eligible for membership in an Indian tribe. 25 U.S.C. § 1901(2), (3).

To that end, ICWA requires the court to ensure that the petitioning

party give notice of a dependency and neglect proceeding to any

identified Indian tribes if the court “knows or has reason to know”

that a child in the proceeding is an Indian child. 25 U.S.C.

§ 1912(a); § 19-1-126(1)(b), C.R.S. 2024 (amended and relocated

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after the proceeding in this case to section 19-1.2-107(3)(d), C.R.S.

2025).

¶6 “[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,

¶¶ 6, 48 (emphasizing that the statutory definition of “Indian child”

applies based on the child’s political ties to a federally recognized

Indian tribe, not on the child’s or her parents’ Indian ancestry).

Such assertions do not trigger ICWA’s notice requirements, but

rather the then applicable statutory due diligence requirements.

See § 19-1-126(3); H.J.B. v. People in Interest of A-J.A.B., 2023 CO

48, ¶¶ 4-5. As contemplated by the statute in effect at the time of

the termination hearing, 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. H.J.B., ¶ 57 (citing § 19-1-126(3)).

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¶7 Under the then operative statute, whether the Department

satisfied its due diligence obligation is ultimately left to the sound

discretion of the juvenile court because it “necessarily requires the

court to make credibility determinations regarding the source of the

information and the basis for the source’s knowledge.” Id. at 58.

B. Analysis

¶8 The juvenile court found that the Department appropriately

exercised due diligence after father reported potential Blackfoot or

Cherokee heritage. The court ultimately found that the child was

not an Indian child, ICWA did not apply, and the Department

“exercised due diligence to do an exhaustive search in this case.”

¶9 These findings are supported by the record. At the beginning

of the case, father reported possible heritage with either the

Blackfeet or Cherokee tribes. The Department sent formal notices

to four tribes encompassed by this disclosure. At the time of the

termination hearing, two tribes had responded and indicated that

the child was not enrolled and not eligible for enrollment. Two

tribes received but did not respond to the notices. All potential

tribes were also sent notice of the termination hearing, but no tribe

appeared at the termination hearing. The court conducted an ICWA

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inquiry with father at the termination hearing, and father indicated

he did not have any new information about heritage and confirmed

that he was not enrolled in any tribe. No party, either at trial or on

appeal, claims that the child was enrolled or eligible for enrollment

in any tribe.

¶ 10 Father contends that the notice sent to the Blackfeet tribes

“may have been insufficient” because the return receipt for notice to

that tribe was stamped and not signed. But father does not provide

any authority, and we are not aware of any, explaining why the

official tribal stamp provided on the return receipt was not

sufficient to demonstrate that the tribe received the notice sent by

the Department.

¶ 11 Importantly, father does not claim that the notices sent by the

Department were deficient in any way and does not explain what

more the juvenile court should have done in its oversight of the

Department’s exercise of due diligence. Father correctly notes that

the record does not reflect whether the Department contacted any

family members before sending notices to the tribes that father

indicated. But he also does not assert that he “specifically

identified” any family who might have further information about his

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claims of possible heritage. See id. at ¶ 57 (explaining that due

diligence “requires the department . . . to contact those family

members or others who are specifically identified as having

knowledge regarding that assertion of general Indian heritage”).

While the newly enacted Colorado ICWA statute includes other

specific expectations to guide the court’s determination of whether

due diligence efforts were made, this statute was not yet in effect

when the termination judgment was entered. See § 19-1.2-

107(4)(b).

¶ 12 Given this record, we cannot say that the juvenile court

abused its discretion by finding that the Department exercised due

diligence in assessing whether the child was an Indian child.

III. Fitness

¶ 13 Father contends that the court erred by finding that he was

unfit and unlikely to become fit within a reasonable period. We are

not persuaded.

A. Applicable Law and Standard of Review

¶ 14 To terminate a parent-child legal relationship, clear and

convincing evidence must establish, among other things, that the

parent is unfit and that the conduct or condition rendering the

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parent unfit is unlikely to change within a reasonable time. § 19-3-

604(1)(c)(II)-(III), C.R.S. 2025. 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).

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

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

whether any change has occurred during the proceeding, the

parent’s social history, and the chronic or long-term nature of the

parent’s conduct or condition.” People in Interest of S.Z.S., 2022

COA 133, ¶ 24. The court need not give a parent additional time,

even when there has been recent progress on the treatment plan.

Id. at ¶¶ 24, 28-29.

¶ 16 What constitutes a reasonable time is fact specific and must

be determined by considering the physical, mental, and emotional

conditions and needs of the child. Id. at ¶ 25. When, as here, a

child is under six years old at the time of the filing of the petition,

the action is subject to the expedited permanency planning

provisions, and the court must consider the child’s need to be

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placed in a permanent home as expeditiously as possible.

§§ 19-1-102(1.6), 19-1-123, C.R.S. 2025. A juvenile court’s findings

and conclusions as to unfitness will not be disturbed on review if

the record supports them. People in Interest of D.P., 181 P.3d 403,

408 (Colo. App. 2008).

B. Analysis

¶ 17 Father first contends that he was in substantial compliance

with his treatment plan. The juvenile court acknowledged that

father had “checked many of the boxes on his treatment plan.”

However, the court found that father was not in substantial

compliance because he remained unable to meet the child’s

physical, mental, and emotional needs. Specifically, the court

found “father hasn’t been able to show that he’s putting the child’s

needs first, because he hasn’t been able to establish safe and

appropriate boundaries in his relationship with respondent mother

in this case.” In other words, as the juvenile court explained, “the

biggest issue” at termination remained father’s “inability to be a

safe protective parent.”

¶ 18 This finding is supported by the record. Father testified that

he understood he was “supposed to . . . be more protective” but

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admitted that he would not tell mother that she couldn’t participate

in family time when she was under the influence. Father testified

that he knew that mother was actively using substances, and he

admitted that she was still residing in his home. The caseworker

testified that father often brought mother to family time with the

child, even when she was actively under the influence.

¶ 19 The caseworker, who the court qualified as an expert in

casework with an emphasis in child protection, opined that father’s

lack of protective parenting remained “the major concern” for the

Department. She testified that, during the case, father said that he

would not allow mother to live in his home while she was using

substances, but father did not follow through with those

commitments. The caseworker expressed concerns that father

would continue to allow mother to “come into the home and put the

child at risk with substances within the home.” She opined that

“there was a high risk” because father “has not demonstrated his

ability to be protective [of the child] and not allow [mother] in the

home.” A parent who chooses to remain in a relationship with

someone who poses a threat to the child’s welfare may be deemed

unfit if such conduct prevents the parent from providing adequate

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protection. People in Interest of C.T.S., 140 P.3d 332, 334 (Colo.

App. 2006); see also People in Interest of A.N-B., 2019 COA 46, ¶ 30

(when a parent does not recognize the danger that the other parent

poses to the children, the court can properly find that the parent

has not resolved protective concerns addressed in the treatment

plan).

¶ 20 Next, father argues that the Department “moved the goalposts”

by asking for substance testing and parenting classes not included

in the treatment plan and expecting father’s protective capacity to

improve without including any specific service to address that

concern. We agree that the Department appears to have improperly

added a substance testing requirement that was unsupported by

the treatment plan approved by the court. But it is clear from the

termination judgment that the court did not rely upon any concern

the Department may have had for father’s sobriety. In fact, the

termination judgment does not mention any concern about father’s

alleged substance use.

¶ 21 Nor are we persuaded that father’s treatment plan was

insufficient to address the protective parenting concerns. The

treatment plan required father to attend parenting classes. He

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successfully completed both Circle of Parents and The Fatherhood

Program. The juvenile court found that, while father completed the

programs, “the issue is that he’s not able, then, to take the lessons

and the information that he’s learned and apply that to his

relationship to the minor child” and to mother. Father testified that

the two courses helped him understand how to be “more of a

protective parent.” But father agreed that he struggled to maintain

boundaries with mother and “wasn’t going to keep [mother] away

from” the child. We cannot discern, and father does not suggest,

what more could have been added to the treatment plan that would

have assisted him with implementing the protective parenting skills

covered in the courses he took.

¶ 22 Finally, father argues that if he was unfit, he could become fit

within a reasonable time. The juvenile court found that father was

unlikely to become fit within a reasonable time because he “has still

not made any progress in addressing the . . . protective and safe

parenting issues here.” Although the court made clear throughout

the case that father’s protective parenting was “the big issue,” it

noted that father “hasn’t done anything about it” and that he had

more than a year to address it. The record supports this finding.

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Mother was still using substances while she resided in father’s

home, despite father’s stated intentions to ask her to leave. While

the court expressed sympathy for the difficult position that father

was in, it made clear that fitness required him “to show that he’s

putting the child’s needs first.”

¶ 23 We therefore discern no error in the court’s finding that father

was not fit and was not likely to become fit within a reasonable

period of time.

IV. Issues Pertaining to the Child’s Placement

¶ 24 Father also contends that the juvenile court erred by finding

that there was no less drastic alternative to termination because the

Department failed to investigate a reasonable number of relative

placements. However, we will not address this contention because

father did not properly preserve this issue for appeal. Father claims

that this issue was preserved because he requested placement with

a family member and “the issue of relative placement was discussed

throughout the case.” But discussing potential placements for the

child during the case is not the same as preserving a less drastic

alternative claim. See People v. Melendez, 102 P.3d 315, 322 (Colo.

2004) (While “[w]e do not require that parties use ‘talismanic

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language’ to preserve particular arguments for appeal, . . . the trial

court must be presented with an adequate opportunity to make

findings of fact and conclusions of law on any issue before we will

review it.” (citations omitted)). Here, father did not present any

argument during the termination hearing regarding the

Department’s exploration of family or kin placements for the child.

And importantly, the issue of where a child will be placed is distinct

from whether a particular legal disposition would appropriately

serve as a less drastic alternative to termination. People in Interest

of H.L.B., 2025 COA 86, ¶ 22 (“[A] less drastic alternative to

termination is not dependent on a particular out-of-home

placement provider.”).

¶ 25 Father also contends that the court erred by finding that

termination was in the child’s best interest because the child was

not in a permanent home at the time of the termination hearing.

The Department and the child’s guardian ad litem contend that this

fact, while made apparent by a change of placement after the

judgment was issued, was not known to the juvenile court. But our

review of the record makes clear that the parties and the court

believed a placement disruption for the child was likely. The

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caseworker testified that she had recently notified all the parties

that the child’s placement provider was no longer a permanent

placement option. The caseworker also testified that she was

planning to reach out to a family member that father suggested for

placement after the termination hearing, regardless of the outcome,

because a change of placement was “still a possibility.”

¶ 26 Importantly, the juvenile court acknowledged that the child’s

placement provider at the time of the termination hearing was not

“a for sure adoptive home.” Nevertheless, the court found that

“whether [the child’s placement provider] is kin or this foster family

or a different foster family . . . , [i]t is in his best interest to have

parental rights terminated.” This finding is supported both by the

record and case law. Id. at ¶ 20 (“[W]hen a court concludes that

termination is in a child’s best interests . . . the child does not need

to be in a potentially adoptive home, nor do we require that a

specific adoptive placement be identified or known to the court at

the time of termination.”).

¶ 27 Father also contends that termination was not in the child’s

best interests because father knew how to care for him and was

safe and appropriate during supervised family time. True, father

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attended supervised family time and demonstrated that he loved the

child, the child responded positively to him, and father knew how to

provide many basic needs such as feeding, diapering, and playing.

However, as discussed above, the juvenile court found that the

child also needed father to protect him from mother’s substance

dependence, something that father proved unable to do. See People

in Interest of A.R., 2012 COA 195M, ¶ 38 (whether an ongoing

relationship with a parent would be beneficial or detrimental to a

child is “influenced by a parent’s fitness to care for [the] child’s

needs”). When the evidence conflicts, a reviewing court may not

reweigh it or substitute its judgment for the juvenile court’s

judgment merely because there might be evidence supporting a

different result. See People in Interest of A.J.L., 243 P.3d 244, 256

(Colo. 2010).

¶ 28 We therefore discern no basis for reversal.

V. Conclusion

¶ 29 The judgment is affirmed.

JUDGE FREYRE and JUDGE BROWN concur.

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