Peo in Interest of JH

26CA0471 Peo in Interest of JH 10-29-2026 COLORADO COURT OF APPEALS Court of Appeals No. 26CA0471 City and County of Denver Juvenile Court No. 23JV30963 Honorable Lisa Gomez, Judge The People of the State of Colorado, Appellee, In the Interest of J.H., a Child, and Concerning S.H., Appellant. JUDGMENT AFFIRMED Division II Opinion by JUDGE BROWN Tow, C.J., and Harris, J., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 29, 2026 Miko Brown, City Attorney, Amy J. Packer, Assistant City Attorney, Denver, Colorado, for Appellee Josi McCauley, Guardian Ad Litem Robin Tieman, Office of Respondent Parents’ Counsel, Boulder, Colorado, for Appellant ¶1 In this dependency and neglect proceeding, S.H. (mother) appeals the judgment terminating her parent-child legal relationship with J.H. (the child). We affirm. I. Background ¶2 Denver Human Services (the Department) filed a petition in dependency or neglect regarding the then-newborn child. The petition alleged that the child tested positive for fentanyl and methamphetamine and exhibited withdrawal symptoms. Mother reported a history of fentanyl, methamphetamine, and opiate use. ¶3 Mother entered a no-fault admission, and the juvenile court adjudicated the child dependent and neglected. The court then adopted a treatment plan that required mother to (1) complete a substance abuse evaluation, participate in treatment, and complete five random urinalysis screens (UAs) per month; (2) cooperate and communicate with the Department; (3) regularly attend family time and learn about the child’s needs; and (4) maintain stability by, among other things, complying with any requirements imposed in her criminal cases. ¶4 The Department later moved to terminate mother’s parental rights. Over sixteen months after the petition was filed, the juvenile 1  court held a hearing and denied the motion, finding that although mother was unfit, the Department had not met its burden to show that mother could not become fit within a reasonable time. ¶5 Three months later, the guardian ad litem moved to terminate mother’s parental rights. Over two years after the filing of the petition, and following five hearing days held over three months, the court terminated mother’s parental rights. II. ICWA Compliance ¶6 Mother contends that the record does not demonstrate compliance with the Colorado Indian Child Welfare Act, §§ 19-1.2- 101 to -132, C.R.S. 2026, which implements the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963. We see no basis to reverse or remand on the record before us. A. Applicable Law and Standard of Review ¶7 ICWA applies when an “Indian child” is the subject of a “child-custody proceeding.” 25 C.F.R. § 23.103(a)(1) (2025); see 25 U.S.C. § 1903(4) (“‘Indian child’ means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe . . . .”). At the 2  commencement of each emergency, voluntary, or involuntary child custody proceeding, the court must ask each participant whether “the participant knows or has reason to know that the child is an Indian child or whether the participant has information that is relevant to determining whether the child is an Indian child.” § 19-1.2-107(2)(a), C.R.S. 2026; see 25 C.F.R. § 23.107(a) (2025). This means the court must ordinarily make (1) an initial inquiry at the commencement of the dependency and neglect proceeding and (2) a second inquiry when termination is sought. People in Interest of C.A., 2017 COA 135, ¶¶ 2, 10; see also § 19-1.2-125(1), C.R.S. 2026 (“Upon the filing of a motion to terminate . . . , the court shall make a finding, subject to the procedures described in section 19-1.2-107(2) and (3), regarding whether there is reason to know that the child is an Indian child.”). ¶8 A mere assertion of Indian heritage, without more, is insufficient to give the court reason to know that a child is an Indian child. People in Interest of E.A.M. v. D.R.M., 2022 CO 42, ¶ 56. Instead, if a court receives information that a child may have Native American heritage, it is required to direct the department to “exercise due diligence in gathering additional information” that 3  would assist the court in determining whether there is reason to know that the child is an Indian child. § 19-1.2-107(4)(a); see H.J.B. v. People in Interest of A-J.A.B., 2023 CO 48, ¶ 5. ¶9 When the juvenile court conducted the first termination hearing in this case, section 19-1-126(3), C.R.S. 2024, governed the Department’s due diligence obligation. At that time, due diligence was a flexible standard that did not require a department to exhaust every possible option in attempting to gather information or contact every tribe mentioned by the parent. See H.J.B., ¶¶ 54, 58. After the first termination hearing but before the second, the General Assembly enacted the Colorado Indian Child Welfare Act, §§ 19-1.2-101 to -132, and repealed section 19-1-126. See Ch. 338, secs. 1-2, §§ 19-1.2-101 to -132, 2025 Colo. Sess. Laws 1779- 1815. Section 19-1.2-107(4)(b) now prescribes the specific efforts the Department must undertake, at a minimum, to satisfy its due diligence obligation. ¶ 10 We review de novo whether ICWA. People in Interest of O.S-H., 2021 COA 130, ¶ 15. But the juvenile court has the discretion to determine whether the department satisfied its due diligence obligation in a particular case. H.J.B., ¶ 58. 4  B. Additional Background ¶ 11 At the beginning of the case, the county attorney informed the juvenile court that, in a prior case, mother asserted Sioux heritage. The Department had sent notices to “all Sioux tribes,” but “[n]one of the tribes ha[d] responded to indicate that either mother or the child on that case [were] enrolled members.” The county attorney thus believed this case was not governed by ICWA. The court asked mother whether, “like the last case,” she believed that she “might have some” Native American heritage but did not know if she was eligible for enrollment. Mother responded affirmatively. The court then ordered the Department to exercise due diligence in gathering additional information.1 ¶ 12 At the first termination hearing, held over sixteen months after the initial ICWA inquiry, the county attorney informed the court that “mother claimed no heritage in this case, but . . . claimed Sioux heritage in a prior case” and that “[r]esponses to [the Department’s] inquiries to the Sioux tribes [in that case] were all 1 As best we can tell from the record, and mother does not contend otherwise on appeal, the juvenile court had no information that father had Native American heritage. 5  no.” The county attorney requested a finding that ICWA did not apply. Mother’s counsel then informed the court that, “like many individuals in the United States, [mother] believe[d] she had some Sioux heritage,” but she “never received any additional information, and [did] not believe . . . that she [was] eligible to be a member of any tribe” or that the child was eligible through mother. Based on this record, the court determined that ICWA did not apply. After denying the first termination motion, the court continued to inquire about ICWA, but mother provided no additional information. ¶ 13 At the second termination hearing, after the court had already determined that ICWA did not apply, the caseworker testified that ICWA “was explored in the last case” and mother said that “there was no ICWA.” No other new information regarding mother’s Native American heritage was presented. In its termination order, the juvenile court found that the Department had exercised due diligence and that the child is not an Indian child. C. Analysis ¶ 14 Mother contends that nothing in the record supports the juvenile court’s due diligence finding because the Department could not rely on the due diligence it conducted in mother’s companion 6  case and instead was required to conduct separate due diligence in this case. At the first termination hearing, the Department asked the court for a finding that ICWA did not apply based on tribal notices sent in the companion case and because mother’s counsel said that neither mother nor the child were eligible for membership in any tribe. Applying the flexible standard in effect at the time, the court found that the Department conducted adequate due diligence. See H.J.B., ¶¶ 54, 58. ¶ 15 Mother does not cite, and we are not aware of, any authority that prohibits a court from considering tribal notices sent in a companion case as part of its due diligence determination. Compare People in Interest of T.M.W., 208 P.3d 272, 275 (Colo. App. 2009) (the court may not rely on notices from another case to determine if the Department satisfied ICWA’s notice requirement), with H.J.B., ¶ 51 (due diligence does not “necessarily require[] formal notice to the tribes in every case in which a child may be an Indian child”). But even if the court erred in relying on tribal notices sent in the companion case to find that the Department engaged in due diligence in this case, any error was harmless because mother’s counsel told the court, definitively, that the child 7  was not an Indian child; the court determined that ICWA did not apply; and the court was not later provided any information undermining its determination. See H.J.B., ¶ 64 (any due diligence error was harmless because the child was not an Indian child); see also C.A.R. 35(c) (noting that an appellate court must disregard any error that does not affect the substantial rights of the parties). ¶ 16 Mother next contends that the Department was required, but failed, to conduct due diligence under the new statute, § 19-1.2-107(4)(a), because it was in effect when the juvenile court conducted the second termination hearing. But by the time the new statute took effect, the court had already determined that the ICWA did not apply. Two weeks after this determination, the court made another ICWA inquiry, and mother informed the court that she had no additional information. Thus, the due diligence requirements of the new statute were never triggered because the court already had sufficient information to determine, and in fact had determined, that the child was not an Indian child. See § 19-1.2-107(4)(a) (“If the court receives information that the child may have Indian heritage but the court lacks sufficient information to determine that there is reason to know that the child is an Indian 8  child . . . , the court shall direct the [Department] to exercise due diligence . . . .” (emphasis added)). ¶ 17 Mother also contends that the court erred by not making a new ICWA inquiry during the second termination hearing. We acknowledge that it would have been better practice for the court to make another direct inquiry of mother during the second termination hearing. Nonetheless, the record shows that the court made multiple inquiries during this child custody proceeding, and mother does not assert on appeal that she would have provided additional information if asked again at the second termination hearing. We therefore conclude that any potential error was harmless because the record establishes that the child was not an Indian child. See H.J.B., ¶¶ 64-65; C.A.R. 35(c). III. Termination ¶ 18 Mother contends that the juvenile court erred by (1) concluding that she did not substantially comply with her treatment plan, was unfit, and was unlikely to become fit within a reasonable time; (2) determining that the Department made reasonable efforts; and (3) finding that there were no less drastic alternatives to termination. We disagree. 9  A. Termination Criteria and Standard of Review ¶ 19 The juvenile court may terminate parental rights if it finds, by clear and convincing evidence, that (1) the child was adjudicated dependent or neglected; (2) the parent has not complied with an appropriate, court-approved treatment plan or the plan has not been successful; (3) the parent is unfit; and (4) the parent’s conduct or condition is unlikely to change in a reasonable time. § 19-3-604(1)(c), C.R.S. 2026. The termination criteria require the juvenile court to give primary consideration to the child’s physical, mental, and emotional needs and conditions. § 19-3-604(3); People in Interest of A.M. v. T.M., 2021 CO 14, ¶ 20. The controlling question in termination proceedings is what will best serve the interests and welfare of the child. A.M., ¶ 20. ¶ 20 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 any factual findings for clear error but review de novo any legal conclusions based on those facts. Id. B. Mother’s Treatment Plan Compliance and Fitness ¶ 21 Mother contends that the juvenile court erred by finding that she did not substantially comply with her treatment plan and that 10  there was insufficient evidence to support the determination that she was unfit and unlikely to become fit within a reasonable time. We are not persuaded. 1. Applicable Law ¶ 22 A parent is unfit if their conduct or condition renders them unable or unwilling to give a child reasonable parental care. S.R.N.J-S., ¶ 9. “Reasonable parental care requires, at a minimum, that the parent provide nurturing and protection adequate to meet the child’s physical, emotional, and mental health needs.” Id. While a treatment plan must be reasonably calculated to render a parent fit to provide adequate parenting to their child, see § 19-1-103(12), C.R.S. 2026, a parent’s partial or even substantial compliance with the treatment plan may not be sufficient to render the parent fit, see People in Interest of T.E.M., 124 P.3d 905, 909 (Colo. App. 2005). The parent is responsible for assuring compliance with, and the success of, the treatment plan. People in Interest of C.T.S., 140 P.3d 332, 335 (Colo. App. 2006). ¶ 23 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 11  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. 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. ¶ 24 When, as here, a child is under six years old at the time a petition in dependency or neglect is filed, the expedited permanency planning (EPP) provisions apply. §§ 19-1-102(1.6), 19-1-123, 19-3- 702(5)(c), C.R.S. 2026. In an EPP case, the juvenile court cannot find that a parent substantially complied with a treatment plan when the parent (1) has not attended family time, unless good cause can be shown for failing to attend; or (2) exhibits the same problems addressed in the treatment plan without adequate improvement. § 19-3-604(1)(c)(I)(A)-(B). 2. Analysis ¶ 25 In arguing that she successfully completed her treatment plan, mother points to her engagement in parenting time and occupational therapy; successful completion of inpatient treatment and eleven months of sobriety; consistent communication with the Department; and stable housing. The juvenile court acknowledged 12  that mother “engaged in the majority of her treatment plan” but ultimately concluded that she was not successful. The court found that the status of mother’s sobriety remained unknown, that she had not meaningfully engaged in substance use treatment, and that she had “issues with consistently addressing [the child’s] special eating needs.” The record supports these findings. ¶ 26 Although mother participated in numerous substance abuse treatment programs, including successfully completing one inpatient treatment program, the caseworker opined that mother did not successfully complete the substance abuse component of her treatment plan. After mother’s successful completion of the inpatient treatment, she transitioned to a sober living facility. Mother’s therapist testified that mother was asked to leave the sober living facility after two weeks for breaking program rules. The therapist also explained that after mother left the facility, staff found “a couple different bottles of urine” in mother’s room, which raised concerns about the validity of mother’s negative UAs. And the caseworker testified that the Department had not received any UA results from mother for over four months before the first day of the second termination hearing. 13 ¶ 27 Mother testified that she had been using three to four fentanyl pills per day and methamphetamine “from time to time” during the pendency of the case but that she had been sober for eight months before the second termination hearing began. Even so, the caseworker expressed continued concern about mother’s substance use, in part because during a recent arrest of mother, police found fentanyl pills, and mother “stated to the officer that she used three to four pills a day.” ¶ 28 Regarding family time, the visitation supervisor testified that mother did not consistently attend visits. Mother “did fairly well” when she was in sober living but missed approximately half of her visits after she left sober living. The caseworker testified that mother had not attended family time for nearly two months before the last two days of the second termination hearing. ¶ 29 Regarding the child’s special needs, the child’s occupational therapist (OT), an expert in pediatric occupational therapy, testified that the child had significant needs and participated weekly in feeding therapy, physical therapy, speech therapy, and development intervention. The OT testified that mother participated “very minimally” in the child’s therapies; during the two years the OT 14  worked with the child, she had only met with mother four times, twice in person and twice virtually. The OT tried to engage mother by calling “several times” and sending “several text messages,” and by contacting the caseworker. The OT explained that, at times, mother did not have a working phone number and that it “was really challenging” to communicate with her. One of the in-person meetings occurred one week before the second termination hearing began, and the OT testified that mother told the OT that “she did not know what to feed [the child], which was concerning because she ha[d] several hours of visits.” And when mother was instructed on the child’s needs, “her carryover from conversation to conversation [was] limited.” ¶ 30 The record also supports the juvenile court’s determination that mother was unfit and unlikely to become fit within a reasonable time. The OT testified that the child had food sensitivities and could not eat certain foods, and yet mother gave the child food that was “definitely not” food the child could “safely eat.” The visitation supervisor testified that she was not sure if mother “was aware of [the child’s] medical needs” and that mother “was still confused on what to feed [the child], even as of” the week 15  before the second termination hearing. And the caseworker opined that the child could not return to mother’s care because mother did not fully understand the child’s needs. ¶ 31 Mother argues that even if she was unfit because of “the feeding issues,” she could have become fit “with more interaction with occupational therapy as she had requested.” But as noted, mother participated minimally in the child’s therapies and was inconsistent in attending family time. The OT testified that it was her company’s policy that parents needed to attend family time consistently before therapy could be scheduled during family time. But the OT was unable to schedule therapy during mother’s family time because “there were times where visits were very inconsistent.” ¶ 32 Moreover, the caseworker testified that mother could not safely and consistently care for the child because the caseworker did not know mother’s “level of sobriety.” The caseworker testified that mother “had quite a bit of time to resolve the issue of substance use” but was “unable to do that consistently.” Ultimately, the caseworker opined that mother would not be able to change her conduct within a reasonable time because the case had been open for two years and “progress” and “consistency ha[d] not been there.” 16 ¶ 33 Based on this record evidence, we see no basis to disturb the juvenile court’s conclusions that mother did not substantially comply with her treatment plan, remained unfit, and was unlikely to become fit within a reasonable time. See § 19-3-604(1)(c); S.R.N.J-S., ¶ 10. C. Reasonable Efforts ¶ 34 Mother contends that the juvenile court erred by determining that the Department made reasonable efforts to rehabilitate her and reunify her with the child. We discern no basis for reversal. 1. Applicable Law ¶ 35 Before a court may terminate parental rights under section 19-3-604(1)(c), the department must make reasonable efforts to rehabilitate the parent and reunite the family. §§ 19-1-103(114), 19-3-604(2)(h); §§ 19-3-100.5(1), 19-3-208(1), C.R.S. 2026. “Reasonable efforts” means the “exercise of diligence and care” for a child who is in out-of-home placement. § 19-1-103(114). ¶ 36 Appropriate services provided in accordance with section 19-3- 208 satisfy the reasonable efforts standard. § 19-1-103(114). The services that “must be available and provided” as determined by individual case planning include screenings, assessments, 17  home-based family and crisis counseling, information and referral services to available public and private assistance resources, family time, and placement services. § 19-3-208(2)(b). Additional services may be required if funding is available, including transportation and family support services. § 19-3-208(2)(d). ¶ 37 To evaluate whether a department made reasonable efforts, the court should determine 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,” People in Interest of My.K.M. v. V.K.L., 2022 CO 35, ¶ 33. 2. Analysis ¶ 38 We note that the court’s termination order does not contain specific reasonable efforts findings, but the failure to make express findings, on its own, does not establish that the Department failed to make reasonable efforts. See People in Interest of L.B., 254 P.3d 1203, 1207 (Colo. App. 2011); see also People in Interest of M.D., 2014 COA 121, ¶ 37 (finding no reversible error despite the absence of specific findings regarding reasonable efforts). Reviewing this 18  issue de novo, see People in Interest of A.S.L., 2022 COA 146, ¶ 8, we conclude that the record demonstrates that the Department satisfied its obligation to provide reasonable efforts to rehabilitate mother and reunify the family. ¶ 39 Mother argues that the Department did not make any effort to provide family time for a month before the last two days of the second termination hearing. The caseworker testified that after mother missed visits due to illness and incarceration, she “was taken off the [visitation] schedule” and “needed to have a re-engagement meeting.” The caseworker was unable to schedule the meeting because of mother’s delay in responding to the caseworker’s email and because the new “dates that were given [after mother responded] didn’t work due to these hearings.” Mother does not otherwise allege that the Department failed to provide family time in the two years the case was pending. ¶ 40 Mother also contends that the Department inappropriately conditioned the expansion of family time on her sobriety, arguing that the caseworker “indicated that [the child] could not return to mother’s care because the Department did not know if she was sober.” The record does not support mother’s argument. Although 19  the visitation supervisor testified that family time was not expanded because of “the sobriety concern with [the Department],” on redirect examination she clarified that the “barrier that [she] saw was consistency,” not sobriety. The caseworker also testified that the child could not return to mother’s care because the caseworker was “still unaware” of mother’s sobriety, not that family time could not be expanded based on that concern. ¶ 41 Next, mother contends that the Department did not provide UA testing for months. The caseworker testified that until shortly before the first day of the second termination hearing, a referral was active for mother to submit UAs at her outpatient treatment program. The caseworker explained that after the referral expired, she made a referral for a new evaluation, which the Department needed before it could make another referral for UA testing. But the agency that was supposed to conduct the evaluation was unable to contact mother to schedule it. Mother was also required to submit UAs for probation, and the caseworker was in contact with the probation officer regarding UA results. The probation officer testified that in the three months she served as mother’s probation officer, mother provided no UAs. Mother testified that she took UAs 20  for her methadone treatment, but she did not provide those UA results to the Department or the probation officer. ¶ 42 Finally, crediting her own testimony, mother contends that the Department failed to honor her request to work with the child’s OT to understand the child’s feeding needs. But, as discussed, the OT explained that mother’s lack of consistency prevented the OT from providing therapy during mother’s family time. ¶ 43 On this record, we conclude that the Department made reasonable efforts. See A.S.L., ¶ 8. D. Less Drastic Alternatives ¶ 44 Finally, mother contends that the juvenile court erred by finding that there was no less drastic alternative to termination, such as an allocation of parental responsibilities (APR), although mother does not specify to whom an APR should have been granted. We discern no error. 1. Applicable Law and Standard of Review ¶ 45 Consideration and elimination of less drastic alternatives is implicit in the statutory criteria for termination. A.M., ¶ 40. In analyzing less drastic alternatives, the juvenile court must give primary consideration to the child’s physical, mental, and emotional 21  conditions and needs. People in Interest of Z.M., 2020 COA 3M, ¶ 29. The court may also consider other factors, including whether an ongoing relationship with a parent would be beneficial to the child, a determination that is influenced by a parent’s fitness to care for the child. People in Interest of A.R., 2012 COA 195M, ¶ 38. ¶ 46 For a less drastic alternative to be viable, it must do more than “adequate[ly]” meet a child’s needs; it must be the “best” option for the child. A.M., ¶ 27. Long-term or permanent placement with a family member, short of termination, may not be in a child’s best interests if it does not provide the permanence assured by adoption or otherwise meet that child’s needs. A.R., ¶ 41. ¶ 47 “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, 2022 CO 51. Accordingly, when a juvenile court considers a less drastic alternative but finds that termination is in a child’s best interests, we are bound to affirm its decision so long as the record supports its findings. People in Interest of B.H., 2021 CO 39, ¶ 80. 22  2. Analysis ¶ 48 The juvenile court found that the case had been open “well beyond EPP guidelines” and that there was no less drastic alternative to termination. The record supports these findings. ¶ 49 The caseworker testified that it was best for the child to remain in her current home because she required consistent care. The caseworker opined that termination and adoption were in the child’s best interests because they would create “permanency for [the child].” The caseworker also testified that mother did not communicate or have a relationship with the child’s placement provider. And the placement provider “indicated many times that she [was] not interested in an APR and would prefer adoption.” The caseworker therefore opined that an APR would not meet the child’s needs and was not in the child’s best interests. ¶ 50 Because the record supports the court’s findings that there were no less drastic alternatives to termination, we affirm its decision. See B.H., ¶ 80. IV. Disposition ¶ 51 The judgment is affirmed. CHIEF JUDGE TOW and JUDGE HARRIS concur. 23