SUMMARY

March 11, 2021

2021COA33

No. 20CA0695, People in the Interest of My.K.M. — Juvenile 

Court — Dependency and Neglect — Termination of the ParentChild Legal Relationship; American Indian Law — ICWA —

Indian Child — Remedial and Rehabilitative Programs

As a matter of first impression in Colorado, a division of the 

court of appeals holds that a child’s membership in a tribe, even 

absent eligibility for enrollment, is sufficient for a child to be an 

Indian child under the Indian Child Welfare Act. 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
COLORADO COURT OF APPEALS 2021COA33

Court of Appeals No. 20CA0695

City and County of Denver Juvenile Court No. 16JV1388

Honorable Donna J. Schmalberger, Judge

The People of the State of Colorado,

Appellee,

In the Interest of My.K.M. and Ma.K.M, Children,

and Concerning V.K.L. and T.A.M.,

Respondent-Appellants.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART,

AND CASE REMANDED WITH DIRECTIONS

Division I

Opinion by JUDGE TOW

Dailey and Berger, JJ., concur

Announced March 11, 2021

Kristin M. Bronson, City Attorney, Cathleen M. Giovannini, Assistant City

Attorney, Denver, Colorado, for Appellee

Barry Meinster, Guardian Ad Litem

Joel M. Pratt, Office of Respondent Parents’ Counsel, Colorado Springs, 

Colorado, for Appellant V.K.L.

Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr, 

Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant T.A.M.
1

¶ 1 Mother, V.K.L., and father, T.A.M., appeal the juvenile court’s 

judgment terminating their parent-child legal relationships with 

My.K.M. and Ma.K.M. Mother’s appeal presents an issue of first 

impression in Colorado: whether enrollment in a tribe, or merely 

tribal membership even absent enrollment, determines whether a 

child is an Indian child under the Indian Child Welfare Act of 1978 

(ICWA), 25 U.S.C. §§ 1901-1963. We conclude that tribal 

membership, not enrollment, determines ICWA’s applicability.

¶ 2 The juvenile court ultimately recognized that ICWA applied to 

this case, in which the children are tribal members but not eligible 

for enrollment. However, we conclude that the juvenile court 

erroneously found that the Denver Department of Human Services 

(the Department) provided active efforts for mother as required by 

ICWA. Thus, we reverse the termination of mother’s parent-child 

legal relationships with the children and remand the case for 

further proceedings as to her. But because the record supports the 

juvenile court’s judgment as to father, we affirm the termination of 

his parent-child legal relationships with the children. 
2

I. Background

¶ 3 In October 2016, father took twelve-month-old Ma.K.M. to a 

hospital emergency department because she was lethargic and 

breathing poorly. Hospital staff contacted the police because father 

appeared intoxicated and they suspected that the child had 

ingested a controlled substance. Hospital staff reported that the 

child’s pupils were dilated, she was unresponsive, and she required 

intubation because she was unable to breathe on her own. Father 

appeared calm at first but became agitated and tried to flee when 

asked to write an account of how the child had become ill. He told 

the police that five-year-old My.K.M. was with mother, but officers 

found the child home alone. Mother could not be located.

¶ 4 While the younger child remained in the hospital, the 

Department placed the elder child in emergency foster care and 

filed a petition in dependency or neglect. In addition to these 

events, the petition described both parents’ substance use and a 

2014 dependency or neglect case that had been closed seven 

months earlier after My.K.M. spent a year in foster care. 

¶ 5 The juvenile court held a temporary custody hearing and 

ordered father to vacate the home so the children could return to 
3

mother’s care. One week later, both children returned home to 

mother. In late 2016, the juvenile court found the children were 

dependent or neglected, entered an adjudication order concerning 

father, entered a deferred adjudication concerning mother, and 

approved treatment plans for both parents. After mother tested 

positive for cocaine, the juvenile court revoked mother’s deferral 

and entered an adjudicatory order against her in November 2017.

¶ 6 The following facts are undisputed. Father subsequently 

moved back into the family home. In October 2018, father was 

involved in a collision that resulted in criminal charges against him

and the loss of the family car. Shortly thereafter, mother reported 

that father had assaulted her in front of the children. As a result, 

the juvenile court again ordered father to vacate the home. In 

mid-November 2018, the juvenile court placed the children in foster 

care after mother failed to pick them up from school and daycare 

and could not be located. Mother later admitted that she had 

relapsed.

¶ 7 The Department later filed a motion to terminate the parents’

rights. Following a six-day termination hearing from January 2020 
4

through March 2020, the juvenile court terminated both parents’

parental rights.

II. Mother’s Appeal

¶ 8 Mother contends that the juvenile court reversibly erred 

because it failed to recognize that ICWA governs the case until just 

before the termination hearing. She also argues that the 

Department failed to make active efforts for her. We reject mother’s 

first contention but agree with the second. 

A. The Juvenile Court’s Untimely ICWA Finding Does Not Require 

Reversal

¶ 9 Mother contends that the juvenile court erred by failing to

apply the ICWA standards to the proceeding until the beginning of 

the termination hearing despite mother’s prompt disclosure that 

she is a member of a federally recognized Indian tribe. We agree 

that the court erred by not timely recognizing the children’s Indian 

status, but we disagree that the error provides grounds for reversal.

1. Factual Background

¶ 10 A representative of the Colville Confederated Tribes appeared 

at the temporary custody hearing in October 2016. She confirmed 

that mother is an enrolled member of the Tribe. The tribal 
5

representative said she “ha[d] not been able to verify whether the 

children [were] eligible for enrollment . . . [b]ut they would be 

considered members.”

¶ 11 The juvenile court made no findings regarding the children’s 

Indian status or the applicability of ICWA. Instead, one week later, 

the court ordered mother to complete an ICWA assessment form —

even though the court already knew that the children were 

members of the Colville Confederated Tribes. In March 2017, the 

juvenile court ruled that because the children are not eligible for 

enrollment, ICWA did not apply. 

¶ 12 At a hearing in November 2018, the presiding magistrate 

asked whether the case was subject to ICWA. The county attorney 

reported that the Tribe had not responded to the ICWA notice and 

the Department planned to ask for a written response. 

¶ 13 The Department filed a motion to terminate parental rights on 

October 4, 2019. On October 21, 2019, the juvenile court held a 

status conference. The Department reported that it had asked the 

tribal representative to confirm in writing whether the children were 

eligible for enrollment in the Tribe. The tribal representative had 

responded — just as she had three years earlier — that the Tribe 
6

considered the children to be members. The county attorney said 

he was waiting to hear whether the Tribe thought ICWA applied to 

the case. The juvenile court opined that membership absent 

enrollment represented an “ICWA gray area” and recalled that the 

Tribe had indicated it would not intervene or participate in the case. 

(We find no support in the record for this assertion.) 

¶ 14 The juvenile court began the termination hearing on November 

6, 2019. The county attorney informed the court that the Tribe 

considered the case to be subject to ICWA because the children are

tribal members. The juvenile court found there was reason to know 

the children are Indian children and continued the case so the 

parties could consult with the Tribe. 

¶ 15 The Tribe participated in the rest of the proceedings, and the 

juvenile court applied ICWA’s provisions when it terminated the 

parents’ parental rights. 

2. Tribal Membership, Not Enrollment, Determines

ICWA’s Applicability

¶ 16 We review the juvenile court’s interpretation and application of 

ICWA de novo. People in Interest of A.R., 2012 COA 195M, ¶ 17. 

When construing a federal statute, our goal is to give effect to 
7

congressional intent and purpose. In re N.B., 199 P.3d 16, 18 (Colo. 

App. 2007). We look first to the plain language of the statute, giving 

words and phrases their plain and ordinary meanings. Id.; see also 

Roberts v. Sea-Land Servs., Inc., 566 U.S. 93, 100 (2012). If the 

meaning is clear and unambiguous, we do not resort to other rules 

of statutory interpretation. Good Samaritan Hosp. v. Shalala, 508 

U.S. 402, 409 (1993) (when interpreting a federal statute, judicial 

inquiry is complete if the intent of Congress is clear from the 

language of the statute). We must construe ICWA liberally in favor 

of Indian interests, with ambiguous provisions interpreted to benefit 

Indians and tribes. Montana v. Blackfeet Tribe of Indians, 471 U.S. 

759, 766 (1985); People in Interest of D.B., 2017 COA 139, ¶ 10.

¶ 17 The statutory definition of “Indian child” turns on membership

rather than enrollment. ICWA defines an Indian child as “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.” 25 U.S.C. § 1903(4). 

Enrollment is not always required in order to 

be a member of a tribe. Some tribes do not 

have written rolls. Others have rolls that list 
8

only persons that were members as of a 

certain date. Enrollment is the common 

evidentiary means of establishing Indian 

status, but it is not the only means nor is it 

necessarily determinative.

Guidelines for State Courts; Indian Child Custody Proceedings, 44 

Fed. Reg. 67,584, 67,586 (Nov. 26, 1979).

¶ 18 Thus, for purposes of ICWA, a person may be a member of a 

tribe without being enrolled in the tribe. See In re Adoption of C.D., 

751 N.W.2d 236, 243 (N.D. 2008); In re Z.J.G., 448 P.3d 175, 184 

(Wash. Ct. App. 2019) (“Depending on the practices of the specific 

tribe, enrollment and membership may be but are not necessarily 

synonymous.”), rev’d on other grounds, 471 P.3d 853 (Wash. 2020); 

In re Termination of Parental Rights to Arianna R.G., 657 N.W.2d 

363, 369 (Wis. 2003). Indeed, tribal membership criteria, 

classifications of membership, and interpretation of membership 

laws are unique to each tribe and vary across tribal nations. See

Tommy Miller, Comment, Beyond Blood Quantum: The Legal and 

Political Implications of Expanding Tribal Enrollment, 3 Am. Indian L.

J. 323, 323 (Dec. 15, 2014), https://perma.cc/3FV6-VU9M

(describing a range of approaches to tribal citizenship).
9

¶ 19 A tribe’s determination that a person is a member or is eligible 

for membership is conclusive and binding. People in Interest of 

J.A.S., 160 P.3d 257, 260 (Colo. App. 2007). Thus, all that is 

necessary to establish a child’s Indian status is admissible evidence 

that the tribe has determined either that the child is a member or 

that the child is eligible for membership and a biological parent is a 

member.

¶ 20 Here, the tribal representative told the juvenile court at the 

temporary custody hearing that the Tribe considered the children to 

be members regardless of their enrollment status. This information 

established conclusively that the children are Indian children under 

25 U.S.C. § 1903(4). Thus, the juvenile court erred by finding that 

ICWA did not apply to the proceeding because the children are not 

eligible for enrollment in the Tribe.

3. The Delay in Identifying the Children as Indian Children Does

Not Provide an Independent Basis for Reversal

¶ 21 Mother contends that the three-year delay in identifying the 

children as Indian children requires reversal. While we agree that 

such an extreme delay is troubling, we disagree that the delay itself 

requires reversal in this case.
10

¶ 22 ICWA’s protections “are designed to keep children, when 

possible, with their parents, family, or Tribal community.” Bureau 

of Indian Affairs, Guidelines for Implementing the Indian Child 

Welfare Act 11, 12 (Dec. 2016), https://perma.cc/3TCH-8HQM 

(2016 Guidelines). To that end, courts must follow ICWA’s 

requirements from the early stages of a case and avoid the harmful 

delays and duplication that may result from late application of 

ICWA. Id. Thus, 

[i]f there is reason to know the child is an 

Indian child, but the court does not have 

sufficient evidence to determine that the child 

is or is not an “Indian child,” the court must

. . . [t]reat the child as an Indian child, unless 

and until it is determined on the record that 

the child does not meet the definition of an 

“Indian child.”

25 C.F.R. § 23.107(b)(2) (2020); see also § 19-1-126(2)(b), C.R.S. 

2020.

¶ 23 Here, there was more than “reason to know.” The juvenile 

court had sufficient information to determine at the temporary 

custody hearing that the children were Indian children. Under 

these circumstances, the failure of the juvenile court and the 

Department to recognize their duty to apply ICWA’s protections 
11

contravened the letter and spirit of ICWA and Colorado’s ICWAimplementing legislation and risked delay, disruption, and 

avoidable separation for the children and family.

¶ 24 Nevertheless, we consider and reject mother’s specific

assertions as follows.

¶ 25 First, mother contends that the Department did not meet its 

obligation to exercise due diligence to work with the Tribe to 

determine whether the children were Indian children. See People in 

Interest of L.L., 2017 COA 38, ¶ 29 (when there is reason to know a 

child may be an Indian child, the department must exercise due 

diligence to identify and work with relevant tribes); see also 2016 

Guidelines at 11. But, as discussed above, the juvenile court 

already had sufficient information at the temporary custody hearing 

to determine that the children were Indian children. So, the 

Department’s lack of diligence in this regard does not alter our 

analysis of whether the juvenile court and the Department complied 

with ICWA’s substantive provisions.

¶ 26 Second, mother asserts that the juvenile court erred by 

considering retroactively whether the Department complied with 

ICWA’s requirement to make active efforts to prevent the breakup of 
12

the family throughout the case in the absence of a timely finding 

that the children are Indian children. See 25 U.S.C. § 1912(d). She 

contends that the Department could not have met the active efforts 

standard as a matter of law if it believed it only needed to make 

reasonable efforts. See §§ 19-1-103(89), 19-3-100.5, 

19-3-604(2)(h), C.R.S. 2020 (state must make reasonable efforts to 

rehabilitate unfit parents and reunite families); see also People in 

Interest of A.V., 2012 COA 210, ¶ 11 (active efforts requires more 

than reasonable efforts, and at least some efforts should be 

culturally relevant). 

¶ 27 True, the Department may have been less likely to meet the 

active efforts standard because the juvenile court did not timely 

rule that the standard applied. But the Department’s awareness of 

its obligation is irrelevant to the question whether the services it 

provided met the active efforts standard. Cf. A.R., ¶ 32 (holding 

that, even though juvenile court applied a “best efforts” standard, 

rather than “active efforts,” the appellate court would nevertheless 

review whether “the record support[ed] the court’s determination 

that the department’s actions met the requisite standard”).
13

B. The Juvenile Court Erred By Finding That the Department 

Provided Active Efforts for Mother

¶ 28 Mother contends that the Department did not make sufficient 

active efforts to provide (1) employment services; (2) housing 

assistance after she lost her home; or (3) services specific to 

mother’s Tribe. We agree that the Department did not provide 

necessary employment assistance. Thus, the juvenile court 

reversibly erred by finding that the Department made active efforts 

with regard to mother.

¶ 29 Any party seeking to terminate parental rights to an Indian 

child must satisfy the court that (1) active efforts have been made to 

provide remedial services and rehabilitative programs designed to 

prevent the breakup of the Indian family and (2) these efforts have 

been unsuccessful. 25 U.S.C. § 1912(d). Whether the Department 

made adequate active efforts is a mixed question of fact and law. 

A.V., ¶ 13; People in Interest of C.Z., 262 P.3d 895, 905 (Colo. App 

2010). We review de novo the legal issues in such mixed questions. 

A.V., ¶ 13. 

¶ 30 In C.Z., the division reviewed the juvenile court’s factual 

findings for abuse of discretion. 262 P.3d at 905. At least three 
14

divisions have since followed this approach. A.V., ¶ 13 (citing C.Z., 

262 P.3d at 905); A.R., ¶ 19 (same); People in Interest of T.E.R., 2013 

COA 79, ¶ 34 (citing A.V., ¶ 13). Notably, however, in invoking this 

standard of review, the division in C.Z. cited Neal M. v. State, 214 

P.3d 284 (Alaska 2009). But in Neal M., the Alaska Supreme Court 

actually reviewed for clear error. 214 P.3d at 290 (“We ‘will reverse 

the factual findings of the superior court in a termination of 

parental rights case only when those findings are clearly 

erroneous.’” (quoting Martin N. v. State, 79 P.3d 50, 53 (Alaska 

2003))). 

¶ 31 Indeed, our supreme court generally reviews for clear error a 

juvenile court’s factual findings in dependency and neglect cases. 

See People in Interest of A.J.L., 243 P.3d 244, 250 (Colo. 2010) 

(“[W]e set aside a trial court’s factual findings only when they are ‘so 

clearly erroneous as to find no support in the record.”) (quoting 

People in Interest of C.A.K., 652 P.2d 603, 613 (Colo. 1982)).1 

1 We recognize that, in other contexts, our supreme court has 

reviewed a trial court’s factual findings for an abuse of discretion. 

See, e.g., E-470 Pub. Highway Auth. v. 455 Co., 3 P.3d 18, 22-23 

(Colo. 2000) (discussing the variety of possible methods of reviewing 

factual findings and ultimately adopting an abuse of discretion 
15

Significantly, in each of the cases in which the division reviewed for 

abuse of discretion, the division ultimately affirmed because the 

findings under review had record support. C.Z., 262 P.3d at 905; 

A.V., ¶ 14; A.R., ¶ 34; T.E.R., ¶ 39. Thus, referring to the standard 

of review in these cases as an “abuse of discretion” review may have 

been a misnomer. 

¶ 32 To the extent it was not, however, we disagree that the correct 

standard of review is for abuse of discretion, and thus decline to 

follow C.Z. and the cases that followed it. See A.V., ¶ 11 n.1 (“One 

division [of the court of appeals] is not bound by the holding of 

another division.”) Instead, we review for clear error. A.J.L., 243 

P.3d at 250. 

¶ 33 The goal of active efforts is to remedy the basis for the 

dependency or neglect proceeding; thus, the type of services 

required depends on the facts of each case. In re Michael G., 74 

Cal. Rptr. 2d 642, 650 (Ct. App. 1998); see also 25 C.F.R. § 23.2 

(2020) (active efforts must be tailored to the facts and 

standard for reviewing the findings in a condemnation case). But 

we are aware of no case in which the supreme court has reviewed a 

juvenile court’s findings for abuse of discretion in a case involving 

termination of a parent-child legal relationship. 
16

circumstances of the case); People in Interest of A.M.D., 648 P.2d 

625, 640 (Colo. 1982) (primary purpose of a dependency or neglect 

proceeding is to preserve and mend familial ties). 

¶ 34 “Active efforts” is a higher standard than Colorado’s 

“reasonable efforts” requirement. A.R., ¶ 28. For example,

“reasonable efforts” may be satisfied by 

requiring a parent to find a job, to acquire new 

housing, and to terminate a relationship with 

what is perceived to be a boyfriend who is a 

bad influence; in contrast, “active efforts” 

under the ICWA would require that the 

caseworker help the client develop job and 

parenting skills necessary to retain custody of 

her child. 

Id. (citing A.A. v. State, 982 P.2d 256, 261 (Alaska 1999)). Giving a 

parent a treatment plan and passively waiting for the parent to 

follow it does not satisfy the active efforts standard. See id. 

“[A]ctive efforts require that the state actually help the parent 

develop the skills required to keep custody of the children.” 

Dashiell R. v. State, Dep’t of Health & Soc. Servs., Off. of Children’s 

Servs., 222 P.3d 841, 849 (Alaska 2009).

¶ 35 A general failure to make active efforts for a short period of 

time during the course of a lengthy dependency or neglect 

proceeding is not, by itself, dispositive of whether the department 
17

made active efforts overall. See Maisy W. v. State ex rel. Dep’t of 

Health & Soc. Servs., Off. of Children’s Servs., 175 P.3d 1263, 1269 

(Alaska 2008) (where state conceded that it failed to make active 

efforts for three months in the middle of a three-year proceeding, 

court properly looked to entirety of state’s efforts). Similarly, the 

department need not provide every imaginable service or program. 

Yvonne L. v. Ariz. Dep’t of Econ. Sec., 258 P.3d 233, 241 (Ariz. Ct. 

App. 2011); In re Beers, 926 N.W.2d 832, 847 (Mich. Ct. App. 2018) 

(upholding active efforts finding where mother was offered all 

relevant services). 

¶ 36 But even significant efforts by the department may not satisfy 

the active efforts requirement if a critical service is overlooked. See 

Dep’t of Hum. Servs. v. D.L.H., 284 P.3d 1233, 1242-43 (Or. Ct. App. 

2012) (services did not include parenting classes to address 

incarcerated father’s need to develop parental relationship with 

child); see also In re Interest of Jamyia M., 791 N.W.2d 343, 349 

(Neb. Ct. App. 2010) (department provided education, financial 

support, and transportation for parents of child with shaken baby 

syndrome, but court denied visitation and efforts were not 

culturally relevant).
18

¶ 37 Mother’s treatment plan required her to have a legal form of 

income sufficient to support herself and the children. The plan 

directed mother to provide income documentation to the 

Department, pay all of her bills and rent on time, and provide the 

basic necessities for herself and the children, including food, 

clothing, and shelter. The plan did not identify any services that 

the Department would provide to assist mother in reaching these 

goals. 

¶ 38 Mother requested job training at a hearing in June 2017 to 

help her meet her treatment plan’s employment requirement. The 

county attorney said that the Denver Indian Family Resource 

Center (DIFRC) provided such services but might not be willing to 

work with mother because it had already discontinued services due 

to the parents’ lack of engagement. Noting that DIFRC had 

previously provided in-home services and not job training, the 

juvenile court ordered the Department to help mother get job 

training services, whether from DIFRC or another provider. 

¶ 39 At a hearing a month later, mother’s counsel reported that 

nothing had been done to arrange job training for mother. The 

court, with a different judicial officer presiding, noted that DIFRC 
19

had previously discontinued services for the parents due to lack of 

engagement. The court did not acknowledge the prior order to 

determine whether DIFRC would be willing to provide job training 

for mother and, if not, to arrange job training services through a 

different provider. The court also noted that the family had refused 

day care services. But the written court report by the Court 

Appointed Special Advocate (CASA) stated that father had refused 

day care services, insisting that mother would stay home with the 

children. The CASA made the same report in March 2018. And in 

April 2018, the CASA reported that mother said she wanted to get a 

job, but “every mention of employment [was] generally contradicted 

by [father] saying [mother would] be a stay at home mother.” 

¶ 40 There is no indication in the record that the Department 

offered mother job training or employment assistance of any kind. 

Instead, the caseworker’s reports chronicled mother’s unsuccessful 

efforts to find employment and her unsuccessful application for 

Supplemental Security Income benefits. 

¶ 41 Thus, the record demonstrates that the Department required 

mother to have a legal form of income adequate to support herself 

and the children and passively waited for her to comply without 
20

offering any services — even though mother requested job training 

and the juvenile court ordered the Department to provide that 

service. This does not meet the active efforts standard. See A.V., 

¶ 28.

¶ 42 We therefore conclude that the juvenile court erred by finding

that the Department made active efforts to provide remedial services 

and rehabilitative programs for mother. Because the failure to 

make active efforts warrants reversal, we decline to address 

mother’s remaining contentions that

• the Department did not provide active efforts because it did 

not provide adequate housing assistance or services specific 

to her Tribe;

• the juvenile court erred by not placing the children in 

accordance with ICWA’s placement preferences; and 

• the Department did not make reasonable accommodations 

for her cognitive disability in accordance with the 

Americans with Disabilities Act, 42 U.S.C. § 12131. 

III. Father’s Appeal

¶ 43 Father contends that the juvenile court erred by finding that 

his treatment plan was appropriate because the plan did not 
21

address his mental health needs. He also argues that the juvenile 

court erred by finding that the Department had engaged in active 

efforts as to him. We disagree with both contentions. 

A. The Juvenile Court Did Not Err By Finding That Father’s 

Treatment Plan Was Appropriate

¶ 44 Before terminating the parent-child legal relationship, the 

juvenile court must find that the parent did not reasonably comply

with an appropriate court-approved treatment plan or the plan was 

not successful. § 19-3-604(1)(c)(1). A treatment plan is appropriate 

if it “is reasonably calculated to render the particular [parent] fit to 

provide adequate parenting to the child within a reasonable time” 

and “relates to the child’s needs.” § 19-1-103(10). 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 of the plan’s approval. 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. 

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

¶ 45 Father’s treatment plan required him to (1) obtain and 

maintain suitable housing; (2) cooperate with the Department; (3) 
22

ensure that the children were appropriately supervised; (4) 

maintain visitation; (5) complete a substance abuse evaluation and 

follow all recommendations; (6) cease all criminal activity; (7) 

provide financial support for the children; (8) cooperate with 

in-home services to improve his parenting skills; and (9) complete a 

domestic violence evaluation and any recommended treatment. 

¶ 46 True, the treatment plan did not include a specific mental 

health objective. But it did require father to follow all 

recommendations arising from his substance abuse and domestic 

violence evaluations. The caseworker testified that father’s 

domestic violence treatment provider recommended that father 

undergo a psychological evaluation, but father refused. She said 

that without the evaluation, the Department could not identify what 

additional mental health services would be appropriate. 

¶ 47 We agree that the better practice is to impose a separate 

objective to address mental health evaluations and treatment when 

those concerns arise. But in this case, father refused to comply 

with his treatment plan by completing the recommended 

psychological evaluation. Under these circumstances, we conclude 

that father’s treatment plan adequately addressed his mental health 
23

needs to the extent possible. Accord T.E.R., ¶ 33 (court may 

consider parent’s unwillingness to participate in treatment as a 

factor in determining whether department made active efforts to 

prevent breakup of an Indian family); People in Interest of K.T., 129 

P.3d 1080, 1082 (Colo. App. 2005) (parent’s refusal to document 

sobriety and participate in substance abuse treatment shows lack 

of commitment to meeting child’s needs and is evidence of 

unfitness).

¶ 48 We therefore conclude that the juvenile court did not err by 

finding that father’s treatment plan was appropriate.

B. The Juvenile Court Did Not Err By Finding That the 

Department Made Active Efforts for Father

¶ 49 Finally, we turn to father’s challenge to the juvenile court’s 

active efforts finding. Father contends that the burden of proof 

against which we should test the sufficiency of the evidence of 

active efforts is the beyond a reasonable doubt standard. We note 

that divisions of this court have disagreed about whether to apply 

the clear and convincing burden of proof or the higher beyond a 

reasonable doubt standard to findings made pursuant to 25 U.S.C. 

§ 1912(d). Compare C.Z., 262 P.3d at 905 (applying the clear and 
24

convincing evidence standard), with People in Interest of R.L., 961 

P.2d 606, 609 (Colo. App. 1998) (applying the beyond a reasonable 

doubt standard). Because the juvenile court found that the 

Department met its burden of proof under the higher standard and 

we agree that sufficient evidence supports that finding, we need not 

decide which standard applies.

2

¶ 50 Making active efforts does not mean persisting with futile 

efforts, and the Department is not required to make active efforts 

for parents who voluntarily absent themselves from the proceedings

and cannot be located. A.V., ¶ 12. A parent’s unwillingness to 

participate in treatment is relevant to the determination whether 

the Department has made active efforts. Id.

¶ 51 The caseworker testified as follows: 

• Father’s domestic violence treatment provider recommended 

that father undergo a psychological evaluation. 

• Father refused. Instead, he offered to provide the results of 

a psychological evaluation he had completed in 2015.

2 Conversely, because there was no evidence that the Department 

provided any employment services for mother, the evidence did not 

support the juvenile court’s finding as to mother under either 

standard.
25

• Father ultimately refused to release the results of the prior 

evaluation or complete a new evaluation.

¶ 52 Without father’s cooperation, additional referrals for 

psychological evaluations or mental health treatment would have 

been futile. See A.V., ¶ 12. As a result, we conclude that the 

juvenile court did not err by finding that the Department made 

active efforts as to father despite the lack of additional mental 

health services for father.

IV. Conclusion

¶ 53 The judgment terminating mother’s parent-child legal 

relationships with the children is reversed and the case is 

remanded to the juvenile court for further proceedings. The 

judgment terminating father’s parent-child legal relationships with 

the children is affirmed. 

JUDGE DAILEY and JUDGE BERGER concur.