SUMMARY 

April 19, 2018 

2018COA57

No. 17CA0404, People in Interest of L.M. — Juvenile Court — 

Dependency and Neglect — Termination of the Parent-Child 

Legal Relationship 

In this dependency and neglect proceeding, father appeals the 

juvenile court judgment terminating his parent-child legal 

relationships with his children, claiming that the court erred in 

determining that there was no less drastic alternative to 

termination. The division holds that under the circumstances of 

this case, where father was acquitted of the alleged sexual abuse 

that gave rise to this case, and the termination court did not find by 

clear and convincing evidence that the abuse occurred, the record 

does not support the court’s decision to terminate father’s parental 

rights. 

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 2018COA57

Court of Appeals No. 17CA0404 

Larimer County District Court No. 15JV143 

Honorable Stephen E. Howard, Judge 

The People of the State of Colorado, 

Petitioner-Appellee, 

In the Interest of L.M. and M.M., Children, 

and Concerning K.M., 

Respondent-Appellant, 

and 

E.L., 

Respondent-Appellee. 

JUDGMENT REVERSED AND CASE 

REMANDED WITH DIRECTIONS

Division VI 

Opinion by JUDGE FURMAN 

Ashby and Nieto*, JJ., concur 

Announced April 19, 2018 

Jeannine Haag, County Attorney, Jennifer A. Stewart, Senior County Attorney, 

Fort Collins, Colorado, for Petitioner-Appellee 

Claire Havelda, Julie M. Yates, Guardians Ad Litem 

Stout Law Firm, LLC, Stephanie Stout, Greeley, Colorado, for RespondentAppellant 

The Christiansen Law Firm LLC, Dina M. Christiansen, Fort Collins, Colorado, 

for Respondent-Appellee 
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. 

VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
1 

¶ 1 In this dependency and neglect proceeding, K.M. (father) 

appeals the juvenile court judgment terminating his parent-child 

legal relationships with his children, L.M. and M.M. 

¶ 2 This case poses an unusual situation. The juvenile court 

adjudicated the children dependent and neglected, finding by a 

preponderance of the evidence that father had sexually abused L.M. 

and that M.M. was suffering secondary trauma as a result of the 

abuse. The court granted temporary custody of the children to E.L. 

(mother) and prohibited father from having any contact with the 

children during the pendency of this case. 

¶ 3 Father’s treatment plan was premised on his guilt. But he 

was later acquitted in the companion criminal case, and, following 

the termination hearing, the juvenile court could not find that the 

assault allegations had been established by clear and convincing 

evidence. 

¶ 4 Even so, the juvenile court terminated father’s parental rights. 

In so doing, it found that there were no less drastic alternatives to 

termination because the children continued to experience trauma 

specific to father, which he did not recognize. On appeal, father 

challenges this finding. 
2 

¶ 5 To address father’s challenge, we examine the legal standard 

for determining whether there is a less drastic alternative to 

termination. As shown by the record in this case, the standard for 

considering less drastic alternatives to termination is often 

intertwined with a determination of whether an appropriate 

treatment plan can be devised for a parent and whether the parent 

is fit or can become fit in a reasonable time. 

¶ 6 Because the record does not support the juvenile court’s 

decision to terminate father’s parental rights, we reverse the 

judgment and remand. 

I. The Dependency and Neglect Case 

¶ 7 In March 2015, the Larimer County Department of Human 

Services (Department) became involved in this case after six-yearold L.M. had disclosed that “she woke up to [father] touching her in 

her private” while she was at his home. L.M. and eight-year-old 

M.M. primarily lived with mother, but spent overnights at father’s 

home. The juvenile court granted temporary custody of the children 

to mother and prohibited father from having any contact with them. 

¶ 8 In early May 2015, father was criminally charged with 

aggravated incest in relation to L.M.’s disclosure. 
3 

¶ 9 Meanwhile, mother admitted that the children’s environment 

was injurious. But, father denied the allegations in the petition. 

After a multi-day hearing in August 2015, the juvenile court 

adjudicated the children dependent and neglected, finding by a 

preponderance of evidence that father had sexually abused L.M. 

and that M.M. was suffering from secondary trauma as a result of 

the abuse. 

¶ 10 The next month, the court adopted the parties’ stipulated 

treatment plan for father. The treatment plan required father to (1) 

participate in a psychosexual evaluation within thirty days and 

follow any recommended offense-specific treatment and (2) maintain 

contact with the Department.

¶ 11 Father completed the psychosexual evaluation in June 2016, 

after the Department authorized a one-way release so that the 

caseworker could provide information to the evaluator without the 

evaluator automatically releasing the assessment to the 

Department. That same month, the Department moved to 

terminate the parent-child legal relationships between father and 

the children.
4 

¶ 12 Two months later, a jury acquitted father of the criminal 

charge arising from L.M.’s outcry. Immediately after the verdict, 

father released the psychosexual evaluation to the Department. 

¶ 13 The court held a four-day termination hearing in October and 

December 2016. Although the children remained in mother’s care, 

the court concluded that granting permanent custody of the 

children to her was not a less drastic alternative. The court then 

entered a judgment terminating father’s parental rights. 

II. Less Drastic Alternative and Termination of Parental Rights 

¶ 14 Father contends that the juvenile court erred in terminating 

his parental rights by determining that there was no less drastic 

alternative. We agree that the record does not support the juvenile 

court’s decision to terminate father’s parental rights. 

A. Standard of Review 

¶ 15 Whether a juvenile court properly terminated parental rights 

presents a mixed question of fact and law because it involves 

application of the termination statute to evidentiary facts. See 

People in Interest of S.N. v. S.N., 2014 CO 64, ¶ 21. We will not set 

aside a juvenile court’s factual findings when they have support in 

the record. People in Interest of A.J.L., 243 P.3d 244, 250 (Colo. 
5 

2010). Indeed, the credibility of the witnesses; the sufficiency, 

probative value, and weight of the evidence; and the inferences and 

conclusions to be drawn from it are within the juvenile court’s 

discretion. Id. at 249-50. But, we review the legal conclusions de 

novo when deciding mixed questions of fact and law. State Farm 

Mut. Auto. Ins. Co. v. Johnson, 2017 CO 68, ¶ 12. 

B. Statutory Criteria for Termination of Parental Rights 

¶ 16 Termination of parental rights is a decision of paramount 

gravity affecting a parent’s fundamental interest in the care, 

custody, and management of his or her child. K.D. v. People, 139 

P.3d 695, 700 (Colo. 2006). The state must exercise extreme 

caution in terminating parental rights. Id. Consequently, a juvenile 

court must strictly comply with the appropriate standards for 

termination. Id.

¶ 17 The Children’s Code sets forth three separate bases under 

which the court may terminate the parent-child legal relationship 

following a child’s adjudication as dependent and neglected. Id.; 

see also § 19-3-604(1), C.R.S. 2017. First, a juvenile court may 

terminate parental rights when the parent has abandoned the child 

as defined by section 19-3-604(1)(a). K.D., 139 P.3d at 700. When 
6 

termination is sought based on abandonment, there is no 

requirement for the parent to have been provided with a treatment 

plan. See § 19-3-508(1)(e)(I), C.R.S. 2017 (stating that a court may 

find that an appropriate treatment plan cannot be devised as to a 

particular parent because the child has been abandoned as set 

forth in section 19-3-604(1)(a)). 

¶ 18 Second, the juvenile court may terminate parental rights when 

it finds, by clear and convincing evidence, that no appropriate 

treatment plan can be devised to address the parent’s unfitness. 

§ 19-3-604(1)(b). But a determination that no appropriate 

treatment plan can be devised to address a parent’s unfitness is not 

wide open. Just the opposite — it is limited to very specific 

circumstances defined by statute. See § 19-3-508(1)(e)(I). 

¶ 19 A conclusion that no appropriate treatment plan can be 

devised to address a parent’s unfitness may be based on any one of 

the following: 

 the parent’s emotional illness, behavioral or mental health 

disorder, or intellectual and developmental disability of such 

duration or nature as to render the parent unlikely within a 
7 

reasonable time to care for the child’s ongoing physical, 

mental, and emotional needs and conditions; 

 a single incident resulting in serious bodily injury or 

disfigurement of the child; 

 the parent’s long-term confinement of such duration that the 

parent is not eligible for parole for at least six years after the 

date the child was adjudicated dependent or neglected, or in 

an expedited permanency planning case, the long-term 

confinement of the parent is of such duration that the parent 

is not eligible for parole for at least thirty-six months after the 

date the child was adjudicated dependent or neglected; 

 serious bodily injury or death of a sibling due to proven 

parental abuse or neglect; 

 an identifiable pattern of habitual abuse to which the child or 

another child has been subjected and, as a result of which, a 

court has adjudicated another child as neglected or dependent 

based on allegations of sexual or physical abuse, or a court of 

competent jurisdiction has determined that such abuse has 

caused the death of another child; 

 an identifiable pattern of sexual abuse of the child; or 
8 

 the torture of or extreme cruelty to the child, a sibling of the 

child, or another child of either parent. 

§ 19-3-604(1)(b)(I)-(VII). 

¶ 20 The court may also find that no appropriate treatment plan 

can be devised for a particular parent in the following 

circumstances: 

 the parent has subjected another child or children to an 

identifiable pattern of habitual abuse; and 

 the parent has been the respondent in another proceeding 

under the Children’s Code in which a court has adjudicated 

another child to be neglected or dependent based on 

allegations of sexual or physical abuse, or a court of 

competent jurisdiction has determined that such parent’s 

abuse or neglect has caused the death of another child; and 

 the pattern of habitual abuse and the type of abuse pose a 

current threat to the child. 

§§ 19-3-102(2), 19-3-508(1)(e)(I), C.R.S. 2017. 

¶ 21 Third, the court may terminate parental rights if it finds, by 

clear and convincing evidence, that (1) the child was adjudicated 

dependent and neglected; (2) the parent has not complied with an 
9 

appropriate, court-approved treatment plan or the plan has not 

been successful in rehabilitating the parent; (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); People in Interest of C.H., 166 

P.3d 288, 289 (Colo. App. 2007). Unlike the other two bases for 

termination, this provision requires the juvenile court to have first 

approved an appropriate treatment plan for the parent. 

C. Consideration of Less Drastic Alternatives 

¶ 22 When considering termination under section 19-3-604(1)(c), 

the court must also consider and eliminate less drastic alternatives 

to termination. People in Interest of M.M., 726 P.2d 1108, 1122 

(Colo. 1986). But, this determination is implicit in, and thus 

intertwined with, the statutory criteria for termination. See id. at 

1122-23. Indeed, as our supreme court has explained, adherence 

to the statutory criteria for termination requires a juvenile court to 

“consider less drastic alternatives and to reject those alternatives as 

unavailing before entering an order of termination.” Id. at 1123. 

We note that in M.M., the supreme court considered the termination 

criteria under section 19-11-105(1), C.R.S. 1986. Although the 

termination statute has been relocated, the statutory criteria have 
10 

not been significantly altered. See C.S. v. People in Interest of I.S., 

83 P.3d 627, 640 n.8 (Colo. 2004). 

¶ 23 A court’s duty to determine in the first instance whether a 

treatment plan can be devised and, if so, to approve a plan 

reasonably calculated to provide the parent with adequate 

parenting ability involves a consideration of alternatives less drastic 

than termination. M.M., 726 P.2d at 1123. This is so because 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. Id. at 1121; see also 

People in Interest of K.B., 2016 COA 21, ¶ 11. 

¶ 24 Thus, an appropriate treatment plan is one that is approved 

by the court and is reasonably calculated to render the particular 

parent fit to provide adequate parenting to the child within a 

reasonable time and that relates to the child’s needs. 

§ 19-1-103(10), C.R.S. 2017; M.M., 726 P.2d at 1123. And, the 

safety concerns identified during the assessment of the family’s 

needs serve as the basis for developing treatment plan objectives. 

K.B., ¶ 12. 
11 

¶ 25 Once a treatment plan has been devised for a parent, a court 

may only terminate parental rights when, among other things, the 

court finds that parent unfit and unable to become fit in a 

reasonable time. M.M., 726 P.2d at 1123. As a result, the 

determination of whether there is a less drastic alternative to 

termination will be influenced by a parent’s fitness to care for his or 

her child. People in Interest of A.R., 2012 COA 195M, ¶ 38. 

¶ 26 An unfit parent is one whose conduct or condition renders him 

or her unable to give a child reasonable parental care. K.D., 139 

P.3d at 700. Reasonable parental care requires, at a minimum, 

that the parent provide nurturing and protection adequate to meet 

the child’s physical, mental, and emotional health needs. Id. In 

determining parental fitness, a court may consider many factors, 

including conduct toward the child of a physically or sexually 

abusive nature. § 19-3-604(2)(b). 

¶ 27 And, as with all termination criteria, the court must give 

primary consideration to the child’s physical, mental, and emotional 

conditions and needs. § 19-3-604(3). Thus, for example, the court 

may consider whether an ongoing relationship with the parent 

would be beneficial or detrimental to the child and the child’s need 
12 

for permanency when determining whether there is a viable 

alternative to termination. A.R., ¶¶ 38, 41. Nonetheless, a court 

may not terminate parental rights simply to improve the child’s 

condition. People in Interest of E.A., 638 P.2d 278, 285 (Colo. 1981). 

D. The Juvenile Court’s Decision to Terminate Father’s Parental 

Rights 

¶ 28 Recall, father completed a psychosexual evaluation in June 

2016. The therapist who completed the evaluation recommended 

that father 

1. participate in a pretreatment denier’s intervention program if 

he was found guilty of the sexual offense; and 

2. better understand how sexual behaviors negatively impact 

children by participating in a victim’s empathy module. 

The therapist also concluded that “contact with [the children] would 

be contradicted” if father was found guilty of a sexual crime against 

his children. 

¶ 29 Father participated in denier’s intervention in October 2016. 

He produced non-distress results on a specific issue polygraph and 

his participation in the program therefore concluded. The 

treatment provider for denier’s intervention agreed that it was 
13 

typical for an individual to complete denier’s therapy when he or 

she provided this result. Likewise, the psychosexual evaluator 

explained that an individual would not be appropriate for offensespecific treatment when he or she engaged in denier’s intervention 

therapy and passed a non-deceptive polygraph. 

¶ 30 Although it was not required by his treatment plan, father had 

also participated in weekly individual therapy from shortly after the 

filing of the petition through the termination hearing. 

¶ 31 In a very thoughtful and thorough consideration of the 

evidence, the juvenile court recognized father’s participation, albeit 

delayed, in these services. It also observed that all the allegations 

in the case arose out of the alleged sexual assault of L.M., which it 

had found occurred by a preponderance of the evidence in its 

adjudicatory order. But, the court concluded that it could not find 

that the sexual assault allegations had been established by clear 

and convincing evidence. The court even observed that it could not 

“discount the possibility that no sexual abuse occurred.” 

¶ 32 Still, the juvenile court concluded that clear and convincing 

evidence showed that the children were experiencing trauma and 

the “trauma is specific to [father].” The court found that father 
14 

denied and failed to recognize the children’s trauma and would not 

change his attitude. It also determined that empathy was a “key 

issue” in the case and father had not completed a victim’s empathy 

program as recommend by the psychosexual evaluation. 

¶ 33 The court reviewed an evaluation made during the parties’ 

domestic relations case and further concluded that father lacked 

self-awareness about his anger issues. The court also found that 

father’s lack of recognition that he had done anything wrong would 

prevent progress in his reunifying with the children. Accordingly, it 

determined that father was unfit, as he was unable or unwilling to 

meet the children’s needs. 

¶ 34 The court also considered whether granting permanent 

custody of the children to mother was a less drastic alternative to 

termination. But, it determined that this was not a viable option as 

(1) the children were fearful and believed the sexual assault 

happened; (2) father was not ready or able to acknowledge the 

children’s perceptions; and (3) the likelihood or possibility of 

reunification therapy or future contact with father would not be in 

the children’s best interests and could cause trauma to them. 

1. Undetermined Sexual Abuse and Victim Empathy 
15 

¶ 35 We first address the juvenile court’s conclusion that father 

had failed to address the children’s perception of sexual abuse. 

¶ 36 To be sure, the record demonstrates the difficulty in devising a 

treatment plan to address an allegation of sexual abuse by a parent 

when the child believes the abuse happened but the parent 

maintains that he or she did not commit the abuse. The initial 

caseworker explained that it was challenging to reunite children 

with parents who do not acknowledge the children’s experience 

because “the child has a belief this happened, so they are fearful.” 

Likewise, the current caseworker opined that it would be traumatic 

for the children “to confront an abuser who won’t admit that the 

event happened itself, when the [children] sincerely seem to believe 

that it did.” She further elaborated that it would invalidate L.M.’s 

experience to “confront someone who had sexually abused her” and 

“pretend[] nothing is wrong.” 

¶ 37 Despite this difficulty, a single incident of sexual abuse (as 

opposed to a pattern of sexual abuse) is not one of the 

circumstances in which the Children’s Code authorizes a court to 

terminate parental rights without devising a treatment plan that is 
16 

calculated to render the parent fit. See §§ 19-3-508(1)(e)(I), 

19-3-604(1)(b). 

¶ 38 Although the court had approved a treatment plan for father, 

it required him to complete a psychosexual evaluation and 

recommended treatment. The evaluation, in turn, required father 

to follow Sex Offender Management Board (SOMB) guidelines and 

protocols. This requirement continued even though father was 

ultimately acquitted of the criminal charges related to the sexual 

abuse allegation. 

¶ 39 The SOMB procedures “provide for an evaluation and 

identification of the adult sex offender and recommend 

management, monitoring, and treatment based upon existing 

research and shall incorporate the concepts of the risk-needresponsivity or another evidence-based correctional model.” 

§ 16-11.7-103(4)(a), C.R.S. 2017. The SOMB also develops, 

implements, and revises, as appropriate, 

guidelines and standards to treat adult sex 

offenders, including adult sex offenders with 

intellectual and developmental disabilities, 

incorporating in the guidelines and standards 

the concepts of the risk-need-responsivity or 

another evidence-based correctional model, 

which guidelines and standards can be used in 
17 

the treatment of offenders who are placed on 

probation, incarcerated with the department of 

corrections, placed on parole, or placed in 

community corrections. 

§ 16-11.7-103(4)(b). 

¶ 40 But, a key provision of the SOMB procedures is that they are 

designed for sex offenders. A “sex offender” is designated as a 

person who is one of the following: 

(I) Convicted in the state of Colorado, on or 

after January 1, 1994, of any sex offense . . . ; 

or 

(II) Convicted in the state of Colorado on or 

after January 1, 1994, of any criminal offense, 

if such person has previously been convicted of 

a sex offense . . . in the state of Colorado, or if 

such person has previously been convicted in 

any other jurisdiction of any offense that 

would constitute a sex offense . . . , or if such 

person has a history of any sex offenses . . . ; 

or 

(III) Convicted in the state of Colorado on or 

after July 1, 2000, of any criminal offense, the 

underlying factual basis of which involves a 

sex offense; or 

(IV) A juvenile who has committed a sexual 

offense. 
18 

§ 16-11.7-102(2)(a), C.R.S. 2017. A person who receives a deferred 

judgment or deferred sentence for these offenses is also included. § 

16-11.7-102(2)(b). 

¶ 41 In short, SOMB treatment protocols are geared toward treating 

individuals who have been convicted of a sexual offense instead of 

determining whether an individual has committed an alleged sexual 

offense. Indeed, father’s evaluator explained that “offense specific 

evaluations are really built around the premise of guilt” and that 

“we don’t have tools that determine whether somebody is guilty or 

innocent, so evaluations such as this are always done under the 

premise of guilt.” 

¶ 42 And, the SOMB has processes that therapists and supervising 

officers, like a caseworker, are to follow when offenders are 

convicted of a sexual crime before allowing contact with child 

victims. One part of the process is that the offender is not allowed 

to have contact with a child until he or she has admitted the offense 

against the child. 

¶ 43 As a result, the record is replete with evidence that no 

progress was made toward reunification because father had not 

admitted or acknowledged the abuse. And, father was adamant 
19 

that he was not going to admit molesting or abusing the children 

when he had not done so. 

¶ 44 This requirement for treatment placed father in a no-win 

situation and was not reasonably calculated to render him a fit 

parent who could meet the children’s needs. On the one hand, if, 

as here, father failed to admit that he had abused L.M., this led to 

termination on the basis that father had not complied with the 

treatment plan and was unable to have contact with the children or 

work toward reunification with them. On the other hand, if father 

had acknowledged that he had sexually abused L.M., this would 

also be evidence of his unfitness under section 19-3-604(2)(b). 

¶ 45 Moreover, faulting father for not completing treatment that 

required him to acknowledge sexual abuse of L.M. is incompatible 

with the juvenile court’s conclusion that it could not discount the 

possibility that no sexual abuse had occurred. 

¶ 46 And, there is no indication in the record that father was 

offered treatment or a path to becoming a fit parent other than to 

acknowledge that he had sexually abused L.M. In fact, the record 

offers no indication that father could have taken any steps, short of 
20 

admitting that he had sexually abused L.M., to acknowledge the 

children’s perceptions of abuse. 

¶ 47 Finally, we recognize that the grounds for adjudicating the 

children dependent and neglected — the sexual abuse of L.M. — 

only needed to be established by a preponderance of the evidence. 

See People in Interest of J.G., 2016 CO 39, ¶ 15. But, for the sexual 

abuse to serve as a basis for determining that father was unfit, and, 

thus, there was no less drastic alternative to termination, it needed 

to be established by clear and convincing evidence. See

§ 19-3-604(1)(c), (2)(b). 

¶ 48 For these reasons, the juvenile court’s findings regarding 

father’s failure to address the abuse or perceived sexual abuse are 

insufficient to support its conclusion that there is no less drastic 

alternative to termination. 

2. Other Causes for the Children’s Trauma 

¶ 49 Next, we turn to the juvenile court’s conclusion that father 

was unwilling to take responsibility for any portion of the children’s 

trauma even if it was related to “other conduct or statements of 

[father] during or after the divorce proceedings.” 
21 

¶ 50 The record undeniably establishes that the children were 

experiencing significant trauma related to father. The initial 

caseworker observed trauma symptoms in the children when they 

discussed father. When the criminal trial was approaching, the 

children, especially L.M., would “shut down” when she discussed 

visitation with father. The caseworker also testified that L.M. 

typically did not want to visit father and was having difficulty in 

school and sleeping because she was worried about visits. Thus, 

she opined that the children were not ready to visit father. Mother 

also described exacerbated behaviors by the children. For example, 

she described that L.M. would have aggressive outbursts as well as 

panic attacks and make threats to harm herself and M.M. In 

contrast, she described that M.M. would stop verbal communication 

and grunt or mimic animal sounds. 

¶ 51 The children’s therapist stopped working with L.M. on 

completing a trauma narrative because she could not tolerate the 

anxiety that it was causing her to write it. Likewise, a therapist 

who completed trauma assessments of L.M. and M.M. determined 

that the children were experiencing trauma symptoms, but had not 

tried to determine when the traumatic event occurred. 
22 

¶ 52 The trauma therapist also opined that the children were 

experiencing stress from the court involvement. For example, 

during the trauma assessment, L.M. was asked to put people who 

were in her life in a sand tray. She separated mother’s family and 

father’s family. She placed father’s family in the corner with a fence 

and “indicated that she hated court . . . and put herself on the fence 

between her mom and dad and indicated that it was her job to 

make sure that she – everyone was being good.” 

¶ 53 But, the record is devoid of any indication that father was 

asked to address any other potential causes of the children’s 

trauma. For example, the Department made no request (nor was 

there a court order) for father to participate in evaluations or 

treatment services to resolve other issues, such as father exhibiting 

intense anger or making inappropriate statements during the 

parties’ divorce proceeding. 

¶ 54 To be sure, the initial caseworker testified that father had not 

made any admissions to her about his behavior that had impacted 

his children. The therapist providing denier’s intervention therapy 

likewise agreed that father had not admitted any abuse or 

mistreatment of the children. Nonetheless, the record does not 
23 

establish that, apart from the sexual abuse allegation, father was 

asked about or otherwise unwilling to acknowledge any parental 

deficiencies that might have contributed to the children’s trauma. 

¶ 55 We also recognize that the juvenile court faulted father for 

failing to complete a victim’s empathy program as recommended by 

the psychosexual evaluator. Indeed, the psychosexual evaluator 

believed that father could benefit from a victim empathy program 

regardless of whether he had committed the abuse to “thoroughly 

understand how this has likely impacted the children.” 

¶ 56 Yet, there is no evidence that the program would have enabled 

father to develop empathy or otherwise understand the children’s 

needs generally. Rather, the evaluator explained that the victim’s 

empathy module is aimed at “helping a client to better understand 

how sexual behaviors likely have impacted the victim” and, ideally, 

“work[ing] a little bit with the actual victim’s therapist so that the 

offender can really learn more about how [his or her] behaviors 

directly impacted [the] victim.” In short, it was to help father “better 

understand how his sexually abusive behavior . . . directly impacted 

the children.” 
24 

¶ 57 Under these circumstances, the juvenile court erred in 

concluding that father’s failure to address other possible issues, 

and the children’s corresponding trauma, demonstrated that he was 

an unfit parent, and thus, that granting custody of the children to 

mother was not a viable less drastic alternative to termination. 

¶ 58 Accordingly, the termination judgment must be reversed. 

III. ICWA Compliance 

¶ 59 Although not raised by father on appeal, the record does not 

demonstrate full compliance with the Indian Child Welfare Act of 

1978 (ICWA), 25 U.S.C. §§ 1901 to 1963 (2012). 

¶ 60 ICWA’s provisions are for the protection and preservation of 

Indian tribes and their resources and to protect Indian children who 

are members of or are eligible for membership in an Indian tribe. 

25 U.S.C. § 1901(2), (3). ICWA recognizes that Indian tribes have a 

separate interest in Indian children that is equivalent to, but 

distinct from, parental interests. B.H. v. People in Interest of X.H., 

138 P.3d 299, 303 (Colo. 2006); see also Mississippi Band of 

Choctaw Indians v. Holyfield, 490 U.S. 30, 52 (1989). Accordingly, 

in a proceeding in which ICWA may apply, tribes must have a 

meaningful opportunity to participate in determining whether the 
25 

child is an Indian child and to be heard on the issue of ICWA’s 

applicability. B.H., 138 P.3d at 303. 

¶ 61 To ensure tribes have an opportunity to be heard, Colorado’s 

ICWA-implementing legislation provides that in dependency and 

neglect proceedings, the petitioning party must make continuing 

inquiries to determine whether the child is an Indian child. § 19-1-

126(1)(a), C.R.S. 2017; see also B.H., 138 P.3d at 302. 

¶ 62 The Bureau of Indian Affairs (BIA) has also issued regulations 

and guidelines implementing ICWA that address inquiry and notice. 

For example, the 2015 guidelines — in effect during the 

commencement of the termination proceeding — encouraged 

agencies and courts, in every child custody proceeding, to ask 

whether the child is or could be an Indian child and to conduct an 

investigation into whether the child is an Indian child. Guidelines 

for State Courts and Agencies in Indian Child Custody Proceedings, 

80 Fed. Reg. 10,146, 10,152 (Feb. 25, 2015). They also reiterated 

the importance of providing notice to tribes. Id.

¶ 63 The BIA has repealed the 2015 guidelines and replaced them 

with the 2016 guidelines and implemented final regulations. People 

in Interest of L.L., 2017 COA 38, ¶ 15; Indian Child Welfare Act 
26 

Proceedings, 81 Fed. Reg. 38,778 (June 14, 2016); Bureau of Indian 

Affairs, Guidelines for Implementing the Indian Child Welfare Act 

(Dec. 2016), https://perma.cc/3TCH-8HQM (2016 Guidelines); see 

also Notice of Guidelines, 81 Fed. Reg. 96,476 (Dec. 30, 2016). The 

2016 Guidelines and regulations impose a similar duty of inquiry 

and notice on juvenile courts. 

¶ 64 The juvenile court must ask each participant on the record at 

the beginning of every emergency, voluntary, or involuntary child 

custody proceeding whether the participant knows or has reason to 

know that the child is an Indian child. 25 C.F.R. § 23.107(a) 

(2017); see also L.L., ¶ 19. Termination of parental rights is one 

type of child custody proceeding under ICWA. 25 U.S.C. § 1903(1) 

(2012). The inquiry must be made at the commencement of the 

proceeding and all responses should be on the record. 25 C.F.R. 

§ 23.107(a). 

¶ 65 Father was not personally present at the initial hearing when 

the juvenile court inquired of mother regarding ICWA’s applicability. 

Although the record does not show that the court later made a 

similar inquiry of father, it asked the parties to address ICWA’s 

applicability at the start of the termination hearing. For reasons 
27 

that are not clear in the record, father’s counsel offered no response 

to the court’s inquiry. Thus, if the court again considers 

termination of father’s parental rights, it must confirm with father 

whether he knows or has a reason to know or believe that the 

children are Indian children. 

IV. Conclusion 

¶ 66 The judgment is reversed, and the case is remanded to the 

juvenile court. Before the court may again consider termination of 

parental rights, it must adopt an appropriate treatment plan under 

section 19-3-508(1)(e)(I) that relates to the children’s trauma and is 

reasonably calculated to render father a fit parent. 

¶ 67 In reaching this holding, we are not unmindful of the difficulty 

and complexity of the issues faced by the juvenile court in this case 

and the legitimate concern for the children’s trauma and ability to 

re-establish a relationship with father. But, for the reasons 

discussed in the opinion, we must reverse the judgment and 

remand the matter for further proceedings. 

JUDGE ASHBY and JUDGE NIETO concur.