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.

SUMMARY April 19, 2018

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. COLORADO COURT OF APPEALS

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 Respondent- Appellant

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 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.

1 ¶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-year-

old 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.

2 ¶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.

3 ¶ 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.,

. 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.,

, 250 (Colo.

4 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,

.

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,

(Colo. 2006). The state must exercise extreme

caution in terminating parental rights.

Consequently, a juvenile

court must strictly comply with the appropriate standards for

termination.

¶ 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.,

. When

5 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

6 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

7  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

8 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.,

, 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.,

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

intertwined with, the statutory criteria for termination. See

. 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.”

.

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

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

, 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.,

. 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.

; see also

People in Interest of K.B.,

.

¶ 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.,

. 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.

10 ¶ 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.,

. 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.,

, ¶ 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.,

. 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.

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

11 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.,

(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

12 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 offense-

specific 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

13 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

14 ¶ 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

15 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-need-

responsivity 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

16 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.

17 § 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

18 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

19 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.,

. 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.”

20 ¶ 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.

21 ¶ 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

22 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.”

23 ¶ 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),

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.

(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.,

(Colo. 2006); see also Mississippi Band of

Choctaw Indians v. Holyfield,

(1989). Accordingly,

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

meaningful opportunity to participate in determining whether the

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

applicability. B.H.,

.

¶ 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.,

.

¶ 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,

, 10,152 (Feb. 25, 2015). They also reiterated

the importance of providing notice to tribes.

¶ 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.,

, ¶ 15; Indian Child Welfare Act

25 Proceedings,

(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,

(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.

(a)

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

type of child custody proceeding under ICWA.

(1)

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

proceeding and all responses should be on the record.

(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

26 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.

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