         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

                                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.
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 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., 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.


                                     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, 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


                                    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., 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


                                     9
  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.




                                     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., 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


                                    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., 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



                                      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., 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.”




                                     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), 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


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  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


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  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


                                    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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