in the Interest of My.K.M

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
March 11, 2021

2021COA33

No. 20CA0695, People in the Interest of My.K.M. — Juvenile
Court — Dependency and Neglect — Termination of the Parent-
Child Legal Relationship; American Indian Law — ICWA —
Indian Child — Remedial and Rehabilitative Programs

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

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

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

Indian child under the Indian Child Welfare Act.
COLORADO COURT OF APPEALS 2021COA33

Court of Appeals No. 20CA0695
City and County of Denver Juvenile Court No. 16JV1388
Honorable Donna J. Schmalberger, Judge

The People of the State of Colorado,

Appellee,

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

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

Respondent-Appellants.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE TOW
Dailey and Berger, JJ., concur

Announced March 11, 2021

Kristin M. Bronson, City Attorney, Cathleen M. Giovannini, Assistant City
Attorney, Denver, Colorado, for Appellee

Barry Meinster, Guardian Ad Litem

Joel M. Pratt, Office of Respondent Parents’ Counsel, Colorado Springs,
Colorado, for Appellant V.K.L.

Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr,
Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant T.A.M.
¶1 Mother, V.K.L., and father, T.A.M., appeal the juvenile court’s

judgment terminating their parent-child legal relationships with

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

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

tribal membership even absent enrollment, determines whether a

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

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

membership, not enrollment, determines ICWA’s applicability.

¶2 The juvenile court ultimately recognized that ICWA applied to

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

for enrollment. However, we conclude that the juvenile court

erroneously found that the Denver Department of Human Services

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

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

legal relationships with the children and remand the case for

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

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

his parent-child legal relationships with the children.

1
 I. Background

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

hospital emergency department because she was lethargic and

breathing poorly. Hospital staff contacted the police because father

appeared intoxicated and they suspected that the child had

ingested a controlled substance. Hospital staff reported that the

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

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

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

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

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

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

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

Department placed the elder child in emergency foster care and

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

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

2014 dependency or neglect case that had been closed seven

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

¶5 The juvenile court held a temporary custody hearing and

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

2
 mother’s care. One week later, both children returned home to

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

dependent or neglected, entered an adjudication order concerning

father, entered a deferred adjudication concerning mother, and

approved treatment plans for both parents. After mother tested

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

and entered an adjudicatory order against her in November 2017.

¶6 The following facts are undisputed. Father subsequently

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

involved in a collision that resulted in criminal charges against him

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

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

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

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

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

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

relapsed.

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

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

3
 through March 2020, the juvenile court terminated both parents’

parental rights.

II. Mother’s Appeal

¶8 Mother contends that the juvenile court reversibly erred

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

before the termination hearing. She also argues that the

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

first contention but agree with the second.

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

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

apply the ICWA standards to the proceeding until the beginning of

the termination hearing despite mother’s prompt disclosure that

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

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

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

1. Factual Background

¶ 10 A representative of the Colville Confederated Tribes appeared

at the temporary custody hearing in October 2016. She confirmed

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

4
 representative said she “ha[d] not been able to verify whether the

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

considered members.”

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

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

the court ordered mother to complete an ICWA assessment form —

even though the court already knew that the children were

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

juvenile court ruled that because the children are not eligible for

enrollment, ICWA did not apply.

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

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

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

the Department planned to ask for a written response.

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

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

status conference. The Department reported that it had asked the

tribal representative to confirm in writing whether the children were

eligible for enrollment in the Tribe. The tribal representative had

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

5
 considered the children to be members. The county attorney said

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

the case. The juvenile court opined that membership absent

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

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

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

¶ 14 The juvenile court began the termination hearing on November

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

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

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

the children are Indian children and continued the case so the

parties could consult with the Tribe.

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

juvenile court applied ICWA’s provisions when it terminated the

parents’ parental rights.

2. Tribal Membership, Not Enrollment, Determines
ICWA’s Applicability

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

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

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

6
 congressional intent and purpose. In re N.B., 199 P.3d 16, 18 (Colo.

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

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

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

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

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

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

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

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

of Indian interests, with ambiguous provisions interpreted to benefit

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

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

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

rather than enrollment. ICWA defines an Indian child as “any

unmarried person who is under age eighteen and is either (a) a

member of an Indian tribe or (b) is eligible for membership in an

Indian tribe and is the biological child of a member of an Indian

tribe.” 25 U.S.C. § 1903(4).

Enrollment is not always required in order to
be a member of a tribe. Some tribes do not
have written rolls. Others have rolls that list

7
 only persons that were members as of a
certain date. Enrollment is the common
evidentiary means of establishing Indian
status, but it is not the only means nor is it
necessarily determinative.

Guidelines for State Courts; Indian Child Custody Proceedings, 44

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

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

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

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

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

tribe, enrollment and membership may be but are not necessarily

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

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

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

classifications of membership, and interpretation of membership

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

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

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

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

(describing a range of approaches to tribal citizenship).

8
¶ 19 A tribe’s determination that a person is a member or is eligible

for membership is conclusive and binding. People in Interest of

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

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

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

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

member.

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

temporary custody hearing that the Tribe considered the children to

be members regardless of their enrollment status. This information

established conclusively that the children are Indian children under

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

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

eligible for enrollment in the Tribe.

3. The Delay in Identifying the Children as Indian Children Does
Not Provide an Independent Basis for Reversal

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

children as Indian children requires reversal. While we agree that

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

requires reversal in this case.

9
¶ 22 ICWA’s protections “are designed to keep children, when

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

of Indian Affairs, Guidelines for Implementing the Indian Child

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

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

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

delays and duplication that may result from late application of

ICWA. Id. Thus,

[i]f there is reason to know the child is an
Indian child, but the court does not have
sufficient evidence to determine that the child
is or is not an “Indian child,” the court must
. . . [t]reat the child as an Indian child, unless
and until it is determined on the record that
the child does not meet the definition of an
“Indian child.”

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

2020.

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

court had sufficient information to determine at the temporary

custody hearing that the children were Indian children. Under

these circumstances, the failure of the juvenile court and the

Department to recognize their duty to apply ICWA’s protections

10
 contravened the letter and spirit of ICWA and Colorado’s ICWA-

implementing legislation and risked delay, disruption, and

avoidable separation for the children and family.

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

assertions as follows.

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

obligation to exercise due diligence to work with the Tribe to

determine whether the children were Indian children. See People in

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

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

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

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

already had sufficient information at the temporary custody hearing

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

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

analysis of whether the juvenile court and the Department complied

with ICWA’s substantive provisions.

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

considering retroactively whether the Department complied with

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

11
 the family throughout the case in the absence of a timely finding

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

contends that the Department could not have met the active efforts

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

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

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

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

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

than reasonable efforts, and at least some efforts should be

culturally relevant).

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

active efforts standard because the juvenile court did not timely

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

its obligation is irrelevant to the question whether the services it

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

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

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

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

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

12
 B. The Juvenile Court Erred By Finding That the Department
Provided Active Efforts for Mother

¶ 28 Mother contends that the Department did not make sufficient

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

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

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

necessary employment assistance. Thus, the juvenile court

reversibly erred by finding that the Department made active efforts

with regard to mother.

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

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

provide remedial services and rehabilitative programs designed to

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

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

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

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

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

A.V., ¶ 13.

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

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

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

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

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

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

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

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

the factual findings of the superior court in a termination of

parental rights case only when those findings are clearly

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

2003))).

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

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

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

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

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

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

1 We recognize that, in other contexts, our supreme court has
reviewed a trial court’s factual findings for an abuse of discretion.
See, e.g., E-470 Pub. Highway Auth. v. 455 Co., 3 P.3d 18, 22-23
(Colo. 2000) (discussing the variety of possible methods of reviewing
factual findings and ultimately adopting an abuse of discretion

14
 Significantly, in each of the cases in which the division reviewed for

abuse of discretion, the division ultimately affirmed because the

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

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

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

been a misnomer.

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

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

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

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

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

P.3d at 250.

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

dependency or neglect proceeding; thus, the type of services

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

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

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

standard for reviewing the findings in a condemnation case). But
we are aware of no case in which the supreme court has reviewed a
juvenile court’s findings for abuse of discretion in a case involving
termination of a parent-child legal relationship.

15
 circumstances of the case); People in Interest of A.M.D., 648 P.2d

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

proceeding is to preserve and mend familial ties).

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

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

“reasonable efforts” may be satisfied by
requiring a parent to find a job, to acquire new
housing, and to terminate a relationship with
what is perceived to be a boyfriend who is a
bad influence; in contrast, “active efforts”
under the ICWA would require that the
caseworker help the client develop job and
parenting skills necessary to retain custody of
her child.

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

parent a treatment plan and passively waiting for the parent to

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

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

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

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

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

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

time during the course of a lengthy dependency or neglect

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

16
 made active efforts overall. See Maisy W. v. State ex rel. Dep’t of

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

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

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

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

department need not provide every imaginable service or program.

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

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

(upholding active efforts finding where mother was offered all

relevant services).

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

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

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

2012) (services did not include parenting classes to address

incarcerated father’s need to develop parental relationship with

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

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

support, and transportation for parents of child with shaken baby

syndrome, but court denied visitation and efforts were not

culturally relevant).

17
¶ 37 Mother’s treatment plan required her to have a legal form of

income sufficient to support herself and the children. The plan

directed mother to provide income documentation to the

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

basic necessities for herself and the children, including food,

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

the Department would provide to assist mother in reaching these

goals.

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

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

county attorney said that the Denver Indian Family Resource

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

work with mother because it had already discontinued services due

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

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

juvenile court ordered the Department to help mother get job

training services, whether from DIFRC or another provider.

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

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

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

18
 had previously discontinued services for the parents due to lack of

engagement. The court did not acknowledge the prior order to

determine whether DIFRC would be willing to provide job training

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

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

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

Appointed Special Advocate (CASA) stated that father had refused

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

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

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

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

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

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

offered mother job training or employment assistance of any kind.

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

efforts to find employment and her unsuccessful application for

Supplemental Security Income benefits.

¶ 41 Thus, the record demonstrates that the Department required

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

and the children and passively waited for her to comply without

19
 offering any services — even though mother requested job training

and the juvenile court ordered the Department to provide that

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

¶ 28.

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

that the Department made active efforts to provide remedial services

and rehabilitative programs for mother. Because the failure to

make active efforts warrants reversal, we decline to address

mother’s remaining contentions that

• the Department did not provide active efforts because it did

not provide adequate housing assistance or services specific

to her Tribe;

• the juvenile court erred by not placing the children in

accordance with ICWA’s placement preferences; and

• the Department did not make reasonable accommodations

for her cognitive disability in accordance with the

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

III. Father’s Appeal

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

his treatment plan was appropriate because the plan did not

20
 address his mental health needs. He also argues that the juvenile

court erred by finding that the Department had engaged in active

efforts as to him. We disagree with both contentions.

A. The Juvenile Court Did Not Err By Finding That Father’s
Treatment Plan Was Appropriate

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

juvenile court must find that the parent did not reasonably comply

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

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

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

provide adequate parenting to the child within a reasonable time”

and “relates to the child’s needs.” § 19-1-103(10). We measure the

appropriateness of a treatment plan by its likelihood of success in

reuniting the family, which we assess in light of the facts existing at

the time of the plan’s approval. People in Interest of B.C., 122 P.3d

1067, 1071 (Colo. App. 2005). The fact that a treatment plan is not

ultimately successful does not mean that it was inappropriate.

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

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

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

21
 ensure that the children were appropriately supervised; (4)

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

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

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

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

domestic violence evaluation and any recommended treatment.

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

health objective. But it did require father to follow all

recommendations arising from his substance abuse and domestic

violence evaluations. The caseworker testified that father’s

domestic violence treatment provider recommended that father

undergo a psychological evaluation, but father refused. She said

that without the evaluation, the Department could not identify what

additional mental health services would be appropriate.

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

objective to address mental health evaluations and treatment when

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

with his treatment plan by completing the recommended

psychological evaluation. Under these circumstances, we conclude

that father’s treatment plan adequately addressed his mental health

22
 needs to the extent possible. Accord T.E.R., ¶ 33 (court may

consider parent’s unwillingness to participate in treatment as a

factor in determining whether department made active efforts to

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

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

sobriety and participate in substance abuse treatment shows lack

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

unfitness).

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

finding that father’s treatment plan was appropriate.

B. The Juvenile Court Did Not Err By Finding That the
Department Made Active Efforts for Father

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

active efforts finding. Father contends that the burden of proof

against which we should test the sufficiency of the evidence of

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

that divisions of this court have disagreed about whether to apply

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

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

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

23
 convincing evidence standard), with People in Interest of R.L., 961

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

doubt standard). Because the juvenile court found that the

Department met its burden of proof under the higher standard and

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

decide which standard applies.2

¶ 50 Making active efforts does not mean persisting with futile

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

for parents who voluntarily absent themselves from the proceedings

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

participate in treatment is relevant to the determination whether

the Department has made active efforts. Id.

¶ 51 The caseworker testified as follows:

• Father’s domestic violence treatment provider recommended

that father undergo a psychological evaluation.

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

a psychological evaluation he had completed in 2015.

2 Conversely, because there was no evidence that the Department
provided any employment services for mother, the evidence did not
support the juvenile court’s finding as to mother under either
standard.

24
 • Father ultimately refused to release the results of the prior

evaluation or complete a new evaluation.

¶ 52 Without father’s cooperation, additional referrals for

psychological evaluations or mental health treatment would have

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

juvenile court did not err by finding that the Department made

active efforts as to father despite the lack of additional mental

health services for father.

IV. Conclusion

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

relationships with the children is reversed and the case is

remanded to the juvenile court for further proceedings. The

judgment terminating father’s parent-child legal relationships with

the children is affirmed.

JUDGE DAILEY and JUDGE BERGER concur.

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