Peo in Interest of AW

24CA0950 Peo in Interest of AW 01-09-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0950
Pueblo County District Court No. 22JV30248
Honorable William D. Alexander, Judge

The People of the State of Colorado,

Appellee,

In the Interest of A.W., J.W., and L.W., Children,

and Concerning E.P.C., J.K., and A.W.,

Appellants.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE JOHNSON
Fox and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 9, 2025

Cynthia Mitchell, County Attorney, David A. Roth, Special Assistant County
Attorney, Pueblo, Colorado, for Appellee

Debra W. Dodd, Counsel for Youth, Berthoud, Colorado, for A.W.

Debra W. Dodd, Guardian Ad Litem, for J.W. and L.W.

Lindsey Parlin, Office of Respondent Parents’ Counsel, Denver, Colorado, for
Appellant E.P.C

Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr,
Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant J.K.
The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for
Appellant A.W.
¶1 E.P.C. (mother to L.W.), J.K. (mother to A.W. and J.W.), and

A.W. (father to all three children), appeal the judgment terminating

their parent-child legal relationships with their respective children.

We affirm.

I. Background

¶2 In November 2022, the Pueblo County Department of Human

Services (Department) filed a petition in dependency and neglect,

alleging, among other things, that the home where the children

lived with father and mother E.P.C. was very disheveled, one of the

children had lice, the children were often locked in their rooms, and

the parents were using substances. The Department could not

locate mother J.K. The juvenile court held an adjudicatory hearing,

the parents did not appear, and the court adjudicated the children

dependent and neglected after a bench trial as to all parents. The

court then adopted treatment plans for the parents.

¶3 In October 2023, the Department moved to terminate the

parents’ parental rights under section 19-3-604(1)(c), C.R.S. 2024.

But several weeks later, the Department filed an amended motion,

asserting that the parents’ parental rights should also be

terminated pursuant to section 19-3-604(1)(a). The juvenile court

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held a two-day evidentiary hearing in January 2024, after which it

terminated the parents’ parental rights under both section 19-3-

604(1)(a) and (c).

II. Invalid Service of Process

¶4 Mother J.K. asserts that the Department did not properly

serve her by publication. As a result, she claims that (1) the

juvenile court did not have personal jurisdiction over her and (2)

she did not have adequate notice of the proceeding. Because

mother did not timely object to the alleged improper service of

process after she became aware of the proceedings, we decline to

address the merits of her argument that the juvenile court lacked

personal jurisdiction over her.

A. Standard of Review and Applicable Law

¶5 Whether a claim is waived presents a question of law that we

review de novo. Richardson v. People, 2020 CO 46, ¶ 21.

¶6 To preserve an issue for appellate review, a party must make a

timely objection on the record, People v. Turner, 2022 CO 50, ¶ 11,

and that objection must be “specific enough to draw the trial court’s

attention to the asserted error,” People v. Tallent, 2021 CO 68, ¶ 12

(quoting Martinez v. People, 2015 CO 16, ¶ 14). Although we do not

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require that parties use talismanic language to preserve an

argument for appeal, a party must present the court with “an

adequate opportunity to make findings of fact and conclusions of

law on any issue before we will review it.” People v. Melendez, 102

P.3d 315, 322 (Colo. 2004). Consequently, “[m]erely calling an

issue or fact to the court’s attention, without asking for any relief, is

insufficient to preserve an issue for review.” Forgette v. People,

2023 CO 4, ¶ 23.

¶7 Waiver is “the intentional relinquishment of a known right or

privilege.” People v. Rediger, 2018 CO 32, ¶ 39 (quoting Dep’t of

Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984)). “A waiver may

be explicit, as, for example, when a party expressly abandons an

existing right or privilege, or it may be implied, as when a party

engages in conduct that manifests an intent to relinquish a right or

privilege or acts inconsistently with its assertion.” Forgette, ¶ 28. A

waiver “extinguishes error, and therefore appellate review.” Rediger,

¶ 40; see also In Interest of L.B., 2017 COA 5, ¶ 51 (“A waiver occurs

when a party removes an issue from the court’s consideration.”).

¶8 “[D]ependency and neglect proceedings are subject to the

limitation that except where jurisdiction is implicated, generally

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appellate courts review only issues presented to and ruled on by the

lower court.” People in Interest of M.B., 2020 COA 13, ¶ 14; but see

People in Interest of T.W., 2022 COA 88M, ¶ 51 (noting that

appellate courts may exercise their discretion to address an

unpreserved error in a dependency and neglect case). But a party

may impliedly waive a challenge to personal jurisdiction based on

invalid service if she fails to timely assert it. Garcia v. Puerto

Vallarta Sports Bar, LLC, 2022 COA 17, ¶ 26; see also Meggit v.

Stross, 2021 COA 50, ¶ 44. For example, “a party may waive a

challenge . . . by having actual notice of the case but waiting until

after judgment is entered to challenge jurisdiction.” Garcia, ¶ 28.

¶9 “[A]n appellate court has an independent, affirmative duty to

determine whether a claim is preserved and what standard of

review should apply, regardless of the positions taken by the

parties.” Tallent, ¶ 11.

B. Analysis

¶ 10 In dependency and neglect proceedings, C.R.J.P. 2.2(b)(1)

requires the petitioning party to serve the parent with the summons

and petition in the manner described in 19-3-503, C.R.S. 2024. As

relevant here, section 19-3-503(8) states that, when a parent

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“cannot be found within the state,” the child’s presence in Colorado

confers jurisdiction on the juvenile court “if due notice has been

given.” In turn, due notice can be achieved through service by

publication pursuant to C.R.C.P. 4(g). § 19-3-503(8)(a).

¶ 11 Under C.R.C.P. 4(g), a party must file a verified motion stating

(1) “the facts authorizing such service”; (2) “the efforts, if any, that

have been made to obtain personal service”; and (3) the “address, or

last known address” of the person or that the address or last known

address are unknown. After reviewing the verified motion, if the

juvenile court determines that “due diligence has been used to

obtain personal service or that efforts to obtain the same would

have been to no avail,” it may order service by publication. C.R.C.P.

4(g)(2).

¶ 12 In this case, the Department moved for service by publication,

asserting that mother J.K. could not be found in Colorado and her

place of residence was unknown. The Department attached an

affidavit from the caseworker, in which the caseworker averred that

she had attempted to locate mother through various avenues

without any success. She also attested that mother’s address or last

known address were unknown. The juvenile court granted the

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Department’s request to serve mother by publication, and the

Department published notice of the proceeding in a Pueblo

newspaper.

¶ 13 Mother did not appear during the pendency of the case, nor

did she attend the evidentiary portions of the termination hearing.

A few days before the matter was set for the juvenile court to

announce its oral ruling, however, mother’s counsel (who had been

provisionally appointed at the beginning of the case and never

withdrew) asked the court to delay ruling on mother J.K.’s portion

of the case because mother J.K. had recently contacted him after

learning about the case while inquiring about her child support

case. Mother questioned the validity of the Department’s due

diligence attempting to locate her and its decision to move for

service by publication, but she did not ask the court to set aside the

adjudication for lack of service, personal jurisdiction, or notice of

the proceeding. See Forgette, ¶ 23. Instead, mother J.K. requested

that she be allowed additional time to participate in the case and

comply with her treatment plan before the court entered judgment.

¶ 14 Mother J.K. appeared for the first time at the subsequent

hearing set for the court to issue its oral ruling, and the juvenile

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court addressed mother’s motion but denied her request to delay its

judgment. Nevertheless, the court told counsel that it would give

him “a period of time” to “allege that [mother] was never given any

notice and had no reason to be aware of these proceedings.” The

court also agreed to “set that for further hearing afterwards,”

considering that the Department “probably ha[d] a different point of

view.” Following its oral ruling, the court directed the Department

to file a proposed order and gave the parents five days to object to

the proposed order. Ultimately, the court did not enter its final,

written judgment for almost two and a half months after its oral

ruling. Yet, during that time nor thereafter, mother J.K. did not file

a motion to set aside the adjudication judgment or delay entering

the termination judgment for lack of service, personal jurisdiction,

or notice.

¶ 15 Mother J.K. now asserts that we should set aside the juvenile

court’s adjudication and termination judgments because the

Department did not comply with the requirements of the rules and

statutes governing service by publication. Specifically, she argues

that the Department knew that mother’s last known address was in

Colorado Springs and nevertheless failed to (1) search outside of

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Pueblo or (2) publish the notice in a Colorado Springs newspaper.

We decline to address these contentions, however, because mother

J.K. impliedly waive her right to challenge lack of service, personal

jurisdiction, and notice when she declined the court’s offer to

address these matters before or even after it entered judgment. See

Garcia, ¶ 26; Meggitt, ¶ 44.

¶ 16 In a dependency and neglect cases, a judgment of adjudication

becomes final and appealable upon entry of the initial dispositional

order, see People in Interest of H.T., 2019 COA 72, ¶ 16, and a

parent has twenty-one days from the entry of that dispositional

order to file an appeal of the adjudication, see C.A.R. 3.4(b)(1). A

challenge to an adjudication judgment must be raised in a timely

appeal from that stage of the dependency and neglect proceeding,

and the parent may not wait until the termination judgment is

entered to challenge the adjudication judgment. See People in

Interest of C.B., 2019 COA 168, ¶ 18.

¶ 17 Mother J.K. was required to challenge the adjudication in a

timely appeal of that order. To be fair, she could not have satisfied

the twenty-one day deadline given she did not know about the

proceedings at that time. But once she had notice of the

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proceeding, and to preserve her lack of personal jurisdiction

argument, she needed to file a C.R.C.P. 60(b) motion to set aside

the adjudication. See People in Interest of A.E., 994 P.2d 465, 467

(Colo. App. 1999); see also C.B., ¶ 22 (“Because [the parent’s]

challenge to the adjudication is untimely, we cannot consider

whether or how a flawed adjudication might have affected the later

termination.”). Because mother did not timely challenge the

adjudication, she cannot attack it now or attempt to undo the

termination judgment because adjudication was improper.

¶ 18 And mother J.K’’s reliance on In re J.N., 2022 COA 69, is

misplaced. In that case, the parent filed a C.R.C.P. 60(b) motion to

set aside the judgment for lack of service, and the juvenile court

held an evidentiary hearing on the issue. J.N., ¶¶ 14-16. The

division concluded that (1) the Department’s motion was facially

deficient because it failed to satisfy the statutory requirements and

(2) because the motion was facially deficient, the Department had

the burden to demonstrate the adequacy of its service. Id. at ¶¶ 26,

28. Then, the division determined that the evidence presented at

the C.R.C.P. 60(b) hearing did not support the court’s findings.

J.N., ¶¶ 27-34.

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¶ 19 In this case, there is no assertion that the Department’s

motion was facially deficient. We acknowledge mother J.K. claims

that the caseworker should have known that mother’s last known

address was in Colorado Springs, and so service by publication

should have been extended to that city as well. But that does not

necessarily make the motion facially deficient, as the caseworker

attested that she did not know mother’s last known address and

described her efforts to locate mother. Therefore, unlike in J.N.,

mother J.K. would have the burden to establish the Department’s

service by publication was improper service. See id. at ¶ 28. And

because mother J.K. failed to file a C.R.C.P. 60(b) motion (or

otherwise ask for a hearing on this issue), the record is not

sufficiently developed to address mother J.K.’s lack of personal

jurisdiction argument on the merits. See People in Interest of S.Z.S.,

2022 COA 133, ¶ 21 (noting that an appellate court can’t consider

an issue in which there isn’t a sufficient factual record because

appellate courts can’t make findings of fact). Therefore, mother

J.K.’s failure to ask for an evidentiary hearing or file a C.R.C.P.

60(b) motion after becoming aware of the proceeding waives her

challenge to the adjudication, as well her challenge to the

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termination order on grounds the Department lacked personal

jurisdiction over her.

III. Termination of Parental Rights

¶ 20 Mother J.K., Mother E.P.C., and father assert that the juvenile

court erred by terminating their parental rights. As explained

below, because the parents only challenge the termination

judgment under one provision of section 19-3-604, we discern no

reversible error.

¶ 21 Section 19-3-604 provides three separate bases for

termination of parental rights. People in Interest of L.M., 2018 COA

57M, ¶ 19. Two of these grounds, subsections (1)(a) and (1)(c), are

pertinent to this appeal. Following an adjudication, a juvenile court

may terminate parental rights under these provisions if

• the parent (1) surrendered physical custody of the child

for a period of six months or more and (2) did not

manifest during such period the firm intention to resume

physical custody of the child or make permanent legal

arrangement for the care of the child, § 19-3-604(1)(a)(I);

or

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• (1) the parent has not complied with an appropriate,

court-approved treatment plan or the plan has not been

successful; (2) the parent is unfit; and (3) the parent’s

conduct or condition is unlikely to change in a

reasonable time, § 19-3-604(1)(c).

¶ 22 Unlike subsection (1)(c), subsection (1)(a) does not require the

juvenile court to adopt a treatment plan for a parent, and, as a

result, to terminate parental rights under subsection (1)(a), the

court does not need to consider whether (1) a parent had a

reasonable time to comply with the treatment plan or (2) the

department made reasonable efforts to rehabilitate the parent or

reunify the family. People in Interest of S.Z.S., 2022 COA 133,

¶¶ 34, 37. Likewise, subsection (1)(a) does not require the court to

decide whether a parent is unfit. See K.D. v. People, 139 P.3d 695,

700 (Colo. 2006) (noting that subsections (1)(b) and (1)(c) “require a

determination that the parent is ‘unfit’”).

¶ 23 A juvenile court may terminate parental rights under one or

more of the criteria in section 19-3-604. See People in Interest of

D.C-M.S., 111 P.3d 559, 561 (Colo. App. 2005) (“[I]t would be

absurd to construe the statutory language to mean that termination

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is permitted if one statutory criterion is met but not if more than

one is met.”). If the termination motion alleges more than one

statutory ground, then the parent has adequate notice that issues

concerning multiple criteria may be considered during the

termination hearing. Id.

¶ 24 Recall that the Department initially moved for termination

under subsection (1)(c) but later amended its motion to also include

subsection (1)(a). At the termination hearing, the Department

presented evidence in support of termination under both

subsections (1)(a) and (1)(c). Then, the juvenile court made the

required findings under both subsections in its oral ruling and

written termination order. See People in Interest of T.L.B., 148 P.3d

450, 457 (Colo. App. 2006) (a court’s findings are adequate when

they “sufficiently address and resolve each specific requirement for

termination”). Specifically, as relevant here, the court made

findings that mother E.P.C., mother J.K., and father all abandoned

their respective children.

¶ 25 On appeal, all parents assert that the Department did not

make reasonable efforts to rehabilitate them or reunify them with

their respective children. Both mothers also assert that there were

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less drastic alternatives to termination. And father asserts that he

could become fit within a reasonable period of time. These

contentions all relate to termination only under subsection (1)(c).

See S.Z.S., ¶¶ 34-37; L.M., ¶ 24 (“When considering termination

under section 19-3-604(1)(c), the court must also consider and

eliminate less drastic alternatives to termination.”); see also People

in Interest of M.M., 726 P.2d 1108, 1122-23 (Colo. 1986) (describing

how the consideration of less drastic alternatives are implicit in the

statutory criteria for termination that are currently included in

subsection (1)(c)).

¶ 26 In finding that the children had been abandoned by all

parents, the juvenile court was not required to consider whether the

Department made reasonable efforts as to mother E.P.C., mother

J.K., or father. S.Z.S., ¶ 37. Thus, the parents’ challenges to the

reasonableness of the Department’s efforts are not a basis for

setting aside the termination judgment under subsection (1)(a).

¶ 27 Similarly, the requirement that a juvenile court consider and

eliminate less drastic alternatives to termination arises out of

subsection (1)(c), not (1)(a). See People in Interest of A.M. v. T.M.,

2021 CO 14, ¶ 19 (noting that consideration of less drastic

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alternatives is implicit in criteria for termination under section 19-

3-604(1)(c)); L.M., ¶ 24 (“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, 1122-23 (Colo. 1986) (describing how consideration

of less drastic alternatives arises from criteria in subsection (1)(c)).1

¶ 28 Likewise, whether a parent can become fit within a reasonable

period of time is also implicit in the criteria for termination under

1 Even assuming consideration and elimination of less drastic

alternatives was required for termination under section 19-3-
604(1)(a), C.R.S. 2024, that requirement was satisfied as to mother
E.P.C. and mother J.K. See People ex rel. D.B-J., 89 P.3d 530, 532
(Colo. App. 2004) (noting that the department must evaluate a
reasonable number of persons suggested to it as possible placement
options). The record shows that mother E.P.C.’s family friend told
the caseworker that she could not serve as a placement and the
friend’s mother was disqualified because she had a previous
dependency and neglect case. To the extent mother J.K.’s
argument for more time to comply with her treatment plan is
construed as a less drastic alternative argument, the record
supports that mother J.K. had not seen her children in five to seven
years, she had parenting time through a domestic relations case
that she never exercised, and she was not paying child support.
See People in Interest of J.C.R., 259 P.3d 1279, 1285 (Colo. App.
2011) (“In determining whether permanent placement with a
relative or other person is a viable less drastic alternative to
termination, the court may consider various factors, including
whether an ongoing relationship [with the parent] would be
beneficial or detrimental to the child.”).

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section 19-3-604(1)(c). In determining whether a parent can

become fit within a reasonable period of time, “the court may

consider whether any change has occurred during the proceeding,

the parent’s social history, and the chronic or long-term nature of

the parent’s conduct or condition.” S.Z.S., ¶ 24.2

¶ 29 Except for an undeveloped argument in mother J.K.’s reply

brief, the parents do not raise any arguments challenging the

juvenile court’s judgment under subsection (1)(a). Id. at ¶ 30 n.2

(in rejecting the parent’s challenges to the department’s reasonable

efforts and whether he had reasonable time to comply with his

treatment plan, the division noted that the parent did not

“challenge the sufficiency of the evidence supporting termination

under subsection (1)(a)”). And mother J.K.’s bald assertion that

she did not abandon the children because she “wished to

2 Even assuming consideration and determination of whether a

parent cannot become fit within a reasonable period of time is
required before termination under section 19-3-604(1)(a), the record
supports the juvenile court’s termination. For example, father did
very little to address his substance dependence issues until mere
weeks before the hearing. See People in Interest of V.W., 958 P.2d
1132, 1134-35 (Colo. App. 1998) (noting that even “increased
compliance” over the course of a case may not justify additional
time).

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participate in the case” and “reunify with the children” is

unavailing. See People in Interest of A.D., 56 P.3d 1246, 1248 (Colo.

App. 2002) (“[P]articipation in the involuntary proceeding does not

in and of itself obviate termination on the basis of abandonment.”).

Regardless, we do not consider undeveloped arguments, People in

Interest of D.B-J., 89 P.3d 530, 531 (Colo. App. 2004), or arguments

raised for the first time in a reply brief, L.B., ¶ 48, and therefore do

not address mother J.K.’s contention any further.

¶ 30 Because the parents have not challenged termination under

subsection (1)(a), there is no basis for us to reverse the termination

order under that subsection, nor do we need to reach the merits of

any of the parents’ contentions under subsection (1)(c) because the

juvenile court only needed to find one of the three bases for

termination in section 19-3-604. See D.C-M.S., 111 P.3d at 561. In

other words, even if the parents succeeded on their appeals as to

subsection (1)(c), the judgment would nevertheless stand under

subsection (1)(a).

IV. Conclusion

¶ 31 The judgment is affirmed.

JUDGE FOX and JUDGE SCHOCK concur.

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