May 23, 2019

Colorado Court of Appeals: Lack of Compliance with ICWA’s Foster Care Placement Provisions Does Not Deprive Juvenile Court of Jurisdiction

The Colorado Court of Appeals issued its opinion in People in Interest of M.V. on Thursday, November 15, 2018.

Indian Child Welfare ActFoster Care PlacementDependency and NeglectAdmissibility of Video RecordingsSubject Matter Jurisdiction.

The El Paso County Department of Human Services (the Department) initiated a dependency and neglect case regarding mother’s children. The case was based on methamphetamine use, manufacture, and distribution, and domestic violence. Following a jury trial, the juvenile court adjudicated the children dependent and neglected. After another hearing, the court entered a dispositional order that adopted a treatment plan for mother.

On appeal, mother argued that the record did not demonstrate compliance with the Indian Child Welfare Act (ICWA) and therefore the juvenile court lacked subject matter jurisdiction to adjudicate the children and enter a dispositional order. The court of appeals first concluded that the juvenile court’s asserted lack of compliance with ICWA’s notice provisions do not divest it of subject matter jurisdiction to enter the adjudicatory and dispositional orders. The ICWA allows Indian children, parents, and tribes to challenge a termination judgment, but this does not take away the jurisdiction of the state court. Here, the asserted lack of compliance with ICWA’s notice provisions did not divest the juvenile court of subject matter jurisdiction to enter the adjudicatory and dispositional orders.

The court also determined that the ICWA’s foster care placement provisions apply to a dispositional order, but not to an order adjudicating a child dependent and neglected. In this case, based on mother’s ICWA assessment form, there was reason for the court to know that the children were Indian children. The record contains no indication that the Department gave the required notices or that the juvenile court made the necessary findings. The record fails to demonstrate compliance with the ICWA.

Mother also argued that the juvenile court committed reversible error by admitting video recordings of her and the children that had been anonymously provided to the Department and were not properly authenticated. Here, the Department did not establish either the accuracy of the scenes depicted in the videos or the accuracy of the recording process. Thus, the juvenile court erred in admitting the video recordings. Further, the court could not conclude that the admission of the videos did not substantially influence the jury’s verdict. Therefore, the error was not harmless.

The adjudicatory and dispositional orders were reversed and the case was remanded for a new adjudicatory trial.

Summary provided courtesy of Colorado Lawyer.

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Comments

  1. Rosemary Van Gorder says:

    ” … based on mother’s ICWA assessment form, there was reason for the court to know that the children were Indian children.”

    At this point the proceedings should be on hold until tribal affiliation is confirmed. Until jurisdiction is
    determined, how can a district court proceed? What did El Paso County CPS and juvenile court do to comply with ICWA?

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