August 15, 2018

Colorado Court of Appeals: ICWA Requires Notice to BIA in State with No Designated Tribal Agents

The Colorado Court of Appeals issued its opinion in People in Interest of I.B.-R. on Thursday, May 17, 2018.

Dependency and Neglect—Indian Child Welfare Act Notice—Bureau of Indian Affairs.

In this dependency and neglect proceeding, J.S.R. is the father of one of the four children. He told the Weld County Department of Human Services (Department) that he had Cherokee heritage on his father’s side and his lineage descended from a tribe in Arkansas, but he did not know which tribe. The Department did not notify any tribe or the Bureau of Indian Affairs (BIA) of the dependency and neglect proceeding. Following the filing of their motion to terminate parental rights, the Department sent notice of the termination proceedings to the three federally recognized Cherokee Tribes. Each responded that the child was not a member or eligible for membership. The Department also notified the BIA, but did not mention J.S.R.’s reported affiliation to an unknown tribe in Arkansas. No further inquiry was made and all three parents’ parental rights were terminated.

On appeal, J.S.R. contended that the trial court and the Department did not comply with the Indian Child Welfare Act of 1978 (ICWA) after he asserted Native American heritage. He argued the Department failed to comply with the ICWA’s notice requirements because it did not send notice to any tribes in Arkansas. ICWA-implementing legislation in Colorado requires that in dependency and neglect proceedings, the petitioning party must make continuing inquiries to determine whether the child is an Indian child. When there is reason to know or believe that a child involved in a child custody proceeding is an Indian child, the petitioning party must send notice of the proceeding to the potentially concerned tribe or tribes. The BIA publishes a list of designated tribal agents for service of ICWA notice in the Federal Register each year. There are no federally recognized tribes with designated tribal agents in Arkansas. If the identity or location of a tribe cannot be determined, notice must be given to the BIA. While the ICWA does not require courts or departments of human services to find tribal connections from vague information, it was the BIA’s burden to research whether there could be a tribal connection in Arkansas. However, the notice in this case did not alert the BIA that J.S.R. had reported a tribal connection to Arkansas, so it had no reason to conduct such an investigation.

The case was remanded with detailed directions to proceed with ICWA compliance.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Where Father Acquitted of Underlying Sexual Abuse Charges, Juvenile Court Erred in Terminating Parental Rights

The Colorado Court of Appeals issued its opinion in People in Interest of L.M. on Thursday, April 19, 2018.

Dependency and Neglect—Juvenile Court—Termination of Parent-Child Legal Relationship.

The juvenile court found 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 adjudicated L.M. and M.M. dependent and neglected. The court granted temporary custody to mother and prohibited father from having any contact with the children during the pendency of the case.

Father’s treatment plan was predicated on his guilt, but he was later acquitted in the criminal case. The juvenile court could not find that the assault allegations had been established by clear and convincing evidence and further concluded that it could not discount the possibility that no abuse occurred. Even so, the juvenile court terminated father’s parental rights, finding there were no less drastic alternatives because the children continued to experience trauma specific to father, which he did not recognize.

On appeal, father challenged the finding that there were no less drastic alternatives to terminating his parental rights. When considering termination under C.R.S. § 19-3-604(1)(c), the court must also consider and eliminate less drastic alternatives. The determination of whether there is a less drastic alternative to termination is influenced by a parent’s fitness to care for his or her child. Here, there is no indication in the record that father was offered treatment or a path to becoming a fit parent other than to acknowledge sexual abuse of L.M. It was error to terminate his parental rights.

Although not raised on appeal, the court of appeals also determined that the juvenile court failed to make the required inquiry of father under the Indian Child Welfare Act.

The judgment was reversed and the case was remanded with instructions that before considering termination of parental rights, the court must adopt an appropriate treatment plan under C.R.S. § 19-3-508(1)(e)(I) that relates to the children’s trauma and is reasonably calculated to render father a fit parent. If the court again considers termination of father’s parental rights, it must confirm whether he knows or has reason to know or believe that the children are Indian children.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Child’s Medical Records Admissible Under CRE 803(4) where Statements Made for Medical Diagnosis or Treatment

The Colorado Court of Appeals issued its opinion in People in Interest of E.M. on Thursday, April 19, 2018.

Dependency and Neglect—Admissibility of Evidence under CRE 803(4)—Indian Child Welfare Act.

The child was born prematurely and spent six weeks in the hospital. The Mesa County Department of Human Services (Department) sought and received emergency custody after the hospital reported that it could not locate his parents to take him home. The Department later filed a petition in dependency and neglect. At a shelter hearing, the court granted the Department’s request to return the child to his parents’ care under the Department’s supervision.

Three months later the court held an adjudicatory trial. As the sole basis for adjudication, the court found that the child had tested positive for a schedule II controlled substance at birth and that the positive test did not result from mother’s lawful use of prescribed medication. The court relied on testimony from a physician specializing in neonatal care who had cared for the child immediately after his birth.

On appeal, mother argued that certain test results to which the child’s physician testified were inadmissible hearsay under CRE 803(4). CRE 803(4) creates a hearsay exception for statements that are made for purposes of medical diagnosis or treatment; describe medical history, symptoms, or the inception or cause of symptoms; and are reasonably pertinent to diagnosis or treatment. Here, the testifying physician was qualified, without objection, as an expert in neonatology and pediatrics. He gave comprehensive testimony regarding the child’s symptoms and treatment and mother’s positive toxicology screen for methamphetamine. The physician’s testimony conformed to the requirements of CRE 803(4).

The court also rejected mother’s contention that even if the test results were admissible it was error for the trial court to rely on them because they were only admitted as the basis of the expert’s testimony under CRE 703, not as substantive evidence. The trial court admitted the results under both CRE 803(4) and 703 and they were therefore substantive evidence on which the court could rely to conclude that the child had testified positive for a controlled substance at birth.

Mother also argued that the trial court erred when it determined that the Indian Child Welfare Act (ICWA) does not apply to this proceeding because the child had been returned to mother’s home. The ICWA applies to a child custody proceeding even when, following a shelter hearing, the child is returned to the mother’s home, because the hearing could have resulted in foster care placement. The trial court did not conduct the proper ICWA inquiry.

The part of the judgment adjudicating the child dependent or neglected was affirmed. The dispositional order was reversed and the case was remanded for the purpose of conducting a proper ICWA inquiry.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: ICWA Notice Should be Sent to All Tribes in Ancestral Group if Only Ancestral Group Indicated

The Colorado Court of Appeals issued its opinion in People in Interest of L.H. on Thursday, February 22, 2018.

Dependency and Neglect—Indian Child Welfare Act—Notice Requirement.

In this dependency and neglect proceeding, mother initially denied Native American heritage but then informed the Jefferson County Department of Human Services (Department) that her biological brother is registered with “Navajo-Deni.” The Department sent six separate notices to the Navajo Nation at six different addresses. The Navajo Nation responded that there was no record of the family with the Navajo Nation, and therefore the child was not enrolled or eligible for enrollment with the Navajo Nation. Based on this response, at the termination hearing the trial court found that the Indian Child Welfare Act (ICWA) did not apply in this case.

Mother appealed the judgment terminating the parent–child legal relationship with her child. Based on its review of the record, the Court of Appeals could not determine whether the Department complied with the ICWA. A review of the Bureau of Indian Affairs (BIA) list of Tribal Agents by Affiliation shows that the Colorado River Indian Tribes are also tribes historically affiliated with the Navajo. The Court concluded that because mother had made a general reference to Navajo, and not just the Navajo Nation, the Department was required to also notify the Colorado River Indian Tribes. The notice to only the Navajo Nation was insufficient to satisfy the ICWA’s notice requirement.

The case was remanded with instructions for the limited purpose of directing the Department to send appropriate notice to the Colorado River Indian Tribes.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Written Advisement Form Does Not Satisfy ICWA Notice Requirements

The Colorado Court of Appeals issued its opinion in People in Interest of J.L. on Thursday, January 25, 2018.

Dependency and Neglect—Indian Child Welfare Act—Tribal Notification Requirements.

In this dependency and neglect proceeding, the trial court first inquired about the applicability of the Indian Child Welfare Act (ICWA) at the termination hearing after orally ordering termination of parental rights. When the inquiry was made, mother responded that both she and the father had Native American blood and she and her family had been “kicked off the tribe.” At a subsequent hearing, mother indicated she had Indian heritage through her biological family and named several tribes. She stated she was an adoptee, but her biological mother would know of her tribal affiliation. The Alamosa County Department of Human Services (Department) stated it did not believe the ICWA applied, but failed to describe the efforts it had made to determine whether any of the children was an Indian child, and the record contained no evidence that the Department sent notice to the tribes named. Mother appealed the judgment terminating her parent–child legal relationship with her children.

C.R.S. § 19-1-126(1)(a) requires the petitioning party to make continuing inquiries to determine whether the child subject to the proceeding is an Indian child. The petitioning party must also disclose in the commencing pleading whether the child is an Indian child and the identity of the child’s tribe, or what efforts the petitioner made to determine whether the child is an Indian child. The Bureau of Indian Affairs regulations and guidelines also contain notice and inquiry provisions for trial courts and require trial courts to ask participants in emergency or voluntary or involuntary child-custody proceedings whether they know or have reason to know that the child is an Indian child. This inquiry is made at the commencement of the proceeding, and all responses should be on the record. Departments must directly notify each concerned tribe by registered mail with return receipt of the pending proceedings and its right to intervene.

Here, the trial court’s inquiry should have been made at the first hearing after the petition in dependency and neglect was filed and again at the start of the termination proceeding. Mother’s disclosures gave the trial court reason to believe the children were Indian children. The Department did not comply with the ICWA’s notice requirements.

The Department contended that mother’s signing of a written advisement of her rights, which included a question about the ICWA, served as the court’s initial inquiry. The inquiry should be made on the record. Regardless, the Court of Appeals found that the Department failed to send notice to the appropriate tribes when mother identified a reason to believe the children were Indian children.

The case was remanded with instructions for the limited purpose of directing the Department to send appropriate notice to the Kiowa Indian Tribe of Oklahoma and the Pueblo of Taos.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Expert Witness Need Not Recite Exact Statutory Language for ICWA Finding

The Colorado Court of Appeals issued its opinion in People in Interest of D.B. on Thursday, November 2, 2017.

Dependency and Neglect—Indian Child Welfare Act—Termination—Expert Witness—Hearsay.

This dependency and neglect proceeding was governed by the Indian Child Welfare Act (ICWA). Mother’s parental rights were terminated after the trial court determined that continued custody of the child by one of the parents would likely result in serious emotional or physical damage to the child due to the parents’ extensive substance abuse, extensive domestic violence, lack of housing, and lack of income to meet the child’s needs.

On appeal, mother contended that the trial court erred in terminating her parental rights without testimony from a qualified expert witness that her continued custody of the child would likely result in serious emotional or physical damage to the child, as required by the ICWA. The ICWA provides that a court may only terminate parental rights if it determines that there is proof beyond a reasonable doubt that the child is likely to suffer serious emotional or physical damage if the child remains in the parent’s care. Such determination must be supported by evidence that includes testimony from qualified expert witnesses. The statute does not mandate, however, that an expert witness specifically opine that the child is likely to suffer emotional or physical damage in the parent’s custody. Rather, the expert testimony must constitute some of the evidence that supports the court’s finding of the likelihood of serious emotional or physical damage to the child. Here, although the expert witness’s testimony did not track the ICWA language, the record as a whole contains sufficient evidence, including testimony from a qualified expert witness, to support the trial court’s determination that the child would likely suffer serious emotional or physical damage if placed in mother’s care.

Mother also contended that the trial court erred in relying on inadmissible hearsay statements in the termination report to conclude that she had failed to maintain sobriety and that the child would thus likely suffer serious emotional or physical damage if he remained in her custody. The trial court, however, had access to other admissible evidence to support its determination that mother had failed to maintain sobriety. Further, this was not the sole basis to terminate mother’s parental rights.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court Must Make Inquiry Into Whether Indian Child Welfare Act Applies in Dependency and Neglect Proceeding

The Colorado Court of Appeals issued its opinion in People in Interest of C.A. on Thursday, October 19, 2017.

Dependency and Neglect—Termination of Parental Rights—Indian Child Welfare Act Inquiry Provisions.

The Montrose Department of Health and Human Services (Department) initiated a dependency and neglect petition on behalf of C.A. At the initial hearing, the trial court asked the parties generally if the child was a Native American and if the child had any Native American heritage. Father said he did not, and mother offered no response. Father and mother were not represented by counsel at this time. The Department ultimately moved to terminate mother’s and father’s parental rights. The Department’s motion did not state the efforts the Department made to determine if C.A. is an Indian child and the trial court did not inquire on the record whether the child is an Indian child. Following a contested hearing, the trial court terminated parental rights and determined that the child was not subject to the Indian Child Welfare Act (ICWA).

On appeal, mother contended that the trial court did not comply with the ICWA’s inquiry provisions. The Colorado Court of Appeals concluded that when a trial court inquires at an initial temporary custody hearing at the commencement of a dependency and neglect proceeding whether there is a reason to know that a child is an Indian child, it must make another inquiry when termination is sought, at least when the court has not already identified the child as an Indian child and the petitioning party has not disclosed what efforts it has made to determine if the child is an Indian child.

Because the record did not show that the trial court made the proper inquiry at the termination proceeding, the case was remanded for the limited purpose of making the ICWA inquiry. The trial court was further directed to make appropriate findings and proceed accordingly with any actions necessary to comply with ICWA. In addition, court of appeals gave the parties detailed directions to take further actions, based on the trial court’s determination, within a specified timeframe.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Department of Human Services Must Make “Continuing Inquiries” About ICWA Status

The Colorado Court of Appeals issued its opinion in People in Interest of A.D. on Thursday, May 4, 2017.

Termination of Parental RightsIndian Child Welfare Act of 1978Continuing Inquiries.

In 2013, the Chaffee County Department of Social Services (Department) initiated a dependency and neglect proceeding involving Tr.D. Respondents denied the child was a member or eligible for membership in an Indian tribe, and the Department represented it had determined the child was not an Indian child. The petition was later withdrawn and the case closed.

In 2015, the Department initiated another dependency and neglect proceeding concerning Tr.D. and 6-month-old A.D. after mother and father were arrested on drug charges. The children were placed in foster care and adjudicated dependent and neglected. Treatment plans were developed for both parents, but neither could overcome their addictions. The Department ultimately filed a petition to terminate parental rights and stated that the children were not Indian children. No evidence concerning the Indian Child Welfare Act (ICWA) was elicited at the termination hearing. The trial court terminated parental rights and found the provisions of the ICWA did not apply.

On appeal, mother argued that the record failed to support the court’s ICWA finding because no questions were asked about possible Indian heritage during the proceedings and therefore the Department didn’t meet its “continuing inquiry” duty under the ICWA. The Department argued that the ICWA issue was resolved in the prior case and the trial court satisfied the ICWA requirements in this case because it took judicial notice of its ICWA finding in the previous case. The Department reasoned that because A.D. is a full sibling of Tr.D., the court’s previous finding as to Tr.D. must also apply to her. The ICWA required the Department to conduct new inquiries to determine whether the children were Indian children. Because there was no evidence in the record of such inquiries, further proceedings were required.

Because the ICWA inquiry may result in the court determining that the children are not Indian children, the court of appeals addressed the other issues raised on appeal. Mother argued that the grounds for terminating her parental rights were not established by clear and convincing evidence. Based on the record before it, the court disagreed. Father argued that the record did not support the finding that reasonable efforts were made to avoid the removal of the children from their home and to promote reunification of the family. Specifically, father argued that a dispute over venue delayed his ability to participate in a drug program, averring that reasonable efforts required not just providing services, but providing services “at the right time.” The court determined that father waived his right to raise this issue when he expressly agreed to hold the motion to change venue in abeyance and therefore failed to seek a ruling from the court.

The judgment was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Dependency and Neglect Court Should Have Followed ICWA’s Notice Requirements

The Colorado Court of Appeals issued its opinion in People in Interest of L.L. on Thursday, March 30, 2017.

Dependency and NeglectIndian Child Welfare ActNoticeBurden of Proof.

In this dependency and neglect case concerning L.L., his mother, A.T., told the juvenile court at a shelter hearing that she had possible Apache Native American ancestry. Later, A.T. filed written information that included tribal card numbers and roll numbers. The Denver Department of Human Services (Department) did not send notice of the proceedings to any of the Apache Tribes. A.T. again stated that she had Indian heritage at a pretrial hearing, but the juvenile court did not address whether the Department used due diligence to identify and work with an Apache Tribe to verify whether L.L. is a member or is eligible for tribal membership. The court also did not treat L.L. as an Indian child pending verification from the tribe. Following a jury verdict, the court adjudicated L.L. dependent and neglected.

On appeal, A.T. contended that the order should be reversed because the Department did not comply with the Indian Child Welfare Act (ICWA) notice requirements. First, when there is “reason to know” the child is an Indian child, the juvenile court must ensure that the Department sends notice to any identified Indian Tribe. Second, 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.’” Here, the Department did not meet its obligation to provide notice of the proceedings to any of the Apache Tribes. The juvenile court did not address whether the Department used due diligence to identify and work with an Apache Tribe to verify whether L.L. was a member or was eligible for membership and did not treat L.L. as an Indian child pending the Tribes’ verification.

A.T. also contended that the juvenile court violated ICWA by not requiring the jury to base its findings on a heightened clear and convincing evidentiary standard. There is no language in ICWA or associated rules or guidelines that indicates a heightened burden of proof for the adjudicatory hearing in a dependency and neglect proceeding. Thus, the state is only required to prove the allegations in the petition by a preponderance of the evidence in all adjudications, whether involving Indian or non-Indian children. The juvenile court did not err when it instructed the jury regarding the Department’s burden of proof.

The judgment was reversed and the case was remanded with directions.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Transfer to Tribal Court Denied Because Dependency and Neglect Proceedings At Advanced Stage

The Colorado Court of Appeals issued its opinion in People in Interest of T.E.R. on Thursday, May 9, 2013.

Dependency and Neglect—Indian Child Welfare Act—Termination of Parent–Child Legal Relationship.

In this dependency and neglect proceeding, mother and father appealed from the order denying transfer of jurisdiction to a tribal court under 25 USC § 1911(b) of the Indian Child Welfare Act (ICWA). Father also appealed the judgment terminating the parent–child legal relationship between him and his child, T.E.R. The order and judgment were affirmed.

In September 2011, the Department of Human Services of the City and County of Denver (Department) filed a petition in dependency and neglect based on mother’s substance abuse and mental health issues and father’s incarceration. In October 2011, the Department sent a notice to the Sault Ste. Marie Tribe of Chippewa (Tribe), pursuant to the ICWA, based on mother’s report that she was registered with the Tribe. The Tribe responded that it intended to intervene. Before it did so, the juvenile court adjudicated T.E.R. dependent and neglected and adopted treatment plans for mother and father.

In May 2012, the Tribe moved to intervene, alleging that T.E.R. was eligible for membership. The juvenile court granted the motion. The Department then moved to terminate mother’s and father’s parental rights.

In July 2012, mother moved to transfer jurisdiction to tribal court. The Department and guardian ad litem (GAL) opposed, arguing that good cause existed to deny the motion, because the case was at an advanced stage and could not be adequately presented in the tribal court without undue hardship to the parties or witnesses. In October 2012, after hearing arguments but not taking evidence, the court found good cause to deny the transfer. Following a two-day hearing, the juvenile court entered judgment terminating mother’s and father’s parental rights.

On appeal, mother and father contended it was error to find good cause to deny transfer of jurisdiction. The Court of Appeals disagreed.

The state and the tribe have concurrent jurisdiction under the ICWA over Indian children who live off the reservation. The tribal court is the preferred jurisdiction and, in the absence of good cause, the state must transfer jurisdiction to the tribe. The Bureau of Indian Affairs has issued guidelines for determining whether good cause exists. As relevant, those guidelines provide that good cause exists if the proceeding was at an advanced stage when the petition to transfer was received, or if the evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or witnesses. The determination is within the juvenile court’s discretion. The Court found that substantial evidence in the record supported the juvenile court’s finding of good cause to deny transfer for the reasons stated.

The Court declined to address father’s argument regarding the transfer of jurisdiction because he failed to raise it in the juvenile court; therefore, it was waived. The order and judgment were affirmed.

Summary and full case available here.

Colorado Court of Appeals: Trial Court Erred in Deviating from ICWA Preference for Placement and Adoption in Dependency and Neglect Proceeding

The Colorado Court of Appeals issued its opinion in People in Interest of A.R., and Concerning F.N. on Thursday, November 8, 2012.

Dependency and Neglect—Parental Rights—Termination—Indian Child Welfare Act—Active Efforts.

In this dependency and neglect proceeding, mother appealed from the judgment terminating her parent–child legal relationship with A.R. The Department of Human Services (Department) joined mother’s appeal of the termination and also challenged that part of the judgment addressing the Department’s guardianship. The judgment terminating mother’s parental rights was affirmed, the part of the judgment addressing guardianship was reversed, and the case was remanded.

Because A.R. is an “Indian child” as defined in 25 USC § 1903(4), these proceedings were subject to the Indian Child Welfare Act (ICWA), 25 USC §§ 1901 to 1963. Mother contended that the court erred in terminating her parental rights. She asserted that the Department did not meet the ICWA’s “active efforts” requirement, and there were viable, less drastic alternatives to termination, including A.R.’s placement with A.W. and C.W. The ICWA’s “active efforts” standard requires more effort than the “reasonable effort” standard in non-ICWA cases. Here, despite the court’s use of the term “best efforts,” the record supports the court’s determination that the Department’s actions met the requisite “active efforts” standard under the ICWA with regard to mother, A.W. and C.W. The trial court found, with record support, that although mother substantially complied with her treatment plan, it was unsuccessful in rendering her a fit parent and that her conduct or condition was not likely to change within a reasonable time. It also found that A.R. needs lifelong care or intensive services for her special needs, and mother was unable to provide those services. Additionally, placement with A.W. and C.W. without terminating mother’s parental rights was not a less drastic alternative; A.R. needed permanency, so it was not in her best interests.

The Department contended that, even if the court’s termination of mother’s parental rights was proper, the court erroneously deviated from the ICWA’s placement preferences when, in granting the Department guardianship, it denied the Department permission to place A.R. with A.W. and C.W. for purposes of adoption. The ICWA presumes that the child’s best interests are served by placement with an extended family member who also has Indian heritage. Here, the record does not support the trial court’s finding that there was good cause to deviate from the ICWA’s placement preferences. Therefore, the court erred in deviating from the ICWA’s placement preferences. The trial court’s judgment was reversed in this regard and the case was remanded with directions for the court to allow the department to arrange a home visit with A.W. and C.W., and to consider an adoption or preadoptive placement of A.R. consistent with the ICWA placement preferences, including possible placement with A.W. and C.W. or her foster parents.

Summary and full case available here.