People in re A.D. and Tr.D , 413 P.3d 290 ( 2017 )

COLORADO COURT OF APPEALS 2017COA61
Court of Appeals No. 16CA1366
Chaffee County District Court No. 15JV7
Honorable Patrick W. Murphy, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of A.D. and Tr.D., Children,
and Concerning M.D. and T.D.,
Respondents-Appellants.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division IV
Opinion by JUDGE FREYRE
Hawthorne and Ashby, JJ., concur
Announced May 4, 2017
Jennifer A. Davis, County Attorney, Chip E. Mortimer, Assistant County
Attorney, Salida, Colorado, for Petitioner-Appellee
Donald F. Cutler, IV, Guardian Ad Litem
The Gregory Law Firm, LLC, Christopher S.P. Gregory, Fort Collins, Colorado,
for Respondent-Appellant M.D.
Law Office of Poland Wheeler, P.C., Andrew C. Poland, Lakewood, Colorado, for
Respondent-Appellant T.D.
¶1 This termination of parental rights case presents a novel issue
— may a county department of social services rely on its Indian
Child Welfare Act of 1978 (ICWA) inquiries in a prior case involving
the same respondent parents and one of the same children to
satisfy its “continuing inquiries” obligation under section 19-1-
126(1)(a), C.R.S. 2016, in a new case, and may a trial court find
that ICWA does not apply in that new case based solely on the
department’s inquiries in the prior case? We answer both of these
questions “no” and conclude that the statute requires the
department to inquire about Indian heritage in each new
proceeding. Therefore, we reverse the judgment and remand the
case to the trial court for further proceedings.
I. Prior Case
¶2 In September 2013, the Chaffee County Department of Social
Services (the Department) initiated a dependency and neglect
proceeding involving five-year-old Tr.D. The shelter order stated,
“The Respondents deny that their child, [Tr.D.] is a member of or
eligible for membership in an Indian tribe.” The petition stated,
“The Department of Human Services has questioned the child’s
parents and has determined the child is not an Indian child.” The
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petition was later withdrawn, and the case was successfully closed
in September 2014.
II. Current Case
¶3 In February 2015, the Department initiated another
dependency and neglect proceeding concerning now six-year-old
Tr.D. and six-month-old A.D. after M.D. (father) and T.D. (mother)
were arrested on drug charges. The children were placed in foster
care because of continued concern about the parents’ drug use.
¶4 The children were adjudicated dependent and neglected, and
treatment plans were developed for both parents. Father’s
treatment plan required him to (1) find ways to manage pain that
did not include the use of controlled substances; (2) abstain from
using illegal, prescribed, or nonprescribed controlled substances
and live a substance-free lifestyle that would not put the children at
risk; (3) maintain a relationship with the children through weekly
visitation; and (4) provide a safe and stable living environment that
would be suitable for the children. Mother’s treatment plan was
identical to father’s.
¶5 Both parents struggled. Despite visitation schedule changes
to accommodate their needs, both parents often arrived late, and a
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number of visits were cancelled due to tardiness. They lost their
right to unsupervised visits after testing positive for opiates during
a visit, and they failed to maintain consistent employment, housing,
and contact information.
¶6 Most significantly, neither could overcome addiction. Both
parents delayed beginning outpatient treatment, and their
participation in that treatment was described as “sporadic at best.”
They were slow to begin drug testing, missed required tests, and on
more than one occasion manipulated the test results. In December
2015, the trial court ordered them to complete inpatient drug
treatment. Father began an inpatient program but failed to
complete it. Mother completed her inpatient program in February
2016, but she tested positive for opiates only a few days after
discharge.
¶7 Based on this record, the Department filed a petition to
terminate parental rights. The petition stated that “the subject
children are NOT Indian Children pursuant to the Indian Child
Welfare Act, 25 U.S.C. § 1903(4).” No evidence concerning ICWA
was elicited at the termination hearing. After the hearing, the trial
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court issued a written order terminating parental rights. The order
found, “The provisions of I.C.W.A. do not apply to this case.”
III. Indian Child Welfare Act
¶8 Mother contends the record fails to support the court’s ICWA
finding because the Department never asked about possible Indian
heritage during the proceedings and, therefore, failed to satisfy its
“continuing inquiry” duty under § 19-1-126(1)(a). She argues that
the court’s reliance on the Department’s deficient inquiry is a
material error because the applicability of ICWA affects the conduct
of the case and the standard of proof to be met before termination
of parental rights can be granted.
¶9 The Department responds that the ICWA issue was resolved
with respect to Tr.D. in the prior case. It argues that the trial court
satisfied the requirements of ICWA in this case by taking judicial
notice of its ICWA finding in the prior case. It reasons that because
A.D. is a full sibling of Tr.D., the court’s previous finding that Tr.D.
was not an Indian child must also apply to her.
¶ 10 We conclude that § 19-1-126(1)(a), when considered with the
relevant federal guidelines and the purposes of ICWA, required the
Department to conduct new inquiries in this case to determine
4
whether the children were Indian children. Because no evidence in
the record shows that any inquiries occurred, we agree with mother
that the court’s order finding ICWA inapplicable is not supported by
the record and that further proceedings are required.
A. Relevant Law
¶ 11 Indian tribes have an interest in Indian children that is
distinct from, but equivalent to, parental interests. B.H. v. People in
Interest of X.H., 138 P.3d 299, 303 (Colo. 2006) (citing Miss. Band of
Choctaw Indians v. Holyfield, 490 U.S. 30, 52 (1989)). Thus, in a
proceeding in which ICWA may apply, tribes must have a
meaningful opportunity to participate in determining whether a
child who is a subject of the proceeding is an Indian child and to be
heard on the issue of the applicability of ICWA. Id.
¶ 12 The policy underlying ICWA is “to protect the best interests of
Indian children and to promote the stability and security of Indian
tribes and families” by establishing federal standards for the
removal of children from their families and for their placement in
foster or adoptive homes. 25 U.S.C. § 1902 (2012). Inquiry into a
child’s Indian heritage “ensures the tribe will be afforded the
opportunity to assert its rights under [ICWA] irrespective of the
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position of the parents, Indian custodian or state agencies.” In re
Kahlen W., 285 Cal. Rptr. 507, 511 (Cal. Ct. App. 1991).
¶ 13 To ensure tribes have an opportunity to be heard, § 19-1-
126(1)(a) provides that the petitioning or filing party shall “[m]ake
continuing inquiries to determine whether the child who is the
subject of the proceeding is an Indian child and, if so, shall
determine the identity of the Indian child’s tribe.” See also B.H.,
138 P.3d at 302 (“[T]he petitioning party has an affirmative duty to
make continuing inquiries to determine whether the subject child is
an Indian child.”). The trial court has the responsibility of
monitoring compliance with ICWA and Colorado’s statute. Thus, if
the initial pleading in a proceeding in which ICWA may apply does
not disclose whether the subject child is an Indian child, it is the
court’s duty to inquire of the parties whether the child is an Indian
child and, if so, whether the parties have complied with ICWA’s
procedural requirements. § 19-1-126(2); see also Guidelines for
State Courts and Agencies in Indian Child Custody Proceedings, 80
Fed. Reg. 10,146, 10,152, at B.2(b) (Feb. 25, 2015) (2015
Guidelines) (requiring state courts to ask at the start of any relevant
proceeding whether there is reason to believe the child is an Indian
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child, and requiring participants in the proceeding to certify on the
record whether they have discovered or know of any information
suggesting the child is an Indian child).
¶ 14 Statutes enacted for the benefit of Indian tribes, including
state-implementing statutes like § 19-1-126, “must be liberally
construed in favor of Indian interests.” Montana v. Blackfeet Tribe
of Indians, 471 U.S. 759, 766 (1985). Indeed, the importance of
continuing inquiries is underscored in the 2015 Guidelines, which
we recognize are not binding on state courts, but which are
instructive when interpreting ICWA-implementing legislation. See
B.H., 138 P.3d at 302 n.2 (citing the original Guidelines for State
Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67584,
67585-86 (Nov. 26, 1979), and noting that they “have been
considered persuasive by state courts”).
¶ 15 Moreover, while not applicable here, we note that new federal
regulations that codify this inquiry obligation became effective on
December 12, 2016. See 25 C.F.R. §§ 23.107-.109, .111 (2016).
The new regulations were quickly followed by new guidelines issued
in December 2016. See Bureau of Indian Affairs, Guidelines for
Implementing the Indian Child Welfare Act (Dec. 2016),
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https://perma.cc/3TCH-8HQM (2016 Guidelines). Consistent with
the 2015 Guidelines applicable here, these new regulations and
guidelines require the court to ask all participants in the case
whether there is reason to know the child is an Indian child and to
instruct the participants to inform the court if they later discover
information that provides reason to know the child is an Indian
child. See 25 C.F.R. § 23.107(a); 2016 Guidelines at 11. And, if a
new child custody proceeding is initiated for the same child, the
court must again inquire into whether there is a reason to know
that the child is an Indian child. 25 C.F.R. § 23.107(a).1
B. Analysis
1 The guidelines issued in December 2016, Bureau of Indian Affairs,
Guidelines for Implementing the Indian Child Welfare Act (Dec.
2016), https://perma.cc/3TCH-8HQM (2016 Guidelines), require a
court to inquire about ICWA’s applicability even if a party fails to
assert that ICWA may apply. 2016 Guidelines at 11. They also
state that it is “critically important” for inquiries to be made “by
courts, State agencies, and participants to the proceedings as soon
as possible.” Id. Consistent with the regulations, the 2016
Guidelines require the court to instruct the participants to inform it
of any new information that provides a reason to know the child is
an Indian child, and in situations where a child was not identified
as an Indian child in a prior proceeding, the court has a continuing
duty to inquire whether the child is an Indian child. Id. Further, if
there is no reason to know a child is an Indian child, the State
agency (or party seeking placement) should document the basis for
this conclusion in the case file. Id. at 12.
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¶ 16 We begin with the observation that the Department specifically
acknowledged its § 19-1-126(1)(a) obligation to make continuing
inquiries “as to any possible Indian heritage of any of the children”
in the dependency and neglect petition. However, it has not
directed our attention to any evidence of such continuing inquiries,
and it does not argue on appeal that such inquiries occurred.
Indeed, because the court made no findings to support its
conclusion that ICWA did not apply, we are unable to determine
what evidence the court considered in reaching its conclusion.
¶ 17 The Department suggests that the court may have relied on its
finding that ICWA did not apply in the previous case to support its
conclusion that ICWA did not apply here, and it argues that such
reliance satisfied ICWA requirements. See In Interest of C.A.B.L.,
221 P.3d 433, 442 (Colo. App. 2009) (permitting a trial court to take
judicial notice of its own records and adopt factual findings from a
previous case as long as the previous case involved the same parties
and the same issue); see also CRE 201(b) (court may take judicial
notice of facts not subject to reasonable dispute). However, nothing
in § 19-1-126, ICWA, or the 2015 Guidelines permits a court to
make ICWA findings by taking judicial notice of prior proceedings.
9
In fact, the 2016 regulations and guidelines now explicitly prohibit
a court from doing so.
¶ 18 Even assuming, without deciding, that the trial court could
consider its findings and orders in the prior case to determine
whether the children who are the subjects of this case are Indian
children — and we note that the trial court did not indicate that it
had done so — we conclude that the findings and orders from the
prior case alone are insufficient to support the trial court’s
conclusion that ICWA does not apply in this case.
¶ 19 Records from the prior case show that the Department
inquired into Tr.D.’s possible Indian heritage, and that mother and
father believed, for reasons not stated in the record, that the child
was not a member of or eligible for membership in any Indian tribe.
Possibly, mother and father were unaware of any Indian heritage in
their families. Alternatively, they may have been aware of some
Indian heritage, but they may have believed that the child could not
meet the criteria for membership in the identified possible tribe(s).
Or they may have had other reasons for their belief that the child
could not, or should not, be identified as an Indian child. The
record in this case shows no renewal inquiries. Yet it reveals the
10
active participation of grandparents with the Department, who may
have had pertinent information concerning Indian heritage that was
unknown to the parents.
¶ 20 We agree that in determining whether ICWA applies to the
current proceeding, the court could properly consider a finding
that, in 2013, mother and father denied that Tr.D. was an Indian
child. However, the trial court could not rely solely upon that prior
finding to determine that ICWA does not apply here. To do so
would fail to give effect to § 19-1-126(1)(a), which obligates the
Department to make continuing inquiries into a child’s Indian
heritage before determining whether the child is an Indian child.
Such continuing inquiries are necessary to ensure that any
determination is not based on information that may be outdated
and incorrect. See, e.g., People in Interest of T.M.W., 208 P.3d 272,
275 (Colo. App. 2009) (stating that a court may not rely on notice
that was given to a tribe concerning a sibling to determine whether
another child is an Indian child because, even if the siblings have
the same parents, the tribe is free to change its enrollment criteria
at any point).
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¶ 21 In the absence of findings by the trial court, we are unable to
determine the basis for the court’s conclusion that ICWA does not
apply to this case. Nor are we able to satisfy ourselves that the
information that the court relied upon in reaching its conclusion
was obtained as the result of the Department’s “continuing
inquiries” into the children’s Indian heritage and eligibility for tribal
membership, as contemplated by § 19-1-126(1)(a), rather than
outdated and possibly inaccurate information. The Department
does not argue that this absence of information is harmless; it
acknowledges that a “remand for the purpose of making any
necessary additional inquiries” could be ordered. Under these
circumstances, we conclude that the judgment must be reversed
and remanded to the trial court for additional findings and further
proceedings if needed. See People in Interest of A.G., 264 P.3d 615,
621 (Colo. App. 2010) (stating that an order may be set aside if the
court’s findings do not demonstrate compliance with statutory
requirements and the appellate court cannot determine the basis
for the order), rev’d in part and vacated in part on other grounds,
262 P.3d 646 (Colo. 2011).
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¶ 22 Accordingly, on remand the Department must make the
inquiries required by § 19-1-126(1)(a). If those inquiries reveal
possible Indian heritage, then the Department must comply with
the statute’s notice requirements. If the inquiries reveal no possible
Indian heritage, then the trial court may enter its termination order
based on its prior findings and the evidence adduced from the
Department’s inquiries. Because it is possible that no ICWA notice
will be required, and that, even if notice is required, no tribe will
determine that the children are eligible for tribal membership, we
also address the remaining issues raised by mother and father.
IV. Sufficiency of the Evidence
¶ 23 Mother contends that the trial court erred in finding that the
statutory grounds for terminating her parental rights under §
19-3-604(1)(c), C.R.S. 2016, were established by clear and
convincing evidence. Specifically, she argues that she was
progressing in her substance abuse treatment, she was able to
maintain employment, she interacted well with the children, she
complied with most of the requirements of her treatment plan, and
she would have been able to complete the other requirements
within a reasonable time. She contends the record does not
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support the trial court’s finding that her conduct or condition will
not change within a reasonable time. We disagree.
¶ 24 Under § 19-3-604(1)(c), the legal relationship between a parent
and his or her child may be terminated if the child has been
adjudicated dependent or neglected and the court finds, based on
clear and convincing evidence, that the parent did not reasonably
comply with a treatment plan approved by the court or that the
treatment plan has been unsuccessful, that the parent is unfit, and
that the parent’s conduct or condition is unlikely to change within a
reasonable time.
¶ 25 When a proceeding involves children under the age of six,
reasonable or successful compliance with a treatment plan cannot
be found if “[t]he parent exhibits the same problems addressed in
the treatment plan without adequate improvement” and remains
unable to meet the children’s needs. § 19-3-604(1)(c)(I)(B); People in
Interest of J.A.S., 160 P.3d 257, 260 (Colo. App. 2007).
¶ 26 In determining whether a parent’s conduct or condition is
unlikely to change within a reasonable time, the trial court may
consider whether any change has occurred during the pendency of
the dependency and neglect proceeding, the parent’s social history,
14
and the chronic or long-term nature of the parent’s conduct or
condition. K.D. v. People, 139 P.3d 695, 700 (Colo. 2006).
¶ 27 A reasonable time is not an indefinite time, and it must be
determined by considering the physical, mental, and emotional
conditions and needs of the child. People in Interest of A.J., 143
P.3d 1143, 1152 (Colo. App. 2006). A trial court’s findings and
conclusions will not be disturbed on review if the record supports
them. K.D., 139 P.3d at 702.
¶ 28 The trial court found that despite more than fifteen months of
intervention and treatment, mother exhibited the same problems
addressed in the treatment plan without any meaningful
improvement, and she was unable or unwilling to meet the
children’s needs. The court also found that mother’s conduct or
condition was unlikely to change within a reasonable time.
¶ 29 These conclusions are based on lengthy and detailed factual
findings supported by the record that contradict mother’s claims on
appeal. Among other things, the record shows that mother did not
complete a substance abuse assessment until June 2015, two
months after adoption of her treatment plan and four months after
the children’s initial removal. She attempted outpatient substance
15
abuse therapy, but attended less than fifty percent of the sessions
and was terminated for poor attendance. She eventually completed
an inpatient program, but relapsed almost immediately thereafter.
Her employment was sporadic, and she incurred criminal charges
during the case. She and father were often late for visits or
cancelled them.
¶ 30 The record, therefore, amply supports the trial court’s findings
and conclusions, and we will not disturb them.
V. Reasonable Efforts
¶ 31 Father contends that the record does not support the trial
court’s finding that reasonable efforts were made to avoid the
removal of the children from their home and to promote
reunification of the family, as required by § 19-3-100.5, C.R.S.
2016. He argues that the Department’s opposition to changing
venue from Chaffee County, which does not have a Family Intensive
Drug Court (FITC), to Fremont County, which has an FITC program,
represents a failure to make reasonable efforts. More specifically,
he argues that the dispute over whether venue should be changed
delayed his ability to participate in an FITC program “when [he was]
motivated to engage in treatment.” He reasons “[r]easonable efforts
16
require[d] more than providing adequate services, they require[d]
providing such services at the right time.” We perceive no error.
¶ 32 The state must make reasonable efforts to prevent
out-of-home placement of an abused or neglected child and to
reunite the family. §§ 19-1-103(89), 19-3-100.5(1), C.R.S. 2016;
see also People in Interest of S.M.A.M.A., 172 P.3d 958, 963 (Colo.
App. 2007). Such reasonable efforts must include screening,
assessments, the development of an appropriate treatment plan, the
provision of information and referrals to available public and private
assistance resources, placement services, and visitation services, all
as determined necessary and appropriate in a particular case.
§ 19-3-208(2)(b), C.R.S. 2016.
¶ 33 In July 2015, mother requested a transfer of venue to Fremont
County, where she and father lived. She conceded they both had
significant substance abuse issues and needed the intensity of
Fremont County’s FITC program. The Department and the
guardian ad litem opposed the motion, in part due to concerns that
the children would be transferred to a different foster home. The
Department consulted with Fremont County’s Department of
Human Services and learned that if venue was changed, such a
17
transfer was likely. Additionally, the Department considered the
parents’ admission into the FITC program “questionable,” in part
because the eligibility criteria precluded the use of a “prescribed
inhibitor” such as Suboxone, which the Department believed father
had been prescribed.
¶ 34 The court observed that Fremont County had offered to
collaborate with Chaffee County to provide FITC services to mother
and father, minus the court oversight, while Chaffee County
retained jurisdiction over the case. The court proposed holding the
motion in abeyance while mother and father sought FITC services.
Father agreed with this proposal.
¶ 35 Soon afterward, a Fremont County supervisor attempted to
arrange a meeting with mother and father so that she could discuss
the program, have them sign the necessary papers, and start
scheduling appointments. However, mother and father repeatedly
rescheduled this initial meeting and then failed to appear. They
never took advantage of the opportunity to receive FITC services.
And the record does not reflect any effort by father to seek a ruling
on the outstanding motion.
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¶ 36 We conclude that father waived his right to raise this issue on
appeal when he expressly agreed to hold the motion to change
venue in abeyance, and thereafter failed to seek a ruling from the
court. Accordingly, we will not consider it. See People in Interest of
N.A.T., 134 P.3d 535, 537 (Colo. App. 2006) (stating that where
mother did not object to the allocation of parental responsibilities to
father during the hearing before the juvenile court, instead agreeing
that the disposition was in the child’s best interests, the appellate
court would not consider her contention on appeal that the
allocation was not in the child’s best interests).
VI. Conclusion
¶ 37 The judgment is reversed, and the case is remanded for the
Department to conduct inquiries into the children’s possible Indian
heritage. If such inquiries reveal possible Indian heritage, then the
Department must comply with the notice provisions of § 19-1-126
and ICWA, and the court must conduct further proceedings as
necessary. If the inquiries reveal no possible Indian heritage, or if,
after any required notice, no tribe has determined that the children
are eligible for tribal membership, then the court may enter its
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termination order based on its prior findings and the evidence
adduced from the Department’s inquiries.
JUDGE HAWTHORNE and JUDGE ASHBY concur.
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