People in Interest of M.V , 432 P.3d 628 ( 2018 )

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
November 15, 2018
2018COA163
No. 17CA2090 People in Interest of M.V. — American Indian
Law — ICWA — Placement of Indian Children — Foster Care or
Preadoptive Placements; Juvenile Court — Dependency and
Neglect
A division of the court of appeals considers two questions of
first impression regarding the application of the foster care
placement provisions of the Indian Child Welfare Act of 1978 (ICWA)
to a dependency and neglect proceeding. First, the division
concludes that a lack of compliance with ICWA’s foster care
placement provisions does not deprive a juvenile court of
jurisdiction to enter adjudicatory and dispositional orders. Second,
the division determines that ICWA’s foster care placement
provisions apply to a dispositional order, but not an order
adjudicating a child dependent and neglected. Because the record
does not demonstrate compliance with ICWA, the division reverses
the dispositional order.
In addition, the division concludes that the juvenile court
erred in admitting video recordings of mother and the children at
the adjudicatory jury trial when there was no evidence establishing
the accuracy of the scenes depicted in the recordings or the
accuracy of the recording process. The division further concludes
that the erroneous admission of the recordings substantially
influenced the jury’s verdict and, thus, was not harmless. As a
result, the division reverses the adjudicatory order.
COLORADO COURT OF APPEALS 2018COA163
Court of Appeals No. 17CA2090
El Paso County District Court No. 17JV1116
Honorable Theresa M. Cisneros, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of M.V.; Ma.M.; P.M., a/k/a P.P.; and Mo.M., a/k/a M.M-B.,
Children,
and Concerning M.M.,
Respondent-Appellant.
ORDERS REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE DAILEY
Lichtenstein and Ashby, JJ., concur
Announced November 15, 2018
Amy R. Folsom, County Attorney, Kevin G. Webster, Assistant County Attorney,
Colorado Springs, Colorado, for Petitioner-Appellee
Anna N.H. Ulrich, Guardian Ad Litem
Davide C. Migliaccio, Office of Respondent Parents’ Counsel, Colorado Springs,
Colorado, for Respondent-Appellant
¶1 In this dependency and neglect proceeding, M.M. (mother)
appeals the juvenile court’s judgment of adjudication and
disposition following a jury trial. To resolve mother’s arguments on
appeal, we must delve into the provisions of the Indian Child
Welfare Act of 1978 (ICWA). ICWA establishes standards that must
be followed when a state court places an Indian child in a foster
care placement.
¶2 However, we must decide an unanswered question in
Colorado: whether a juvenile court lacks subject matter jurisdiction
to enter adjudicatory and dispositional orders when it has not
complied with ICWA. We must also determine whether ICWA’s
provisions regarding foster care placement apply to adjudicatory
and dispositional orders. Ultimately, we conclude that (1) a lack of
ICWA compliance does not deprive a juvenile court of subject matter
jurisdiction and (2) ICWA’s foster care placement provisions apply
to a dispositional order, but not to an order adjudicating a child
dependent and neglected.
¶3 We then examine mother’s argument that the juvenile court
erred in admitting video recordings of mother and the children at
the adjudicatory trial. We agree that the court erred in admitting
1
the recordings without proper authentication and further conclude
that the error was not harmless. As a result, we reverse the
adjudication and dispositional orders and remand the case to the
juvenile court.
I. Background
¶4 In August 2017, the El Paso County Department of Human
Services (the Department) initiated a dependency and neglect case
regarding seven-month-old M.V., six-year-old Ma.M., and an older
half-sibling who is not subject to the appeal. Later that month, the
Department filed an amended petition adding mother’s other two
children who had been in the care of the maternal grandmother —
nine-year-old P.M., also known as P.P., and thirteen-year-old
Mo.M., also known as M.M-B. (collectively the children).
¶5 In support of the petition, the Department asserted that
 it had received videos showing mother using
methamphetamine as well as manufacturing and selling a
white powder;
 mother had a history of substance use and was on probation
for possession of a controlled substance; and
2
 M.V. was present during domestic violence between mother
and his father.
¶6 Mother denied the allegations and requested a jury trial. At
the conclusion of the trial, the jury found that mother had
subjected the children to mistreatment or abuse, the children
lacked proper parental care as a result of mother’s acts or failures
to act, and the children’s environment was injurious to their
welfare.
¶7 Based on the jury’s verdict, the juvenile court adjudicated the
children dependent and neglected. Following another hearing, the
juvenile court entered a dispositional order that adopted a
treatment plan for mother. And, as part of the dispositional order,
the juvenile court placed Ma.M. in the custody of her father, P.M. in
a relative’s custody, and M.V. and Mo.M. in the Department’s
custody.
II. ICWA
¶8 Mother contends that the record does not demonstrate
compliance with ICWA’s provisions and, as a result, the juvenile
court lacked subject matter jurisdiction to adjudicate the children
and enter a dispositional order. Specifically, mother asserts that (1)
3
notice was not given to the applicable tribes; (2) the court failed to
require qualified expert testimony of emotional or physical damage
to the children; and (3) the court failed to consider whether the
Department had made active efforts to rehabilitate mother. We
reject mother’s jurisdictional argument but agree that the
dispositional order must be reversed to ensure ICWA compliance.
A. Subject Matter Jurisdiction
¶9 We first consider whether the juvenile court’s purported failure
to comply with ICWA’s provisions deprived it of subject matter
jurisdiction over the proceeding.
¶ 10 ICWA’s provisions, 25 U.S.C. §§ 1901-1963 (2018), are for the
protection and preservation of Indian tribes and their resources,
and to protect Indian children who are members of or are eligible for
membership in an Indian tribe. 25 U.S.C. § 1901(2), (3) (2018).
ICWA also recognizes that Indian tribes have a separate interest in
Indian children that is equivalent to, but distinct from, parental
interests. B.H. v. People in Interest of X.H., 138 P.3d 299, 303 (Colo.
2006); see also Mississippi Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 52 (1989). To effectuate this purpose, it establishes
4
federal standards for child custody proceedings involving Indian
children. 25 U.S.C. § 1902 (2018).
¶ 11 Central to ICWA are its provisions governing jurisdiction over
child custody proceedings involving Indian children. Holyfield, 490
U.S. at 36. 25 U.S.C. § 1911 (2018) of ICWA creates a “dual
jurisdictional scheme” for Indian child custody proceedings.
Holyfield, 490 U.S. at 36. In certain circumstances, ICWA provides
for exclusive tribal jurisdiction over Indian children. 25 U.S.C.
§ 1911(a); Holyfield, 490 U.S. at 36. In other circumstances, ICWA
creates concurrent subject matter jurisdiction in state and tribal
courts. 25 U.S.C. § 1911(b); Holyfield, 490 U.S. at 36. In that
sense, ICWA is a jurisdictional statute.
¶ 12 However, in addition to the jurisdictional provisions, ICWA
sets forth procedural and substantive standards that apply when
child custody proceedings concerning Indian children occur in state
courts. Holyfield, 490 U.S. at 36; see also B.H., 138 P.3d at 302.
Among other things, the procedural standards require that the
applicable tribe or tribes receive notice of the termination
proceeding and of their right to intervene. 25 U.S.C. § 1912(a)
(2018); Holyfield, 490 U.S. at 36.
5
¶ 13 Significantly, the remedy that Congress has provided for a
failure to comply with ICWA’s provisions, including its notice
provisions, is to allow an Indian child, parent, or tribe to petition to
invalidate the termination judgment. 25 U.S.C. § 1914 (2018). But,
the remedy does not void the court’s subject matter jurisdiction. In
re Antoinette S., 129 Cal. Rptr. 2d 15, 24 (Cal. Ct. App. 2002); see
also Carson v. Carson, 13 P.3d 523, 526 (Or. Ct. App. 2000). And,
there is a substantial difference between a lack of subject matter
jurisdiction that deprives the court of its ability to act and a
mistake in the exercise of established jurisdiction. Antoinette S.,
129 Cal. Rptr. 2d at 23.
¶ 14 Several other jurisdictions have reached a similar conclusion.
The fourth district of the California Courts of Appeal held that a
court’s failure to comply with ICWA’s notice provisions did not
constitute jurisdictional error. Id. at 24; see also In re K.B., 93 Cal.
Rptr. 3d 751, 758 (Cal. Ct. App. 2009). The Missouri Court of
Appeals determined that a trial court was not divested of subject
matter jurisdiction even if it erred in ruling that ICWA did not
apply. In Interest of S.A.M., 703 S.W.2d 603, 606 (Mo. Ct. App.
1986).
6
¶ 15 Similarly, the Oregon Court of Appeals concluded that when
the state court (as opposed to a tribal court) had properly exercised
jurisdiction over a proceeding, the court was not divested of subject
matter jurisdiction simply because it failed to comply with ICWA.
State ex rel. Juvenile Dep’t v. Charles, 688 P.2d 1354, 1360 n.5 (Or.
Ct. App. 1984). And, the Michigan Supreme Court declined to
adopt the argument that the mere triggering of the notice
requirements under 25 U.S.C. § 1912(a) stripped the court of
jurisdiction over the proceeding. In re Morris, 815 N.W.2d 62, 80
(Mich. 2012).
¶ 16 We recognize that two courts have held that a failure to
comply with ICWA divests a court of subject matter jurisdiction.
The South Dakota Supreme Court determined that ICWA was
primarily a jurisdiction statute, and, thus, inadequate notice to the
appropriate tribes divested the trial court of jurisdiction to
terminate parental rights to Indian children. In re N.A.H., 418
N.W.2d 310, 311 (S.D. 1988). Similarly, the fifth district of the
California Courts of Appeal recognized that state courts have no
subject matter jurisdiction to proceed with dependency proceedings
concerning a possible Indian child until at least ten days after the
7
tribe has received notice of the proceeding. In re Desiree F., 99 Cal.
Rptr. 2d 688, 699 (Cal. Ct. App. 2000).
¶ 17 However, another district of the California Court of Appeal
observed that the jurisdictional statement in Desiree F. was made in
passing and appeared to have been a shorthand way of saying that
the ICWA violation constituted serious legal error. Antoinette S.,
129 Cal. Rptr. 2d at 22-23. And, as previously discussed, multiple
other courts have reached the opposite conclusion of N.A.H. and
Desiree F. and determined that a failure to comply with ICWA’s
notice provisions does not divest a court of subject matter
jurisdiction.
¶ 18 Finally, we note that mother also relies on In Interest of J.W.,
498 N.W.2d 417 (Iowa Ct. App. 1993), to support her jurisdictional
argument. In J.W., the Iowa Court of Appeals noted that there was
authority supporting a finding that ICWA was jurisdictional and
failure to give adequate notice to the tribes divested a state court of
subject matter jurisdiction. Id. at 419. But, the Iowa Supreme
Court has subsequently disavowed J.W. to the extent that it held
that failure to give adequate notice divested a court of jurisdiction
8
to terminate parental rights. In Interest of N.N.E., 752 N.W.2d 1, 10
n.3 (Iowa 2008).
¶ 19 Following the majority of states, we conclude that the juvenile
court’s asserted lack of compliance with ICWA’s notice provisions
under 25 U.S.C. § 1912(a) did not divest it of subject matter
jurisdiction to enter the adjudicatory and dispositional orders.
B. Personal Jurisdiction
¶ 20 In her reply brief, mother asserts that the juvenile court also
lacked personal jurisdiction over the tribe, which became an
indispensable party once ICWA’s notice provisions were triggered.
However, because mother raised this issue for the first time in her
reply brief, the issue is not properly before us and thus we decline
to address it. See People v. Czemerynski, 786 P.2d 1100, 1107
(Colo. 1990); In re Marriage of Smith, 7 P.3d 1012, 1017 (Colo. App.
1999).
C. ICWA’s Provisions
¶ 21 Next, we must determine whether the record demonstrates
compliance with ICWA’s provisions, and, if not, whether the
adjudicatory and dispositional orders must be reversed.
9
1. The Legal Framework
¶ 22 Recall that ICWA establishes minimum federal standards to be
followed when an Indian child is involved in a child custody
proceeding. People in Interest of C.A., 2017 COA 135, ¶ 8. A child
custody proceeding includes a foster care placement. 25 U.S.C.
§ 1903(1)(i) (2018); C.A., ¶ 9. ICWA also applies to an action that
may result in foster care placement, even if it ultimately does not.
People in Interest of K.G., 2017 COA 153, ¶ 14; 25 C.F.R. § 23.2
(2018).
¶ 23 Under these circumstances, when the court knows or has
reason to know or believe that an Indian child is involved in a child
custody proceeding, including foster care placement, the party
seeking the foster care placement must provide notice to the
potentially concerned tribe or tribes. B.H., 138 P.3d at 302; see
also 25 U.S.C. § 1912(a); § 19-1-126(1)(b), C.R.S. 2018.
¶ 24 An Indian child is defined as an unmarried person under the
age of eighteen who is either (1) a member of an Indian tribe or (2)
the biological child of a tribal member and eligible for membership
in a tribe. 25 U.S.C. § 1903(4). But ICWA does not define tribal
membership. B.H., 138 P.3d at 303. Rather, membership is left to
10
the province of each individual tribe. Id. For example, an
individual tribe’s criteria for membership may or may not include
formal enrollment or registration. Id.
¶ 25 Additionally, because Indian tribes have a separate interest in
Indian children, they must have a meaningful opportunity to
participate in determining whether a child is an Indian child and to
be heard regarding ICWA’s applicability. Id.
¶ 26 To adhere to ICWA’s notice provisions, the Department must
directly notify the tribe by registered mail with return receipt
requested of the pending child custody proceeding and its right to
intervene. People in Interest of L.L., 2017 COA 38, ¶¶ 34-35. The
Department should try to provide sufficient information to the tribe
for it to determine whether the child is a member or eligible for
membership. Id. at ¶ 37.
¶ 27 In 2016, the Bureau of Indian Affairs (BIA) issued regulations
and new guidelines clarifying ICWA’s notice requirements. People in
Interest of L.H., 2018 COA 27, ¶ 6; Indian Child Welfare Act
Proceedings, 81 Fed. Reg. 38,778 (June 14, 2016); BIA Guidelines
for Implementing the Indian Child Welfare Act (Dec. 2016),
https://perma.cc/3TCH-8HQM (2016 Guidelines); see also Notice
11
of Guidelines for Implementing the Indian Child Welfare Act, 81
Fed. Reg. 96,476 (Dec. 30, 2016). Although the 2016 Guidelines
are not binding, they provide useful guidance in interpreting ICWA.
L.H., ¶ 6.
¶ 28 Under the regulatory scheme, the notice sent to an Indian
tribe must include the following:
(1) The child’s name, birthdate, and birthplace;
(2) All names known (including maiden,
married, and former names or aliases) of the
parents, the parents’ birthdates, and
birthplaces, and Tribal enrollment numbers if
known;
(3) If known, the names, birthdates,
birthplaces, and Tribal enrollment information
of other direct lineal ancestors of the child,
such as grandparents; [and]
(4) The name of each Indian Tribe in which the
child is a member (or may be eligible for
membership if a biological parent is a
member)[.]
25 C.F.R. § 23.111(d)(1)-(4) (2018). The notice must also include a
copy of the petition, complaint, or other document by which the
child custody proceeding was initiated and, if a hearing has been
scheduled, information on the date, time, and location of the
hearing, and various statements related to the tribe’s right to
12
intervene and petition for a transfer to a tribal court. 25 C.F.R. §
23.111(d)(5)-(6). And, copies of these notices must be sent to the
appropriate regional director of the BIA. 25 C.F.R. § 23.11(a)
(2018).
¶ 29 The 2016 Guidelines recognize that in some instances the
child or parent may not be certain of his or her membership status
in an Indian tribe but may indicate he or she is somehow affiliated
with a tribe or group of tribes. 2016 Guidelines at 18. To assist in
identifying federally recognized tribes and their agents for service,
the BIA publishes a list of recognized tribes and their agents in the
Federal Register by region and by historical tribal affiliation. See
Designated Tribal Agents for Service of Notice, 82 Fed. Reg. 12,986,
13,009 (Mar. 8, 2017); List of Designated Tribal Agents by Tribal
Affiliation, 82 Fed. Reg. 12,986, 13,009 (Mar. 8, 2017),
https://perma.cc/K3DD-KQR5.
¶ 30 When, as here, the parent or his or her relative is only able to
identify a tribal ancestral group, the Department must notify each
of the tribes in that ancestral group in order for the tribes to
identify whether the parent or child is a member of any such tribe.
L.H., ¶ 8.
13
¶ 31 Additionally, if the court has reason to know that the child is
an Indian child, but it does not have sufficient evidence to
determine whether the child is or is not an Indian child, the court
must treat the child as an Indian child, unless and until it is
determined on the record that the child is not an Indian child. 25
C.F.R. § 23.107(b)(2) (2018). Among other things, before ordering a
foster care placement, the court must
 be satisfied that “active efforts have been made to provide
remedial services and rehabilitative programs designed to
prevent the breakup of the Indian family and that these efforts
have proved unsuccessful”; and
 make a determination, “supported by clear and convincing
evidence, including testimony of qualified expert witnesses,
that the continued custody of the child by the parent or Indian
custodian is likely to result in serious emotional or physical
damage to the child.”
25 U.S.C. § 1912(d), (e).
¶ 32 Whether ICWA applies to a dependency and neglect case is a
question of law that we review de novo. See In re M.H.C., 381 P.3d
710, 712 (Okla. 2016); see also People in Interest of T.M.W., 208
14
P.3d 272, 274 (Colo. App. 2009) (recognizing that whether ICWA’s
notice requirement was satisfied is a question of law that we review
de novo).
2. Application to Adjudicatory and Dispositional Orders
¶ 33 A foster care placement under ICWA is “any action removing
an Indian child” from his or her “parent or Indian custodian for
temporary placement in a foster home or institution or the home of
a guardian or conservator where the parent or Indian custodian
cannot have the child returned upon demand, but where parental
rights have not been terminated.” 25 U.S.C. § 1903(1)(i); C.A., ¶ 9.
¶ 34 The purpose of an adjudicatory trial is to determine whether
the factual allegations in the dependency and neglect petition are
supported by a preponderance of the evidence, and, thus, whether
the status of the child warrants intrusive protective or corrective
state intervention into the familial relationship. § 19-3-505(1),
C.R.S. 2018; People in Interest of S.G.L., 214 P.3d 580, 583 (Colo.
App. 2009).
¶ 35 But, the purpose of adjudication is not to determine the
children’s placement. Indeed, while evidence tending to establish
the necessity of separating a child from his or her parents may be
15
admitted at the adjudicatory hearing, it is not required for making
an order of adjudication. § 19-3-505(2). Thus, an adjudicatory
order does not constitute a foster care placement under ICWA.
¶ 36 True, another division of this court has reversed an
adjudicatory order and remanded the case to ensure compliance
with ICWA’s notice requirements. See L.L., ¶ 55. Yet, the same
division also concluded that ICWA concerns the placement of Indian
children in child custody proceedings, and an adjudicatory hearing
is not a child custody proceeding under ICWA. Id. at ¶ 51. We
agree with this conclusion.
¶ 37 However, a dispositional hearing serves a different purpose.
Once a child has been adjudicated dependent and neglected, the
court must hold a dispositional hearing and receive evidence on the
proper disposition that will serve the best interests of the child and
the public. §§ 19-3-507(1)(a), 19-3-508(1), C.R.S. 2018; People in
Interest of Z.P.S., 2016 COA 20, ¶ 14.
¶ 38 When, as here, the proposed disposition is not termination of
parental rights, the court must approve an appropriate treatment
plan that includes a provision concerning the child’s placement.
§ 19-3-508(1)(a)-(c). The court may place the child in the legal
16
custody of one or both parents, a relative or other suitable person,
or the Department for placement in a foster care home or other
child care facility. Id. In short, as part of the dispositional order,
the juvenile court must address the child’s placement, which may
include a foster care placement.
¶ 39 We recognize that the dispositional hearing is not necessarily
the first time that a court will address whether a child needs to be
in out-of-home placement. Often, as in this case, the court may
place a child in a relative’s custody or in foster care during a shelter
or temporary custody hearing prior to adjudication and disposition.
An earlier division of this court determined that a foster care
placement under ICWA had occurred on the date that a protective
order was entered that precluded the parent from removing the
children from foster care. People in Interest of J.L.G., 687 P.2d 477,
479 (Colo. App. 1984).
¶ 40 However, ICWA allows courts to issue temporary or emergency
custody orders without making the findings required by 25 U.S.C.
§ 1912(d) and (e). In re H.T., 343 P.3d 159, 168 (Mont. 2015); In re
Esther V., 248 P.3d 863, 872-73 (N.M. 2011). 25 U.S.C. § 1922
(2018) specifically provides that ICWA should not be construed to
17
prevent the emergency removal of an Indian child who is a resident
of or domiciled on a reservation, or the emergency placement of the
child in foster care when necessary to prevent imminent physical
harm to the child. Although this section only references Indian
children who are residents of or are domiciled on an Indian
reservation, its legislative history reveals that it was intended to
apply to all Indian children. In re S.B., 30 Cal. Rptr. 3d 726, 735-
36 (Cal. Ct. App. 2005); see also Esther V., 248 P.3d at 873.
¶ 41 And orders entered during the temporary protective or shelter
stage of a dependency and neglect proceeding are interim orders
pending a final factual determination of the allegations in the
petition. People in Interest of A.E.L., 181 P.3d 1186, 1191 (Colo.
App. 2008). They are not intended to determine a parent’s legal
interest in the child. W.H. v. Juvenile Court, 735 P.2d 191, 193
(Colo. 1987). Rather, the temporary protective or shelter hearing is
a pre-adjudicatory procedure which arises from exigencies requiring
temporary emergency measures designed to protect the welfare of
the child pending further judicial proceedings. Id. In contrast, the
dispositional hearing is the first time that the court addresses the
18
child’s placement once it has gained authority to intervene in the
familial relationship. See Z.P.S., ¶ 13.
¶ 42 Accordingly, a dispositional order constitutes a child custody
proceeding under ICWA.
3. Reason to Know
¶ 43 A court “has reason to know” a child “is an Indian child if”
(1) Any participant in the proceeding, officer of
the court involved in the proceeding, Indian
Tribe, Indian organization, or agency informs
the court that the child is an Indian child;
(2) Any participant in the proceeding, officer of
the court involved in the proceeding, Indian
Tribe, Indian organization, or agency informs
the court that it has discovered information
indicating that the child is an Indian child;
(3) The child who is the subject of the
proceeding gives the court reason to know he
or she is an Indian child;
(4) The court is informed that the domicile or
residence of the child, the child’s parent, or the
child’s Indian custodian is on a reservation or
in an Alaska Native village;
(5) The court is informed that the child is or
has been a ward of a Tribal court; or
(6) The court is informed that either parent or
the child possesses an identification card
indicating membership in an Indian Tribe.
19
25 C.F.R. § 23.107(c). State courts and agencies are encouraged to
interpret these factors expansively. 2016 Guidelines at 11.
¶ 44 At the commencement of the case, mother completed an ICWA
assessment form regarding Ma.M. and M.V. On the form, mother
indicated that those children had American Indian heritage and
were eligible for membership in a Lakota or Sioux tribe. The BIA’s
list of Tribal Agents by Affiliation contains no reference to a Lakota
tribe, but it does identify multiple federally recognized Sioux tribes.
See List of Designated Tribal Agents by Tribal Affiliation, 82 Fed.
Reg. 12,986, 13,009 (Mar. 8, 2017), https://perma.cc/K3DD-
KQR5. This information was sufficient to give the court reason to
know the children were Indian children under 25 C.F.R. §
23.107(c)(2).
¶ 45 Yet, the record contains no indication that the Department
gave notice of the dispositional hearing to the Sioux tribes. To be
sure, the Department correctly asserts that mother had not
complied with the juvenile’s court earlier directive to complete a
second ICWA assessment form. Be that as it may, mother’s failure
to comply did not eliminate the Department’s duty to send notice of
the proceeding to the tribal affiliations identified by mother. See
20
People in Interest of J.O., 170 P.3d 840, 843 (Colo. App. 2007). And,
in response to the juvenile court’s inquiry at the dispositional
hearing, mother reported that the children had Apache and Sioux
heritage.
¶ 46 Moreover, the juvenile court did not make the necessary
findings under 25 U.S.C. § 1912(d) and (e) before it placed three of
the children, P.M., M.V. and Mo.M., out of a parent’s care
(effectively a foster care placement under ICWA).
¶ 47 Under these circumstances, the record does not demonstrate
compliance with ICWA, and we must therefore reverse the
dispositional order.
III. Admission of Video Recordings at the Adjudicatory Trial
¶ 48 Mother contends that the juvenile court reversibly erred in
admitting video recordings that had been anonymously provided to
the Department and were not properly authenticated. We agree.
A. Legal Standard for Authentication
¶ 49 Video recordings are ordinarily competent to illustrate or
explain something that a witness could describe in words. People v.
Armijo, 179 P.3d 134, 137 (Colo. App. 2007). However,
21
authentication is a condition precedent to admissibility. People v.
Baca, 2015 COA 153, ¶ 26.
¶ 50 The burden to authenticate is not high and requires only a
prima facie showing. People v. Heisler, 2017 COA 58, ¶ 7.
Authentication is satisfied by evidence sufficient to support a
finding that the evidence in question is what its proponent claims.
CRE 901; People v. Glover, 2015 COA 16, ¶ 12.
¶ 51 To authenticate a video recording, the proponent needs to
establish that the recording is an accurate reproduction of a scene
with which the witness is familiar. Armijo, 179 P.3d at 136-38; see
also Baca, ¶ 29. But, if no witness with independent knowledge of
the content of the recording can verify the accuracy of the scene,
the proponent may instead present a witness who can verify the
reliability of the recording process, including the reliability of the
recording system and the absence of any tampering with the
recording. See Baca, ¶ 30 (applying the same principle to a
recorded telephone call).
¶ 52 We review evidentiary rulings, including a trial court’s
determinations regarding foundation and authentication, for an
abuse of discretion. Id. at ¶ 18. A court abuses its discretion when
22
its ruling is based on an erroneous understanding or application of
the law or is manifestly arbitrary, unreasonable, or unfair. Heisler,
¶ 13.
B. The Authentication of the Video Recordings
¶ 53 Before the jury trial, mother filed a motion in limine to exclude
eleven video recordings — ten that purported to show mother using,
manufacturing, or distributing drugs in her home and one that
showed the children in the same area at a different time. She
asserted that the video recordings were not original and that it
would be unfair to admit the duplicate copies because they
appeared to have been altered based on some having time stamps
that did not accurately reflect the length of the recordings and
others having obvious scene jumps or skips. Mother also argued
that the video recordings had been anonymously provided and
could not be authenticated.
¶ 54 At the start of the jury trial, mother renewed her objection.
She reiterated that the Department would not be able to
authenticate the video recordings and there were issues with the
contents of the recordings. The juvenile court deferred ruling on
23
the admissibility of the recordings until they were offered into
evidence.
¶ 55 Evidence presented at the trial established that the
Department received the video recordings of mother and the
children through two separate mechanisms. First, an intake
caseworker testified that he had received an interoffice envelope
that contained a DVD with four video clips. The intake caseworker
explained that he did not know who had left the DVD for him.
¶ 56 Second, M.V.’s paternal uncle testified that he had received
three video files from an anonymous sender via email. He then sent
the video recordings, also via email, to a different intake caseworker
at the Department. The second intake caseworker testified that
after receiving the email, she downloaded the video recordings onto
a disc and deleted the email.
¶ 57 Several witnesses testified that they recognized persons or
furniture in the video recordings. For example, the initial intake
caseworker recognized mother in the clips on the DVD. Likewise,
the paternal uncle testified that he was able to recognize mother in
two of the recordings as well as the computer room and an adjacent
pool table and light in mother’s home.
24
¶ 58 The second caseworker also recognized mother in two of the
video recordings as well as three of the children in another
recording. The second caseworker further testified that she showed
one of the video recordings to mother, who agreed that the
recording showed her desk and the children at their then-current
ages.
¶ 59 Based on this record, and over mother’s objection, the juvenile
court admitted six of the video recordings. A police officer
subsequently testified that the video recordings appeared to show
methamphetamine use and the selling of a substance that appeared
to be methamphetamine.
¶ 60 Still, the record is devoid of any testimony from a witness who
could independently verify the accuracy of the scenes depicted in
the video recordings — mother using and distributing
methamphetamine and the children later having access to the same
area. In fact, the paternal uncle admitted that he had never
witnessed mother using or selling drugs.
¶ 61 In short, the record does not establish that the police officer,
the caseworkers, or the paternal uncle was present when the scenes
depicted in the video recordings occurred. Thus, they could not
25
vouch for the accuracy of the recorded scene. See Baca, ¶ 31
(concluding that a witness could not vouch for the accuracy of a
recorded conversation since he did not hear the conversation as it
occurred).
¶ 62 Nor could any witness verify the reliability of the recording
process. Indeed, the paternal uncle acknowledged that he had no
idea how or when the video recordings were made. Likewise, the
second intake caseworker acknowledged that she could not verify
the accuracy of the time stamp seen in some of the recordings;
when the recordings were created; or whether any of the recordings
were altered, modified, or edited. The caseworker further agreed
that the video recordings “bounce[d]” and persons in the recordings
would suddenly jump from one position to another.
¶ 63 Given that the Department was unable to establish either the
accuracy of the scenes depicted in the video recordings or the
accuracy of the recording process, the juvenile court erred in
admitting the video recordings of mother and the children.
¶ 64 Relying on CRE 1002 and 1003, mother also argues that it
was unfair for the juvenile court to admit the video recordings when
she was unable to cross-examine the person who made the
26
recording or view the original recordings. Because we have already
determined that the juvenile court erred in admitting the recordings
without proper authentication, we need not decide this issue.
¶ 65 But this conclusion does not end our analysis. We must also
determine whether the admission of the video recordings requires
reversal of the jury’s verdict.
C. The Effect of the Admission of the Recordings
¶ 66 Generally, an error in the admission of evidence in a civil case
is harmless if it does not affect a substantial right of a party.
C.R.C.P. 61; People in Interest of D.B., 2017 COA 139, ¶ 31. An
error affects a substantial right if it can be said with fair assurance
that it substantially influenced the outcome of the case or impaired
the basic fairness of the trial itself. D.B., ¶ 31; see also Bly v. Story,
241 P.3d 529, 535 (Colo. 2010). This formulation closely tracks
error requiring reversal in the criminal context for non-
constitutional error. See James v. People, 2018 CO 72, ¶ 19.
¶ 67 The proper inquiry in determining a harmless error question is
not, then, whether there was sufficient evidence to support the
verdict without the improperly admitted evidence, but, rather,
whether the error substantially influenced the verdict or affected
27
the fairness of the trial proceedings. Yusem v. People, 210 P.3d
458, 469 (Colo. 2009). This assessment requires consideration of
the importance of the evidence to the proponent’s case, whether the
evidence was cumulative, the presence of other evidence
corroborating or contradicting the point for which the evidence was
offered, and the overall strength of the proponent’s case. People v.
Casias, 2012 COA 117, ¶ 64; see also People v. Bus. or Businesses
Located at 2896 W. 64th Ave., Unincorporated Adams Cty., 937 P.2d
873, 876-77 (Colo. App. 1996) (recognizing that the erroneous
admission of evidence may be harmless when there is ample or
conclusive evidence from other sources that establish the same
facts). But, the single most important factor is whether the case
was close. Casias, ¶ 69; see also People in Interest of G.E.S., 2016
COA 183, ¶ 34 (concluding that the erroneous admission of the
polygraph evidence was not harmless given the inherently
prejudicial nature of the evidence and the lack of otherwise
admissible evidence overwhelmingly proving the allegations of
dependency and neglect).
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1. Basis for Adjudication
¶ 68 The purpose of an adjudicatory trial is to determine whether
the factual allegations in the dependency and neglect petition are
supported by a preponderance of the evidence, and, thus, whether
the status of the child warrants intrusive protective or corrective
state intervention in the familial relationship. § 19-3-505(1); S.G.L.,
214 P.3d at 583.
¶ 69 A child is dependent and neglected when the parent has
subjected the child to mistreatment or abuse or allowed another to
mistreat or abuse the child without taking lawful means to stop the
mistreatment or abuse and prevent it from recurring. § 19-3-
102(1)(a), C.R.S. 2018. As pertinent here, “abuse” includes an act
or omission that threatens the child’s health or welfare in any case
in which a child is in need of services because the parent fails to
take action to provide the supervision that a prudent parent would.
§ 19-1-103(1)(a)(III), C.R.S. 2018.
¶ 70 A child may also be adjudicated dependent and neglected if
the child lacks proper parental care through the parent’s actions or
omissions or the child’s environment is injurious to his or her
welfare. § 19-3-102(1)(b)-(c). An injurious environment exists when
29
a child is in a situation that is likely harmful to the child. People in
Interest of J.G., 2016 CO 39, ¶ 26. And it does not require proof of
parental fault. Id. at ¶ 32; see also People in Interest of M.M., 2017
COA 144, ¶ 21.
2. Harmless Error Analysis
¶ 71 To be sure, the video recordings were not the sole evidence
presented at the trial to support the Department’s assertion that
the children were dependent and neglected. The Department also
asserted that the children’s welfare was at risk because of the
chaotic environment and domestic violence that was occurring in
the home that mother shared with M.V.’s father (father). Still, we
cannot conclude that the admission of the video recordings did not
substantially influence the jury’s verdict.
¶ 72 First, the record reveals that considerable emphasis was
placed on the video recordings. In addition to playing the six
recordings for the jury, the Department elicited expert testimony
from a police officer to establish that five of the recordings appeared
to show methamphetamine use and distribution. The Department
also had three separate witnesses — the initial intake worker, the
30
paternal uncle, and a second caseworker — identify mother in the
recordings.
¶ 73 Indeed, the second intake caseworker opined that by the end
of July 2017, she was concerned by the video recordings but was
not immediately concerned by domestic violence (as opposed to
mother re-engaging in a violent relationship) because father had left
the home and a protection order was in place.
¶ 74 The record further reveals that the video recordings and their
significance were discussed at length during closing argument by
both the Department and the children’s guardian ad litem. And the
Department again referenced the recordings in its rebuttal
argument.
¶ 75 Second, the video recordings are not cumulative of or
corroborated by other evidence. Some, but not all, of the recordings
have time stamps showing that they were made in late June 2017.
In other words, they purport to show recent methamphetamine use
and distribution by mother. While mother admitted to using
methamphetamine in the past (she estimated twenty times) and was
on probation for drug possession, there was no other evidence
31
showing that she used or distributed drugs during the summer of
2017.
¶ 76 Rather, a police officer testified that in April 2016 —
approximately seventeen months before the trial — he searched
mother’s car during a traffic stop and found a shard of
methamphetamine on the driver’s seat as well as a cosmetic mirror
that contained methamphetamine mixed with water in the center
console. Although mother denied that the methamphetamine
belonged to her, she admitted that it had been found in her car and
resulted in her receiving a felony drug conviction and probation
sentence.
¶ 77 Third, the record contains other evidence that tends to
contradict that mother had recently used or distributed
methamphetamine. The initial intake caseworker acknowledged
that he had not seen any sign that mother was under the influence
of methamphetamine or other drugs when he met with her. The
paternal uncle testified that he had not seen mother use or sell
drugs.
¶ 78 The record further reveals that before the case was filed,
mother provided a urinalysis. Although she did not take the test at
32
a facility approved by the Department, the test was negative.
Mother also provided a second negative urinalysis on the day the
petition was filed.
¶ 79 Additionally, mother’s probation officer testified that she had
provided four urinalyses since mid-April 2017, which all tested
negative, and had completed a substance abuse evaluation that
showed she did not need treatment. Finally, mother testified that
the last time that she used methamphetamine occurred before she
learned that she was pregnant with M.V.
¶ 80 Fourth, without the video recordings, the record shows a
much closer case as to whether the children were dependent and
neglected. While mother acknowledged past methamphetamine
use, it occurred more than a year before the adjudicatory trial, and,
as previously discussed, there was evidence that tended to show
that the use was not continuing.
¶ 81 True, the record also shows that mother and father had a
contentious relationship and police officers had responded to the
home on multiple occasions. However, in the end, the officers
determined that these were disputes between adults that required
no further action. For example, a police officer testified that he
33
responded to mother’s home in January 2017 and observed mother
barricaded in a bedroom with M.V., then a newborn, and a twelve-
or thirteen-year-old child. Mother told the officer that father’s ex-
girlfriend had come over and challenged her to a physical
confrontation. The officer determined that the incident, as
described by mother, did not constitute a crime. And, when no
party was willing to take his suggestion to leave the home for the
night, he left.
¶ 82 Another police officer testified that he responded to mother’s
home in June 2017 as a result of a domestic disturbance call from
father. Father told the officer that mother had cut off the power to
the basement and mother indicated that father “yells at her and
locks her out of the house.” But, the officer concluded that there
was no evidence of domestic violence and described the incident as
a “verbal argument between male and female.”
¶ 83 The next day, a different police officer responded to mother’s
home based on a call from father. The officer testified that it
appeared that father and mother were having a verbal argument
“where nothing illegal was going on.”
34
¶ 84 Additionally, it was undisputed that there was a violent
episode of domestic violence between mother and father as well as a
heated exchange of M.V. in early July 2017. On that day, M.V.’s
paternal aunt and uncle witnessed a verbal altercation between
mother and father. The aunt described mother and father as
“screaming back and forth at each other” while father was in the
garage holding M.V. in his arms and mother was parked halfway in
the garage. Father had a bleeding gash on his face and mother had
a torn shirt and blood under her arm.
¶ 85 At some point, the aunt took M.V. inside of mother’s home and
mother left. About an hour later, mother returned to the home with
Mo.M. and asked to take M.V. The aunt explained that she tried to
hand M.V. to mother, but the aunt’s son grabbed M.V. and then
either mother or Mo.M. grabbed M.V. from the aunt’s son. The aunt
also testified that after grabbing the baby, mother said “somebody is
going to die tonight, somebody is going to get shot.”
¶ 86 After the incident, a police officer met with mother at the
hospital. Mother told the officer that the night before and
throughout that morning, she and father had been arguing and,
while M.V. was present, father “had put his hands around her
35
throat and strangled her.” The officer observed that mother had
scratches on her face, marks around her neck, and a “good size”
laceration on the back of her arm.
¶ 87 Despite the serious nature of this incident, mother explained
that this was the first incident of physical violence between her and
father and the first time that she had been the victim of domestic
violence. She also testified that she had not threatened anyone that
evening and that she was no longer living with father. Furthermore,
the police officer determined that mother was the victim and had a
warrant issued for father for domestic violence and child abuse.
¶ 88 It may well be that, in the absence of the video recordings, this
other evidence — mother’s past methamphetamine use, the
contentious relationship resulting in police calls, and the single
incident of domestic violence — would have been sufficient to
support the jury’s verdict that mother had subjected the children to
mistreatment or abuse, the children lacked proper parental care as
a result of mother’s acts or failures to act, and the children’s
environment was injurious to their welfare. But, this is not the
question that we must decide. See Yusem, 210 P.3d at 469.
36
¶ 89 Rather, we conclude that the erroneous admission of the video
recordings substantially influenced the jury’s verdict given the
emphasis placed on the recordings, the lack of cumulative or
corroborative evidence, the evidence that tended to contradict
mother’s recent use, and the closeness of the case (without the
recordings). Accordingly, the error was not harmless, and we must
reverse the adjudicatory order.
IV. Conclusion
¶ 90 The adjudicatory and dispositional orders are reversed. The
case is remanded to the juvenile court to hold a new adjudicatory
trial. The court must also ensure, if it has not already done so, that
notice of the proceeding is given to the federally recognized Sioux
and Apache tribes as well as the BIA before the dispositional
hearing.
¶ 91 Additionally, if the children are again adjudicated dependent
and neglected, the juvenile court must treat the children as Indian
children unless and until it determines that they are not.
Accordingly, if at the time of the dispositional hearing, the court has
been unable to determine that the children are not Indian children,
37
it must comply with 25 U.S.C. § 1912(d) and (e) for any of the
children that remain out of a parent’s care and determine whether
 the Department has made active efforts to provide remedial
services and rehabilitative programs designed to prevent the
breakup of the family and these efforts have proved
unsuccessful; and
 clear and convincing evidence, including testimony of qualified
expert witnesses, demonstrates that the continued custody of
the child by the parent is likely to result in serious emotional
or physical damage to the child.
JUDGE LICHTENSTEIN and JUDGE ASHBY concur.
38