21CA0181 Peo in Interest of NT 01-20-2022
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA0181
Adams County District Court No. 18JV423
Honorable Patrick H. Pugh, Judge
The People of the State of Colorado,
Appellee,
In the Interest of N.T., a Child,
and Concerning R.T.,
Appellant.
JUDGMENT AFFIRMED
Division IV
Opinion by JUDGE FREYRE
J. Jones and Tow, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 20, 2022
Heidi M. Miller, County Attorney, Rebecca Wiggins, Assistant City Attorney,
Westminster, Colorado, for Appellee
Tausha Riley, Jared McCauley, Guardians Ad Litem
Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant
1
¶ 1 In this dependency and neglect proceeding, R.T. (father)
appeals the judgment terminating his parental rights to N.T. (the
child). We affirm.
I. Background
¶ 2 In December 2018, the Adams County Department of Human
Services (Department) initiated an action in dependency and neglect
based on concerns about mother’s substance use. The Department
did not initially know father’s whereabouts, but it eventually located
him in federal custody in New Jersey. After father failed to appear
at an adjudicatory hearing, a magistrate entered a default judgment
adjudicating the child dependent and neglected.
¶ 3 In February 2020, the Department moved to terminate father’s
parental rights, asserting that he had abandoned the child. The
juvenile court held a termination hearing over multiple days
between October 2020 and January 2021. After hearing the
evidence, the court took the matter under advisement and later
entered a written order terminating father’s parental rights.
¶ 4 Father appealed the judgment, arguing, in part, that the
juvenile court and the Department had not complied with the notice
requirements of the Indian Child Welfare Act of 1978 (ICWA), 25
2
U.S.C. §§ 1901-1963. We remanded the case to the juvenile court
for the limited purpose of resolving the ICWA notice issues. On
remand, the court concluded that ICWA does not apply. We then
recertified the appeal.
II. ICWA
¶ 5 Father first contends that the juvenile court and the
Department failed to comply with ICWA’s notice requirements. See
25 U.S.C. § 1912(a). After reviewing the supplemental record
produced following the limited remand, we disagree.
¶ 6 If the juvenile court knows or has reason to know that a child
is an Indian child, the Department must directly notify any
applicable tribes by registered or certified mail, with return receipts
requested, of the pending child-custody proceeding. 25 C.F.R.
§ 23.111(a)(1), (c) (2021); § 19-1-126(1)(b), C.R.S. 2021. The
Department should then file with the court a copy of the notice
together with any return receipts or other proof of service. 25
C.F.R. § 23.111(a)(2). The court should not conduct a termination
hearing “until at least ten days after receipt of notice” from the
tribe. 25 U.S.C. § 1912(a); People in Interest of Z.C., 2019 COA
71M, ¶ 15.
3
¶ 7 Where a tribe does not respond to a notice sent before the
Department moves to terminate parental rights, ICWA requires the
Department to send an additional notice of the termination
proceeding. See People in Interest of S.R.M., 153 P.3d 438, 442
(Colo. App. 2006); see also Bureau of Indian Affairs, Guidelines for
Implementing the ICWA (Dec. 2016), https://perma.cc/3TCH-
8HQM (“Notice is required for a [termination] proceeding, even if
notice has previously been given for the child’s foster-care
proceeding.”).
¶ 8 Whether ICWA’s notice requirements are satisfied is a question
of law we review de novo. People in Interest of T.M.W., 208 P.3d
272, 274 (Colo. App. 2009).
¶ 9 In this case, father completed an ICWA assessment form and
declared that he had “Oglala Lakota and Cheyenne” heritage. The
Department sent notices to two Cheyenne tribes (the Northern
Cheyenne Tribe and the Cheyenne and Arapaho Tribes of
Oklahoma) and two Sioux tribes (the Oglala Sioux Tribe and the
Cheyenne River Sioux Tribe).
¶ 10 On the second day of the termination hearing in December
2020, paternal grandmother provided additional aliases for a
4
paternal great-grandmother, and the Department said that it would
send out new notices with the updated information. The court
continued the termination hearing to January 2021 to allow the
Department to send additional ICWA notices. At the January 2021
hearing, the Department told the juvenile court that it had sent the
additional notices but had not received the return receipts yet.
¶ 11 In its written order, the court found that the Department had
complied with ICWA’s notice requirements, but the court stated that
it would hold the “order in abeyance until it received the amended
ICWA notice and certified mail receipts.” The Department
subsequently filed a copy of the amended notice, which indicated
that notice had been sent to the two Sioux tribes the Department
previously noticed, as well as fifteen other Sioux tribes. However,
the notice did not indicate that either Cheyenne tribe had been sent
the amended notice. The Department eventually filed return
receipts and responses from most of the tribes.
¶ 12 We conclude, for the following reasons, that the juvenile court
and Department adequately complied with the notice provisions of
ICWA.
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¶ 13 First, as to the seventeen Sioux tribes, the record shows that
only four of them failed to respond to the amended notice. But
because the record shows that those four tribes received notice
more than ten days before the court entered its termination order,
we discern no error. See 25 U.S.C. § 1912(a); see also People in
Interest of N.D.C., 210 P.3d 494, 500 (Colo. App. 2009) (“[T]he court
need not delay the termination hearing until the tribe responds; it
need only wait ten days post receipt.”).
¶ 14 Second, as to the two Cheyenne tribes, even though the notice
filed with the court did not list these tribes, the supplemental
record contains responses to the amended notices indicating that
the child is not a member or eligible for membership in either tribe.
See People in Interest of A.R.Y.-M., 230 P.3d 1259, 1261 (Colo. App.
2010) (“If, after receiving all known information, a tribe responds
that a child is not an Indian child, any errors in the notice are
deemed to be harmless.”). In any event, on remand, the
Department sent additional notices to the Cheyenne tribes, and the
supplemental record indicates that the tribes received the
additional notices on October 25, 2021. The Northern Cheyenne
Tribe responded that the child is not a member or eligible for
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membership. And, while the Cheyenne and Arapahoe Tribes of
Oklahoma did not respond to the additional notice, the juvenile
court waited more than ten days before entering its order. See
N.D.C., 210 P.3d at 500.
III. Motion to Set Aside the Default Adjudication
¶ 15 Father next asserts that the juvenile court erred by failing to
set aside the default adjudication. Specifically, he contends that,
because he was incarcerated, the court should have appointed
counsel for him before entering the default adjudication. Because
father’s claim was not properly preserved for review, we decline to
address it.
¶ 16 Father asserts that he preserved this issue by filing a motion
to set aside the default adjudication. However, the order denying
his motion to set aside default adjudication was entered by a
magistrate. Before this court can review an issue presented to a
magistrate, the party must petition the district court for review of
the magistrate’s order. § 19-1-108(5.5), C.R.S. 2021; see People in
Interest of K.L-P., 148 P.3d 402, 403 (Colo. App. 2006). But the
record is clear that father never filed a petition for judicial review of
the magistrate’s order. We therefore cannot address this issue for
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does not raise an issue before the district court in a petition for
review, the party asks us to correct an error that the district court
could have corrected).
¶ 17 To the extent that father challenges the denial of counsel at
the adjudicatory phase, his challenge is untimely. See People in
Interest of C.B., 2019 COA 168, ¶¶ 18, 23 (“Challenges to the
propriety of a judgment of adjudication must be raised in a timely
appeal from the adjudicatory stage of a dependency and neglect
proceeding.”).
IV. Termination of Parental Rights
¶ 18 Father also asserts that we should reverse the termination
judgment because the juvenile court erred by finding that (1) he had
abandoned the child under section 19-3-604(1)(a), C.R.S. 2021; and
(2) there were no less drastic alternatives to termination. We
disagree.
A. Standard of Review
¶ 19 Where resolution of an issue requires application of the
termination statute to evidentiary facts, it presents a mixed
question of fact and law. People in Interest of A.M. v. T.M., 2021 CO
8
14, ¶ 15. We review the juvenile court’s factual findings for clear
error. C.R.C.P. 52. The credibility of witnesses, the sufficiency,
probative effect, and weight of the evidence, and the inferences and
conclusions to be drawn therefrom are all within the province of the
juvenile court. People in Interest of C.A.K., 652 P.2d 603, 613 (Colo.
1982). But application of the proper legal standard to the
particular facts of the case are questions of law that we review de
novo. M.A.W. v. People in Interest of A.L.W., 2020 CO 11, ¶ 31.
B. Abandonment
¶ 20 Father asserts that the juvenile court erred by finding that he
had abandoned the child. Specifically, father contends that the
court’s finding was erroneous given that he was incarcerated,
mother attempted to conceal the child from him, and he took steps
to assert his parental rights after his release from prison. We are
not persuaded.
¶ 21 Under section 19-3-604(1)(a), the juvenile court may terminate
parental rights if it finds by clear and convincing evidence that a
child has been (1) adjudicated dependent or neglected and (2)
abandoned by the parent. Subsection 604(1)(a)(I) provides that a
parent has abandoned a child if the parent (1) surrendered physical
9
custody of the child for a period of six months or more; and (2)
during that period, did not manifest a firm intent to resume
physical custody of the child or make permanent legal
arrangements for the care of the child.
¶ 22 Abandonment is primarily a question of intent and may be
determined by the parent’s actions and words. People in Interest of
A.D., 56 P.3d 1246, 1248 (Colo. App. 2002). In determining
whether a child has been abandoned, the circumstances must be
viewed in light of the child’s best interests. Id.
¶ 23 The record shows the child was born in December 2011; father
admitted at the termination hearing that he had not seen the child
since then. Father testified that law enforcement arrested him at
the hospital the day after the child’s birth and that he had
remained incarcerated until January 2020.
¶ 24 According to father, mother initially sent him a few letters,
along with photographs of the child. However, father said that
when he sent return correspondence, mother did not respond.
Father testified that the last time he received something from
mother was around the child’s first birthday, or December 2012.
10
¶ 25 Father said that he received the dependency and neglect
petition and summons in this case in March 2019, while he was
incarcerated in a federal prison in New Jersey. The caseworker
testified that she sent father copies of the court reports while he
was incarcerated, but she said that he never reached out to her
during this time.
¶ 26 The record shows that father returned to the Denver metro
area after his release from federal prison in January 2020. The
caseworker said that father appeared at the courthouse in February
2020, but his case was not scheduled on the day he appeared. She
said that a county attorney provided father with information about
the case, including the caseworker’s name and phone number. But
she said that father still never contacted her. Shortly thereafter,
father was reincarcerated, and he admitted that he did not contact
the caseworker after he was reincarcerated.
¶ 27 Ultimately, the caseworker said that father had never
contacted her during the case and that he did not have any contact
with the child during the case.
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¶ 28 Based on this record, we conclude, for the following reasons,
that the juvenile court did not err by finding that father had
abandoned the child.
¶ 29 First, the record supports the court’s finding that father had
surrendered physical custody of the child for a period of six months
or more. § 19-3-604(1)(a)(I). It is undisputed that father never had
physical custody of the child, had not seen the child since the day
after the child was born, was incarcerated for most of the child’s
1248 (rejecting the parent’s assertion that he could not surrender
physical custody because he never had physical custody).
¶ 30 Father asserts that he did not voluntarily surrender custody of
the child because the child’s mother “forcibly separated” him from
the child by cutting off communication. But father does not provide
us with any authority for the proposition that mother’s actions can
absolve him of taking steps to maintain or resume physical custody
of the child to avoid termination under section 604(1)(a). Instead,
“[a] parent who wishes to maintain the benefits of a parental
relationship must bear the burden of parental responsibilities.” See
A.D., 56 P.3dat 1249. Here, the record shows that, after mother
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stopped communicating with father, he simply ceased any further
efforts to contact her or otherwise exercise his parental rights.
¶ 31 Second, the record supports the court’s finding that father did
not manifest a firm intent to resume physical custody of the child or
arrange for the child’s care. § 19-3-604(1)(a)(I). The court found,
with record support, that father remained incarcerated at the time
of the termination hearing and would not be able to resume
physical custody of the child in the foreseeable future. Nor is there
anything in the record suggesting that father made any efforts to
arrange for the child’s care either before or after this case was filed.
¶ 32 Nevertheless, father argues that the juvenile court could not
terminate his parental rights under the abandonment provision
because the record shows that he participated in the case after his
release from prison. But a parent’s participation in an involuntary
termination proceeding, standing alone, is insufficient to preclude
While the record shows that father made some minimal efforts to
participate in the case, we see nothing in the record to suggest that
these efforts amounted to a firm intent to resume physical custody
or an attempt to arrange for the child’s care. See id. at 1248-49
13
(noting that the father’s desire to “someday assume custody” and
his agreement to the department’s placement of the child with a
relative pursuant to the dependency and neglect case did not
“obviate termination on the basis of abandonment”).
¶ 33 Father also asserts that he could not “willingly or knowingly”
abandon the child because he was “incompetent.” Because
abandonment is primarily a question of intent, we recognize that a
parent’s lack of mental capacity may be sufficient to defeat a motion
to terminate based on the abandonment provision. In re D.L.M.,
703 P.2d 1330, 1332 (Colo. App. 1985). But father never presented
such an argument to the juvenile court. See People in Interest of
M.B., 2020 COA 13, ¶ 14 (noting that appellate courts do not
address issues not presented to or ruled on by the juvenile court).
And, on appeal, he does not develop his claim or provide any legal
authority for his position. See People in Interest of D.B-J., 89 P.3d
530, 531 (Colo. App. 2004) (stating that appellate courts will not
address undeveloped issues). In any event, even if father lacked
mental capacity at the time of termination hearing, as he now
argues, he does not assert that he lacked mental capacity during
the entirety of the abandonment period.
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¶ 34 We also are not persuaded by father’s assertion that the
juvenile court erred by terminating his parental rights because the
Department did not make reasonable efforts to facilitate
communication between him and the child. The record shows that
the caseworker made efforts to keep father apprised of the case
while he was incarcerated and attempted to locate him after his
release. But the record also reveals that, while father had the
caseworker’s contact information, he never contacted her. See
People in Interest of A.V., 2012 COA 210, ¶ 12 (noting that a
parent’s unwillingness to participate in a case is a factor in
determining whether the Department has made reasonable efforts).
C. Less Drastic Alternatives
¶ 35 Finally, father contends that the juvenile court erred by
finding that there were no less drastic alternatives to termination.
We disagree.
¶ 36 Before terminating parental rights, the juvenile court must
consider and eliminate less drastic alternatives. People in Interest of
M.M., 726 P.2d 1108, 1122 (Colo. 1986); see also People in Interest
of L.M., 2018 COA 57M, ¶ 24 (The consideration of a less drastic
alternative is not a separate criterion but rather “is implicit in, and
15
thus intertwined with, the statutory criteria for termination.”). In
considering less drastic alternatives, courts must give primary
consideration to the child’s physical, mental, and emotional
conditions and needs. § 19-3-604(3).
¶ 37 A juvenile court may consider and weigh various factors in
determining the viability of a less drastic alternative, including
whether (1) an ongoing relationship with a parent would be
beneficial or detrimental to the child, People in Interest of J.L.M.,
143 P.3d 1125, 1127 (Colo. App. 2006); and (2) the alternative
option provides the child with adequate permanence or meets the
child’s needs, People in Interest of T.E.M., 124 P.3d 905, 910 (Colo.
App. 2005). For a less drastic alternative to be viable, it must do
more than “adequately” meet a child’s needs; rather, the less drastic
alternative must be the “best” option for the child. A.M., ¶ 27.
Therefore, if the court considers a less drastic alternative but finds
instead that termination is in the child’s best interests, it must
reject the less drastic alternative and order termination. Id. at ¶ 32.
¶ 38 When the juvenile court considers the availability of a less
drastic alternative and still determines that the termination of
parental rights would be in the child’s best interests, we are bound
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to affirm the court’s decision if its findings are supported by the
record. People in Interest of B.H., 2021 CO 39, ¶ 80.
¶ 39 The juvenile court found that there were no less drastic
alternatives available. Specifically, the court found that a
permanent placement or an allocation of parental responsibilities
(APR) to a relative was not in the child’s best interests based on his
“age and substantial and emotional health needs, and the child’s
need for a permanent and stable home.” See T.E.M., 124 P.3d at
910. The court also determined that an APR was not in the child’s
best interests because an ongoing relationship with father would
Although father asserts on appeal that the juvenile court “failed to
consider less drastic alternatives, such as an allocation of parental
responsibilities,” the record is clear that the court specifically
considered and rejected less drastic alternatives, as described
above. Because father does not challenge the propriety of these
findings, and because they are supported by competent evidence in
the record, we cannot disturb them. See A.M., ¶¶ 48-50.
¶ 40 Nonetheless, father asserts that the juvenile court should have
provided him with an opportunity to complete a treatment plan and
17
become fit as a less drastic alternative. But that argument does not
propose an alternative placement option that would resolve the
dependency and neglect case. See People in Interest of A.R., 2012
COA 195M, ¶ 44 (noting that the less drastic alternative analysis
involves the consideration of whether a placement alternative —
such as an APR — would satisfy the child’s best interests). Instead,
father’s contention is essentially a rebranding of his previous
argument — that the juvenile court erred by terminating his
parental rights under section 19-3-604(1)(a). We therefore reject
father’s assertion for the same reasons discussed in Part IV.B.
¶ 41 Nor are we convinced by father’s assertion that the juvenile
court erred by terminating his parental rights because the child was
not in a permanent, adoptive home and termination therefore
rendered him a “legal orphan.” At the October 2020 hearing, the
caseworker testified that the child was placed with his
grandparents, who initially wanted to adopt him, but the
Department was “looking at alternative homes,” given some recent
issues between the child and his sibling. The caseworker still
believed that the grandparents could be a “potential permanent
placement” for the child if the Department could not find another
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option. Although the court never heard additional testimony about
whether the child had moved to a new placement at the January
2021 hearing, the court’s order indicates that there had been a
“recent change of placement” to “other psychological kin.”
¶ 42 Because father does not direct us to any evidence in the record
supporting his assertion that the child’s new placement was
unwilling to adopt him, we necessarily reject his argument.
¶ 43 In any event, we conclude that the juvenile court did not err
by deciding that, regardless of placement, termination was still in
the child’s best interest. See A.M., ¶ 32. The juvenile court found
that the child’s recent change in placement did not affect the
“ultimate determination” of whether a less drastic alternative
existed because the “benefit of permanency and stability
particularly for this child, whether in the home with [his
grandparents] or in a separate home . . . outweighs the benefit of an
ongoing legal relationship with [father].” Because the court’s
findings are supported by the record, we decline to disturb them.
See B.H., ¶ 80.
V. Conclusion
¶ 44 The judgment is affirmed.
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JUDGE J. JONES and JUDGE TOW concur.
