in the Interest of My.K.M

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
March 11, 2021
2021COA33
No. 20CA0695, People in the Interest of My.K.M. — Juvenile
Court — Dependency and Neglect — Termination of the Parent-
Child Legal Relationship; American Indian Law — ICWA —
Indian Child — Remedial and Rehabilitative Programs
As a matter of first impression in Colorado, a division of the
court of appeals holds that a child’s membership in a tribe, even
absent eligibility for enrollment, is sufficient for a child to be an
Indian child under the Indian Child Welfare Act.
COLORADO COURT OF APPEALS 2021COA33
Court of Appeals No. 20CA0695
City and County of Denver Juvenile Court No. 16JV1388
Honorable Donna J. Schmalberger, Judge
The People of the State of Colorado,
Appellee,
In the Interest of My.K.M. and Ma.K.M, Children,
and Concerning V.K.L. and T.A.M.,
Respondent-Appellants.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE TOW
Dailey and Berger, JJ., concur
Announced March 11, 2021
Kristin M. Bronson, City Attorney, Cathleen M. Giovannini, Assistant City
Attorney, Denver, Colorado, for Appellee
Barry Meinster, Guardian Ad Litem
Joel M. Pratt, Office of Respondent Parents’ Counsel, Colorado Springs,
Colorado, for Appellant V.K.L.
Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr,
Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant T.A.M.
¶1 Mother, V.K.L., and father, T.A.M., appeal the juvenile court’s
judgment terminating their parent-child legal relationships with
My.K.M. and Ma.K.M. Mother’s appeal presents an issue of first
impression in Colorado: whether enrollment in a tribe, or merely
tribal membership even absent enrollment, determines whether a
child is an Indian child under the Indian Child Welfare Act of 1978
(ICWA), 25 U.S.C. §§ 1901-1963. We conclude that tribal
membership, not enrollment, determines ICWA’s applicability.
¶2 The juvenile court ultimately recognized that ICWA applied to
this case, in which the children are tribal members but not eligible
for enrollment. However, we conclude that the juvenile court
erroneously found that the Denver Department of Human Services
(the Department) provided active efforts for mother as required by
ICWA. Thus, we reverse the termination of mother’s parent-child
legal relationships with the children and remand the case for
further proceedings as to her. But because the record supports the
juvenile court’s judgment as to father, we affirm the termination of
his parent-child legal relationships with the children.
1
I. Background
¶3 In October 2016, father took twelve-month-old Ma.K.M. to a
hospital emergency department because she was lethargic and
breathing poorly. Hospital staff contacted the police because father
appeared intoxicated and they suspected that the child had
ingested a controlled substance. Hospital staff reported that the
child’s pupils were dilated, she was unresponsive, and she required
intubation because she was unable to breathe on her own. Father
appeared calm at first but became agitated and tried to flee when
asked to write an account of how the child had become ill. He told
the police that five-year-old My.K.M. was with mother, but officers
found the child home alone. Mother could not be located.
¶4 While the younger child remained in the hospital, the
Department placed the elder child in emergency foster care and
filed a petition in dependency or neglect. In addition to these
events, the petition described both parents’ substance use and a
2014 dependency or neglect case that had been closed seven
months earlier after My.K.M. spent a year in foster care.
¶5 The juvenile court held a temporary custody hearing and
ordered father to vacate the home so the children could return to
2
mother’s care. One week later, both children returned home to
mother. In late 2016, the juvenile court found the children were
dependent or neglected, entered an adjudication order concerning
father, entered a deferred adjudication concerning mother, and
approved treatment plans for both parents. After mother tested
positive for cocaine, the juvenile court revoked mother’s deferral
and entered an adjudicatory order against her in November 2017.
¶6 The following facts are undisputed. Father subsequently
moved back into the family home. In October 2018, father was
involved in a collision that resulted in criminal charges against him
and the loss of the family car. Shortly thereafter, mother reported
that father had assaulted her in front of the children. As a result,
the juvenile court again ordered father to vacate the home. In
mid-November 2018, the juvenile court placed the children in foster
care after mother failed to pick them up from school and daycare
and could not be located. Mother later admitted that she had
relapsed.
¶7 The Department later filed a motion to terminate the parents’
rights. Following a six-day termination hearing from January 2020
3
through March 2020, the juvenile court terminated both parents’
parental rights.
II. Mother’s Appeal
¶8 Mother contends that the juvenile court reversibly erred
because it failed to recognize that ICWA governs the case until just
before the termination hearing. She also argues that the
Department failed to make active efforts for her. We reject mother’s
first contention but agree with the second.
A. The Juvenile Court’s Untimely ICWA Finding Does Not Require
Reversal
¶9 Mother contends that the juvenile court erred by failing to
apply the ICWA standards to the proceeding until the beginning of
the termination hearing despite mother’s prompt disclosure that
she is a member of a federally recognized Indian tribe. We agree
that the court erred by not timely recognizing the children’s Indian
status, but we disagree that the error provides grounds for reversal.
1. Factual Background
¶ 10 A representative of the Colville Confederated Tribes appeared
at the temporary custody hearing in October 2016. She confirmed
that mother is an enrolled member of the Tribe. The tribal
4
representative said she “ha[d] not been able to verify whether the
children [were] eligible for enrollment . . . [b]ut they would be
considered members.”
¶ 11 The juvenile court made no findings regarding the children’s
Indian status or the applicability of ICWA. Instead, one week later,
the court ordered mother to complete an ICWA assessment form —
even though the court already knew that the children were
members of the Colville Confederated Tribes. In March 2017, the
juvenile court ruled that because the children are not eligible for
enrollment, ICWA did not apply.
¶ 12 At a hearing in November 2018, the presiding magistrate
asked whether the case was subject to ICWA. The county attorney
reported that the Tribe had not responded to the ICWA notice and
the Department planned to ask for a written response.
¶ 13 The Department filed a motion to terminate parental rights on
October 4, 2019. On October 21, 2019, the juvenile court held a
status conference. The Department reported that it had asked the
tribal representative to confirm in writing whether the children were
eligible for enrollment in the Tribe. The tribal representative had
responded — just as she had three years earlier — that the Tribe
5
considered the children to be members. The county attorney said
he was waiting to hear whether the Tribe thought ICWA applied to
the case. The juvenile court opined that membership absent
enrollment represented an “ICWA gray area” and recalled that the
Tribe had indicated it would not intervene or participate in the case.
(We find no support in the record for this assertion.)
¶ 14 The juvenile court began the termination hearing on November
6, 2019. The county attorney informed the court that the Tribe
considered the case to be subject to ICWA because the children are
tribal members. The juvenile court found there was reason to know
the children are Indian children and continued the case so the
parties could consult with the Tribe.
¶ 15 The Tribe participated in the rest of the proceedings, and the
juvenile court applied ICWA’s provisions when it terminated the
parents’ parental rights.
2. Tribal Membership, Not Enrollment, Determines
ICWA’s Applicability
¶ 16 We review the juvenile court’s interpretation and application of
ICWA de novo. People in Interest of A.R., 2012 COA 195M, ¶ 17.
When construing a federal statute, our goal is to give effect to
6
congressional intent and purpose. In re N.B., 199 P.3d 16, 18 (Colo.
App. 2007). We look first to the plain language of the statute, giving
words and phrases their plain and ordinary meanings. Id.; see also
Roberts v. Sea-Land Servs., Inc., 566 U.S. 93, 100 (2012). If the
meaning is clear and unambiguous, we do not resort to other rules
of statutory interpretation. Good Samaritan Hosp. v. Shalala, 508
U.S. 402, 409 (1993) (when interpreting a federal statute, judicial
inquiry is complete if the intent of Congress is clear from the
language of the statute). We must construe ICWA liberally in favor
of Indian interests, with ambiguous provisions interpreted to benefit
Indians and tribes. Montana v. Blackfeet Tribe of Indians, 471 U.S.
759, 766 (1985); People in Interest of D.B., 2017 COA 139, ¶ 10.
¶ 17 The statutory definition of “Indian child” turns on membership
rather than enrollment. ICWA defines an Indian child as “any
unmarried person who is under age eighteen and is either (a) a
member of an Indian tribe or (b) is eligible for membership in an
Indian tribe and is the biological child of a member of an Indian
tribe.” 25 U.S.C. § 1903(4).
Enrollment is not always required in order to
be a member of a tribe. Some tribes do not
have written rolls. Others have rolls that list
7
only persons that were members as of a
certain date. Enrollment is the common
evidentiary means of establishing Indian
status, but it is not the only means nor is it
necessarily determinative.
Guidelines for State Courts; Indian Child Custody Proceedings, 44
Fed. Reg. 67,584, 67,586 (Nov. 26, 1979).
¶ 18 Thus, for purposes of ICWA, a person may be a member of a
tribe without being enrolled in the tribe. See In re Adoption of C.D.,
751 N.W.2d 236, 243 (N.D. 2008); In re Z.J.G., 448 P.3d 175, 184
(Wash. Ct. App. 2019) (“Depending on the practices of the specific
tribe, enrollment and membership may be but are not necessarily
synonymous.”), rev’d on other grounds, 471 P.3d 853 (Wash. 2020);
In re Termination of Parental Rights to Arianna R.G., 657 N.W.2d
363, 369 (Wis. 2003). Indeed, tribal membership criteria,
classifications of membership, and interpretation of membership
laws are unique to each tribe and vary across tribal nations. See
Tommy Miller, Comment, Beyond Blood Quantum: The Legal and
Political Implications of Expanding Tribal Enrollment, 3 Am. Indian L.
J. 323, 323 (Dec. 15, 2014), https://perma.cc/3FV6-VU9M
(describing a range of approaches to tribal citizenship).
8
¶ 19 A tribe’s determination that a person is a member or is eligible
for membership is conclusive and binding. People in Interest of
J.A.S., 160 P.3d 257, 260 (Colo. App. 2007). Thus, all that is
necessary to establish a child’s Indian status is admissible evidence
that the tribe has determined either that the child is a member or
that the child is eligible for membership and a biological parent is a
member.
¶ 20 Here, the tribal representative told the juvenile court at the
temporary custody hearing that the Tribe considered the children to
be members regardless of their enrollment status. This information
established conclusively that the children are Indian children under
25 U.S.C. § 1903(4). Thus, the juvenile court erred by finding that
ICWA did not apply to the proceeding because the children are not
eligible for enrollment in the Tribe.
3. The Delay in Identifying the Children as Indian Children Does
Not Provide an Independent Basis for Reversal
¶ 21 Mother contends that the three-year delay in identifying the
children as Indian children requires reversal. While we agree that
such an extreme delay is troubling, we disagree that the delay itself
requires reversal in this case.
9
¶ 22 ICWA’s protections “are designed to keep children, when
possible, with their parents, family, or Tribal community.” Bureau
of Indian Affairs, Guidelines for Implementing the Indian Child
Welfare Act 11, 12 (Dec. 2016), https://perma.cc/3TCH-8HQM
(2016 Guidelines). To that end, courts must follow ICWA’s
requirements from the early stages of a case and avoid the harmful
delays and duplication that may result from late application of
ICWA. Id. Thus,
[i]f there is reason to know the child is an
Indian child, but the court does not have
sufficient evidence to determine that the child
is or is not an “Indian child,” the court must
. . . [t]reat the child as an Indian child, unless
and until it is determined on the record that
the child does not meet the definition of an
“Indian child.”
25 C.F.R. § 23.107(b)(2) (2020); see also § 19-1-126(2)(b), C.R.S.
2020.
¶ 23 Here, there was more than “reason to know.” The juvenile
court had sufficient information to determine at the temporary
custody hearing that the children were Indian children. Under
these circumstances, the failure of the juvenile court and the
Department to recognize their duty to apply ICWA’s protections
10
contravened the letter and spirit of ICWA and Colorado’s ICWA-
implementing legislation and risked delay, disruption, and
avoidable separation for the children and family.
¶ 24 Nevertheless, we consider and reject mother’s specific
assertions as follows.
¶ 25 First, mother contends that the Department did not meet its
obligation to exercise due diligence to work with the Tribe to
determine whether the children were Indian children. See People in
Interest of L.L., 2017 COA 38, ¶ 29 (when there is reason to know a
child may be an Indian child, the department must exercise due
diligence to identify and work with relevant tribes); see also 2016
Guidelines at 11. But, as discussed above, the juvenile court
already had sufficient information at the temporary custody hearing
to determine that the children were Indian children. So, the
Department’s lack of diligence in this regard does not alter our
analysis of whether the juvenile court and the Department complied
with ICWA’s substantive provisions.
¶ 26 Second, mother asserts that the juvenile court erred by
considering retroactively whether the Department complied with
ICWA’s requirement to make active efforts to prevent the breakup of
11
the family throughout the case in the absence of a timely finding
that the children are Indian children. See 25 U.S.C. § 1912(d). She
contends that the Department could not have met the active efforts
standard as a matter of law if it believed it only needed to make
reasonable efforts. See §§ 19-1-103(89), 19-3-100.5,
19-3-604(2)(h), C.R.S. 2020 (state must make reasonable efforts to
rehabilitate unfit parents and reunite families); see also People in
Interest of A.V., 2012 COA 210, ¶ 11 (active efforts requires more
than reasonable efforts, and at least some efforts should be
culturally relevant).
¶ 27 True, the Department may have been less likely to meet the
active efforts standard because the juvenile court did not timely
rule that the standard applied. But the Department’s awareness of
its obligation is irrelevant to the question whether the services it
provided met the active efforts standard. Cf. A.R., ¶ 32 (holding
that, even though juvenile court applied a “best efforts” standard,
rather than “active efforts,” the appellate court would nevertheless
review whether “the record support[ed] the court’s determination
that the department’s actions met the requisite standard”).
12
B. The Juvenile Court Erred By Finding That the Department
Provided Active Efforts for Mother
¶ 28 Mother contends that the Department did not make sufficient
active efforts to provide (1) employment services; (2) housing
assistance after she lost her home; or (3) services specific to
mother’s Tribe. We agree that the Department did not provide
necessary employment assistance. Thus, the juvenile court
reversibly erred by finding that the Department made active efforts
with regard to mother.
¶ 29 Any party seeking to terminate parental rights to an Indian
child must satisfy the court that (1) active efforts have been made to
provide remedial services and rehabilitative programs designed to
prevent the breakup of the Indian family and (2) these efforts have
been unsuccessful. 25 U.S.C. § 1912(d). Whether the Department
made adequate active efforts is a mixed question of fact and law.
A.V., ¶ 13; People in Interest of C.Z., 262 P.3d 895, 905 (Colo. App
2010). We review de novo the legal issues in such mixed questions.
A.V., ¶ 13.
¶ 30 In C.Z., the division reviewed the juvenile court’s factual
findings for abuse of discretion. 262 P.3d at 905. At least three
13
divisions have since followed this approach. A.V., ¶ 13 (citing C.Z.,
262 P.3d at 905); A.R., ¶ 19 (same); People in Interest of T.E.R., 2013
COA 79, ¶ 34 (citing A.V., ¶ 13). Notably, however, in invoking this
standard of review, the division in C.Z. cited Neal M. v. State, 214
P.3d 284 (Alaska 2009). But in Neal M., the Alaska Supreme Court
actually reviewed for clear error. 214 P.3d at 290 (“We ‘will reverse
the factual findings of the superior court in a termination of
parental rights case only when those findings are clearly
erroneous.’” (quoting Martin N. v. State, 79 P.3d 50, 53 (Alaska
2003))).
¶ 31 Indeed, our supreme court generally reviews for clear error a
juvenile court’s factual findings in dependency and neglect cases.
See People in Interest of A.J.L., 243 P.3d 244, 250 (Colo. 2010)
(“[W]e set aside a trial court’s factual findings only when they are ‘so
clearly erroneous as to find no support in the record.”) (quoting
People in Interest of C.A.K., 652 P.2d 603, 613 (Colo. 1982)).1
1 We recognize that, in other contexts, our supreme court has
reviewed a trial court’s factual findings for an abuse of discretion.
See, e.g., E-470 Pub. Highway Auth. v. 455 Co., 3 P.3d 18, 22-23
(Colo. 2000) (discussing the variety of possible methods of reviewing
factual findings and ultimately adopting an abuse of discretion
14
Significantly, in each of the cases in which the division reviewed for
abuse of discretion, the division ultimately affirmed because the
findings under review had record support. C.Z., 262 P.3d at 905;
A.V., ¶ 14; A.R., ¶ 34; T.E.R., ¶ 39. Thus, referring to the standard
of review in these cases as an “abuse of discretion” review may have
been a misnomer.
¶ 32 To the extent it was not, however, we disagree that the correct
standard of review is for abuse of discretion, and thus decline to
follow C.Z. and the cases that followed it. See A.V., ¶ 11 n.1 (“One
division [of the court of appeals] is not bound by the holding of
another division.”) Instead, we review for clear error. A.J.L., 243
P.3d at 250.
¶ 33 The goal of active efforts is to remedy the basis for the
dependency or neglect proceeding; thus, the type of services
required depends on the facts of each case. In re Michael G., 74
Cal. Rptr. 2d 642, 650 (Ct. App. 1998); see also 25 C.F.R. § 23.2(2020) (active efforts must be tailored to the facts and
standard for reviewing the findings in a condemnation case). But
we are aware of no case in which the supreme court has reviewed a
juvenile court’s findings for abuse of discretion in a case involving
termination of a parent-child legal relationship.
15
circumstances of the case); People in Interest of A.M.D., 648 P.2d
625, 640 (Colo. 1982) (primary purpose of a dependency or neglect
proceeding is to preserve and mend familial ties).
¶ 34 “Active efforts” is a higher standard than Colorado’s
“reasonable efforts” requirement. A.R., ¶ 28. For example,
“reasonable efforts” may be satisfied by
requiring a parent to find a job, to acquire new
housing, and to terminate a relationship with
what is perceived to be a boyfriend who is a
bad influence; in contrast, “active efforts”
under the ICWA would require that the
caseworker help the client develop job and
parenting skills necessary to retain custody of
her child.
Id. (citing A.A. v. State, 982 P.2d 256, 261 (Alaska 1999)). Giving a
parent a treatment plan and passively waiting for the parent to
follow it does not satisfy the active efforts standard. See id.“[A]ctive efforts require that the state actually help the parent
develop the skills required to keep custody of the children.”
Dashiell R. v. State, Dep’t of Health & Soc. Servs., Off. of Children’s
Servs., 222 P.3d 841, 849 (Alaska 2009).
¶ 35 A general failure to make active efforts for a short period of
time during the course of a lengthy dependency or neglect
proceeding is not, by itself, dispositive of whether the department
16
made active efforts overall. See Maisy W. v. State ex rel. Dep’t of
Health & Soc. Servs., Off. of Children’s Servs., 175 P.3d 1263, 1269
(Alaska 2008) (where state conceded that it failed to make active
efforts for three months in the middle of a three-year proceeding,
court properly looked to entirety of state’s efforts). Similarly, the
department need not provide every imaginable service or program.
Yvonne L. v. Ariz. Dep’t of Econ. Sec., 258 P.3d 233, 241 (Ariz. Ct.
App. 2011); In re Beers, 926 N.W.2d 832, 847 (Mich. Ct. App. 2018)
(upholding active efforts finding where mother was offered all
relevant services).
¶ 36 But even significant efforts by the department may not satisfy
the active efforts requirement if a critical service is overlooked. See
Dep’t of Hum. Servs. v. D.L.H., 284 P.3d 1233, 1242-43 (Or. Ct. App.
2012) (services did not include parenting classes to address
incarcerated father’s need to develop parental relationship with
child); see also In re Interest of Jamyia M., 791 N.W.2d 343, 349
(Neb. Ct. App. 2010) (department provided education, financial
support, and transportation for parents of child with shaken baby
syndrome, but court denied visitation and efforts were not
culturally relevant).
17
¶ 37 Mother’s treatment plan required her to have a legal form of
income sufficient to support herself and the children. The plan
directed mother to provide income documentation to the
Department, pay all of her bills and rent on time, and provide the
basic necessities for herself and the children, including food,
clothing, and shelter. The plan did not identify any services that
the Department would provide to assist mother in reaching these
goals.
¶ 38 Mother requested job training at a hearing in June 2017 to
help her meet her treatment plan’s employment requirement. The
county attorney said that the Denver Indian Family Resource
Center (DIFRC) provided such services but might not be willing to
work with mother because it had already discontinued services due
to the parents’ lack of engagement. Noting that DIFRC had
previously provided in-home services and not job training, the
juvenile court ordered the Department to help mother get job
training services, whether from DIFRC or another provider.
¶ 39 At a hearing a month later, mother’s counsel reported that
nothing had been done to arrange job training for mother. The
court, with a different judicial officer presiding, noted that DIFRC
18
had previously discontinued services for the parents due to lack of
engagement. The court did not acknowledge the prior order to
determine whether DIFRC would be willing to provide job training
for mother and, if not, to arrange job training services through a
different provider. The court also noted that the family had refused
day care services. But the written court report by the Court
Appointed Special Advocate (CASA) stated that father had refused
day care services, insisting that mother would stay home with the
children. The CASA made the same report in March 2018. And in
April 2018, the CASA reported that mother said she wanted to get a
job, but “every mention of employment [was] generally contradicted
by [father] saying [mother would] be a stay at home mother.”
¶ 40 There is no indication in the record that the Department
offered mother job training or employment assistance of any kind.
Instead, the caseworker’s reports chronicled mother’s unsuccessful
efforts to find employment and her unsuccessful application for
Supplemental Security Income benefits.
¶ 41 Thus, the record demonstrates that the Department required
mother to have a legal form of income adequate to support herself
and the children and passively waited for her to comply without
19
offering any services — even though mother requested job training
and the juvenile court ordered the Department to provide that
service. This does not meet the active efforts standard. See A.V.,
¶ 28.
¶ 42 We therefore conclude that the juvenile court erred by finding
that the Department made active efforts to provide remedial services
and rehabilitative programs for mother. Because the failure to
make active efforts warrants reversal, we decline to address
mother’s remaining contentions that
• the Department did not provide active efforts because it did
not provide adequate housing assistance or services specific
to her Tribe;
• the juvenile court erred by not placing the children in
accordance with ICWA’s placement preferences; and
• the Department did not make reasonable accommodations
for her cognitive disability in accordance with the
Americans with Disabilities Act, 42 U.S.C. § 12131.
III. Father’s Appeal
¶ 43 Father contends that the juvenile court erred by finding that
his treatment plan was appropriate because the plan did not
20
address his mental health needs. He also argues that the juvenile
court erred by finding that the Department had engaged in active
efforts as to him. We disagree with both contentions.
A. The Juvenile Court Did Not Err By Finding That Father’s
Treatment Plan Was Appropriate
¶ 44 Before terminating the parent-child legal relationship, the
juvenile court must find that the parent did not reasonably comply
with an appropriate court-approved treatment plan or the plan was
not successful. § 19-3-604(1)(c)(1). A treatment plan is appropriate
if it “is reasonably calculated to render the particular [parent] fit to
provide adequate parenting to the child within a reasonable time”
and “relates to the child’s needs.” § 19-1-103(10). We measure the
appropriateness of a treatment plan by its likelihood of success in
reuniting the family, which we assess in light of the facts existing at
the time of the plan’s approval. People in Interest of B.C., 122 P.3d
1067, 1071 (Colo. App. 2005). The fact that a treatment plan is not
ultimately successful does not mean that it was inappropriate.
People in Interest of M.M., 726 P.2d 1108, 1121 (Colo. 1986).
¶ 45 Father’s treatment plan required him to (1) obtain and
maintain suitable housing; (2) cooperate with the Department; (3)
21
ensure that the children were appropriately supervised; (4)
maintain visitation; (5) complete a substance abuse evaluation and
follow all recommendations; (6) cease all criminal activity; (7)
provide financial support for the children; (8) cooperate with
in-home services to improve his parenting skills; and (9) complete a
domestic violence evaluation and any recommended treatment.
¶ 46 True, the treatment plan did not include a specific mental
health objective. But it did require father to follow all
recommendations arising from his substance abuse and domestic
violence evaluations. The caseworker testified that father’s
domestic violence treatment provider recommended that father
undergo a psychological evaluation, but father refused. She said
that without the evaluation, the Department could not identify what
additional mental health services would be appropriate.
¶ 47 We agree that the better practice is to impose a separate
objective to address mental health evaluations and treatment when
those concerns arise. But in this case, father refused to comply
with his treatment plan by completing the recommended
psychological evaluation. Under these circumstances, we conclude
that father’s treatment plan adequately addressed his mental health
22
needs to the extent possible. Accord T.E.R., ¶ 33 (court may
consider parent’s unwillingness to participate in treatment as a
factor in determining whether department made active efforts to
prevent breakup of an Indian family); People in Interest of K.T., 129
P.3d 1080, 1082 (Colo. App. 2005) (parent’s refusal to document
sobriety and participate in substance abuse treatment shows lack
of commitment to meeting child’s needs and is evidence of
unfitness).
¶ 48 We therefore conclude that the juvenile court did not err by
finding that father’s treatment plan was appropriate.
B. The Juvenile Court Did Not Err By Finding That the
Department Made Active Efforts for Father
¶ 49 Finally, we turn to father’s challenge to the juvenile court’s
active efforts finding. Father contends that the burden of proof
against which we should test the sufficiency of the evidence of
active efforts is the beyond a reasonable doubt standard. We note
that divisions of this court have disagreed about whether to apply
the clear and convincing burden of proof or the higher beyond a
reasonable doubt standard to findings made pursuant to 25 U.S.C.
§ 1912(d). Compare C.Z., 262 P.3d at 905 (applying the clear and
23
convincing evidence standard), with People in Interest of R.L., 961
P.2d 606, 609 (Colo. App. 1998) (applying the beyond a reasonable
doubt standard). Because the juvenile court found that the
Department met its burden of proof under the higher standard and
we agree that sufficient evidence supports that finding, we need not
decide which standard applies.2
¶ 50 Making active efforts does not mean persisting with futile
efforts, and the Department is not required to make active efforts
for parents who voluntarily absent themselves from the proceedings
and cannot be located. A.V., ¶ 12. A parent’s unwillingness to
participate in treatment is relevant to the determination whether
the Department has made active efforts. Id.¶ 51 The caseworker testified as follows:
• Father’s domestic violence treatment provider recommended
that father undergo a psychological evaluation.
• Father refused. Instead, he offered to provide the results of
a psychological evaluation he had completed in 2015.
2 Conversely, because there was no evidence that the Department
provided any employment services for mother, the evidence did not
support the juvenile court’s finding as to mother under either
standard.
24
• Father ultimately refused to release the results of the prior
evaluation or complete a new evaluation.
¶ 52 Without father’s cooperation, additional referrals for
psychological evaluations or mental health treatment would have
been futile. See A.V., ¶ 12. As a result, we conclude that the
juvenile court did not err by finding that the Department made
active efforts as to father despite the lack of additional mental
health services for father.
IV. Conclusion
¶ 53 The judgment terminating mother’s parent-child legal
relationships with the children is reversed and the case is
remanded to the juvenile court for further proceedings. The
judgment terminating father’s parent-child legal relationships with
the children is affirmed.
JUDGE DAILEY and JUDGE BERGER concur.
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