in Interest of L.M , 433 P.3d 114 ( 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
April 19, 2018
2018COA57
No. 17CA0404, People in Interest of L.M. — Juvenile Court —
Dependency and Neglect — Termination of the Parent-Child
Legal Relationship
In this dependency and neglect proceeding, father appeals the
juvenile court judgment terminating his parent-child legal
relationships with his children, claiming that the court erred in
determining that there was no less drastic alternative to
termination. The division holds that under the circumstances of
this case, where father was acquitted of the alleged sexual abuse
that gave rise to this case, and the termination court did not find by
clear and convincing evidence that the abuse occurred, the record
does not support the court’s decision to terminate father’s parental
rights.
COLORADO COURT OF APPEALS 2018COA57
Court of Appeals No. 17CA0404
Larimer County District Court No. 15JV143
Honorable Stephen E. Howard, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of L.M. and M.M., Children,
and Concerning K.M.,
Respondent-Appellant,
and
E.L.,
Respondent-Appellee.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division VI
Opinion by JUDGE FURMAN
Ashby and Nieto*, JJ., concur
Announced April 19, 2018
Jeannine Haag, County Attorney, Jennifer A. Stewart, Senior County Attorney,
Fort Collins, Colorado, for Petitioner-Appellee
Claire Havelda, Julie M. Yates, Guardians Ad Litem
Stout Law Firm, LLC, Stephanie Stout, Greeley, Colorado, for Respondent-
Appellant
The Christiansen Law Firm LLC, Dina M. Christiansen, Fort Collins, Colorado,
for Respondent-Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1 In this dependency and neglect proceeding, K.M. (father)
appeals the juvenile court judgment terminating his parent-child
legal relationships with his children, L.M. and M.M.
¶2 This case poses an unusual situation. The juvenile court
adjudicated the children dependent and neglected, finding by a
preponderance of the evidence that father had sexually abused L.M.
and that M.M. was suffering secondary trauma as a result of the
abuse. The court granted temporary custody of the children to E.L.
(mother) and prohibited father from having any contact with the
children during the pendency of this case.
¶3 Father’s treatment plan was premised on his guilt. But he
was later acquitted in the companion criminal case, and, following
the termination hearing, the juvenile court could not find that the
assault allegations had been established by clear and convincing
evidence.
¶4 Even so, the juvenile court terminated father’s parental rights.
In so doing, it found that there were no less drastic alternatives to
termination because the children continued to experience trauma
specific to father, which he did not recognize. On appeal, father
challenges this finding.
1
¶5 To address father’s challenge, we examine the legal standard
for determining whether there is a less drastic alternative to
termination. As shown by the record in this case, the standard for
considering less drastic alternatives to termination is often
intertwined with a determination of whether an appropriate
treatment plan can be devised for a parent and whether the parent
is fit or can become fit in a reasonable time.
¶6 Because the record does not support the juvenile court’s
decision to terminate father’s parental rights, we reverse the
judgment and remand.
I. The Dependency and Neglect Case
¶7 In March 2015, the Larimer County Department of Human
Services (Department) became involved in this case after six-year-
old L.M. had disclosed that “she woke up to [father] touching her in
her private” while she was at his home. L.M. and eight-year-old
M.M. primarily lived with mother, but spent overnights at father’s
home. The juvenile court granted temporary custody of the children
to mother and prohibited father from having any contact with them.
¶8 In early May 2015, father was criminally charged with
aggravated incest in relation to L.M.’s disclosure.
2
¶9 Meanwhile, mother admitted that the children’s environment
was injurious. But, father denied the allegations in the petition.
After a multi-day hearing in August 2015, the juvenile court
adjudicated the children dependent and neglected, finding by a
preponderance of evidence that father had sexually abused L.M.
and that M.M. was suffering from secondary trauma as a result of
the abuse.
¶ 10 The next month, the court adopted the parties’ stipulated
treatment plan for father. The treatment plan required father to (1)
participate in a psychosexual evaluation within thirty days and
follow any recommended offense-specific treatment and (2) maintain
contact with the Department.
¶ 11 Father completed the psychosexual evaluation in June 2016,
after the Department authorized a one-way release so that the
caseworker could provide information to the evaluator without the
evaluator automatically releasing the assessment to the
Department. That same month, the Department moved to
terminate the parent-child legal relationships between father and
the children.
3
¶ 12 Two months later, a jury acquitted father of the criminal
charge arising from L.M.’s outcry. Immediately after the verdict,
father released the psychosexual evaluation to the Department.
¶ 13 The court held a four-day termination hearing in October and
December 2016. Although the children remained in mother’s care,
the court concluded that granting permanent custody of the
children to her was not a less drastic alternative. The court then
entered a judgment terminating father’s parental rights.
II. Less Drastic Alternative and Termination of Parental Rights
¶ 14 Father contends that the juvenile court erred in terminating
his parental rights by determining that there was no less drastic
alternative. We agree that the record does not support the juvenile
court’s decision to terminate father’s parental rights.
A. Standard of Review
¶ 15 Whether a juvenile court properly terminated parental rights
presents a mixed question of fact and law because it involves
application of the termination statute to evidentiary facts. See
People in Interest of S.N. v. S.N., 2014 CO 64, ¶ 21. We will not set
aside a juvenile court’s factual findings when they have support in
the record. People in Interest of A.J.L., 243 P.3d 244, 250 (Colo.
4
2010). Indeed, the credibility of the witnesses; the sufficiency,
probative value, and weight of the evidence; and the inferences and
conclusions to be drawn from it are within the juvenile court’s
discretion. Id. at 249-50. But, we review the legal conclusions de
novo when deciding mixed questions of fact and law. State Farm
Mut. Auto. Ins. Co. v. Johnson, 2017 CO 68, ¶ 12.
B. Statutory Criteria for Termination of Parental Rights
¶ 16 Termination of parental rights is a decision of paramount
gravity affecting a parent’s fundamental interest in the care,
custody, and management of his or her child. K.D. v. People, 139
P.3d 695, 700 (Colo. 2006). The state must exercise extreme
caution in terminating parental rights. Id. Consequently, a juvenile
court must strictly comply with the appropriate standards for
termination. Id.
¶ 17 The Children’s Code sets forth three separate bases under
which the court may terminate the parent-child legal relationship
following a child’s adjudication as dependent and neglected. Id.;
see also § 19-3-604(1), C.R.S. 2017. First, a juvenile court may
terminate parental rights when the parent has abandoned the child
as defined by section 19-3-604(1)(a). K.D., 139 P.3d at 700. When
5
termination is sought based on abandonment, there is no
requirement for the parent to have been provided with a treatment
plan. See § 19-3-508(1)(e)(I), C.R.S. 2017 (stating that a court may
find that an appropriate treatment plan cannot be devised as to a
particular parent because the child has been abandoned as set
forth in section 19-3-604(1)(a)).
¶ 18 Second, the juvenile court may terminate parental rights when
it finds, by clear and convincing evidence, that no appropriate
treatment plan can be devised to address the parent’s unfitness.
§ 19-3-604(1)(b). But a determination that no appropriate
treatment plan can be devised to address a parent’s unfitness is not
wide open. Just the opposite — it is limited to very specific
circumstances defined by statute. See § 19-3-508(1)(e)(I).
¶ 19 A conclusion that no appropriate treatment plan can be
devised to address a parent’s unfitness may be based on any one of
the following:
 the parent’s emotional illness, behavioral or mental health
disorder, or intellectual and developmental disability of such
duration or nature as to render the parent unlikely within a
6
reasonable time to care for the child’s ongoing physical,
mental, and emotional needs and conditions;
 a single incident resulting in serious bodily injury or
disfigurement of the child;
 the parent’s long-term confinement of such duration that the
parent is not eligible for parole for at least six years after the
date the child was adjudicated dependent or neglected, or in
an expedited permanency planning case, the long-term
confinement of the parent is of such duration that the parent
is not eligible for parole for at least thirty-six months after the
date the child was adjudicated dependent or neglected;
 serious bodily injury or death of a sibling due to proven
parental abuse or neglect;
 an identifiable pattern of habitual abuse to which the child or
another child has been subjected and, as a result of which, a
court has adjudicated another child as neglected or dependent
based on allegations of sexual or physical abuse, or a court of
competent jurisdiction has determined that such abuse has
caused the death of another child;
 an identifiable pattern of sexual abuse of the child; or
7
 the torture of or extreme cruelty to the child, a sibling of the
child, or another child of either parent.
§ 19-3-604(1)(b)(I)-(VII).
¶ 20 The court may also find that no appropriate treatment plan
can be devised for a particular parent in the following
circumstances:
 the parent has subjected another child or children to an
identifiable pattern of habitual abuse; and
 the parent has been the respondent in another proceeding
under the Children’s Code in which a court has adjudicated
another child to be neglected or dependent based on
allegations of sexual or physical abuse, or a court of
competent jurisdiction has determined that such parent’s
abuse or neglect has caused the death of another child; and
 the pattern of habitual abuse and the type of abuse pose a
current threat to the child.
§§ 19-3-102(2), 19-3-508(1)(e)(I), C.R.S. 2017.
¶ 21 Third, the court may terminate parental rights if it finds, by
clear and convincing evidence, that (1) the child was adjudicated
dependent and neglected; (2) the parent has not complied with an
8
appropriate, court-approved treatment plan or the plan has not
been successful in rehabilitating the parent; (3) the parent is unfit;
and (4) the parent’s conduct or condition is unlikely to change in a
reasonable time. § 19-3-604(1)(c); People in Interest of C.H., 166
P.3d 288, 289 (Colo. App. 2007). Unlike the other two bases for
termination, this provision requires the juvenile court to have first
approved an appropriate treatment plan for the parent.
C. Consideration of Less Drastic Alternatives
¶ 22 When considering termination under section 19-3-604(1)(c),
the court must also consider and eliminate less drastic alternatives
to termination. People in Interest of M.M., 726 P.2d 1108, 1122
(Colo. 1986). But, this determination is implicit in, and thus
intertwined with, the statutory criteria for termination. See id. at
1122-23. Indeed, as our supreme court has explained, adherence
to the statutory criteria for termination requires a juvenile court to
“consider less drastic alternatives and to reject those alternatives as
unavailing before entering an order of termination.” Id. at 1123.
We note that in M.M., the supreme court considered the termination
criteria under section 19-11-105(1), C.R.S. 1986. Although the
termination statute has been relocated, the statutory criteria have
9
not been significantly altered. See C.S. v. People in Interest of I.S.,
83 P.3d 627, 640 n.8 (Colo. 2004).
¶ 23 A court’s duty to determine in the first instance whether a
treatment plan can be devised and, if so, to approve a plan
reasonably calculated to provide the parent with adequate
parenting ability involves a consideration of alternatives less drastic
than termination. M.M., 726 P.2d at 1123. This is so because the
purpose of a treatment plan is to preserve the parent-child legal
relationship by assisting the parent in overcoming the problems
that required intervention into the family. Id. at 1121; see also
People in Interest of K.B., 2016 COA 21, ¶ 11.
¶ 24 Thus, an appropriate treatment plan is one that is approved
by the court and is reasonably calculated to render the particular
parent fit to provide adequate parenting to the child within a
reasonable time and that relates to the child’s needs.
§ 19-1-103(10), C.R.S. 2017; M.M., 726 P.2d at 1123. And, the
safety concerns identified during the assessment of the family’s
needs serve as the basis for developing treatment plan objectives.
K.B., ¶ 12.
10
¶ 25 Once a treatment plan has been devised for a parent, a court
may only terminate parental rights when, among other things, the
court finds that parent unfit and unable to become fit in a
reasonable time. M.M., 726 P.2d at 1123. As a result, the
determination of whether there is a less drastic alternative to
termination will be influenced by a parent’s fitness to care for his or
her child. People in Interest of A.R., 2012 COA 195M, ¶ 38.
¶ 26 An unfit parent is one whose conduct or condition renders him
or her unable to give a child reasonable parental care. K.D., 139
P.3d at 700. Reasonable parental care requires, at a minimum,
that the parent provide nurturing and protection adequate to meet
the child’s physical, mental, and emotional health needs. Id. In
determining parental fitness, a court may consider many factors,
including conduct toward the child of a physically or sexually
abusive nature. § 19-3-604(2)(b).
¶ 27 And, as with all termination criteria, the court must give
primary consideration to the child’s physical, mental, and emotional
conditions and needs. § 19-3-604(3). Thus, for example, the court
may consider whether an ongoing relationship with the parent
would be beneficial or detrimental to the child and the child’s need
11
for permanency when determining whether there is a viable
alternative to termination. A.R., ¶¶ 38, 41. Nonetheless, a court
may not terminate parental rights simply to improve the child’s
condition. People in Interest of E.A., 638 P.2d 278, 285 (Colo. 1981).
D. The Juvenile Court’s Decision to Terminate Father’s Parental
Rights
¶ 28 Recall, father completed a psychosexual evaluation in June
2016. The therapist who completed the evaluation recommended
that father
1. participate in a pretreatment denier’s intervention program if
he was found guilty of the sexual offense; and
2. better understand how sexual behaviors negatively impact
children by participating in a victim’s empathy module.
The therapist also concluded that “contact with [the children] would
be contradicted” if father was found guilty of a sexual crime against
his children.
¶ 29 Father participated in denier’s intervention in October 2016.
He produced non-distress results on a specific issue polygraph and
his participation in the program therefore concluded. The
treatment provider for denier’s intervention agreed that it was
12
typical for an individual to complete denier’s therapy when he or
she provided this result. Likewise, the psychosexual evaluator
explained that an individual would not be appropriate for offense-
specific treatment when he or she engaged in denier’s intervention
therapy and passed a non-deceptive polygraph.
¶ 30 Although it was not required by his treatment plan, father had
also participated in weekly individual therapy from shortly after the
filing of the petition through the termination hearing.
¶ 31 In a very thoughtful and thorough consideration of the
evidence, the juvenile court recognized father’s participation, albeit
delayed, in these services. It also observed that all the allegations
in the case arose out of the alleged sexual assault of L.M., which it
had found occurred by a preponderance of the evidence in its
adjudicatory order. But, the court concluded that it could not find
that the sexual assault allegations had been established by clear
and convincing evidence. The court even observed that it could not
“discount the possibility that no sexual abuse occurred.”
¶ 32 Still, the juvenile court concluded that clear and convincing
evidence showed that the children were experiencing trauma and
the “trauma is specific to [father].” The court found that father
13
denied and failed to recognize the children’s trauma and would not
change his attitude. It also determined that empathy was a “key
issue” in the case and father had not completed a victim’s empathy
program as recommend by the psychosexual evaluation.
¶ 33 The court reviewed an evaluation made during the parties’
domestic relations case and further concluded that father lacked
self-awareness about his anger issues. The court also found that
father’s lack of recognition that he had done anything wrong would
prevent progress in his reunifying with the children. Accordingly, it
determined that father was unfit, as he was unable or unwilling to
meet the children’s needs.
¶ 34 The court also considered whether granting permanent
custody of the children to mother was a less drastic alternative to
termination. But, it determined that this was not a viable option as
(1) the children were fearful and believed the sexual assault
happened; (2) father was not ready or able to acknowledge the
children’s perceptions; and (3) the likelihood or possibility of
reunification therapy or future contact with father would not be in
the children’s best interests and could cause trauma to them.
1. Undetermined Sexual Abuse and Victim Empathy
14
¶ 35 We first address the juvenile court’s conclusion that father
had failed to address the children’s perception of sexual abuse.
¶ 36 To be sure, the record demonstrates the difficulty in devising a
treatment plan to address an allegation of sexual abuse by a parent
when the child believes the abuse happened but the parent
maintains that he or she did not commit the abuse. The initial
caseworker explained that it was challenging to reunite children
with parents who do not acknowledge the children’s experience
because “the child has a belief this happened, so they are fearful.”
Likewise, the current caseworker opined that it would be traumatic
for the children “to confront an abuser who won’t admit that the
event happened itself, when the [children] sincerely seem to believe
that it did.” She further elaborated that it would invalidate L.M.’s
experience to “confront someone who had sexually abused her” and
“pretend[] nothing is wrong.”
¶ 37 Despite this difficulty, a single incident of sexual abuse (as
opposed to a pattern of sexual abuse) is not one of the
circumstances in which the Children’s Code authorizes a court to
terminate parental rights without devising a treatment plan that is
15
calculated to render the parent fit. See §§ 19-3-508(1)(e)(I),
19-3-604(1)(b).
¶ 38 Although the court had approved a treatment plan for father,
it required him to complete a psychosexual evaluation and
recommended treatment. The evaluation, in turn, required father
to follow Sex Offender Management Board (SOMB) guidelines and
protocols. This requirement continued even though father was
ultimately acquitted of the criminal charges related to the sexual
abuse allegation.
¶ 39 The SOMB procedures “provide for an evaluation and
identification of the adult sex offender and recommend
management, monitoring, and treatment based upon existing
research and shall incorporate the concepts of the risk-need-
responsivity or another evidence-based correctional model.”
§ 16-11.7-103(4)(a), C.R.S. 2017. The SOMB also develops,
implements, and revises, as appropriate,
guidelines and standards to treat adult sex
offenders, including adult sex offenders with
intellectual and developmental disabilities,
incorporating in the guidelines and standards
the concepts of the risk-need-responsivity or
another evidence-based correctional model,
which guidelines and standards can be used in
16
the treatment of offenders who are placed on
probation, incarcerated with the department of
corrections, placed on parole, or placed in
community corrections.
§ 16-11.7-103(4)(b).
¶ 40 But, a key provision of the SOMB procedures is that they are
designed for sex offenders. A “sex offender” is designated as a
person who is one of the following:
(I) Convicted in the state of Colorado, on or
after January 1, 1994, of any sex offense . . . ;
or
(II) Convicted in the state of Colorado on or
after January 1, 1994, of any criminal offense,
if such person has previously been convicted of
a sex offense . . . in the state of Colorado, or if
such person has previously been convicted in
any other jurisdiction of any offense that
would constitute a sex offense . . . , or if such
person has a history of any sex offenses . . . ;
or
(III) Convicted in the state of Colorado on or
after July 1, 2000, of any criminal offense, the
underlying factual basis of which involves a
sex offense; or
(IV) A juvenile who has committed a sexual
offense.
17
§ 16-11.7-102(2)(a), C.R.S. 2017. A person who receives a deferred
judgment or deferred sentence for these offenses is also included. §
16-11.7-102(2)(b).
¶ 41 In short, SOMB treatment protocols are geared toward treating
individuals who have been convicted of a sexual offense instead of
determining whether an individual has committed an alleged sexual
offense. Indeed, father’s evaluator explained that “offense specific
evaluations are really built around the premise of guilt” and that
“we don’t have tools that determine whether somebody is guilty or
innocent, so evaluations such as this are always done under the
premise of guilt.”
¶ 42 And, the SOMB has processes that therapists and supervising
officers, like a caseworker, are to follow when offenders are
convicted of a sexual crime before allowing contact with child
victims. One part of the process is that the offender is not allowed
to have contact with a child until he or she has admitted the offense
against the child.
¶ 43 As a result, the record is replete with evidence that no
progress was made toward reunification because father had not
admitted or acknowledged the abuse. And, father was adamant
18
that he was not going to admit molesting or abusing the children
when he had not done so.
¶ 44 This requirement for treatment placed father in a no-win
situation and was not reasonably calculated to render him a fit
parent who could meet the children’s needs. On the one hand, if,
as here, father failed to admit that he had abused L.M., this led to
termination on the basis that father had not complied with the
treatment plan and was unable to have contact with the children or
work toward reunification with them. On the other hand, if father
had acknowledged that he had sexually abused L.M., this would
also be evidence of his unfitness under section 19-3-604(2)(b).
¶ 45 Moreover, faulting father for not completing treatment that
required him to acknowledge sexual abuse of L.M. is incompatible
with the juvenile court’s conclusion that it could not discount the
possibility that no sexual abuse had occurred.
¶ 46 And, there is no indication in the record that father was
offered treatment or a path to becoming a fit parent other than to
acknowledge that he had sexually abused L.M. In fact, the record
offers no indication that father could have taken any steps, short of
19
admitting that he had sexually abused L.M., to acknowledge the
children’s perceptions of abuse.
¶ 47 Finally, we recognize that the grounds for adjudicating the
children dependent and neglected — the sexual abuse of L.M. —
only needed to be established by a preponderance of the evidence.
See People in Interest of J.G., 2016 CO 39, ¶ 15. But, for the sexual
abuse to serve as a basis for determining that father was unfit, and,
thus, there was no less drastic alternative to termination, it needed
to be established by clear and convincing evidence. See
§ 19-3-604(1)(c), (2)(b).
¶ 48 For these reasons, the juvenile court’s findings regarding
father’s failure to address the abuse or perceived sexual abuse are
insufficient to support its conclusion that there is no less drastic
alternative to termination.
2. Other Causes for the Children’s Trauma
¶ 49 Next, we turn to the juvenile court’s conclusion that father
was unwilling to take responsibility for any portion of the children’s
trauma even if it was related to “other conduct or statements of
[father] during or after the divorce proceedings.”
20
¶ 50 The record undeniably establishes that the children were
experiencing significant trauma related to father. The initial
caseworker observed trauma symptoms in the children when they
discussed father. When the criminal trial was approaching, the
children, especially L.M., would “shut down” when she discussed
visitation with father. The caseworker also testified that L.M.
typically did not want to visit father and was having difficulty in
school and sleeping because she was worried about visits. Thus,
she opined that the children were not ready to visit father. Mother
also described exacerbated behaviors by the children. For example,
she described that L.M. would have aggressive outbursts as well as
panic attacks and make threats to harm herself and M.M. In
contrast, she described that M.M. would stop verbal communication
and grunt or mimic animal sounds.
¶ 51 The children’s therapist stopped working with L.M. on
completing a trauma narrative because she could not tolerate the
anxiety that it was causing her to write it. Likewise, a therapist
who completed trauma assessments of L.M. and M.M. determined
that the children were experiencing trauma symptoms, but had not
tried to determine when the traumatic event occurred.
21
¶ 52 The trauma therapist also opined that the children were
experiencing stress from the court involvement. For example,
during the trauma assessment, L.M. was asked to put people who
were in her life in a sand tray. She separated mother’s family and
father’s family. She placed father’s family in the corner with a fence
and “indicated that she hated court . . . and put herself on the fence
between her mom and dad and indicated that it was her job to
make sure that she – everyone was being good.”
¶ 53 But, the record is devoid of any indication that father was
asked to address any other potential causes of the children’s
trauma. For example, the Department made no request (nor was
there a court order) for father to participate in evaluations or
treatment services to resolve other issues, such as father exhibiting
intense anger or making inappropriate statements during the
parties’ divorce proceeding.
¶ 54 To be sure, the initial caseworker testified that father had not
made any admissions to her about his behavior that had impacted
his children. The therapist providing denier’s intervention therapy
likewise agreed that father had not admitted any abuse or
mistreatment of the children. Nonetheless, the record does not
22
establish that, apart from the sexual abuse allegation, father was
asked about or otherwise unwilling to acknowledge any parental
deficiencies that might have contributed to the children’s trauma.
¶ 55 We also recognize that the juvenile court faulted father for
failing to complete a victim’s empathy program as recommended by
the psychosexual evaluator. Indeed, the psychosexual evaluator
believed that father could benefit from a victim empathy program
regardless of whether he had committed the abuse to “thoroughly
understand how this has likely impacted the children.”
¶ 56 Yet, there is no evidence that the program would have enabled
father to develop empathy or otherwise understand the children’s
needs generally. Rather, the evaluator explained that the victim’s
empathy module is aimed at “helping a client to better understand
how sexual behaviors likely have impacted the victim” and, ideally,
“work[ing] a little bit with the actual victim’s therapist so that the
offender can really learn more about how [his or her] behaviors
directly impacted [the] victim.” In short, it was to help father “better
understand how his sexually abusive behavior . . . directly impacted
the children.”
23
¶ 57 Under these circumstances, the juvenile court erred in
concluding that father’s failure to address other possible issues,
and the children’s corresponding trauma, demonstrated that he was
an unfit parent, and thus, that granting custody of the children to
mother was not a viable less drastic alternative to termination.
¶ 58 Accordingly, the termination judgment must be reversed.
III. ICWA Compliance
¶ 59 Although not raised by father on appeal, the record does not
demonstrate full compliance with the Indian Child Welfare Act of
1978 (ICWA), 25 U.S.C. §§ 1901 to 1963 (2012).
¶ 60 ICWA’s provisions 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). ICWA 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). Accordingly,
in a proceeding in which ICWA may apply, tribes must have a
meaningful opportunity to participate in determining whether the
24
child is an Indian child and to be heard on the issue of ICWA’s
applicability. B.H., 138 P.3d at 303.
¶ 61 To ensure tribes have an opportunity to be heard, Colorado’s
ICWA-implementing legislation provides that in dependency and
neglect proceedings, the petitioning party must make continuing
inquiries to determine whether the child is an Indian child. § 19-1-
126(1)(a), C.R.S. 2017; see also B.H., 138 P.3d at 302.
¶ 62 The Bureau of Indian Affairs (BIA) has also issued regulations
and guidelines implementing ICWA that address inquiry and notice.
For example, the 2015 guidelines — in effect during the
commencement of the termination proceeding — encouraged
agencies and courts, in every child custody proceeding, to ask
whether the child is or could be an Indian child and to conduct an
investigation into whether the child is an Indian child. Guidelines
for State Courts and Agencies in Indian Child Custody Proceedings,
80 Fed. Reg. 10,146, 10,152 (Feb. 25, 2015). They also reiterated
the importance of providing notice to tribes. Id.
¶ 63 The BIA has repealed the 2015 guidelines and replaced them
with the 2016 guidelines and implemented final regulations. People
in Interest of L.L., 2017 COA 38, ¶ 15; Indian Child Welfare Act
25
Proceedings, 81 Fed. Reg. 38,778 (June 14, 2016); Bureau of Indian
Affairs, Guidelines for Implementing the Indian Child Welfare Act
(Dec. 2016), https://perma.cc/3TCH-8HQM (2016 Guidelines); see
also Notice of Guidelines, 81 Fed. Reg. 96,476 (Dec. 30, 2016). The
2016 Guidelines and regulations impose a similar duty of inquiry
and notice on juvenile courts.
¶ 64 The juvenile court must ask each participant on the record at
the beginning of every emergency, voluntary, or involuntary child
custody proceeding whether the participant knows or has reason to
know that the child is an Indian child. 25 C.F.R. § 23.107(a)
(2017); see also L.L., ¶ 19. Termination of parental rights is one
type of child custody proceeding under ICWA. 25 U.S.C. § 1903(1)
(2012). The inquiry must be made at the commencement of the
proceeding and all responses should be on the record. 25 C.F.R.
§ 23.107(a).
¶ 65 Father was not personally present at the initial hearing when
the juvenile court inquired of mother regarding ICWA’s applicability.
Although the record does not show that the court later made a
similar inquiry of father, it asked the parties to address ICWA’s
applicability at the start of the termination hearing. For reasons
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that are not clear in the record, father’s counsel offered no response
to the court’s inquiry. Thus, if the court again considers
termination of father’s parental rights, it must confirm with father
whether he knows or has a reason to know or believe that the
children are Indian children.
IV. Conclusion
¶ 66 The judgment is reversed, and the case is remanded to the
juvenile court. Before the court may again consider termination of
parental rights, it must adopt an appropriate treatment plan under
section 19-3-508(1)(e)(I) that relates to the children’s trauma and is
reasonably calculated to render father a fit parent.
¶ 67 In reaching this holding, we are not unmindful of the difficulty
and complexity of the issues faced by the juvenile court in this case
and the legitimate concern for the children’s trauma and ability to
re-establish a relationship with father. But, for the reasons
discussed in the opinion, we must reverse the judgment and
remand the matter for further proceedings.
JUDGE ASHBY and JUDGE NIETO concur.
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