Peo in Interest of MVOG

24CA0370 Peo in Interest of M-VO-G 09-26-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0370
Montrose County District Court No. 23JV30022
Honorable D. Cory Jackson, Judge

The People of the State of Colorado,

Appellee,

In the Interest of M-V.O-G., a Child,

and Concerning O.O. and M.L.O.,

Appellants.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE SCHUTZ
Tow and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 26, 2024

Martha Phillips Whitmore, County Attorney, Julie R. Andress, Deputy County
Attorney, Montrose, Colorado, for Appellee

Robert G. Tweedell, Guardian Ad Litem

Padilla Law, P.C., Beth Padilla, Durango, Colorado, for Appellant O.O.

Robin Tieman, Office of Respondent Parents’ Counsel, Boulder, Colorado, for
Appellant M.L.O.
¶1 M.L.O. (mother) and O.O. (father) appeal the judgment

adjudicating M-V.O-G. (the child) dependent and neglected. We

affirm the adjudication, but we reverse the disposition and remand

the case to the juvenile court to ensure compliance with the Indian

Child Welfare Act (ICWA) of 1978, 25 U.S.C. §§ 1901-1963, and

Colorado’s ICWA statute, § 19-1-126, C.R.S. 2024.

I. Background

¶2 In August 2023, the Montrose County Department of Human

Services filed a petition in dependency and neglect, alleging, among

other things, that mother tested positive for methamphetamine

while at the hospital giving birth to the child and struggled with

mental health issues. As for father, the Department alleged, among

other things, that he demonstrated “erratic behavior at the hospital”

and had “a child welfare history . . . wherein [he] was not compliant

with his treatment plan, specifically substance abuse services.”

¶3 The parents denied the allegations in the petition and asked

for a jury trial to resolve whether the child should be adjudicated

dependent or neglected. At the trial, the Department asserted that

the child was dependent or neglected under section 19-3-102(1)(c),

C.R.S. 2024, which provides that a child is dependent or neglected

1
if “[t]he child’s environment is injurious to his or her welfare.” After

hearing the evidence, the jury returned a verdict in the

Department’s favor. Based on the jury’s verdict, the juvenile court

adjudicated the child dependent and neglected as to both parents

and adopted treatment plans for them.

II. Indian Child Welfare Act

¶4 Mother first asserts that the juvenile court erred because it did

not ensure that the Department exercised due diligence in gathering

additional information that would assist the court in determining

whether there is reason to know that the child is an Indian child, as

required by section 19-1-126(3). Because the court did not make

adequate findings prior to or at the dispositional hearing, we reverse

the disposition and remand the case for further proceedings. See

People in Interest of M.V., 2018 COA 163, ¶ 35 (noting that a

dispositional hearing is a child custody proceeding under ICWA, but

an adjudicatory hearing is not), overruled on other grounds by

People in Interest of E.A.M. v. D.R.M., 2022 CO 42.

¶5 For ICWA to apply in a dependency or neglect proceeding, the

case must involve an Indian child. See People in Interest of A.G.-G.,

899 P.2d 319, 321 (Colo. App. 1995); see also 25 U.S.C. § 1903(4)

2
(defining “Indian child” as “any unmarried person who is under age

eighteen” and (1) “a member of an Indian tribe,” or (2) “eligible for

membership in an Indian tribe” and “the biological child of a

member of an Indian tribe”). To ascertain whether the case involves

an Indian child, a juvenile court must inquire of the parties whether

they know or have reason to know that the child is an Indian child.

§ 19-1-126(1)(a)(I)(A). A mere assertion of potential Indian heritage,

without more, is insufficient to give the court reason to know that

the child is an Indian child. E.A.M., ¶ 56.

¶6 If the juvenile court does not have reason to know but has

information that “the child may have Indian heritage,” then the

court must direct a department to “exercise due diligence in

gathering additional information that would assist the court in

determining whether there is reason to know that the child is an

Indian child.” § 19-1-126(3); see also H.J.B. v. People in Interest of

A-J.A.B., 2023 CO 48, ¶ 5. Section 19-1-126(3) provides a flexible

standard that does not require the department to “succeed in its

efforts” or “exhaust every possible option in attempting to do so.”

H.J.B., ¶ 58. Whether the department satisfied its due diligence

obligation is left to the court’s sound discretion. Id.

3
¶7 At an initial advisement hearing in August 2023, the juvenile

court asked mother whether she had any Native heritage. Mother

stated that her aunt was an enrolled member of a Cherokee tribe.

The court then provided mother with an ICWA assessment form and

asked her to complete it, including any information about her

Native heritage.

¶8 About a month later, mother filed with the juvenile court a

completed ICWA assessment form, but she did not serve the

Department with the form. For reasons unknown, the form listed

two of mother’s older children and their father, none of whom were

subject to these proceedings, rather than the child or father

involved in this case. The form asserted Southern Ute and Ojibwe

heritage for the identified children but only through their father.

But the form asserted mother had Cherokee and Choctaw heritage

and was “a member of a tribe or believed to be eligible for

membership in one or more tribes.” Mother signed the ICWA

assessment form before filing it.

¶9 Apparently believing that mother had not returned the ICWA

assessment form, the Department requested a hearing “for the

purpose of gathering information regarding ICWA.” At the hearing,

4
mother testified that she did not have any Native heritage other

than Cherokee. Neither the court nor the parties asked mother

specifically about her prior written disclosure of Choctaw heritage.

The Department sent notices to the three Cherokee tribes; all three

tribes responded that the child was not a member or eligible for

membership. No ICWA notices were sent to the Choctaw tribe(s).

The juvenile court did not subsequently make any ICWA findings or

determine whether the Department had exercised due diligence

under section 19-1-126(3).

¶ 10 On appeal, mother concedes that the juvenile court did not

have reason to know that the child was an Indian child, but she

maintains that the Department failed to exercise due diligence

under section 19-1-126(3) by not investigating mother’s assertion

that the child had Southern Ute, Ojibwe, or Choctaw heritage. She

further asserts that we should remand the case for the court to

make findings on whether the Department exercised due diligence.

¶ 11 If section 19-1-126(3) applies, then “the juvenile court must

determine (1) whether the petitioning party satisfied its statutory

due diligence requirements and (2) whether the court now has

reason to know that the child is an Indian child.” See H.J.B., ¶ 59.

5
But the juvenile court did not make these findings. Because these

determinations require factual and credibility determinations, we

cannot address them in the first instance on appeal. See id. at

¶ 58; see also People in Interest of S.Z.S., 2022 COA 133, ¶ 21

(noting that appellate courts cannot make factual findings).

¶ 12 We must therefore reverse the disposition and remand the

case to the juvenile court. See M.V., ¶ 35. On remand, the court

must direct the Department to make a record of its efforts to

determine whether the child has Choctaw heritage1 and determine

whether the record establishes that the Department exercised due

diligence under section 19-1-126(3). See H.J.B., ¶ 59. The court

must then determine whether there is reason to know that the child

is an Indian child and if ICWA therefore applies. See id.

1 While mother argues on appeal that the juvenile court erred by

not excluding Southern Ute, Ojibwe, and Choctaw heritage, she
fails to provide record support for the contention that she disclosed
that this child potentially has Southern Ute or Ojibwe heritage (as
opposed to the two older children who are not parties to this case).
Thus, absent additional or supplemental disclosures regarding the
children’s heritage (whether Southern Ute or Ojibwe), on remand
the juvenile court need only address whether the Department
exercised due diligence to determine whether the child is an Indian
child based on potential Choctaw heritage.

6
III. Sufficiency of the Evidence

¶ 13 Mother and father each contend that the evidence was

insufficient to support the jury’s verdict that the child was

dependent and neglected as to them under section 19-3-102(1)(c).

We disagree.

¶ 14 In determining whether the evidence is sufficient to sustain an

adjudication of dependency or neglect, we review the record in the

light most favorable to the prevailing party, and we draw every

inference “fairly deducible” from the evidence in favor of the jury’s

decision. People in Interest of S.G.L., 214 P.3d 580, 583 (Colo. App.

2009). The credibility of the witnesses and the sufficiency,

probative effect, and weight of the evidence, as well as the

inferences and conclusions to be drawn therefrom, are within the

purview of the jury. Id. We will not disturb the jury’s findings if the

record supports them, even if reasonable people might arrive at

different conclusions based on the same facts. Id.; People in Interest

of T.T., 128 P.3d 328, 331 (Colo. App. 2005).

A. Mother's Sufficiency Challenge

¶ 15 To begin, mother asserts that the evidence was insufficient to

establish that the child was in an injurious environment because

7
the Department did not present any evidence that she was currently

using substances. However, an adjudication may be based not only

on current harm, but also on prospective harm. S.G.L., 214 P.3d at

583. To find that a child is dependent or neglected based on

prospective harm, the fact finder may consider a parent’s past

treatment of another child and material facts about a parent’s

conduct or condition, including the parent’s past drug use. People

in Interest of S.N., 2014 COA 116, ¶¶ 18-19; see also People in

Interest of D.L.R., 638 P.2d 39, 42 (Colo. 1981) (“[I]t has been held

repeatedly that the trial court may properly consider the treatment

accorded other children in determining whether the child before it is

neglected [or] dependent.”).

¶ 16 The fact finder must also holistically evaluate a parent’s past

conduct and current condition:

But, in a case-by-case analysis, facts about a
parent's past care of other children, or facts
about a parent's condition or conduct, may or
may not be dispositive in determining whether
it is likely or expected that a child will be
dependent [or] neglected in the parent’s care in
the future. This is because, to prove the
statutory criteria for dependency [or] neglect,
the Department could bring a case based on
one or multiple facts relating to a parent’s past
care, condition, conduct, or other

8
circumstances. And, the probative value of
each fact will vary by case; in some cases, one
fact might be sufficient and, in others, even
multiple facts might not be sufficient.

S.N., ¶ 19

¶ 17 In the present case, the Department presented evidence that

(1) mother and an older child tested positive for methamphetamine

in an earlier dependency and neglect case; (2) mother acknowledged

that she was using controlled substances shortly before the

Department filed this case; and (3) mother went to inpatient

treatment in the past but had not successfully completed her

treatment. See People in Interest of A.W., 2015 COA 144M, ¶ 22

(“Because [the child] had not been in mother’s care, the jury was

required to determine whether [the child] was dependent [or]

neglected based on a prediction of the home environment to which

[the child] might be exposed if she were placed in mother’s care.”);

see also D.L.R., 638 P.3d at 42 (noting that dependency and neglect

cases are “preventative as well as remedial” and therefore a child

need not be placed with a parent to determine “that harm would be

done to the child”).

9
¶ 18 The Department also presented evidence that mother had

tested positive for methamphetamine only two months before the

adjudication trial. Specifically, the Department produced a positive

result from a hair follicle test. Mother asserts that this test was

unreliable, considering that she had provide negative urinalysis

(UA) results for several months leading up to the hair follicle test.

But the jury heard testimony that the UA result only measured use

within the previous seventy-two hours, while the hair follicle test

measured use during the previous ninety days. In other words, the

jury could infer from this evidence that mother was using drugs

during the ninety days before the hair follicle test during periods

that were not covered by the UA test results that did not show drug

usage. See S.G.L., 214 P.3d at 583.

¶ 19 Nor are we convinced by mother’s assertion that the evidence

was insufficient to support the jury’s finding because nothing

established that her mental health issues were likely to cause harm

to the child. The record shows that the Department had significant

concerns, as it did in mother’s previous dependency and neglect

cases, with mother experiencing significant difficulties in her

“perception of reality.” Mother believed things that did not correlate

10
with reality, such as her assertion that she had given birth to two

children and the Department had stolen one of those children and

she expressed various irrational and paranoid thoughts that the

Department and her neighbor were operating a child trafficking

ring. The caseworkers opined that mother’s mental health

concerns, which she had not successfully addressed during the

previous cases, were a threat to the child’s safety, especially

considering that the child could not self-protect. In sum, there was

sufficient evidence, as described above, for the jury to conclude that

mother’s mental health issues were likely to cause the child harm.

See People in Interest of J.G., 2016 CO 39, ¶ 26 (noting that a child

is in an injurious environment “when a child is in a situation that is

likely harmful to that child”).

B. Father’s Sufficiency Contentions

¶ 20 Father contends the department failed to establish that his

conduct placed the child in an injurious environment. For example,

father argues that he complied with the requirements of his

previous dependency and neglect case and there was no evidence

that he used substances. However, father’s contention runs afoul

of our supreme court’s precedent in J.G.

11
¶ 21 In J.G., the supreme court interpreted section 19-3-102(1)(c)

and held that the statute does not require the Department to prove

either (1) parental fault or (2) “that both parents lack the

availability, ability, and willingness to provide reasonable parental

care.” J.G., ¶ 2. Ultimately, whether a child is dependent or

neglected under the injurious environment provision depends on

“the existence of an injurious environment,” not on “who caused it.”

Id. at ¶ 34. In People in Interest M.M., 2017 COA 144, ¶ 25, a

division of this court applied the supreme court’s ruling to conclude

that a child could be adjudicated under the injurious environment

provision with respect to one parent, even when the other parent

created the injurious environment.

¶ 22 As described above, evidence of mother’s substance abuse and

mental health issues was sufficient to establish that the child was

in an injurious environment. The Department did not also need to

present evidence that father’s conduct had created an injurious

environment. See J.G., ¶ 34; M.M., ¶ 25. Therefore, we reject

father’s assertion.

¶ 23 In any event, we agree with the Department and the guardian

ad litem that there was also evidence in the record showing that the

12
child would be in an injurious environment based on father’s

conduct. For example, the jury heard evidence that mother had

accused father of acts of domestic violence, which included claims

that he had sexually assaulted her, forcibly injected her with drugs,

and urinated on one of her other children. Moreover, father

testified that he would allow mother to have contact with the child

and that he did not believe that mother had substance use or

mental health issues. And even though father later modified his

testimony based on the evidence presented at the adjudicatory trial,

it was within the jury’s discretion to weigh and resolve father’s

testimony. See People v. Poe, 2012 COA 166, ¶ 14 (noting that it is

the jury’s role to resolve inconsistencies in the evidence and an

appellate court cannot reweigh the evidence or the credibility of the

witnesses).

¶ 24 Father also contends that some of the evidence relating to his

conduct was outside the facts alleged in the petition, the

Department never moved to amend the petition, and he did not

have notice of those other allegations. We decline to address these

contentions because father never raised them in the juvenile court.

See T.T., 128 P.3d at 331; see also People in Interest of M.B., 2020

13
COA 13, ¶ 14 (noting that, in dependency and neglect cases, an

appellate court addresses “only issues presented to and ruled on by

the lower court”); § 19-3-505(4), C.R.S. 2024 (“When it appears that

the evidence presented at the hearing discloses facts not alleged in

the petition, the court may proceed immediately to consider the

additional or different matters raised by the evidence if the parties

consent.”).

¶ 25 We also reject father’s reliance on S.G.L., to support his

argument that a child may not be adjudicated dependent or

neglected as to one parent based on the conduct of another parent.

See S.G.L., 214 P.3d at 580. Even if we assume, without deciding,

that this broad statement is consistent with S.G.L., it is inconsistent

with the subsequent supreme court decision in J.G, which, as

previously noted, provides that an adjudication based on injurious

environment relates to the status of the child rather than the

actions of a particular parent. We are bound by the supreme

court’s decision in J.G. See In re Estate of Ramstetter, 2016 COA

81, ¶ 40 (noting that the Colorado Court of Appeals is bound by the

opinions of the Colorado Supreme Court).

14
IV. Reasonable Efforts

¶ 26 Last, father argues that the Department did not make

reasonable efforts to prevent out-of-home placement and reunify

him with the child. We disagree.

¶ 27 Typically, the issue of whether a department made reasonable

efforts is raised in the context of a termination hearing, and more

specifically, to address whether a department used reasonable

efforts to provide a parent with services adequate to meet the

objectives of the treatment plan. See § 19-3-604(2)(h), C.R.S. 2024

(stating that, in deciding whether a parent is unfit, the court “shall

consider,” among other things, whether “[r]easonable efforts by

child-caring agencies . . . have been unable to rehabilitate the

parent or parents”); see also People in Interest of S.N-V., 300 P.3d

911, 915 (Colo. App. 2011) (noting that, in considering whether a

department made reasonable efforts, the juvenile court should

consider whether the services provided were appropriate to support

the parent’s treatment plan).

¶ 28 In contrast, the purpose of an adjudicatory hearing is to

determine the child’s status as dependent or neglected under

section 19-3-102 and whether that status warrants intervention by

15
the government. People in Interest of N.G., 2012 COA 131, ¶ 39; see

also K.D. v. People, 139 P.3d 695, 699 (Colo. 2006) (noting that the

adjudication is not made as to the parents but relates to only the

child’s status). Unlike a termination proceeding, before an

adjudication enters, a parent has a presumption of fitness, see

N.G., ¶ 33, and the parent has no obligation to cooperate with the

Department, see People in Interest of G.E.S., 2016 COA 183, ¶ 14.

See also People in Interest of T.W., 2022 COA 88M, ¶ 35 (an

adjudication gives the juvenile court the authority to order

compliance with a treatment plan). Consequently, there is nothing

in the Colorado Children’s Code that requires the court to consider

whether the Department made reasonable efforts to rehabilitate or

reunify parents and children before it can enter an adjudication.

¶ 29 Father has not directed our attention to any statute or case

law that requires the juvenile court to consider whether the

Department made reasonable efforts before the court can enter an

adjudication order. Rather, he cites to People in Interest of D.P., 160

P.3d 351, 355 (Colo. 2007), which involved a termination of

parental rights under section 19-3-604(1)(c). That case is therefore

inapposite for the reasons described above.

16
¶ 30 That said, father’s first argument — that the Department failed

to make reasonable efforts to prevent removal by failing to offer him

a safety plan — seems to rely on section 19-1-115(6)(b)(I), C.R.S.

2024, which requires the juvenile court to find that “reasonable

efforts have been made to prevent or eliminate the need for removal

of the child from the home” before awarding legal custody to a

department. However, even if father can appeal this order, see

People in Interest of M.W., 140 P.3d 231, 233 (Colo. App. 2006)

(noting that orders entered at the temporary protective custody

stage are interim orders not subject to appeal), his argument fails

because the court found that “an emergency situation exist[ed]

which require[d] the immediate temporary removal of the child from

the home.” § 19-1-115(6)(b)(II). Because there was record support

for this finding, we cannot conclude that the juvenile court erred by

awarding the Department custody of the child without first

pursuing a safety plan.

¶ 31 As for father’s second argument — that the Department failed

to make reasonable efforts to reunify him with the child when it did

not provide him with protective parenting classes — we are not

persuaded for the reasons described above. Following the filing of

17
the petition, the juvenile court entered temporary orders requiring

father to attend visits and submit to drug testing. There is nothing

in the record showing that the Department failed to offer these

services to father; in fact, father requested that evidence of his

failure to cooperate with the Department be precluded. The

caseworker also testified that the Department offered father other

services, including mental health and substance abuse treatment,

but he declined to participate in those services. Therefore, even if

the Department had a duty to provide father with services before

the adjudication, his argument still fails. See People in Interest of

A.V., 2012 COA 210, ¶ 12 (a court may consider a parent’s

unwillingness to participate in treatment in determining whether

the department made reasonable efforts).

V. Disposition

¶ 32 The judgment is affirmed in part and reversed in part, and the

case is remanded to the juvenile court for further proceedings

consistent with this opinion.

JUDGE TOW and JUDGE PAWAR concur.

18