Peo in Interest of KS

21CA0178 Peo in Interest of KS 10-21-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA0178

Mesa County District Court No. 19JV2

Honorable Brian J. Flynn, Judge

The People of the State of Colorado,

Appellee,

In the Interest of K.S., a Child,

and Concerning D.D.,

Appellant.

JUDGMENT AFFIRMED

Division VII

Opinion by JUDGE GROVE

Navarro and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced October 21, 2021

Todd M. Starr, County Attorney, Katherine A. Barnes, Assistant County

Attorney, Grand Junction, Colorado, for Appellee

Tammy Tallant, Guardian Ad Litem

The Morgan Law Office, Kris P. Morgan, Colorado Springs, Colorado, for

Appellant

1

¶ 1

D.D. (mother) appeals the judgment terminating the parent-

child legal relationship with K.S. (the child). We affirm.

I. Background

¶ 2

In January 2019, the Mesa County Department of Human

Services filed a petition in dependency and neglect regarding the

then-five-year-old child based on concerns about neglect, substance

abuse, domestic violence, and mother’s incarceration.

¶ 3

The juvenile court adjudicated the child dependent and

neglected. The court then adopted a treatment plan for mother.

Mother appealed the adjudicatory judgment.

¶ 4

The Department later moved to terminate mother’s parental

rights. Two years after the petition was filed, following a hearing,

and while the appeal of the adjudicatory judgment was pending, the

juvenile court terminated mother’s parental rights.

¶ 5

Mother appealed the termination judgment. Shortly

thereafter, a division of this court affirmed the adjudicatory

judgment. See People in Interest of K.S., (Colo. App. No. 19CA2361,

June 3, 2021) (not published pursuant to C.A.R. 35(e)).

2

II. Indian Child Welfare Act

¶ 6

Mother contends that the juvenile court did not comply with

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

1963. Specifically, she asserts that the notice sent to the Tribes did

not include information about the child’s paternal relatives. We

discern no basis for remand.

A. Law

¶ 7

ICWA serves to protect and preserve Indian tribes and their

resources, and to protect Indian children who are members or

eligible for membership in an Indian tribe. 25 U.S.C. § 1901(2), (3).

To that end, ICWA establishes minimal federal standards for child

custody proceedings. 25 U.S.C. § 1902; People in Interest of D.B.,

2017 COA 139, ¶ 12. An Indian child is an unmarried person

under the age of eighteen who is either (1) a member of an Indian

tribe or (2) eligible for membership in an Indian tribe and the

biological child of a tribal member. 25 U.S.C. § 1903(4).

¶ 8

Indian tribes are responsible for determining tribal

membership and eligibility for membership. See 25 C.F.R.

§ 23.108(a)-(c) (2020); see also People in Interest of J.A.S., 160 P.3d

257, 260 (Colo. App. 2007). ICWA also recognizes that Indian tribes

3

have an interest in Indian children that is distinct from, but equal

to, 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 a child is an Indian child and

to be heard on the issue of ICWA’s applicability. B.H., 138 P.3d at

303.

¶ 9

To ensure tribes have an opportunity to be heard, Colorado’s

ICWA-implementing legislation provides that the petitioning party in

dependency and neglect proceedings must make continuing

inquiries to determine whether the child is an Indian child. § 19-1-

126(1)(a), C.R.S. 2020; see also B.H., 138 P.3d at 302.

¶ 10

If the juvenile court knows or has reason to know that an

Indian child is involved in a child custody proceeding, including

termination of parental rights, the party seeking termination must

provide notice to any identified Indian tribes. 25 U.S.C. § 1912(a);

§ 19-1-126(1)(b); see also People in Interest of L.L., 2017 COA 38,

¶ 29. In doing so, the Department must directly notify the tribe by

registered mail with return receipt requested of the pending child

4

custody proceeding and the tribe’s right to intervene. L.L., ¶¶ 34-

35.

¶ 11

The Department should try to provide sufficient information to

allow the tribe to determine whether the child is a member or

eligible for membership. Id. at ¶ 37. The notice must include,

among other things,

(1) The child’s name, birthdate, and birthplace;

(2) All names known (including maiden,

married, and former names or aliases) of the

parents, the parents’ birthdates and

birthplaces, and Tribal enrollment numbers if

known;

(3) If known, the names, birthdates,

birthplaces, and Tribal enrollment information

of other direct lineal ancestors of the child,

such as grandparents; [and]

(4) The name of each Indian Tribe in which the

child is a member (or may be eligible for

membership if a biological parent is a

member)[.]

25 C.F.R. § 23.111(d)(1)-(4) (2020).

¶ 12

Additionally, in 2016, the Bureau of Indian Affairs issued

Guidelines implementing ICWA. L.L., ¶ 15; see Bureau of Indian

Affairs, Guidelines for Implementing the Indian Child Welfare Act

(Dec. 2016), https://perma.cc/3TCH-8HQM; see also Notice of

5

Guidelines, 81 Fed. Reg. 96,476 (Dec. 30, 2016). Although the

2016 Guidelines are not binding, they provide useful guidance in

interpreting ICWA. People in Interest of L.H., 2018 COA 27, ¶ 6.

¶ 13

Whether ICWA’s provisions were satisfied is a question of law

that we review de novo. See People in Interest of T.M.W., 208 P.3d

272, 274 (Colo. App. 2009).

B. Analysis

¶ 14

Based on mother’s assertion of possible Blackfeet or Cherokee

heritage, the Department sent notice to the Blackfeet Tribe, the

Cherokee Nation, Eastern Band of Cherokee Indians, and the

United Keetoowah Band of Cherokee Indians. The notice contained

information about the child, the parents, and the maternal

relatives.

¶ 15

The Blackfeet Tribe, the Cherokee Nation, and Eastern Band of

Cherokee Indians responded and indicated that the child was not a

member or eligible for membership.

¶ 16

The record shows that the child’s paternal grandmother

claimed no Indian heritage and filled out a Declaration of Non-

Indian Heritage form. According to a Family Services Plan, the

caseworker located the child’s father, whom she asked about

6

possible Indian heritage. Father denied any such heritage but he

refused to sign a Declaration of Non-Indian Heritage form.

¶ 17

At the termination hearing, the juvenile court found that there

had been compliance with ICWA’s requirements and that the child

was not an Indian child pursuant to ICWA.

¶ 18

We agree with mother that the Department’s notice to the

Tribes was lacking because it did not include information about the

paternal relatives. See L.L., ¶ 37. We remind the juvenile court to

ensure that notice includes names, birthdates, birthplaces, and

Tribal enrollment information of the child’s direct lineal ancestors, if

known. 25 C.F.R. § 23.111(d)(3).

¶ 19

However, given that the paternal grandmother and the child’s

father denied Indian heritage, it is unclear what additional

information about the paternal relatives would have been helpful for

the Tribes to determine whether the child was a member or eligible

for membership. In other words, the only assertion of Indian

heritage was related to the maternal family; therefore, the lack of

information in the notice about the paternal family was harmless.

See People in Interest of N.D.C., 210 P.3d 494, 498 (Colo. App.

2009).

7

III. Pending Appeal of the Adjudicatory Judgment

¶ 20

Mother contends that the juvenile court erred by terminating

her parental rights while the appeal of the adjudicatory judgment

was pending. In particular, she asserts that the court lacked

jurisdiction to enter the termination judgment and that terminating

her parental rights while the appeal was pending was

fundamentally unfair and not in the child’s best interest.

We discern no basis for reversal.

A. Jurisdiction to Enter Termination Judgment

¶ 21

We conclude that the juvenile court had jurisdiction to

terminate mother’s parental rights during the appeal of the

adjudicatory judgment. This is because an order terminating

parental rights is a dispositional order and the court retains

jurisdiction to enter dispositional orders under section 19-1-

109(2)(c), C.R.S. 2020.

¶ 22

Resolution of this issue requires statutory construction, which

is a question of law that we review de novo. People in Interest of

C.L.S., 313 P.3d 662, 665-66 (Colo. App. 2011). Our goal is to

effectuate the legislature’s intent. Id. at 666. To determine the

legislature’s intent, we begin by applying the plain language of the

8

statute, giving words and phrases their ordinary meanings. Id. If

the language is unambiguous, we do not resort to other methods of

statutory construction. Id.

¶ 23

But if a term is susceptible to different interpretations, “we

read the term in the context of the statutory scheme as a whole and

attempt to give the term the meaning intended by the legislature.”

Denver Post Corp. v. Ritter, 255 P.3d 1083, 1096 (Colo. 2011). Our

interpretation should “produce a harmonious reading of the

statutory scheme.” People in Interest of J.G., 2016 CO 39, ¶ 13.

¶ 24

The filing of a notice of appeal divests the lower court of

jurisdiction to conduct further substantive action related to the

judgment on appeal unless specifically authorized by statute or

rule. People in Interest of S.B., 742P.2d 935, 940 (Colo. App. 1987);

see also People in Interest of K.A., 155 P.3d 558, 561 (Colo. App.

2006). Section 19-1-109(2)(c) provides that

[a]n order decreeing a child to be neglected or

dependent shall be a final and appealable

order after the entry of the disposition

pursuant to section 19-3-508[, C.R.S. 2020].

Any appeal shall not affect the jurisdiction of

the trial court to enter such further

dispositional orders as the court believes to be

in the best interests of the child.

9

¶ 25

Although the Children’s Code does not define “dispositional

order,” section 19-3-508(1), C.R.S. 2020 contemplates two

dispositions available to the juvenile court at the dispositional

hearing: (1) termination of parental rights or (2) approval of a

treatment plan. Id.; see also § 19-3-508(1)(e)(I) (“Except where the

proposed disposition is termination of the parent-child legal

relationship, the court shall approve an appropriate treatment

plan.”); People in Interest of M.S., 2012 COA 211, ¶¶ 2-4 (“When the

proposed disposition is termination of the parent-child legal

relationship, the termination hearing serves as the dispositional

hearing.”).

¶ 26

The plain language of section 19-3-508(1) establishes that,

when a court finds that no appropriate treatment plan can be

devised for a parent, an order terminating parental rights is a

dispositional order. For the following reasons, we reach the same

conclusion when the court initially approves a treatment plan.

¶ 27

First, the statute does not distinguish initial dispositional

orders from later orders, and we “will not read into a statute an

exception the plain language does not suggest.” K.A., 155 P.3d at

561.

10

¶ 28

Second, a juvenile court has broad authority to modify

dispositional orders under section 19-3-508. When the court

approves a treatment plan, it retains authority “to modify an

existing dispositional order or to adopt any other order that it could

have initially entered.” People in Interest of Z.P.S., 2016 COA 20,

¶ 27. For example, a court may amend treatment plans to address

the changing needs of parents and children. See People in Interest

of D.R.W., 91 P.3d 453, 459 (Colo. App. 2004). A court may also

modify custody or placement orders. See People in Interest of P.L.B.,

743 P.2d 980, 982 (Colo. App. 1987). A court may even hold a

dispositional hearing and find that no appropriate treatment plan

can be devised for a parent after the court has already approved a

treatment plan for that parent. Z.P.S., ¶ 22.

¶ 29

Third, the dispositional statute as a whole contemplates that a

court may enter a decree of termination either as the initial decree

of disposition or later in the proceedings. Section 19-3-508(3)(a)

provides that “[t]he court may enter a decree terminating the

parent-child legal relationship of one or both parents” and

establishes the time for hearing a motion to terminate parental

rights. Subsections (1) and (3)(a) both reference part 6 of article 3

11

of title 19, which establishes termination procedures and the

criteria for termination.

¶ 30

Finally, section 19-1-109(2)(c) broadly states that, during an

appeal from a juvenile court’s adjudicatory judgment, the court may

enter any “such further dispositional orders as the court believes to

be in the best interests of the child.” See K.A., 155 P.3d at 561

(holding that a court may enter permanent custody orders under

sections 19-3-702 and 19-3-703, C.R.S. 2020, during an appeal of

adjudication). The statute does not exclude dispositional orders

that terminate the parent-child relationship. Had the legislature

intended to impose such a limit, it could have said so. See In

Interest of E.L.M.C., 100 P.3d 546, 555 (Colo. App. 2004). Instead,

the juvenile court retains jurisdiction to enter such orders.

B. Child’s Best Interest and Fundamentally Fair Procedure

¶ 31

Mother argues in the alternative that, even if the juvenile court

had jurisdiction to enter the termination judgment, allowing parallel

proceedings is fundamentally unfair. However, mother suffered no

prejudice because while this appeal was pending, a division of this

court affirmed the adjudicatory judgment.

12

¶ 32

That said, we acknowledge the possibility that, under different

circumstances, an adjudicatory judgment might be reversed on

appeal after the termination judgment has been entered, thus

disrupting the child’s theoretically permanent placement. But,

allowing the appeal of adjudicatory judgments and the entering of

other dispositional orders to proceed on parallel tracks comports

with the directives of the Children’s Code to expedite dependency or

neglect cases and provide permanency for children. Indeed, the

General Assembly has expressed its intent “to provide stable,

permanent homes for every child or youth placed out of the home,

in as short a time as possible.” § 19-3-702(1)(a). To that end, a

juvenile court must conduct a permanency planning hearing no

later than ninety-one days after the initial dispositional decree and

must hold additional hearings at least every six months while the

case is open. Id. If a court finds that reasonable efforts to reunify

the child and the parent are not required under section

19-1-115(7), C.R.S. 2020, and a motion for termination has been

filed, the court may combine the permanency planning hearing with

the termination hearing. § 19-3-702(1)(b). And all children under

the age of six when a petition is filed must be placed in permanent

13

homes “as expeditiously as possible.” § 19-3-702(5)(c), C.R.S.

2020.

¶ 33

In K.A., a division of this court recognized that the legislative

directive to place children in permanent homes as quickly as

possible may result in removal from a permanent placement if an

adjudicatory judgment is reversed on appeal. K.A., 155 P.3d at

562. Similarly, a termination judgment could be subject to reversal

or collateral attack if the underlying adjudication fails. But nothing

in section 19-1-109(2)(c) suggests any legislative intent to delay

either permanent placement decisions or decisions to terminate

parent-child relationships when these become necessary to serve

the best interests of children. See K.A., 155 P.3d at 562; see also

§ 19-1-109(3) (recognizing that dependency or neglect appeals may

take longer than six months to resolve).

¶ 34

Accordingly, we conclude that the juvenile court did not err

when it terminated mother’s parental rights during the appeal of

the underlying adjudication.

IV. Unfitness

¶ 35

Mother contends that the juvenile court erred by finding that

she was unfit. We do not agree.

14

¶ 36

The juvenile court may terminate parental rights if it finds, by

clear and convincing evidence, that (1) the child has been

adjudicated dependent and neglected; (2) the parent has not

complied with an appropriate, court-approved treatment plan or the

plan has not been successful; (3) the parent is unfit; and (4) the

parent’s conduct or condition is unlikely to change within a

reasonable time. § 19-3-604(1)(c), C.R.S. 2020; People in Interest of

C.H., 166 P.3d 288, 289 (Colo. App. 2007).

¶ 37

An unfit parent is one whose condition or conduct renders him

or her unable to give a child reasonable parental care. People in

Interest of D.P., 160 P.3d 351, 353 (Colo. App. 2007). Reasonable

parental care requires, at a minimum, that the parent provide

nurturing and protection adequate to meet the child’s physical,

emotional, and mental health needs. People in Interest of A.J., 143

P.3d 1143, 1152 (Colo. App. 2006).

¶ 38

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. People in

Interest of A.M. v. T.M., 2021 CO 14, ¶ 15. “We review the juvenile

court’s findings of evidentiary fact — the raw, historical data

15

underlying the controversy — for clear error and accept them if they

have record support.” People in Interest of S.R.N.J-S., 2020 COA 12,

¶ 10. But we review de novo the juvenile court’s legal conclusions

based on those facts. See id.

¶ 39

Here, the juvenile court found that mother was unfit because

she had not made “sufficient progress towards becoming a fit

parent.” Specifically, the court found that mother had “not

engage[d] in treatment that was available to her, revoked releases of

information that were necessary to release test results and ha[d] not

maintained adequate housing.”

¶ 40

The record supports the juvenile court’s findings. Mother did

not consistently engage in substance abuse or mental health

treatment. The caseworker testified that it was recommended that

mother participate in thirty-six sessions of individual mental health

counseling, group counseling, and NA or AA support groups.

Mother testified that she had participated in four or five mental

health counseling sessions. The caseworker also testified that she

had authorized two hair follicle tests but there was no record of

mother taking the tests at the drug screening facility. Mother

16

confirmed that although she had completed a hair follicle test, she

had not given the results to the Department.

¶ 41

Mother revoked releases of information, making it difficult for

the Department to gather information about her treatment and

progress. The caseworker testified that she had asked mother to re-

sign the releases of information but mother had not responded.

¶ 42

The record also shows that it was difficult for the Department

to verify mother’s housing. The caseworker testified that mother

had given different addresses, some of them nonexistent. Mother

testified that she had housing for the past year. The housing

authority eligibility technician testified that mother was on a

Section 8 housing voucher waiting list.

¶ 43

The caseworker opined that mother was unfit because she had

“not made significant progress” in treatment.

¶ 44

Given this evidence, we conclude that the record supports the

juvenile court’s findings about mother’s unfitness. Therefore, we

will not disturb those findings and the court’s legal conclusions on

appeal.

17

V. Less Drastic Alternatives

¶ 45

Mother contends that the juvenile court erred by finding that

there were no less drastic alternatives to termination. Specifically,

she argues that the court could have granted an allocation of

parental responsibilities (APR) to the maternal grandmother. We

discern no basis for reversal.

¶ 46

The juvenile court must consider and eliminate less drastic

alternatives before it terminates the parent-child legal relationship.

People in Interest of D.P., 181 P.3d 403, 408 (Colo. App. 2008). In

considering less drastic alternatives, the court bases its decision on

the best interests of the children, giving primary consideration to

their physical, mental, and emotional conditions and needs. § 19-

3-604(3).

¶ 47

Here, the juvenile court found that there were no alternatives

to termination that would be in the child’s best interest. The court

found that given the child’s age, it was essential to her well-being

“that she [be] given the opportunity to be in a permanent home as

soon as possible so that she does not lose her ability to bond with

caregivers” or otherwise benefit from permanent stability through

adoption.

18

¶ 48

The record supports the juvenile court’s findings. The case

had been open for two years and the child needed stability and

consistency. And when, as here, the child was less than six years

old when a petition in dependency and neglect is filed, the expedited

permanency planning provisions apply. § 19-1-123(1)(a), C.R.S.

2020. The guidelines in effect at the time of the termination

hearing required the juvenile court to place the child in a

permanent home “as expeditiously as possible.” § 19-3-702(5)(c).

At the time of the termination hearing, the child had been living

with the maternal grandmother for almost two years.

¶ 49

The record indicates that the Department and the maternal

grandmother preferred adoption over an APR. The grandmother

testified that she was not willing to have an APR because of her

experience having an APR with mother’s older children and

mother’s behavior. In particular, the grandmother testified about

mother sneaking by the home to drop off gifts for the child. The

grandmother also testified about having a “distant, non-

communicating” relationship with mother. The caseworker testified

that an APR would be a detriment to the child because “it would

19

cause her to be more dysregulated and continue to have sporadic

contact with [mother].”

¶ 50

We conclude that the record supports the juvenile court’s

findings regarding less drastic alternatives, and we will not disturb

them or the court’s legal conclusions on appeal.

VI. Conclusion

¶ 51

We affirm the judgment.

JUDGE NAVARRO and JUDGE PAWAR concur.