Peo in Interest of NT

21CA0181 Peo in Interest of NT 01-20-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA0181

Adams County District Court No. 18JV423

Honorable Patrick H. Pugh, Judge

The People of the State of Colorado,

Appellee,

In the Interest of N.T., a Child,

and Concerning R.T.,

Appellant.

JUDGMENT AFFIRMED

Division IV

Opinion by JUDGE FREYRE

J. Jones and Tow, JJ., concur

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

Announced January 20, 2022

Heidi M. Miller, County Attorney, Rebecca Wiggins, Assistant City Attorney,

Westminster, Colorado, for Appellee

Tausha Riley, Jared McCauley, Guardians Ad Litem

Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant

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¶ 1 In this dependency and neglect proceeding, R.T. (father)

appeals the judgment terminating his parental rights to N.T. (the

child). We affirm.

I. Background

¶ 2 In December 2018, the Adams County Department of Human

Services (Department) initiated an action in dependency and neglect

based on concerns about mother’s substance use. The Department

did not initially know father’s whereabouts, but it eventually located

him in federal custody in New Jersey. After father failed to appear

at an adjudicatory hearing, a magistrate entered a default judgment

adjudicating the child dependent and neglected.

¶ 3 In February 2020, the Department moved to terminate father’s

parental rights, asserting that he had abandoned the child. The

juvenile court held a termination hearing over multiple days

between October 2020 and January 2021. After hearing the

evidence, the court took the matter under advisement and later

entered a written order terminating father’s parental rights.

¶ 4 Father appealed the judgment, arguing, in part, that the

juvenile court and the Department had not complied with the notice

requirements of the Indian Child Welfare Act of 1978 (ICWA), 25

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U.S.C. §§ 1901-1963. We remanded the case to the juvenile court

for the limited purpose of resolving the ICWA notice issues. On

remand, the court concluded that ICWA does not apply. We then

recertified the appeal.

II. ICWA

¶ 5 Father first contends that the juvenile court and the

Department failed to comply with ICWA’s notice requirements. See

25 U.S.C. § 1912(a). After reviewing the supplemental record

produced following the limited remand, we disagree.

¶ 6 If the juvenile court knows or has reason to know that a child

is an Indian child, the Department must directly notify any

applicable tribes by registered or certified mail, with return receipts

requested, of the pending child-custody proceeding. 25 C.F.R.

§ 23.111(a)(1), (c) (2021); § 19-1-126(1)(b), C.R.S. 2021. The

Department should then file with the court a copy of the notice

together with any return receipts or other proof of service. 25

C.F.R. § 23.111(a)(2). The court should not conduct a termination

hearing “until at least ten days after receipt of notice” from the

tribe. 25 U.S.C. § 1912(a); People in Interest of Z.C., 2019 COA

71M, ¶ 15.

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¶ 7 Where a tribe does not respond to a notice sent before the

Department moves to terminate parental rights, ICWA requires the

Department to send an additional notice of the termination

proceeding. See People in Interest of S.R.M., 153 P.3d 438, 442

(Colo. App. 2006); see also Bureau of Indian Affairs, Guidelines for

Implementing the ICWA (Dec. 2016), https://perma.cc/3TCH-

8HQM (“Notice is required for a [termination] proceeding, even if

notice has previously been given for the child’s foster-care

proceeding.”).

¶ 8 Whether ICWA’s notice requirements are satisfied is a question

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

272, 274 (Colo. App. 2009).

¶ 9 In this case, father completed an ICWA assessment form and

declared that he had “Oglala Lakota and Cheyenne” heritage. The

Department sent notices to two Cheyenne tribes (the Northern

Cheyenne Tribe and the Cheyenne and Arapaho Tribes of

Oklahoma) and two Sioux tribes (the Oglala Sioux Tribe and the

Cheyenne River Sioux Tribe).

¶ 10 On the second day of the termination hearing in December

2020, paternal grandmother provided additional aliases for a

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paternal great-grandmother, and the Department said that it would

send out new notices with the updated information. The court

continued the termination hearing to January 2021 to allow the

Department to send additional ICWA notices. At the January 2021

hearing, the Department told the juvenile court that it had sent the

additional notices but had not received the return receipts yet.

¶ 11 In its written order, the court found that the Department had

complied with ICWA’s notice requirements, but the court stated that

it would hold the “order in abeyance until it received the amended

ICWA notice and certified mail receipts.” The Department

subsequently filed a copy of the amended notice, which indicated

that notice had been sent to the two Sioux tribes the Department

previously noticed, as well as fifteen other Sioux tribes. However,

the notice did not indicate that either Cheyenne tribe had been sent

the amended notice. The Department eventually filed return

receipts and responses from most of the tribes.

¶ 12 We conclude, for the following reasons, that the juvenile court

and Department adequately complied with the notice provisions of

ICWA.

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¶ 13 First, as to the seventeen Sioux tribes, the record shows that

only four of them failed to respond to the amended notice. But

because the record shows that those four tribes received notice

more than ten days before the court entered its termination order,

we discern no error. See 25 U.S.C. § 1912(a); see also People in

Interest of N.D.C., 210 P.3d 494, 500 (Colo. App. 2009) (“[T]he court

need not delay the termination hearing until the tribe responds; it

need only wait ten days post receipt.”).

¶ 14 Second, as to the two Cheyenne tribes, even though the notice

filed with the court did not list these tribes, the supplemental

record contains responses to the amended notices indicating that

the child is not a member or eligible for membership in either tribe.

See People in Interest of A.R.Y.-M., 230 P.3d 1259, 1261 (Colo. App.

2010) (“If, after receiving all known information, a tribe responds

that a child is not an Indian child, any errors in the notice are

deemed to be harmless.”). In any event, on remand, the

Department sent additional notices to the Cheyenne tribes, and the

supplemental record indicates that the tribes received the

additional notices on October 25, 2021. The Northern Cheyenne

Tribe responded that the child is not a member or eligible for

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membership. And, while the Cheyenne and Arapahoe Tribes of

Oklahoma did not respond to the additional notice, the juvenile

court waited more than ten days before entering its order. See

N.D.C., 210 P.3d at 500.

III. Motion to Set Aside the Default Adjudication

¶ 15 Father next asserts that the juvenile court erred by failing to

set aside the default adjudication. Specifically, he contends that,

because he was incarcerated, the court should have appointed

counsel for him before entering the default adjudication. Because

father’s claim was not properly preserved for review, we decline to

address it.

¶ 16 Father asserts that he preserved this issue by filing a motion

to set aside the default adjudication. However, the order denying

his motion to set aside default adjudication was entered by a

magistrate. Before this court can review an issue presented to a

magistrate, the party must petition the district court for review of

the magistrate’s order. § 19-1-108(5.5), C.R.S. 2021; see People in

Interest of K.L-P., 148 P.3d 402, 403 (Colo. App. 2006). But the

record is clear that father never filed a petition for judicial review of

the magistrate’s order. We therefore cannot address this issue for

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the first time on appeal. See K.L-P., 148 P.3d at 403 (if the party

does not raise an issue before the district court in a petition for

review, the party asks us to correct an error that the district court

could have corrected).

¶ 17 To the extent that father challenges the denial of counsel at

the adjudicatory phase, his challenge is untimely. See People in

Interest of C.B., 2019 COA 168, ¶¶ 18, 23 (“Challenges to the

propriety of a judgment of adjudication must be raised in a timely

appeal from the adjudicatory stage of a dependency and neglect

proceeding.”).

IV. Termination of Parental Rights

¶ 18 Father also asserts that we should reverse the termination

judgment because the juvenile court erred by finding that (1) he had

abandoned the child under section 19-3-604(1)(a), C.R.S. 2021; and

(2) there were no less drastic alternatives to termination. We

disagree.

A. Standard of Review

¶ 19 Where resolution of an issue requires application of the

termination statute to evidentiary facts, it presents a mixed

question of fact and law. People in Interest of A.M. v. T.M., 2021 CO

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14, ¶ 15. We review the juvenile court’s factual findings for clear

error. C.R.C.P. 52. The credibility of witnesses, the sufficiency,

probative effect, and weight of the evidence, and the inferences and

conclusions to be drawn therefrom are all within the province of the

juvenile court. People in Interest of C.A.K., 652 P.2d 603, 613 (Colo.

1982). But application of the proper legal standard to the

particular facts of the case are questions of law that we review de

novo. M.A.W. v. People in Interest of A.L.W., 2020 CO 11, ¶ 31.

B. Abandonment

¶ 20 Father asserts that the juvenile court erred by finding that he

had abandoned the child. Specifically, father contends that the

court’s finding was erroneous given that he was incarcerated,

mother attempted to conceal the child from him, and he took steps

to assert his parental rights after his release from prison. We are

not persuaded.

¶ 21 Under section 19-3-604(1)(a), the juvenile court may terminate

parental rights if it finds by clear and convincing evidence that a

child has been (1) adjudicated dependent or neglected and (2)

abandoned by the parent. Subsection 604(1)(a)(I) provides that a

parent has abandoned a child if the parent (1) surrendered physical

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custody of the child for a period of six months or more; and (2)

during that period, did not manifest a firm intent to resume

physical custody of the child or make permanent legal

arrangements for the care of the child.

¶ 22 Abandonment is primarily a question of intent and may be

determined by the parent’s actions and words. People in Interest of

A.D., 56 P.3d 1246, 1248 (Colo. App. 2002). In determining

whether a child has been abandoned, the circumstances must be

viewed in light of the child’s best interests. Id.

¶ 23 The record shows the child was born in December 2011; father

admitted at the termination hearing that he had not seen the child

since then. Father testified that law enforcement arrested him at

the hospital the day after the child’s birth and that he had

remained incarcerated until January 2020.

¶ 24 According to father, mother initially sent him a few letters,

along with photographs of the child. However, father said that

when he sent return correspondence, mother did not respond.

Father testified that the last time he received something from

mother was around the child’s first birthday, or December 2012.

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¶ 25 Father said that he received the dependency and neglect

petition and summons in this case in March 2019, while he was

incarcerated in a federal prison in New Jersey. The caseworker

testified that she sent father copies of the court reports while he

was incarcerated, but she said that he never reached out to her

during this time.

¶ 26 The record shows that father returned to the Denver metro

area after his release from federal prison in January 2020. The

caseworker said that father appeared at the courthouse in February

2020, but his case was not scheduled on the day he appeared. She

said that a county attorney provided father with information about

the case, including the caseworker’s name and phone number. But

she said that father still never contacted her. Shortly thereafter,

father was reincarcerated, and he admitted that he did not contact

the caseworker after he was reincarcerated.

¶ 27 Ultimately, the caseworker said that father had never

contacted her during the case and that he did not have any contact

with the child during the case.

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¶ 28 Based on this record, we conclude, for the following reasons,

that the juvenile court did not err by finding that father had

abandoned the child.

¶ 29 First, the record supports the court’s finding that father had

surrendered physical custody of the child for a period of six months

or more. § 19-3-604(1)(a)(I). It is undisputed that father never had

physical custody of the child, had not seen the child since the day

after the child was born, was incarcerated for most of the child’s

life, and had no relationship with the child. See A.D., 56 P.3d at

1248 (rejecting the parent’s assertion that he could not surrender

physical custody because he never had physical custody).

¶ 30 Father asserts that he did not voluntarily surrender custody of

the child because the child’s mother “forcibly separated” him from

the child by cutting off communication. But father does not provide

us with any authority for the proposition that mother’s actions can

absolve him of taking steps to maintain or resume physical custody

of the child to avoid termination under section 604(1)(a). Instead,

“[a] parent who wishes to maintain the benefits of a parental

relationship must bear the burden of parental responsibilities.” See

A.D., 56 P.3dat 1249. Here, the record shows that, after mother

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stopped communicating with father, he simply ceased any further

efforts to contact her or otherwise exercise his parental rights.

¶ 31 Second, the record supports the court’s finding that father did

not manifest a firm intent to resume physical custody of the child or

arrange for the child’s care. § 19-3-604(1)(a)(I). The court found,

with record support, that father remained incarcerated at the time

of the termination hearing and would not be able to resume

physical custody of the child in the foreseeable future. Nor is there

anything in the record suggesting that father made any efforts to

arrange for the child’s care either before or after this case was filed.

¶ 32 Nevertheless, father argues that the juvenile court could not

terminate his parental rights under the abandonment provision

because the record shows that he participated in the case after his

release from prison. But a parent’s participation in an involuntary

termination proceeding, standing alone, is insufficient to preclude

termination based on abandonment. See A.D., 56 P.3d at 1248.

While the record shows that father made some minimal efforts to

participate in the case, we see nothing in the record to suggest that

these efforts amounted to a firm intent to resume physical custody

or an attempt to arrange for the child’s care. See id. at 1248-49

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(noting that the father’s desire to “someday assume custody” and

his agreement to the department’s placement of the child with a

relative pursuant to the dependency and neglect case did not

“obviate termination on the basis of abandonment”).

¶ 33 Father also asserts that he could not “willingly or knowingly”

abandon the child because he was “incompetent.” Because

abandonment is primarily a question of intent, we recognize that a

parent’s lack of mental capacity may be sufficient to defeat a motion

to terminate based on the abandonment provision. In re D.L.M.,

703 P.2d 1330, 1332 (Colo. App. 1985). But father never presented

such an argument to the juvenile court. See People in Interest of

M.B., 2020 COA 13, ¶ 14 (noting that appellate courts do not

address issues not presented to or ruled on by the juvenile court).

And, on appeal, he does not develop his claim or provide any legal

authority for his position. See People in Interest of D.B-J., 89 P.3d

530, 531 (Colo. App. 2004) (stating that appellate courts will not

address undeveloped issues). In any event, even if father lacked

mental capacity at the time of termination hearing, as he now

argues, he does not assert that he lacked mental capacity during

the entirety of the abandonment period.

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¶ 34 We also are not persuaded by father’s assertion that the

juvenile court erred by terminating his parental rights because the

Department did not make reasonable efforts to facilitate

communication between him and the child. The record shows that

the caseworker made efforts to keep father apprised of the case

while he was incarcerated and attempted to locate him after his

release. But the record also reveals that, while father had the

caseworker’s contact information, he never contacted her. See

People in Interest of A.V., 2012 COA 210, ¶ 12 (noting that a

parent’s unwillingness to participate in a case is a factor in

determining whether the Department has made reasonable efforts).

C. Less Drastic Alternatives

¶ 35 Finally, father contends that the juvenile court erred by

finding that there were no less drastic alternatives to termination.

We disagree.

¶ 36 Before terminating parental rights, the juvenile court must

consider and eliminate less drastic alternatives. People in Interest of

M.M., 726 P.2d 1108, 1122 (Colo. 1986); see also People in Interest

of L.M., 2018 COA 57M, ¶ 24 (The consideration of a less drastic

alternative is not a separate criterion but rather “is implicit in, and

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thus intertwined with, the statutory criteria for termination.”). In

considering less drastic alternatives, courts must give primary

consideration to the child’s physical, mental, and emotional

conditions and needs. § 19-3-604(3).

¶ 37 A juvenile court may consider and weigh various factors in

determining the viability of a less drastic alternative, including

whether (1) an ongoing relationship with a parent would be

beneficial or detrimental to the child, People in Interest of J.L.M.,

143 P.3d 1125, 1127 (Colo. App. 2006); and (2) the alternative

option provides the child with adequate permanence or meets the

child’s needs, People in Interest of T.E.M., 124 P.3d 905, 910 (Colo.

App. 2005). For a less drastic alternative to be viable, it must do

more than “adequately” meet a child’s needs; rather, the less drastic

alternative must be the “best” option for the child. A.M., ¶ 27.

Therefore, if the court considers a less drastic alternative but finds

instead that termination is in the child’s best interests, it must

reject the less drastic alternative and order termination. Id. at ¶ 32.

¶ 38 When the juvenile court considers the availability of a less

drastic alternative and still determines that the termination of

parental rights would be in the child’s best interests, we are bound

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to affirm the court’s decision if its findings are supported by the

record. People in Interest of B.H., 2021 CO 39, ¶ 80.

¶ 39 The juvenile court found that there were no less drastic

alternatives available. Specifically, the court found that a

permanent placement or an allocation of parental responsibilities

(APR) to a relative was not in the child’s best interests based on his

“age and substantial and emotional health needs, and the child’s

need for a permanent and stable home.” See T.E.M., 124 P.3d at

910. The court also determined that an APR was not in the child’s

best interests because an ongoing relationship with father would

not be beneficial to the child. See J.L.M., 143 P.3d at 1127.

Although father asserts on appeal that the juvenile court “failed to

consider less drastic alternatives, such as an allocation of parental

responsibilities,” the record is clear that the court specifically

considered and rejected less drastic alternatives, as described

above. Because father does not challenge the propriety of these

findings, and because they are supported by competent evidence in

the record, we cannot disturb them. See A.M., ¶¶ 48-50.

¶ 40 Nonetheless, father asserts that the juvenile court should have

provided him with an opportunity to complete a treatment plan and

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become fit as a less drastic alternative. But that argument does not

propose an alternative placement option that would resolve the

dependency and neglect case. See People in Interest of A.R., 2012

COA 195M, ¶ 44 (noting that the less drastic alternative analysis

involves the consideration of whether a placement alternative —

such as an APR — would satisfy the child’s best interests). Instead,

father’s contention is essentially a rebranding of his previous

argument — that the juvenile court erred by terminating his

parental rights under section 19-3-604(1)(a). We therefore reject

father’s assertion for the same reasons discussed in Part IV.B.

¶ 41 Nor are we convinced by father’s assertion that the juvenile

court erred by terminating his parental rights because the child was

not in a permanent, adoptive home and termination therefore

rendered him a “legal orphan.” At the October 2020 hearing, the

caseworker testified that the child was placed with his

grandparents, who initially wanted to adopt him, but the

Department was “looking at alternative homes,” given some recent

issues between the child and his sibling. The caseworker still

believed that the grandparents could be a “potential permanent

placement” for the child if the Department could not find another

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option. Although the court never heard additional testimony about

whether the child had moved to a new placement at the January

2021 hearing, the court’s order indicates that there had been a

“recent change of placement” to “other psychological kin.”

¶ 42 Because father does not direct us to any evidence in the record

supporting his assertion that the child’s new placement was

unwilling to adopt him, we necessarily reject his argument.

¶ 43 In any event, we conclude that the juvenile court did not err

by deciding that, regardless of placement, termination was still in

the child’s best interest. See A.M., ¶ 32. The juvenile court found

that the child’s recent change in placement did not affect the

“ultimate determination” of whether a less drastic alternative

existed because the “benefit of permanency and stability

particularly for this child, whether in the home with [his

grandparents] or in a separate home . . . outweighs the benefit of an

ongoing legal relationship with [father].” Because the court’s

findings are supported by the record, we decline to disturb them.

See B.H., ¶ 80.

V. Conclusion

¶ 44 The judgment is affirmed.

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JUDGE J. JONES and JUDGE TOW concur.