People in re A.D. and Tr.D

COLORADO COURT OF APPEALS 2017COA61

Court of Appeals No. 16CA1366
Chaffee County District Court No. 15JV7
Honorable Patrick W. Murphy, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of A.D. and Tr.D., Children,

and Concerning M.D. and T.D.,

Respondents-Appellants.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE FREYRE
Hawthorne and Ashby, JJ., concur

Announced May 4, 2017

Jennifer A. Davis, County Attorney, Chip E. Mortimer, Assistant County
Attorney, Salida, Colorado, for Petitioner-Appellee

Donald F. Cutler, IV, Guardian Ad Litem

The Gregory Law Firm, LLC, Christopher S.P. Gregory, Fort Collins, Colorado,
for Respondent-Appellant M.D.

Law Office of Poland Wheeler, P.C., Andrew C. Poland, Lakewood, Colorado, for
Respondent-Appellant T.D.
¶1 This termination of parental rights case presents a novel issue

— may a county department of social services rely on its Indian

Child Welfare Act of 1978 (ICWA) inquiries in a prior case involving

the same respondent parents and one of the same children to

satisfy its “continuing inquiries” obligation under section 19-1-

126(1)(a), C.R.S. 2016, in a new case, and may a trial court find

that ICWA does not apply in that new case based solely on the

department’s inquiries in the prior case? We answer both of these

questions “no” and conclude that the statute requires the

department to inquire about Indian heritage in each new

proceeding. Therefore, we reverse the judgment and remand the

case to the trial court for further proceedings.

I. Prior Case

¶2 In September 2013, the Chaffee County Department of Social

Services (the Department) initiated a dependency and neglect

proceeding involving five-year-old Tr.D. The shelter order stated,

“The Respondents deny that their child, [Tr.D.] is a member of or

eligible for membership in an Indian tribe.” The petition stated,

“The Department of Human Services has questioned the child’s

parents and has determined the child is not an Indian child.” The

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petition was later withdrawn, and the case was successfully closed

in September 2014.

II. Current Case

¶3 In February 2015, the Department initiated another

dependency and neglect proceeding concerning now six-year-old

Tr.D. and six-month-old A.D. after M.D. (father) and T.D. (mother)

were arrested on drug charges. The children were placed in foster

care because of continued concern about the parents’ drug use.

¶4 The children were adjudicated dependent and neglected, and

treatment plans were developed for both parents. Father’s

treatment plan required him to (1) find ways to manage pain that

did not include the use of controlled substances; (2) abstain from

using illegal, prescribed, or nonprescribed controlled substances

and live a substance-free lifestyle that would not put the children at

risk; (3) maintain a relationship with the children through weekly

visitation; and (4) provide a safe and stable living environment that

would be suitable for the children. Mother’s treatment plan was

identical to father’s.

¶5 Both parents struggled. Despite visitation schedule changes

to accommodate their needs, both parents often arrived late, and a

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number of visits were cancelled due to tardiness. They lost their

right to unsupervised visits after testing positive for opiates during

a visit, and they failed to maintain consistent employment, housing,

and contact information.

¶6 Most significantly, neither could overcome addiction. Both

parents delayed beginning outpatient treatment, and their

participation in that treatment was described as “sporadic at best.”

They were slow to begin drug testing, missed required tests, and on

more than one occasion manipulated the test results. In December

2015, the trial court ordered them to complete inpatient drug

treatment. Father began an inpatient program but failed to

complete it. Mother completed her inpatient program in February

2016, but she tested positive for opiates only a few days after

discharge.

¶7 Based on this record, the Department filed a petition to

terminate parental rights. The petition stated that “the subject

children are NOT Indian Children pursuant to the Indian Child

Welfare Act, 25 U.S.C. § 1903(4).” No evidence concerning ICWA

was elicited at the termination hearing. After the hearing, the trial

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court issued a written order terminating parental rights. The order

found, “The provisions of I.C.W.A. do not apply to this case.”

III. Indian Child Welfare Act

¶8 Mother contends the record fails to support the court’s ICWA

finding because the Department never asked about possible Indian

heritage during the proceedings and, therefore, failed to satisfy its

“continuing inquiry” duty under § 19-1-126(1)(a). She argues that

the court’s reliance on the Department’s deficient inquiry is a

material error because the applicability of ICWA affects the conduct

of the case and the standard of proof to be met before termination

of parental rights can be granted.

¶9 The Department responds that the ICWA issue was resolved

with respect to Tr.D. in the prior case. It argues that the trial court

satisfied the requirements of ICWA in this case by taking judicial

notice of its ICWA finding in the prior case. It reasons that because

A.D. is a full sibling of Tr.D., the court’s previous finding that Tr.D.

was not an Indian child must also apply to her.

¶ 10 We conclude that § 19-1-126(1)(a), when considered with the

relevant federal guidelines and the purposes of ICWA, required the

Department to conduct new inquiries in this case to determine

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whether the children were Indian children. Because no evidence in

the record shows that any inquiries occurred, we agree with mother

that the court’s order finding ICWA inapplicable is not supported by

the record and that further proceedings are required.

A. Relevant Law

¶ 11 Indian tribes have an interest in Indian children that is

distinct from, but equivalent to, parental interests. B.H. v. People in

Interest of X.H., 138 P.3d 299, 303 (Colo. 2006) (citing Miss. Band of

Choctaw Indians v. Holyfield, 490 U.S. 30, 52 (1989)). Thus, in a

proceeding in which ICWA may apply, tribes must have a

meaningful opportunity to participate in determining whether a

child who is a subject of the proceeding is an Indian child and to be

heard on the issue of the applicability of ICWA. Id.

¶ 12 The policy underlying ICWA is “to protect the best interests of

Indian children and to promote the stability and security of Indian

tribes and families” by establishing federal standards for the

removal of children from their families and for their placement in

foster or adoptive homes. 25 U.S.C. § 1902 (2012). Inquiry into a

child’s Indian heritage “ensures the tribe will be afforded the

opportunity to assert its rights under [ICWA] irrespective of the

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position of the parents, Indian custodian or state agencies.” In re

Kahlen W., 285 Cal. Rptr. 507, 511 (Cal. Ct. App. 1991).

¶ 13 To ensure tribes have an opportunity to be heard, § 19-1-

126(1)(a) provides that the petitioning or filing party shall “[m]ake

continuing inquiries to determine whether the child who is the

subject of the proceeding is an Indian child and, if so, shall

determine the identity of the Indian child’s tribe.” See also B.H.,

138 P.3d at 302 (“[T]he petitioning party has an affirmative duty to

make continuing inquiries to determine whether the subject child is

an Indian child.”). The trial court has the responsibility of

monitoring compliance with ICWA and Colorado’s statute. Thus, if

the initial pleading in a proceeding in which ICWA may apply does

not disclose whether the subject child is an Indian child, it is the

court’s duty to inquire of the parties whether the child is an Indian

child and, if so, whether the parties have complied with ICWA’s

procedural requirements. § 19-1-126(2); see also Guidelines for

State Courts and Agencies in Indian Child Custody Proceedings, 80

Fed. Reg. 10,146, 10,152, at B.2(b) (Feb. 25, 2015) (2015

Guidelines) (requiring state courts to ask at the start of any relevant

proceeding whether there is reason to believe the child is an Indian

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child, and requiring participants in the proceeding to certify on the

record whether they have discovered or know of any information

suggesting the child is an Indian child).

¶ 14 Statutes enacted for the benefit of Indian tribes, including

state-implementing statutes like § 19-1-126, “must be liberally

construed in favor of Indian interests.” Montana v. Blackfeet Tribe

of Indians, 471 U.S. 759, 766 (1985). Indeed, the importance of

continuing inquiries is underscored in the 2015 Guidelines, which

we recognize are not binding on state courts, but which are

instructive when interpreting ICWA-implementing legislation. See

B.H., 138 P.3d at 302 n.2 (citing the original Guidelines for State

Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67584,

67585-86 (Nov. 26, 1979), and noting that they “have been

considered persuasive by state courts”).

¶ 15 Moreover, while not applicable here, we note that new federal

regulations that codify this inquiry obligation became effective on

December 12, 2016. See 25 C.F.R. §§ 23.107-.109, .111 (2016).

The new regulations were quickly followed by new guidelines issued

in December 2016. See Bureau of Indian Affairs, Guidelines for

Implementing the Indian Child Welfare Act (Dec. 2016),

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https://perma.cc/3TCH-8HQM (2016 Guidelines). Consistent with

the 2015 Guidelines applicable here, these new regulations and

guidelines require the court to ask all participants in the case

whether there is reason to know the child is an Indian child and to

instruct the participants to inform the court if they later discover

information that provides reason to know the child is an Indian

child. See 25 C.F.R. § 23.107(a); 2016 Guidelines at 11. And, if a

new child custody proceeding is initiated for the same child, the

court must again inquire into whether there is a reason to know

that the child is an Indian child. 25 C.F.R. § 23.107(a).1

B. Analysis

1 The guidelines issued in December 2016, Bureau of Indian Affairs,
Guidelines for Implementing the Indian Child Welfare Act (Dec.
2016), https://perma.cc/3TCH-8HQM (2016 Guidelines), require a
court to inquire about ICWA’s applicability even if a party fails to
assert that ICWA may apply. 2016 Guidelines at 11. They also
state that it is “critically important” for inquiries to be made “by
courts, State agencies, and participants to the proceedings as soon
as possible.” Id. Consistent with the regulations, the 2016
Guidelines require the court to instruct the participants to inform it
of any new information that provides a reason to know the child is
an Indian child, and in situations where a child was not identified
as an Indian child in a prior proceeding, the court has a continuing
duty to inquire whether the child is an Indian child. Id. Further, if
there is no reason to know a child is an Indian child, the State
agency (or party seeking placement) should document the basis for
this conclusion in the case file. Id. at 12.

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¶ 16 We begin with the observation that the Department specifically

acknowledged its § 19-1-126(1)(a) obligation to make continuing

inquiries “as to any possible Indian heritage of any of the children”

in the dependency and neglect petition. However, it has not

directed our attention to any evidence of such continuing inquiries,

and it does not argue on appeal that such inquiries occurred.

Indeed, because the court made no findings to support its

conclusion that ICWA did not apply, we are unable to determine

what evidence the court considered in reaching its conclusion.

¶ 17 The Department suggests that the court may have relied on its

finding that ICWA did not apply in the previous case to support its

conclusion that ICWA did not apply here, and it argues that such

reliance satisfied ICWA requirements. See In Interest of C.A.B.L.,

221 P.3d 433, 442 (Colo. App. 2009) (permitting a trial court to take

judicial notice of its own records and adopt factual findings from a

previous case as long as the previous case involved the same parties

and the same issue); see also CRE 201(b) (court may take judicial

notice of facts not subject to reasonable dispute). However, nothing

in § 19-1-126, ICWA, or the 2015 Guidelines permits a court to

make ICWA findings by taking judicial notice of prior proceedings.

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In fact, the 2016 regulations and guidelines now explicitly prohibit

a court from doing so.

¶ 18 Even assuming, without deciding, that the trial court could

consider its findings and orders in the prior case to determine

whether the children who are the subjects of this case are Indian

children — and we note that the trial court did not indicate that it

had done so — we conclude that the findings and orders from the

prior case alone are insufficient to support the trial court’s

conclusion that ICWA does not apply in this case.

¶ 19 Records from the prior case show that the Department

inquired into Tr.D.’s possible Indian heritage, and that mother and

father believed, for reasons not stated in the record, that the child

was not a member of or eligible for membership in any Indian tribe.

Possibly, mother and father were unaware of any Indian heritage in

their families. Alternatively, they may have been aware of some

Indian heritage, but they may have believed that the child could not

meet the criteria for membership in the identified possible tribe(s).

Or they may have had other reasons for their belief that the child

could not, or should not, be identified as an Indian child. The

record in this case shows no renewal inquiries. Yet it reveals the

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active participation of grandparents with the Department, who may

have had pertinent information concerning Indian heritage that was

unknown to the parents.

¶ 20 We agree that in determining whether ICWA applies to the

current proceeding, the court could properly consider a finding

that, in 2013, mother and father denied that Tr.D. was an Indian

child. However, the trial court could not rely solely upon that prior

finding to determine that ICWA does not apply here. To do so

would fail to give effect to § 19-1-126(1)(a), which obligates the

Department to make continuing inquiries into a child’s Indian

heritage before determining whether the child is an Indian child.

Such continuing inquiries are necessary to ensure that any

determination is not based on information that may be outdated

and incorrect. See, e.g., People in Interest of T.M.W., 208 P.3d 272,

275 (Colo. App. 2009) (stating that a court may not rely on notice

that was given to a tribe concerning a sibling to determine whether

another child is an Indian child because, even if the siblings have

the same parents, the tribe is free to change its enrollment criteria

at any point).

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¶ 21 In the absence of findings by the trial court, we are unable to

determine the basis for the court’s conclusion that ICWA does not

apply to this case. Nor are we able to satisfy ourselves that the

information that the court relied upon in reaching its conclusion

was obtained as the result of the Department’s “continuing

inquiries” into the children’s Indian heritage and eligibility for tribal

membership, as contemplated by § 19-1-126(1)(a), rather than

outdated and possibly inaccurate information. The Department

does not argue that this absence of information is harmless; it

acknowledges that a “remand for the purpose of making any

necessary additional inquiries” could be ordered. Under these

circumstances, we conclude that the judgment must be reversed

and remanded to the trial court for additional findings and further

proceedings if needed. See People in Interest of A.G., 264 P.3d 615,

621 (Colo. App. 2010) (stating that an order may be set aside if the

court’s findings do not demonstrate compliance with statutory

requirements and the appellate court cannot determine the basis

for the order), rev’d in part and vacated in part on other grounds,

262 P.3d 646 (Colo. 2011).

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¶ 22 Accordingly, on remand the Department must make the

inquiries required by § 19-1-126(1)(a). If those inquiries reveal

possible Indian heritage, then the Department must comply with

the statute’s notice requirements. If the inquiries reveal no possible

Indian heritage, then the trial court may enter its termination order

based on its prior findings and the evidence adduced from the

Department’s inquiries. Because it is possible that no ICWA notice

will be required, and that, even if notice is required, no tribe will

determine that the children are eligible for tribal membership, we

also address the remaining issues raised by mother and father.

IV. Sufficiency of the Evidence

¶ 23 Mother contends that the trial court erred in finding that the

statutory grounds for terminating her parental rights under §

19-3-604(1)(c), C.R.S. 2016, were established by clear and

convincing evidence. Specifically, she argues that she was

progressing in her substance abuse treatment, she was able to

maintain employment, she interacted well with the children, she

complied with most of the requirements of her treatment plan, and

she would have been able to complete the other requirements

within a reasonable time. She contends the record does not

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support the trial court’s finding that her conduct or condition will

not change within a reasonable time. We disagree.

¶ 24 Under § 19-3-604(1)(c), the legal relationship between a parent

and his or her child may be terminated if the child has been

adjudicated dependent or neglected and the court finds, based on

clear and convincing evidence, that the parent did not reasonably

comply with a treatment plan approved by the court or that the

treatment plan has been unsuccessful, that the parent is unfit, and

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

reasonable time.

¶ 25 When a proceeding involves children under the age of six,

reasonable or successful compliance with a treatment plan cannot

be found if “[t]he parent exhibits the same problems addressed in

the treatment plan without adequate improvement” and remains

unable to meet the children’s needs. § 19-3-604(1)(c)(I)(B); People in

Interest of J.A.S., 160 P.3d 257, 260 (Colo. App. 2007).

¶ 26 In determining whether a parent’s conduct or condition is

unlikely to change within a reasonable time, the trial court may

consider whether any change has occurred during the pendency of

the dependency and neglect proceeding, the parent’s social history,

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and the chronic or long-term nature of the parent’s conduct or

condition. K.D. v. People, 139 P.3d 695, 700 (Colo. 2006).

¶ 27 A reasonable time is not an indefinite time, and it must be

determined by considering the physical, mental, and emotional

conditions and needs of the child. People in Interest of A.J., 143

P.3d 1143, 1152 (Colo. App. 2006). A trial court’s findings and

conclusions will not be disturbed on review if the record supports

them. K.D., 139 P.3d at 702.

¶ 28 The trial court found that despite more than fifteen months of

intervention and treatment, mother exhibited the same problems

addressed in the treatment plan without any meaningful

improvement, and she was unable or unwilling to meet the

children’s needs. The court also found that mother’s conduct or

condition was unlikely to change within a reasonable time.

¶ 29 These conclusions are based on lengthy and detailed factual

findings supported by the record that contradict mother’s claims on

appeal. Among other things, the record shows that mother did not

complete a substance abuse assessment until June 2015, two

months after adoption of her treatment plan and four months after

the children’s initial removal. She attempted outpatient substance

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abuse therapy, but attended less than fifty percent of the sessions

and was terminated for poor attendance. She eventually completed

an inpatient program, but relapsed almost immediately thereafter.

Her employment was sporadic, and she incurred criminal charges

during the case. She and father were often late for visits or

cancelled them.

¶ 30 The record, therefore, amply supports the trial court’s findings

and conclusions, and we will not disturb them.

V. Reasonable Efforts

¶ 31 Father contends that the record does not support the trial

court’s finding that reasonable efforts were made to avoid the

removal of the children from their home and to promote

reunification of the family, as required by § 19-3-100.5, C.R.S.

2016. He argues that the Department’s opposition to changing

venue from Chaffee County, which does not have a Family Intensive

Drug Court (FITC), to Fremont County, which has an FITC program,

represents a failure to make reasonable efforts. More specifically,

he argues that the dispute over whether venue should be changed

delayed his ability to participate in an FITC program “when [he was]

motivated to engage in treatment.” He reasons “[r]easonable efforts

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require[d] more than providing adequate services, they require[d]

providing such services at the right time.” We perceive no error.

¶ 32 The state must make reasonable efforts to prevent

out-of-home placement of an abused or neglected child and to

reunite the family. §§ 19-1-103(89), 19-3-100.5(1), C.R.S. 2016;

see also People in Interest of S.M.A.M.A., 172 P.3d 958, 963 (Colo.

App. 2007). Such reasonable efforts must include screening,

assessments, the development of an appropriate treatment plan, the

provision of information and referrals to available public and private

assistance resources, placement services, and visitation services, all

as determined necessary and appropriate in a particular case.

§ 19-3-208(2)(b), C.R.S. 2016.

¶ 33 In July 2015, mother requested a transfer of venue to Fremont

County, where she and father lived. She conceded they both had

significant substance abuse issues and needed the intensity of

Fremont County’s FITC program. The Department and the

guardian ad litem opposed the motion, in part due to concerns that

the children would be transferred to a different foster home. The

Department consulted with Fremont County’s Department of

Human Services and learned that if venue was changed, such a

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transfer was likely. Additionally, the Department considered the

parents’ admission into the FITC program “questionable,” in part

because the eligibility criteria precluded the use of a “prescribed

inhibitor” such as Suboxone, which the Department believed father

had been prescribed.

¶ 34 The court observed that Fremont County had offered to

collaborate with Chaffee County to provide FITC services to mother

and father, minus the court oversight, while Chaffee County

retained jurisdiction over the case. The court proposed holding the

motion in abeyance while mother and father sought FITC services.

Father agreed with this proposal.

¶ 35 Soon afterward, a Fremont County supervisor attempted to

arrange a meeting with mother and father so that she could discuss

the program, have them sign the necessary papers, and start

scheduling appointments. However, mother and father repeatedly

rescheduled this initial meeting and then failed to appear. They

never took advantage of the opportunity to receive FITC services.

And the record does not reflect any effort by father to seek a ruling

on the outstanding motion.

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¶ 36 We conclude that father waived his right to raise this issue on

appeal when he expressly agreed to hold the motion to change

venue in abeyance, and thereafter failed to seek a ruling from the

court. Accordingly, we will not consider it. See People in Interest of

N.A.T., 134 P.3d 535, 537 (Colo. App. 2006) (stating that where

mother did not object to the allocation of parental responsibilities to

father during the hearing before the juvenile court, instead agreeing

that the disposition was in the child’s best interests, the appellate

court would not consider her contention on appeal that the

allocation was not in the child’s best interests).

VI. Conclusion

¶ 37 The judgment is reversed, and the case is remanded for the

Department to conduct inquiries into the children’s possible Indian

heritage. If such inquiries reveal possible Indian heritage, then the

Department must comply with the notice provisions of § 19-1-126

and ICWA, and the court must conduct further proceedings as

necessary. If the inquiries reveal no possible Indian heritage, or if,

after any required notice, no tribe has determined that the children

are eligible for tribal membership, then the court may enter its

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termination order based on its prior findings and the evidence

adduced from the Department’s inquiries.

JUDGE HAWTHORNE and JUDGE ASHBY concur.

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