Peo in Interest of ADL

22CA0310 Peo in Interest of ADL 09-15-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0310
Pueblo County District Court No. 21JV29
Honorable William D. Alexander, Judge

The People of the State of Colorado,

Appellee,

In the Interest of A.D.L., a Child,

and Concerning A.R.L.,

Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE JOHNSON
Navarro and Welling, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 15, 2022

Cynthia Mitchell, County Attorney, David A. Roth, Special Assistant City
Attorney, Pueblo, Colorado, for Appellee

Debra W. Dodd, Guardian Ad Litem

Patrick Henson, Office of Respondent Parents’ Counsel, Denver, Colorado, for
Appellant
¶1 In this dependency and neglect proceeding, A.R.L. (father)

appeals the juvenile court’s order allocating parental responsibilities

for A.D.L. (the child) to the child’s maternal aunt and uncle. Father

argues that the juvenile court did not comply with the inquiry

requirements of the Indian Child Welfare Act (ICWA) and that the

court abused its discretion when it ordered an allocation of parental

responsibilities (APR). We conclude that any failure of the juvenile

court to inquire into the applicability of ICWA was harmless,

perceive no abuse of discretion in the court’s APR order, and affirm

the judgment.

I. Background

¶2 The Pueblo County Department of Human Services

(Department) filed a petition in dependency and neglect regarding

the newborn child. The Department alleged that the child tested

positive for opiates and methamphetamine at birth. The

Department’s intake caseworker tried to contact father several

times but did not receive a response. Maternal aunt and uncle,

who had previously adopted one of the child’s half-siblings, took

placement of the child.

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¶3 The juvenile court accepted father’s admission to the petition

and adjudicated the child dependent and neglected. The court

adopted a treatment plan for father requiring that he, among other

things, (1) complete a substance abuse evaluation and participate

in any recommended treatment; (2) submit random sobriety tests;

(3) complete a parenting class; (4) visit the child regularly; and

(5) communicate and cooperate with the Department.

¶4 The Department later moved for an APR to maternal aunt and

uncle. After a hearing, which father did not attend, the juvenile

court granted the motion and allowed father supervised visits at

least twice a week at his own expense.

II. ICWA

¶5 Father contends that the court did not comply with ICWA

because it failed to inquire of him about possible Native American

heritage. We agree that the juvenile court did not make an inquiry

of father when he first attended a hearing but conclude that any

error was harmless.

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A. Standard of Review and Applicable Law

¶6 We review de novo the juvenile court’s determination that

ICWA does not apply. People in Interest of A.R., 2012 COA 195M,

¶ 17.

¶7 ICWA’s provisions are for the protection and preservation of

Indian tribes and their resources and to protect Indian children who

are members of or are eligible for membership in an Indian tribe.

25 U.S.C. § 1901(2), (3). ICWA recognizes that Indian tribes have a

separate interest in Indian children that is equivalent to, but

distinct from, parental interests. B.H. v. People in Interest of X.H.,

138 P.3d 299, 303 (Colo. 2006); see also Mississippi Band of

Choctaw Indians v. Holyfield, 490 U.S. 30, 52 (1989). Accordingly,

in a proceeding in which ICWA may apply, tribes must have a

meaningful opportunity to participate in determining whether the

child is an Indian child and to be heard on the issue of ICWA’s

applicability. B.H., 138 P.3d at 303.

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

ICWA-implementing legislation provides that in dependency and

neglect proceedings, the petitioning party must make continuing

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

126(1)(a), C.R.S. 2021; see also B.H., 138 P.3d at 302.

¶9 In 2016, the Bureau of Indian Affairs also issued regulations

and guidelines implementing ICWA. People in Interest of L.L., 2017

COA 38, ¶ 15; Indian Child Welfare Act Proceedings, 81 Fed. Reg.

38,778 (June 14, 2016); Bureau of Indian Affairs, Guidelines for

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

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

of Guidelines, 81 Fed. Reg. 96,476 (Dec. 30, 2016). The 2016

Guidelines and regulations impose a duty of inquiry and notice on

juvenile courts.

¶ 10 A juvenile court must ask each participant on the record at

the beginning of every emergency, voluntary, or involuntary child

custody proceeding whether the participant knows or has reason to

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

(2022); see also L.L., ¶ 19. A child custody proceeding includes a

hearing on a motion to allocate parental responsibilities. People in

Interest of K.G., 2017 COA 153, ¶¶ 16-18. The inquiry must be

made at the commencement of the proceeding and all responses

should be on the record. 25 C.F.R. § 23.107(a).

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B. Analysis

¶ 11 Father did not appear at the initial hearing. The child’s

mother appeared, and her counsel stated that ICWA did not apply.

The court then stated “all indications would suggest that ICWA does

not apply” but told the Department that they should continue to

investigate.

¶ 12 Father appeared by phone at the adjudicatory hearing and the

court accepted his admission to the petition. The juvenile court,

however, did not inquire into the applicability of ICWA.

¶ 13 Father attended only two other hearings, and the court did not

inquire about the applicability of ICWA at those hearings either.

Father did not submit a declaration of Indian or non-Indian

heritage.

¶ 14 Father did not appear at the APR hearing. During that

hearing, the caseworker testified that neither parent nor any family

indicated that the child may be eligible for enrollment in an Indian

tribe and that she had no other information indicating that the

child was an Indian child. The court asked the caseworker directly

whether she inquired of the parents and the family about the

applicability of ICWA and she responded “[y]es, . . . [w]e’ve inquired

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in court, during [family team meetings], and I’ve, to my recollection

I’ve never documented that they reported that there was any

heritage.” The juvenile court then found that ICWA did not apply

because “the child is not a member of or eligible for membership in

an Indian tribe.”

¶ 15 The juvenile court should have inquired about father’s

potential Indian heritage when father first appeared in court. And,

although father did not appear at the APR hearing, the court should

have asked his counsel whether she had any additional information

as to whether ICWA applied. Paternal grandmother was also

present at the APR hearing and the court could have inquired of her

regarding any Indian heritage, but the court did not do so.

¶ 16 Based on this record, we conclude that the juvenile court did

not sufficiently inquire about father’s possible Indian heritage. But

we conclude the error is harmless for four reasons. See C.A.R. 35(c)

(An appellate court “may disregard any error or defect not affecting

the substantial rights of the parties.”); People in Interest of S.R.M.,

153 P.3d 438, 441-42 (Colo. App. 2006) (defects in ICWA inquiry

may be harmless if no party has any information suggesting that

the child is an Indian child).

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¶ 17 First, the caseworker’s testimony supports that the

Department had made inquiry to the parents and there was no

information indicating possible Indian heritage concerning either

parent.

¶ 18 Second, father does not on appeal contend he has any Indian

heritage or information suggesting that the child is an Indian child.

Instead, he simply asserts that the juvenile court did not comply

with the inquiry requirements of ICWA. See People in Interest of

C.B., 2019 COA 168, ¶ 31 (where parent does not claim Indian

heritage on appeal, lack of inquiry by the juvenile court constitutes

harmless error).

¶ 19 Third, although father was not present at the APR hearing, he

was represented by counsel, who did not provide any information

indicating that the child is an Indian child.

¶ 20 And finally, although the placement of the child with the

maternal aunt and uncle with an APR was a “child custody

proceeding,” as defined under ICWA, see 25 U.S.C. § 1903(1)(i), the

child was placed with maternal relatives who had adopted a half-

sibling, which complies with ICWA’s preferred placement preference

guidelines. See 25 U.S.C. § 1915(a).

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III. APR

¶ 21 Father also argues that the juvenile court abused its discretion

when it granted an APR to maternal aunt and uncle, further

asserting that the court should have placed the child with paternal

grandmother. He also asserts that the restriction on his parenting

time was tantamount to a termination of parental rights. We are

not persuaded.

A. Standard of Review and Applicable Law

¶ 22 A determination of the proper legal standard to be applied in a

case and the application of that 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. But we will not

disturb the juvenile court’s factual findings and conclusions when

they are supported by the record. Id. at ¶ 32.

¶ 23 The Children’s Code authorizes a juvenile court to enter an

APR order when it maintains jurisdiction in a case involving a child

who is dependent and neglected. See § 19-1-104(5)-(6), C.R.S.

2021; see also People in Interest of E.Q., 2020 COA 118, ¶ 10.

When allocating parental responsibilities in a dependency and

neglect proceeding, the court must consider the legislative purposes

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of the Children’s Code under section 19-1-102, C.R.S. 2021. People

in Interest of N.G.G., 2020 COA 6, ¶ 11.

¶ 24 The overriding purpose of the Children’s Code is to protect a

child’s welfare and safety by providing procedures through which

the child’s best interests can be served. L.G. v. People, 890 P.2d

647, 654 (Colo. 1995). Consequently, the court must allocate

parental responsibilities in accordance with the child’s best

interests. N.G.G., ¶ 12; see L.A.G. v. People in Interest of A.A.G., 912

P.2d 1385, 1391 (Colo. 1996).

B. Analysis

¶ 25 The juvenile court found that an APR to maternal relatives was

in the child’s best interests. The court noted that father had no

relationship with the child and had not complied with any part of

his treatment plan. The court found that the child had been with

maternal aunt and uncle since she left the hospital, that they were

willing to be a long-term resource, and that the child was bonded to

them and would grow up with a half-sibling in that household. The

court ordered that both parents have two visits per week supervised

by an outside agency, at their own expense, and ordered that

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neither parent have any other contact with the child including at

visits with the grandparents.

¶ 26 We conclude that the record supports the juvenile court’s

conclusions. See M.A.W., ¶ 32.

¶ 27 The caseworker testified that father did not complete any

component of his treatment plan and did not communicate with the

Department at all. She testified that father never visited the child,

he had three open warrants at the time of the APR hearing, and, in

her opinion, he was unfit to parent the child.

¶ 28 The caseworker testified that it was in the child’s best

interests to remain with maternal aunt and uncle because she had

been there since she left the hospital and lived with a half-sibling,

and the family facilitated contact with mother’s other children on a

regular basis. The caseworker opined that father needed

professionally supervised visits because he had never met the child

and she had concerns about whether paternal grandmother would

be protective.

¶ 29 On appeal, father argues that, although paternal grandmother

had no problems with her own visits, she had raised concerns

about the state of maternal aunt and uncle’s home and their

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supervision of the child. But these arguments invite us to reweigh

the evidence or substitute our judgment for that of the juvenile

court. Because it is within the juvenile court’s purview to weigh the

evidence and assess the credibility of the witnesses, we discern no

error in the court’s decision to disregard or afford little weight to

some of paternal grandmother’s testimony. See People in Interest of

A.J.L., 243 P.3d 244, 249-50 (Colo. 2010).

¶ 30 Decisions about parenting time are within the juvenile court’s

sound discretion, People in Interest of D.G., 140 P.3d 299, 302 (Colo.

App. 2006), and we cannot disturb the court’s decision where, as

here, there is some evidence in the record supporting the court’s

finding, see People in Interest of A.M.K., 68 P.3d 563, 565 (Colo.

App. 2003).

IV. Conclusion

¶ 31 We affirm the judgment.

JUDGE NAVARRO and JUDGE WELLING concur.

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