2013 COA 73
Colo. Ct. App.2013Background
- dependency and neglect case where TM.R. (mother) and TP.C.-J. (father) sought transfer of ICWA jurisdiction and termination of parental rights for T.E.R.
- Tribe intervened after initial adjudication and disposition, asserting eligibility for membership.
- Juvenile court denied transfer in October 2012 and later terminated parental rights after a two-day hearing.
- Transfer request was made about eight months after Tribe received notice; court found case at an advanced stage and that transfer would cause undue hardship.
- Record showed mother moved to transfer after Tribe intervened and Department planned to terminate rights; court relied on advanced stage and undue hardship to deny transfer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court properly denied transfer for good cause. | Mother contends denial lacks substantial evidence. | Court properly exercised discretion under ICWA guidelines. | Yes; substantial evidence supports denial. |
| Whether the case was at an advanced stage justifying denial of transfer. | Mother argues EPP timeframes were misapplied. | Court considered overall proceedings and found advanced stage. | Yes; record supports advanced-stage finding. |
| Whether the undue hardship finding to transfer was supported by the record. | Mother asserts no undue hardship from Michigan forum. | Record shows witnesses and records concentrated in Colorado; travel burdens inevitable. | Yes; substantial evidence shows undue hardship. |
| Whether the Department met the ICWA active efforts standard in termination. | Father argues active efforts were inadequate. | Department conducted multiple evaluations and searches; active efforts met. | Yes; active efforts requirement satisfied. |
Key Cases Cited
- People in Interest of J.L.P., 870 P.2d 1256 (Colo. 1994) (concurrent jurisdiction and transfer preference; good cause analysis guided by case law)
- People in Interest of A.T.W.S., 899 P.2d 223 (Colo.App.1994) (case defining good cause framework and case-by-case review)
- Wayne R.N., 757 P.2d 1333 (N.M. Ct. App.1988) (undue hardship and forum considerations in transfer)
- In re J.J., 454 N.W.2d 317 (S.D.1990) (undue hardship considerations under ICWA transfer analysis)