People ex rel. A.R.
2012 COA 195
Colo. Ct. App.2012Background
- Department took custody of AR. in 2009 for dependency and neglect; AR. has special needs due to pervasive developmental delays; Navajo Nation participated; termination hearing centered on ICWA placement preferences and active efforts; court found no viable less drastic alternative to termination and ordered guardianship to the department with limited adoption authorization; on appeal, mother and department challenge active efforts and ICWA placement deviations, leading to remand on guardianship issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ICWA active efforts standard applies and was properly used | Mother; department contends standard met | Department; court should apply ICWA active efforts | Court erred in applying non-ICWA standard but affirmed termination on record evidence of active efforts and best interests. |
| Whether there were viable less drastic alternatives to termination | Mother argues A.W. and C.W. placement could be viable | Department contends no viable alternative given AR.'s needs | Record supported lack of viable less drastic alternatives; however ICWA placement considerations affected later guardianship ruling. |
| Whether the court deviated from the ICWA placement preferences in guardianship | Department contends improper denial of placement with A.W./C.W. | Court favored non-ICWA considerations | Court erred; reversed the guardianship portion and remanded to permit home visit and consistent ICWA placement planning with A.W./C.W. or foster parents. |
Key Cases Cited
- Holyfield, 490 U.S. 30 (1989) (ICWA aims to preserve tribal relationships; liberal construction in Indian interest favors protections under ICWA)
- People in Interest of C.Z., 262 P.3d 895 (Colo.App.2010) (Active efforts standard; de novo/abuse of discretion mixed review; rules for ICWA in Colorado)
- A.N.W., 976 P.2d 365 (Colo.App.1999) (ICWA placement preferences; good cause to deviate; attachment considerations ruled improper)
- KD., 155 P.3d 634 (Colo.App.2007) (Colorado division previously treated active efforts as equivalent to reasonable efforts; rejected)
- City of Steamboat Springs v. Johnson, 252 P.3d 1142 (Colo.App.2010) (Guidance on federal vs. state standards in ICWA matters)