People ex rel. A.V.
2012 COA 210
Colo. Ct. App.2012Background
- In Feb 2009 the Weld County DHS filed a dependency and neglect petition concerning A.V. (2) and J.V. (1) and an older half-sibling, citing concerns about the mother and alleged difficulty locating father who reportedly used meth.
- The court adjudicated the children dependent and neglected and adopted a treatment plan requiring father to cooperate with the Department, remain sober, provide a safe environment, meet the children's needs, maintain a nurturing relationship and attend parenting time, and comply with criminal-case obligations; visits were suspended absent 30 days of sobriety.
- In May 2010 the Cherokee Nation intervened after the children were enrolled in the tribe; enrollment eligibility dates were 2009 with a delay in actual enrollment.
- In December 2011 the Department moved to terminate parental rights; after a contested hearing in February 2012, the court granted the termination and terminated father's parental rights.
- Father appeals, challenging the ICWA active efforts findings and related due process issues, including whether active efforts were adequate, the standard of proof used, and whether expert testimony was required.
- The court held that the Department made adequate active efforts under ICWA, citing multiple relative home studies and various services, despite limited contact and services after March 2011; the Cherokee Nation's views were considered and findings were sustained.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Department complied with ICWA active efforts to prevent breakup of the Indian family. | Father argues active efforts were lacking. | Department/County argues active efforts were made and were adequate. | Yes; record supports adequate active efforts. |
| What standard of proof applies to ICWA active efforts findings in this case. | Beyond a reasonable doubt or clear and convincing standard should apply. | Court need not decide; standard disputed among divisions. | Court did not decide; findings supported under the trial standard used. |
| Whether expert testimony is required to support ICWA active efforts findings. | Expert testimony should be required to support active efforts. | ICWA does not require expert testimony for active efforts. | No expert testimony required; no reversal for lack of such testimony. |
Key Cases Cited
- People in Interest of C.Z., 262 P.3d 895 (Colo. App. 2010) (clarifies that active efforts standard is not necessarily identical to reasonable efforts; supports review of active efforts in ICWA cases)
- People in Interest of R.L., 961 P.2d 606 (Colo. App. 1998) (discusses standard of proof considerations for ICWA findings (beyond a reasonable doubt vs other standards))
- In re Interest of K.M.B., 80 P.3d 914 (Colo. App. 2003) (holds no requirement for expert testimony under ICWA active efforts)
- In re Interest of K.D., 155 P.3d 634 (Colo. App. 2007) (distinguishes active efforts from merely reasonable efforts and notes cultural considerations)
- In re 274 Neb. 859, 274 Neb. 859 (Neb. 2008) (illustrates active efforts standard beyond minimal efforts and relevance to ICWA-like analyses)