People Ex Rel. Cz, 262 P.3d 895

Background

Termination of parental rights petition under ICWA involving an Indian child, C.Z., with mother A.L.L. and father D.Z.; court found by clear and convincing evidence that termination was warranted and that active efforts were made; parents had histories of alcohol abuse, violence, mental instability, and limited contact; trial court conducted contested termination hearing with parents not appearing; ICWA notice to tribe and active efforts aspects at issue on appeal; this court’s decision also addresses appellate counsel withdrawal/substitution procedures post-petition on appeal.
Counsel for parents sought to withdraw and substitute after notices of appeal; Anders-like petitions were filed; A.L.L. required appellate counsel to brief the case despite merit; supreme court in A.L.L. addressed withdrawal standards and mandated briefing of issues identified or parent’s desired points.
Colorado Rules of Appellate Procedure (C.A.R. 3.4) governs substitution of court-appointed counsel after petition on appeal; trial counsel’s withdrawals were granted; substitution sought for both parents; the court ultimately followed a criminal-law standard for good cause under 3.4(j)(2) rather than civil-standard withdrawal rules.
The Department’s ICWA compliance was challenged but the tribe was notified; Blackfeet Tribe acknowledged in writing non-membership; the ICWA active efforts requirement was applied using a clear and convincing standard; court found active efforts were made for both parents.
Remainder of opinion affirms termination and clarifies appellate procedure and ICWA active efforts standard.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Withdrawal/substitution of appellate counsel after petition on appeal filed	A.L.L./father argued good cause existed to substitute	Court-appointed counsel could withdraw under 3.4(j)(2) for good cause	Good cause shown; substitution affirmed
ICWA notice to father’s tribe satisfied	Notice to Blackfeet Tribe was proper	Notice insufficient or failing to intervene	Notice satisfied; tribe did not intervene
Active efforts burden and sufficiency under ICWA	Department failed to make active efforts	Department made active efforts; continued services unnecessary after past failures	Department’s active efforts proven by clear and convincing evidence; no failure of ICWA requirements
Standard of proof for ICWA active efforts	Active efforts require stricter than non-ICWA reasonable efforts	Active efforts can be satisfied with equivalent standard	Active efforts burden applied as clear and convincing evidence
Substitution of mother's counsel after A.L.L.	Second substitution appropriate due to unusual circumstances	Withdrawal should be limited	Good cause for additional substitution under limited circumstances; substitution upheld

Key Cases Cited

A.L.L. v. People, 226 P.3d 1054 (Colo. 2010) (withdrawal not allowed solely because appeal meritless; requires briefing on identified issues)
People in Interest of Z.P., 167 P.3d 211 (Colo. App. 2007) (withdrawal standards governed by civil rule; applicability to trial phase)
People in Interest of J.O., 170 P.3d 840 (Colo. App. 2007) (ICWA notice timing requirement)
M.M., 726 P.2d 1108 (Colo. 1986) (withdrawal standards and discretion in dependency cases)
A.J., 143 P.3d 1143 (Colo. App. 2006) (standard for ineffective assistance and counsel effectiveness)
A.J.H., 134 P.3d 528 (Colo. App. 2006) (analysis of ICWA active efforts and rehabilitative services)
K.D., 155 P.3d 634 (Colo. App. 2007) (active efforts may be enough when prior efforts were unsuccessful)
N.B., 199 P.3d 16 (Colo. App. 2007) (ICWA active efforts and reasonable efforts comparison)
In re Nicole B., 410 Md. 33, 976 A.2d 1039 (Md. 2009) (active efforts standard discussion)
In re C.A.V., 787 N.W.2d 96 (Iowa Ct. App. 2010) (active efforts standard in ICWA context)
In re Adoption of Hannah S., 142 Cal. App. 4th 988 (Cal. App. 2006) (active efforts and services)