2017 COA 139
Colo. Ct. App.2017Background
- Child was removed after testing positive for marijuana at birth; parents reported Navajo Nation membership and tribe was notified and later participated.
- Child initially returned to parents but was removed again after mother left the child while entering detox; dependency and neglect proceedings followed.
- Department moved to terminate mother's parental rights based on substance abuse, domestic violence, homelessness, and inability to meet child’s needs; trial court terminated rights in Oct. 2016.
- Mother appealed, arguing ICWA §1912(f) required a qualified expert to expressly opine that continued custody would likely cause serious emotional or physical damage.
- A qualified expert (Navajo social worker) testified about mother’s unmet treatment needs and domestic violence concerns but did not state the statutory phrase verbatim; trial court found proof beyond a reasonable doubt of likely serious harm.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Department/GAL) | Held |
|---|---|---|---|
| Whether ICWA §1912(f) requires an expert to expressly opine that continued custody is "likely to result in serious emotional or physical damage" | Mother: Expert must explicitly state the statutory likelihood finding to satisfy §1912(f) | Dept/GAL: Statute requires qualified-expert testimony as part of the evidence but not a verbatim statutory statement | Court: No — expert need not recite statutory language; expert testimony must be some evidence supporting the court’s beyond-reasonable-doubt finding |
| Whether expert testimony must be the sole basis for the §1912(f) finding | Mother: Implied that expert must directly make the finding | Dept/GAL: Expert testimony need only contribute to the evidentiary basis | Court: Expert testimony need not be sole basis; it must be part of the supporting evidence |
| Whether trial court’s beyond-a-reasonable-doubt finding was supported by sufficient evidence | Mother: Challenges sufficiency, especially absent explicit expert opinion | Dept/GAL: Cites caseworker testimony, expert concerns, and evidence of substance abuse, domestic violence, homelessness, and parenting deficiencies | Court: Sufficient — record (caseworker + qualified expert testimony + other evidence) supports finding |
| Whether trial court improperly relied on hearsay in the termination report about mother’s sobriety | Mother: Report contained hearsay relied on for truth that mother was not sober | Dept/GAL: Court admitted report for caseworker’s basis, not truth; other admissible evidence supports findings | Court: Any error harmless — trial court did not clearly rely solely on hearsay and other evidence supported the conclusion |
Key Cases Cited
- People in Interest of A.B., 880 N.W.2d 95 (S.D. 2016) (expert testimony need not recite statutory language; expert must be part of evidence supporting §1912(f))
- In re K.B., 301 P.3d 836 (Mont. 2013) (held reversal where expert did not testify that continued custody likely would cause serious emotional or physical damage)
- Marcia V. v. State, 201 P.3d 496 (Alaska 2009) (trial court, not expert, must make the statutory likelihood finding; expert need not speak the statute verbatim)
- Steven H. v. Ariz. Dep’t of Econ. Sec., 190 P.3d 180 (Ariz. 2008) (expert testimony need not be sole basis for ICWA-related findings; expert prevents reliance solely on non-specialized testimony)
- People in Interest of A.R., 310 P.3d 1007 (Colo. App. 2013) (ICWA interpretation reviewed de novo; statutes for Indian interests are liberally construed)