259 P.3d 1279
Colo. Ct. App.2011Background
- In April 2009, the twins were removed after a domestic violence incident involving mother and ME.; two days later, J.C.R. was removed.
- ACDHS already knew the three parents from prior domestic violence and suspected drug use referrals.
- Parents' treatment plans required evaluations, compliance with recommendations, ongoing contact with the caseworker, proper visitation, stable housing, and legal income; mother's plan added domestic violence treatment.
- In January 2010, ACDHS moved to terminate parental rights, alleging noncompliance or lack of success; the trial court terminated rights.
- The trial court found ongoing domestic violence and multiple failures by mother to comply with plan elements, including DV treatment, employment, housing, and mental health services.
- Father challenged the termination on appeal; the court ultimately affirmed termination of his rights and that of the mother; ICWA notice issue was addressed but not successfully triggered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| ICWA notice requirement triggered? | Mother argues there was ICWA notice failure because of potential Indian heritage. | State argues no reason to know Indian status; notice not required. | No reason to know; ICWA notice not required. |
| Sufficiency of grounds to terminate mother’s rights? | Mother contends insufficient credible evidence of domestic violence and that more time would show fitness. | Court found clear and convincing evidence of noncompliance and unfitness. | Grounds proven; termination affirmed. |
| Less drastic alternatives to termination? | Mother argues family placement or other arrangements could work while she improved. | Record showed no viable alternative that would meet children’s needs. | No viable less drastic alternative; termination upheld. |
| Reasonable efforts by DHS to reunify? | Mother claims DHS failed to provide adequate housing and income assistance. | DHS provided information and referrals; parent bore responsibility to pursue them. | DHS reasonable efforts; no error found. |
| Appellate counsel for mother? | Mother seeks appointment of advisory appellate counsel to search for issues. | No authority supports appointment of experienced appellate counsel for a parent on appeal. | Request denied. |
Key Cases Cited
- B.H. v. People in Interest of X.H., 138 P.3d 299 (Colo. 2006) (ICWA notice must be provided when there is reason to believe a child is Indian; broad interpretation of 'reason to know')
- People in Interest of J.O., 170 P.3d 840 (Colo. App. 2007) (notice issues may be raised for first time on appeal when ICWA status asserted)
- In re Justin S., 59 Cal.Rptr.3d 376 (Cal. App. 2007) (ICWA notice sufficiency issues; distinction from case where status asserted during proceedings)