People in re A.D. and Tr.D
2017 COA 61
| Colo. Ct. App. | 2017Background
- In Sept 2013 Chaffee County DSS opened and later closed a dependency/neglect case concerning Tr.D.; parents denied Indian/tribal membership for Tr.D. and the petition was withdrawn in 2014.
- Feb 2015 DSS filed a new dependency/neglect action for Tr.D. (now six) and A.D. (six months) after both parents were arrested on drug charges; children placed in foster care.
- Parents struggled with substance abuse, inconsistent participation in treatment, missed/late visits, and relapses; the Department sought termination of parental rights.
- DSS’s termination petition stated the children were not Indian children under ICWA; no ICWA evidence was introduced at the termination hearing, and the trial court found ICWA inapplicable.
- Mother challenged the ICWA finding, arguing DSS failed to make the statutorily required "continuing inquiries" under § 19-1-126(1)(a); DSS argued prior-case inquiries and the court’s prior ICWA finding resolved the issue.
- The Court of Appeals held DSS must make new inquiries in each new proceeding; because no inquiries were shown, the ICWA finding was unsupported and the case was reversed and remanded for further inquiry or notice as required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DSS could rely on prior-case ICWA inquiries/findings to satisfy § 19-1-126(1)(a) in a new proceeding | Mother: DSS failed to make "continuing inquiries" in this new case; prior findings do not satisfy statutory duty. | DSS: Prior case inquiries and the court's prior ICWA finding as to Tr.D. resolved ICWA here (A.D. is a full sibling). | No. The statute and federal guidance require fresh inquiries in each new proceeding; prior findings alone are insufficient. |
| Whether the trial court could take judicial notice of its prior ICWA finding to determine ICWA in the new case | Mother: Court may not rely solely on judicial notice of prior ICWA findings without current inquiries. | DSS: Court may take judicial notice of its own records and prior findings to resolve ICWA. | The court cannot rely solely on judicial notice of prior findings for ICWA applicability; newer regulations/guidelines prohibit doing so. |
| Whether the record supports termination under § 19-3-604(1)(c) for mother | Mother: She was progressing in treatment and could have completed requirements within reasonable time. | DSS: Mother’s pattern of delayed/poor treatment compliance, relapse, instability supports termination. | Held: Substantial record supported termination—mother failed to meaningfully improve and change was unlikely within a reasonable time. |
| Whether reasonable efforts to avoid removal/reunify were made re: father and FITC venue | Father: DSS opposed venue change to access Fremont County FITC and thereby delayed timely FITC participation; that was not reasonable. | DSS: Change risked foster placement transfer; offered collaboration and parent agreed to hold motion; parents failed to pursue FITC. | Held: Father waived appellate challenge by agreeing to abeyance and failing to seek a ruling; no reversible error shown. |
Key Cases Cited
- B.H. v. People in Interest of X.H., 138 P.3d 299 (Colo. 2006) (tribal participation and the petitioning party’s duty to inquire under ICWA)
- Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989) (tribal interests in Indian children distinct and substantial)
- In Interest of C.A.B.L., 221 P.3d 433 (Colo. App. 2009) (courts may take judicial notice of prior records when same parties and issues, but not dispositive for ICWA compliance)
- People in Interest of T.M.W., 208 P.3d 272 (Colo. App. 2009) (notice to tribe for one sibling does not necessarily resolve ICWA for another sibling)
- People in Interest of A.G., 264 P.3d 615 (Colo. App. 2010) (orders set aside when findings do not show statutory compliance and appellate court cannot discern basis)
- K.D. v. People, 139 P.3d 695 (Colo. 2006) (factors for determining whether parental condition is unlikely to change)
- People in Interest of J.A.S., 160 P.3d 257 (Colo. App. 2007) (treatment noncompliance for children under six as basis for termination)
- People in Interest of A.J., 143 P.3d 1143 (Colo. App. 2006) (reasonable time standard considers child’s needs)
- People in Interest of N.A.T., 134 P.3d 535 (Colo. App. 2006) (failure to seek ruling or preserve objections can waive appellate review)