2022 CO 35
Colo.2022Background
- In 2016 DHS removed two children after one was hospitalized and the other left home unattended; Mother identified as an enrolled member of the Colville Tribe.
- Mother initially received deferred adjudication, then a court treatment plan requiring substance-abuse evaluation/treatment, stable housing, a legal source of income, UAs, parenting and in‑home services.
- DHS and community providers (DIFRC, Guadalupe Project, CADREC) provided wrap‑around, culturally informed services: daycare, transportation, in‑home support, cognitive evaluation, and multiple substance‑abuse programs.
- Mother had repeated positive drug tests, relapsed after a domestic‑violence incident in late 2018, failed to pick up her children, disappeared for months, then intermittently reengaged; she completed a 28‑day inpatient program in 2019 but failed outpatient follow‑through.
- The juvenile court found DHS had made ICWA "active efforts" but they were unsuccessful and terminated parental rights. The court of appeals reversed as to Mother, holding DHS failed to provide employment assistance; Colorado Supreme Court granted certiorari.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ICWA's "active efforts" equals ordinary "reasonable efforts" | Mother: Active efforts must include concrete services needed to satisfy each treatment‑plan objective (e.g., job training). | DHS: Active efforts are a heightened standard distinct from reasonable efforts; agencies may tailor/prioritize services. | Active efforts is a more demanding standard than reasonable efforts, but agencies retain discretion to tailor and prioritize services. |
| Whether DHS failed to make "active efforts" by not providing direct employment training | Mother: Absence of job‑training or employment assistance meant DHS omitted a critical service required by her plan. | DHS: It provided overlapping and prioritized services (sobriety treatment, daycare, in‑home skills, housing/financial aid, cognitive eval, transportation) that addressed barriers to employment. | DHS satisfied ICWA active‑efforts under the totality of services given the case facts; lack of specific job‑training was not dispositive. |
| Proper method to assess "active efforts" | Mother: Court should require specific services tied to each plan objective rather than a broad totality review. | DHS: Courts should evaluate the totality of circumstances; services may be sequenced to address urgent safety needs first. | Courts must assess active efforts under the totality of the circumstances, measuring whether agency actions (affirmative, active, thorough, timely) were tailored to case needs. |
| Whether juvenile court's termination ruling was supported | Mother: Insufficient active efforts meant termination improper. | DHS: Active efforts were made but ultimately unsuccessful; termination supported by parent's prolonged relapse/disappearance. | Juvenile court's factual findings that DHS made active efforts are supported; Colorado Supreme Court reversed the court of appeals and reinstated the termination ruling as to active efforts. |
Key Cases Cited
- Adoptive Couple v. Baby Girl, 570 U.S. 637 (2013) (ICWA establishes federal standards governing state child‑custody proceedings)
- Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989) (ICWA requires uniform respect for tribal interests in child custody)
- Montana v. Blackfeet Tribe of Indians, 471 U.S. 759 (1985) (statutes construed liberally in favor of Indians)
- Walker E. v. Dep't of Health & Soc. Servs., 480 P.3d 598 (Alaska 2021) (treats active efforts as mixed question; discusses standards for review)
- People in Interest of K.D., 155 P.3d 634 (Colo. App. 2007) (prior Colorado appellate decision equating active and reasonable efforts; overruled)
- Dep't of Hum. Servs. v. D.L.H., 284 P.3d 1233 (Or. Ct. App. 2012) (example where omission of a critical service can undermine active‑efforts showing)