259 P.3d 1279
Colo. Ct. App.2011Background
- In April 2009, four children were removed from parental care following a domestic violence incident involving the mother and the father.
- The twins were seven months old; J.C.R. (the older child) was later removed; ACDHS already had prior DV and drug-use referrals regarding the parents.
- Parents were required to undergo substance abuse and mental health evaluations and follow evaluators' recommendations, maintain contact with the caseworker, and secure stable housing and employment.
- In January 2010, ACDHS moved to terminate parental rights based on failure to comply with treatment plans or lack of progress; the trial court terminated rights for both parents and for the father in relation to J.C.R.
- The mother appeals on ICWA notice, treatment-plan compliance, less drastic alternatives, reasonable efforts, and advisory counsel; the father appeals on reasonable compliance within a reasonable time.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| ICWA notice was required? | Mother argues notice to tribes was required. | State argues no reason to know child Indian. | No ICWA notice required; no reason to know Indian heritage. |
| Sufficiency of evidence to terminate mother’s rights? | Mother contends insufficient evidence; more time would render her fit. | Court found clear and convincing evidence of failure to comply and unfitness. | Evidence supported termination; time to comply was not reasonable. |
| Existence of a less drastic alternative? | Terminating rights was too drastic; placement with relatives possible. | No viable less drastic alternative given children's needs and risks. | No less drastic alternative was feasible; termination appropriate. |
| Reasonable efforts by the state to reunify? | ACDHS provided information and referrals; parent needed to seek assistance. | Failure to assist housing/income justified termination. | Reasonable efforts evidenced; state discharged duties; homelessness not attributable to DHS. |
| Advisory appellate counsel request was proper? | Mother sought independent review and advisory counsel. | No authority supports appointment of experienced appellate counsel for parent. | Request denied. |
Key Cases Cited
- In re B.H. v. People in Interest of X.H., 138 P.3d 299 (Colo.2006) (ICWA notice when there is reason to know Indian child involved)
- People in Interest of C.T.S., 140 P.3d 332 (Colo.App.2006) (reasonable time for compliance; status of services)
- People in Interest of D.L.C., 70 P.3d 584 (Colo.App.2003) (partial vs. substantial compliance not always sufficient)
- People in Interest of M.M., 726 P.2d 1108 (Colo.1986) (consideration of less drastic alternatives)
- People in Interest of J.L.M., 143 P.3d 1125 (Colo.App.2006) (factors for viability of permanent placement)
- People in Interest of Z.P., 167 P.3d 211 (Colo.App.2007) (permanent placement vs. adoption needs)
- People in Interest of J.O., 170 P.3d 840 (Colo.App.2007) (ICWA notice issues raised on appeal when heritage asserted)
- People in Interest of A.J., 143 P.3d 1143 (Colo.App.2006) (considerations for reasonable time and change in conditions)
- People in Interest of D.Y., 176 P.3d 874 (Colo.App.2007) (reasonable period required before termination)