The People of the State of Colorado, Appellee, In the Interest of J.M., M.V., M.M., and P.M., Children, and Concerning M.M., Appellant.
Court of Appeals No. 24CA0483
El Paso County District Court No. 23JV30818
COLORADO COURT OF APPEALS
March 20, 2025
Honorable Lin Billings Vela, Judge; Opinion by JUDGE JOHNSON; Lipinsky and Moultrie, JJ., concur
Division VII
NOT PUBLISHED PURSUANT TO
Kenneth R. Hodges, County Attorney, Mathew Feldman, Deputy County Attorney, Colorado Springs, Colorado, for Appellee
Josie L. Burt, Guardian Ad Litem, for J.M. and M.V.
Josie L. Burt, Counsel for Youth, Glenwood Springs, Colorado, for M.M. and P.M.
The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for Appellant
I. Background
¶ 2 The El Paso County Department of Human Services (the Department) filed a petition in dependency or neglect regarding fifteen-year-old P.M., twelve-year-old M.M., six-year-old M.V., and four-year-old J.M. The petition alleged that (1) mother was homeless and living in her vehicle with the children; (2) the children did not have access to food; (3) the children had not received recent medical care; and (4) the children had suffered physical abuse at the hands of mother. The petition further alleged that mother had a history of substance dependence and that the children had access to drugs and drugs paraphernalia while in her care.
¶ 3 The juvenile court conducted an adjudicatory jury trial and the jury returned verdicts finding that all children were dependent or neglected under
II. ICWA
¶ 5 Mother first asserts that the juvenile court did not comply with the Indian Child Welfare Act (ICWA) of 1978,
A. Additional Facts
¶ 6 Mother filled out a form asserting that she was not an enrolled member of a tribe, but that the children were eligible for tribal membership. Mother listed Lakota Sioux and Apache as the tribes the children were eligible to join. At the adjudicatory trial, mother asserted that she was an enrolled member in “Lakota” and “Apache” tribes. She informed the court that “the last step” she did to enroll the children was to “upload [the children‘s] birth certificates,” but that she had not heard back from any tribe. She told the court she
¶ 7 The court again addressed ICWA at the dispositional hearing. The Department informed the court that it had since sent notices to all Lakota Sioux and Apache tribes and that it had received responses from some of those tribes stating that the children were not Indian children. Mother‘s counsel notified the court that mother “may have received some additional tribal related documentation that hopefully we‘ll be able to provide to the parties” but did not explain what such documentation was. Nor does the record contain any additional documentation from mother.
¶ 8 Whether the juvenile court and the Department complied with ICWA is a question of law that we review de novo. People in Interest of T.M.W., 208 P.3d 272, 274 (Colo. App. 2009).
¶ 9 For ICWA to apply in a dependency and neglect proceeding, the case must involve an Indian child. See People in Interest of A.G.-G., 899 P.2d 319, 321 (Colo. App. 1995). “Indian child” is defined as “any unmarried person who is under the age of eighteen” and is (1) “a member of an Indian tribe” or (2) “eligible for membership in an Indian tribe” and “the biological child of a member of an Indian tribe.”
¶ 10 In a dependency and neglect proceeding in Colorado, a juvenile court must inquire of the parties whether they know or have reason to know that a child is an Indian child.
Any participant in the proceeding, officer of the court involved in the proceeding, Native tribe or organization, or agency informs the court that the child is an Indian child. - Any participant in the proceeding, officer of the court involved in the proceeding, Native tribe or organization, or agency informs the court that it has discovered information indicating that the child is an Indian child.
- The child who is the subject of the proceeding gives the court reason to know he or she is an Indian child.
- The court is informed that the domicile or residence of the child, the child‘s parent, or the child‘s Native custodian is on a reservation or in an Alaska Native village.
- The court is informed that the child is or has been a ward of a Tribal court.
- The court is informed that either parent or the child possesses an identification card indicating membership in a Tribe.
¶ 12 A mere assertion of Native heritage, without more, however, is insufficient to give the juvenile court reason to know that a child is an Indian child. People in Interest of E.A.M. v. D.R.M., 2022 CO 42, ¶ 56. Rather, “these types of more generalized assertions of Indian heritage” only “trigger the due diligence requirement” in
C. Analysis
¶ 13 Mother asserts that the adjudication must be reversed because the juvenile court had reason to know that the children were Indian children based on her assertion that she was an enrolled tribal member and that the children were eligible to be enrolled. She also claims that, considering these assertions, notice should have been sent to the Lakota and Apache tribes before the adjudicatory trial. We disagree for three reasons.
¶ 14 First, to the extent mother argues that the adjudication must be reversed for lack of compliance with ICWA at the adjudicatory stage, she is mistaken. This is because ICWA only applies when an Indian child is the subject of a child custody proceeding,
¶ 15 A dispositional hearing, however, requires the court to address a child‘s placement, and is a “child custody proceeding under
¶ 16 Second, the record shows that mother provided no additional information about her or the children‘s enrollment before or at the dispositional hearing. By the date of the dispositional hearing, mother had made only general assertions of Native heritage and, thus, the court had no “reason to know” that the children were Indian children. See E.A.M., ¶ 56.
¶ 17 Third, about a month after the adjudicatory trial, in accordance with its obligations under
¶ 18 Nonetheless, mother asserts that, under
¶ 19 But as discussed, the court did not have “reason to know” the children were Indian children based on mother‘s general assertions of Native heritage. And even if the court had “reason to know,” any noncompliance with ICWA was harmless because the Department properly notified all potential tribes, none of whom responded that the children were Indian children. See
¶ 20 In sum, the record shows that, based on the information it received, the juvenile court did not have reason to know that the children were Indian children. See
III. Caseworker as Expert Witness
¶ 21 Mother next argues that the juvenile court erred by qualifying the Department‘s caseworker as an expert witness because she did not have the requisite qualifications. We disagree.
A. Standard of Review and Applicable Law
¶ 22 The decision to admit expert testimony lies within the juvenile court‘s discretion, and we will not disturb it absent an abuse of discretion. People in Interest of M.W., 140 P.3d 231, 233 (Colo. App. 2006). A court abuses its discretion when “its ruling is manifestly arbitrary, unreasonable, or unfair, or when it misapplies the law.” People in Interest of E.R., 2018 COA 58, ¶ 6.
¶ 24 A court may qualify a witness as an expert under any of the five factors specified in CRE 702. Gresser v. Banner Health, 2023 COA 108, ¶ 47 (cert. granted on other grounds, Sept. 9, 2024). The rule does not require a proposed expert to belong to any particular organization or have any specific certification. People v. Bornman, 953 P.2d 952, 955 (Colo. App. 1997). When a witness is qualified to provide expert testimony under one or more of the factors in CRE 702 but lacks certain additional knowledge or training within their field of expertise, such deficiency goes to the weight of the expert‘s testimony, not its admissibility. See People v. Lehmkuhl, 117 P.3d 98, 104 (Colo. App. 2004); see also Core-Mark Midcontinent, Inc. v. Sonitrol Corp., 2012 COA 120, ¶ 28 (the fact that an expert witness cannot support their opinion with certainty goes only to the weight to be given to the opinion and not to its admissibility).
¶ 25 Over mother‘s objection, the juvenile court qualified the Department‘s caseworker as an expert in child welfare. Although mother argues that the caseworker did not have the requisite background or knowledge to testify as an expert, the record indicates otherwise. The caseworker testified that she held a bachelor‘s degree, attended the state‘s caseworker academy, and maintained her continuing education requirements. She also testified that she took a nine-hour training about completing safety assessments and an eight-hour course called “Working Toward Closure,” among other trainings. She further testified that she had been an intake caseworker for the Department for two years and had completed over 300 safety assessments.
¶ 26 On appeal, mother emphasizes that the caseworker did not have a master‘s degree and had not read any peer-reviewed publications on child welfare. And mother asserts that the caseworker‘s background was unrelated to social work and that she had limited experience. But the juvenile court found that the caseworker was qualified as an expert in child welfare and protection, not social work. An expert is not required to have
¶ 27 To the extent that mother asserts the juvenile court did not make the findings required by People v. Schreck, 22 P.3d 68, 79 (Colo. 2001), regarding the reliability of the underlying scientific principles or specialized knowledge upon which the expert testimony is based, the helpfulness of the proposed expert testimony, and whether the probative value of the evidence was substantially outweighed by its prejudicial effect, she did not raise such a challenge during the trial. Accordingly, we decline to review these contentions on appeal. See People in Interest of M.B., 2020 COA 13, ¶ 14 (“[G]enerally appellate courts review only issues presented to and ruled on by the lower court.“).
IV. Testimony and Body Camera Footage from Mother‘s Arrest
¶ 28 Finally, mother argues that the juvenile court abused its discretion when it allowed the jury to hear testimony from officers who arrested mother and view footage from the arrest. She asserts that, because no children were present during the incident, the evidence was not relevant to whether the children were dependent or neglected. We are not persuaded.
A. Additional Facts
¶ 29 At the adjudicatory trial, the Department called two officers who investigated a trespass call involving mother. Both officers testified that, when they responded, they found mother “passed out” and unresponsive in the cab of a truck. Both officers testified that they observed drug paraphernalia in mother‘s lap. One officer testified that mother was very lethargic, unresponsive to their commands, and not able to keep her head up. The officers further testified that, when later categorizing evidence from the truck, they found additional drug paraphernalia, drugs, a handgun, and a
¶ 30 The Department also moved to admit the footage from one of the officer‘s body-worn cameras during his testimony. Mother objected to the footage as not relevant because the children were not present during the incident. The Department responded that, even though the children were not present, the video established safety concerns and was relevant to the question of prospective harm if the children were returned to mother. Father‘s counsel also objected to the footage on the grounds that it was cumulative. The court agreed that the evidence “could be” redundant but found that “seeing something is very different than just hearing about it” and overruled the parents’ objections.
B. Standard of Review and Applicable Law
¶ 31 We review the juvenile court‘s decision to admit evidence for an abuse of discretion. People in Interest of M.H-K., 2018 COA 178, ¶ 60.
¶ 32 Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the
C. Analysis
¶ 33 Mother did not object to the officers’ testimony and, thus, her arguments related to the inadmissibility of their testimony are not preserved for our review. M.B., ¶ 14.
¶ 34 In addition, the footage from the officer‘s body-worn camera was relevant to prospective harm. See People in Interest of G.E.S., 2016 COA 183, ¶ 15. Prospective harm requires a prediction of whether, based on the parent‘s past conduct and current circumstances, it is likely or expected that the parent will fail to provide proper parental care for a child in the future. People in Interest of S.N., 2014 COA 116, ¶ 18. Contrary to mother‘s argument, the circumstances of mother‘s arrest were relevant to whether she could provide the children with proper parental care and whether the children would be in an injurious environment if returned to her care. See id. (noting that, for purposes of prospective harm analysis, a fact finder may consider a parent‘s conduct or condition, including drug use).
¶ 36 Based on the foregoing, the juvenile court did not abuse its discretion when it allowed the jury to view the body camera footage from mother‘s arrest.
V. Conclusion
¶ 37 We affirm the judgment.
JUDGE LIPINSKY and JUDGE MOULTRIE concur.