305 P.3d 414 (Colo.App.Div. 4 2013), 12CA2196, People ex rel. T.E.R.

Docket Nº:Court of Appeals 12CA2196
Citation:305 P.3d 414, 2013 COA 73
Opinion Judge:WEBB, JUDGE.
Party Name:The PEOPLE of the State of Colorado, Petitioner-Appellee, IN the INTEREST OF T.E.R., a Child, and Concerning T.P.C.-J. and T.M.R., Respondents-Appellants.
Attorney:Douglas J. Friednash, City Attorney, Laura Grzetic Eibsen, Assistant City Attorney, Denver, Colorado, for Petitioner-Appellee. Heather M. Gwinn Pabon, Denver, Jeffrey C. Koy, Elizabeth Fordyce, Guardians Ad Litem. Law Office of Lisa M. Horvath, LLC, Lisa M. Horvath, Denver, Colorado, for Responde...
Judge Panel:LICHTENSTEIN, JUDGE and FOX, JUDGE concur.
Case Date:May 09, 2013
Court:Court of Appeals of Colorado, Fourth Division
 
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Page 414

305 P.3d 414 (Colo.App.Div. 4 2013)

2013 COA 73

The PEOPLE of the State of Colorado, Petitioner-Appellee,

IN the INTEREST OF T.E.R., a Child,

and

Concerning T.P.C.-J. and T.M.R., Respondents-Appellants.

Court of Appeals No. 12CA2196

Court of Appeals of Colorado, Fourth Division.

May 9, 2013

Page 415

City and County of Denver Juvenile Court No. 11JV1711, Honorable Karen M. Ashby, Judge.

Douglas J. Friednash, City Attorney, Laura Grzetic Eibsen, Assistant City Attorney, Denver, Colorado, for Petitioner-Appellee.

Heather M. Gwinn Pabon, Denver, Jeffrey C. Koy, Elizabeth Fordyce, Guardians Ad Litem.

Law Office of Lisa M. Horvath, LLC, Lisa M. Horvath, Denver, Colorado, for Respondent-Appellant T.P.C.-J.

Davide C. Migliaccio, Colorado Springs, Colorado, for Respondent-Appellant T.M.R.

OPINION

WEBB, JUDGE.

¶ 1 In this dependency and neglect proceeding, T.M.R. (mother) and T.P.C.-J. (father) appeal from the order denying transfer of jurisdiction to a tribal court under 25 U.S.C. section 1911(b) of the Indian Child Welfare Act (ICWA). Father also appeals the judgment terminating the parent-child legal relationship between him and his child, T.E.R. We affirm.

I. Background

Page 416

In September 2011, the Department of Human Services of the City and County of Denver (Department) filed a petition in dependency and neglect based on mother's substance abuse and mental health issues, and on father's incarceration. In October 2011, the Department sent a notice to the Sault Ste. Marie Tribe of Chippewa (Tribe) pursuant to the ICWA based on mother's report that she was registered with the Tribe. The Tribe responded that it intended to intervene. Before the Tribe did so, the juvenile court adjudicated T.E.R. dependent and neglected and adopted treatment plans for mother and father.

¶ 3 In May 2012, the Tribe moved to intervene, alleging that T.E.R. was eligible for membership. The juvenile court granted the motion. Thereafter, the Department moved to terminate mother's and father's parental rights.

¶ 4 In July 2012, mother moved to transfer jurisdiction to tribal court. The Department and the guardian ad litem (GAL) opposed the motion, arguing that good cause existed to deny the transfer because the case was at an advanced stage, and the case could not be adequately presented in the tribal court without undue hardship to the parties or the witnesses. The Tribe took no position.

¶ 5 In October 2012, after hearing argument but not taking evidence on transfer, the court found good cause to retain jurisdiction and denied mother's motion. Then, following a two-day hearing, the juvenile court entered judgment terminating mother's and father's parental rights.

II. Transfer of Jurisdiction

¶ 6 Mother and father contend the juvenile court erred by finding good cause to deny transfer of jurisdiction. We discern no error by the court and further conclude that father waived this argument.

¶ 7 Under the ICWA, the state and the tribe have concurrent jurisdiction over Indian children who live off the reservation. People in Interest of J.L.P., 870 P.2d 1252, 1256 (Colo.App.1994). The tribal court, however, is the preferred jurisdiction, and in the absence of good cause, upon request of " [e]ither parent, the Indian custodian, or the Indian child's tribe" the state court must transfer jurisdiction to the tribe. 25 U.S.C. § 1911(b); People in Interest of A.T.W.S., 899 P.2d 223, 224-25 (Colo.App.1994); J.L.P., 870 P.2d at 1256.

¶ 8 Although the ICWA does not define good cause to deny transfer, the Bureau of Indian Affairs (BIA) has issued guidelines for determining whether good cause exists. Guidelines for State Courts— Indian Child Custody Proceedings, 44 Fed. Reg. 67,584 (Nov. 26, 1979) (BIA Guidelines). As relevant here, the BIA Guidelines provide that good cause exists if either the proceeding was at an advanced stage when the petition to transfer was received, or the evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or the witnesses. Id. at 67,591.

¶ 9 The party opposing transfer of jurisdiction bears the burden of establishing good cause to deny the transfer. A.T.W.S., 899 P.2d at 225. Determining whether good cause exists is within the juvenile court's discretion. Id. This determination must be made on a case-by-case basis after consideration of all of the circumstances. Id. Review is limited to examining the record to determine whether substantial evidence supports the juvenile court's findings. J.L.P., 870 P.2d at 1256.

¶ 10 We conclude that substantial evidence in the record supports the juvenile court's findings of good cause to deny transfer because the proceeding was at an advanced stage and the evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or the witnesses.

A. Advanced Stage

¶ 11 The BIA Guidelines commentary for the advanced stage subsection provides:

...

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