People ex rel. MY.K.M.

Citation491 P.3d 495
Decision Date11 March 2021
Docket NumberCourt of Appeals No. 20CA0695
CourtCourt of Appeals of Colorado
Parties The PEOPLE of the State of Colorado, Appellee, IN the INTEREST OF MY.K.M. and Ma.K.M, Children, and Concerning V.K.L. and T.A.M., Respondent-Appellants.

491 P.3d 495

The PEOPLE of the State of Colorado, Appellee,

and Ma.K.M, Children,
Concerning V.K.L. and T.A.M., Respondent-Appellants.

Court of Appeals No. 20CA0695

Colorado Court of Appeals, Division I.

Announced March 11, 2021
As Modified April 1, 2021

Kristin M. Bronson, City Attorney, Cathleen M. Giovannini, Assistant City Attorney, Denver, Colorado, for Appellee

Barry Meinster, Guardian Ad Litem

Joel M. Pratt, Office of Respondent Parents’ Counsel, Colorado Springs, Colorado, for Appellant V.K.L.

Patrick R. Henson, Office of Respondent Parents’ Counsel, Chelsea A. Carr, Office of Respondent Parents’ Counsel, Denver, Colorado, for Appellant T.A.M.

Opinion by JUDGE TOW

¶1 Mother, V.K.L., and father, T.A.M., appeal the juvenile court's judgment terminating their parent-child legal relationships with My.K.M. and Ma.K.M. Mother's appeal presents an issue of first impression in Colorado: whether enrollment in a tribe, or merely tribal membership even absent enrollment, determines whether a child is an Indian child under the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901 - 1963. We conclude that tribal membership, not enrollment, determines ICWA's applicability.

¶2 The juvenile court ultimately recognized that ICWA applied to this case, in which the children are tribal members but not eligible for enrollment. However, we conclude that the juvenile court erroneously found that the Denver Department of Human Services (the Department) provided active efforts for

491 P.3d 499

mother as required by ICWA. Thus, we reverse the termination of mother's parent-child legal relationships with the children and remand the case for further proceedings as to her. But because the record supports the juvenile court's judgment as to father, we affirm the termination of his parent-child legal relationships with the children.

I. Background

¶3 In October 2016, father took twelve-month-old Ma.K.M. to a hospital emergency department because she was lethargic and breathing poorly. Hospital staff contacted the police because father appeared intoxicated and they suspected that the child had ingested a controlled substance. Hospital staff reported that the child's pupils were dilated, she was unresponsive, and she required intubation because she was unable to breathe on her own. Father appeared calm at first but became agitated and tried to flee when asked to write an account of how the child had become ill. He told the police that five-year-old My.K.M. was with mother, but officers found the child home alone. Mother could not be located.

¶4 While the younger child remained in the hospital, the Department placed the elder child in emergency foster care and filed a petition in dependency or neglect. In addition to these events, the petition described both parents’ substance use and a 2014 dependency or neglect case that had been closed seven months earlier after My.K.M. spent a year in foster care.

¶5 The juvenile court held a temporary custody hearing and ordered father to vacate the home so the children could return to mother's care. One week later, both children returned home to mother. In late 2016, the juvenile court found the children were dependent or neglected, entered an adjudication order concerning father, entered a deferred adjudication concerning mother, and approved treatment plans for both parents. After mother tested positive for cocaine, the juvenile court revoked mother's deferral and entered an adjudicatory order against her in November 2017.

¶6 The following facts are undisputed. Father subsequently moved back into the family home. In October 2018, father was involved in a collision that resulted in criminal charges against him and the loss of the family car. Shortly thereafter, mother reported that father had assaulted her in front of the children. As a result, the juvenile court again ordered father to vacate the home. In mid-November 2018, the juvenile court placed the children in foster care after mother failed to pick them up from school and daycare and could not be located. Mother later admitted that she had relapsed.

¶7 The Department later filed a motion to terminate the parents’ rights. Following a six-day termination hearing from January 2020 through March 2020, the juvenile court terminated both parents’ parental rights.

II. Mother's Appeal

¶8 Mother contends that the juvenile court reversibly erred because it failed to recognize that ICWA governs the case until just before the termination hearing. She also argues that the Department failed to make active efforts for her. We reject mother's first contention but agree with the second.

A. The Juvenile Court's Untimely ICWA Finding Does Not Require Reversal

¶9 Mother contends that the juvenile court erred by failing to apply the ICWA standards to the proceeding until the beginning of the termination hearing despite mother's prompt disclosure that she is a member of a federally recognized Indian tribe. We agree that the court erred by not timely recognizing the children's Indian status, but we disagree that the error provides grounds for reversal.

1. Factual Background

¶10 A representative of the Colville Confederated Tribes appeared at the temporary custody hearing in October 2016. She confirmed that mother is an enrolled member of the Tribe. The tribal representative said she "ha[d] not been able to verify whether the children [were] eligible for enrollment ... [b]ut they would be considered members."

¶11 The juvenile court made no findings regarding the children's Indian status or the

491 P.3d 500

applicability of ICWA. Instead, one week later, the court ordered mother to complete an ICWA assessment form — even though the court already knew that the children were members of the Colville Confederated Tribes. In March 2017, the juvenile court ruled that because the children are not eligible for enrollment, ICWA did not apply.

¶12 At a hearing in November 2018, the presiding magistrate asked whether the case was subject to ICWA. The county attorney reported that the Tribe had not responded to the ICWA notice and the Department planned to ask for a written response.

¶13 The Department filed a motion to terminate parental rights on October 4, 2019. On October 21, 2019, the juvenile court held a status conference. The Department reported that it had asked the tribal representative to confirm in writing whether the children were eligible for enrollment in the Tribe. The tribal representative had responded — just as she had three years earlier — that the Tribe considered the children to be members. The county attorney said he was waiting to hear whether the Tribe thought ICWA applied to the case. The juvenile court opined that membership absent enrollment represented an "ICWA gray area" and recalled that the Tribe had indicated it would not intervene or participate in the case. (We find no support in the record for this assertion.)

¶14 The juvenile court began the termination hearing on November 6, 2019. The county attorney informed the court that the Tribe considered the case to be subject to ICWA because the children are tribal members. The juvenile court found there was reason to know the children are Indian children and continued the case so the parties could consult with the Tribe.

¶15 The Tribe participated in the rest of the proceedings, and the juvenile court applied ICWA's provisions when it terminated the parents’ parental rights.

2. Tribal Membership, Not Enrollment, Determines ICWA's Applicability

¶16 We review the juvenile court's interpretation and application of ICWA de novo. People in Interest of A.R. , 2012 COA 195M, ¶ 17, 310 P.3d 1007. When construing a federal statute, our goal is to give effect to congressional intent and purpose. In re N.B. , 199 P.3d 16, 18 (Colo. App. 2007). We look first to the plain language of the statute, giving words and phrases their plain and ordinary meanings. Id. ; see also Roberts v. Sea-Land Servs., Inc. , 566 U.S. 93, 100, 132 S.Ct. 1350, 182 L.Ed.2d 341 (2012). If the meaning is clear and unambiguous, we do not resort to other rules of statutory interpretation. Good Samaritan Hosp. v. Shalala , 508 U.S. 402, 409, 113 S.Ct. 2151, 124 L.Ed.2d 368 (1993) (when interpreting a federal statute, judicial inquiry is complete if the intent of Congress is clear from the language of the statute). We must construe ICWA liberally in favor of Indian interests, with ambiguous provisions interpreted to benefit Indians and tribes. Montana v. Blackfeet Tribe of Indians , 471 U.S. 759, 766, 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985) ; People in Interest of D.B. , 2017 COA 139, ¶ 10, 414 P.3d 46.

¶17 The statutory definition of "Indian child" turns on membership rather than enrollment. ICWA defines an Indian child as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." 25 U.S.C. § 1903(4).

Enrollment is not always required in order to be a member of a tribe. Some tribes do not have written rolls. Others have rolls that list only persons that were members as of a certain date. Enrollment is the common evidentiary means of

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