People ex rel. My. K.M.

• Decision Date: 27 June 2022
• Docket Number: 21SC245
• Citation: 2022 CO 35
• Parties: The People of the State of Colorado, Petitioner In the Interest of Minor Children My. K.M. and Ma. K.M., V. K.L. and T.A.M. Respondents
• Court: Colorado Supreme Court

2022 CO 35

The People of the State of Colorado, Petitioner In the Interest of Minor Children My. K.M. and Ma. K.M., v. V. K.L. and T.A.M. Respondents

No. 21SC245

Supreme Court of Colorado, En Banc

June 27, 2022

Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 20CA695

Attorneys for Petitioners: Kristin M. Bronson, Denver City Attorney Cathleen M. Giovannini, Assistant City Attorney Denver, Colorado

Attorneys for Minor Children: Meinster & Associates, P.C. J. Barry Meinster, Guardian ad litem Conifer, Colorado Attorneys for Respondent V.K.L.: Law Offices of Dailey & Pratt, LLC Joel M. Pratt Colorado Springs, Colorado Attorney for Amicus Curiae Colorado Office of Respondent Parents' Counsel: Zaven T. Saroyan Denver, Colorado

No appearance on behalf of Respondent T.A.M.

OPINION

MÁRQUEZ JUSTICE

¶1 This termination of parental rights case concerns the "active efforts" required under the Indian Child Welfare Act ("ICWA") to provide remedial services and rehabilitative programs to assist a parent in completing a court-ordered treatment plan. A division of the court of appeals reversed a juvenile court's judgment terminating Mother's parent-child legal relationship with her two Native American children,^[1] holding that the Denver Department of Human Services ("DHS") did not engage in the "active efforts" required under ICWA to assist Mother in completing her court-ordered treatment plan because it did not offer Mother job training or employment assistance, even though Mother struggled to maintain sobriety and disappeared for several months.^[2] We must now decide what constitutes "active efforts" under ICWA and whether the resources and rehabilitative services DHS afforded to Mother to complete her treatment plan satisfied that standard.^[3]

¶2 We hold that "active efforts" is a heightened standard requiring a greater degree of engagement by agencies like DHS with Native American families than the traditional "reasonable efforts" standard. Agencies must provide a parent with remedial services and resources-such as those listed in 25 C.F.R. § 23.2 (2021)-to complete all of the parent's treatment plan objectives. While an agency's active efforts must be "affirmative, active, thorough, and timely," 25 C.F.R. § 23.2, such efforts also must be "tailored to the facts and circumstances of the case," id., and the agency retains discretion to prioritize certain services and resources to address a parent's and family's most urgent needs to assist parents with completing the court-ordered treatment plan.

¶3 Here, we conclude that the record amply supports the juvenile court's determination that DHS engaged in active efforts to provide Mother with services and programs to attempt to rehabilitate her and reunite the family. Accordingly, we reverse the judgment of the court of appeals and remand the case for the court of appeals to address Mother's remaining appellate contentions.

I. Facts and Procedural History

¶4 Given the fact-specific nature of an "active efforts" analysis, which hinges on the resources and services an agency such as DHS provided to a family, we offer a detailed overview of the relevant events in this case.

¶5 In October 2016, Father took twelve-month-old Ma.K.M. to the hospital, where she was intubated and transferred to the pediatric intensive care unit because she was unresponsive, lethargic, and unable to breathe. Medical staff could not confirm the cause of Ma.K.M.'s symptoms but believed that she may have ingested synthetic marijuana. The hospital contacted the police. After interviewing Father, officers conducted a welfare check at the family's home and discovered that five-year-old My.K.M. had been left unattended while Father and Ma.K.M. were at the hospital. Mother's whereabouts were unknown, and she was unreachable by phone. DHS filed a petition in dependency or neglect as to Ma.K.M. and My.K.M. and placed the children in emergency foster care.

¶6 At a temporary custody hearing held on October 7, 2016, Mother informed the juvenile court that she was an enrolled member of the Colville Tribe in Washington.^[4] On November 21, the juvenile court adjudicated both children dependent or neglected as to Father. The parties also agreed to a deferred adjudication for Mother, who admitted that the children lacked proper care through no fault of her own and agreed to comply with the juvenile court's terms and conditions.^[5] The terms and conditions required Mother, among other things, to complete a substance abuse evaluation and to follow the treatment recommendations. By December 20, DHS had returned both children to Mother.

¶7 By early 2017, a team composed of a DHS caseworker, a Court Appointed Special Advocates ("CASA") volunteer, and a service provider through the Denver Indian Family Resource Center ("DIFRC"), among others, began to assist Mother with achieving her deferred adjudication-agreement objectives and Father with his treatment plan objectives. DHS also approved the family for childcare assistance, but Mother struggled to identify a viable daycare option that the family liked and would accept the childcare assistance benefit. Mother underwent a cognitive evaluation, resulting in recommendations for parenting skills development services that included hands-on learning, substance-abuse monitoring, and domestic-violence education.

¶8 DIFRC had provided the family with culturally relevant, wrap-around services, but in spring 2017, it discontinued services due to the parents' noncompliance. The parents reported feeling that the organization was not a good fit for their family. By summer 2017, DHS connected the family with a new service provider, the Guadalupe Project ("GP"), which provided the family, and Mother individually, with services and support ranging from parenting skills to transportation for Mother and the children. The GP caseworker helped Mother secure suitable daycare to provide the children with structure during the day and enable both parents to work full time. Overall, the GP caseworker reported cooperation and positive improvements in both parents' engagement and the children's development.

¶9 However, for most of 2017, DHS had ongoing concerns about substance abuse for both parents based on positive urinalysis ("UA") results. Mother had a routine UA test positive for cocaine in October 2017 and missed multiple requests from the DHS caseworker for additional UAs.^[6] Due to the ongoing concerns over Mother's sobriety, DHS implemented a safety plan to ensure Mother did not have unsupervised time with the children. DHS also moved to revoke Mother's deferred adjudication; the juvenile court granted the request and entered an adjudication against Mother at a hearing on November 21, 2017. The juvenile court adopted the terms and conditions of Mother's deferred adjudication agreement as the terms of her court treatment plan. Those terms provided:

[Mother] will complete a Signal substance abuse evaluation. [Mother] will fully comply with any and all treatment recommendations made by the Signal evaluator. . . . [Mother] will not miss any scheduled urinalysis; nor . . . provide any urinalyses which test as dilute or positive for any substances. If group or individual treatment sessions are recommended, [Mother] will attend all scheduled sessions.

[Mother] . . . will complete a Lifelong evaluation. [Mother] will fully comply with any and all treatment recommendations made by the Lifelong evaluator.

[Mother] . . . will continue working with in-home services . . . . [Mother] will cooperate with the services provided, attend all appointments, and will comply with any and all treatment recommendations.

[Mother] . . . will obtain and maintain employment, or another legal source of income, which is sufficient to provide for herself and her children.

[Mother] . . . will maintain stable housing, adequate for herself and her children, which is maintained in a safe and cleanly manner.

[Mother] . . . will cooperate with [DHS], Guardian ad Litem, and all treating professionals. [Mother] will allow [DHS] and Guardian ad Litem access to her home for scheduled and unannounced home visits. [Mother] will maintain, at a minimum, monthly contact with the assigned caseworker. [Mother] will sign all necessary releases of information.

[Mother] . . . will not leave the minor children, [My.K.M. and Ma.K.M.], unattended.

¶10 With the support of service providers, DHS worked with the family to implement various safety plans to limit Mother's unsupervised oversight of the children and to address the children's unexcused absences from school and daycare. This approach assured that the children were always under at least one sober caretaker's supervision. Mother began receiving substance abuse services from a therapist at the Community Alcohol, Drug, Rehabilitation & Education Center ("CADREC"), and the provider reported that Mother engaged effectively in treatment. By April 9, 2018, the juvenile court lifted the supervision restrictions on Mother's time with the children based on her progress with her treatment plan objectives, and specifically with her sobriety.

¶11 Nonetheless, both parents continued to test positive for drugs at various times, raising ongoing substance abuse concerns. Mother tested positive again for cocaine in June 2018. At a July 2018 hearing, the juvenile court ordered the parents to comply with their respective substance abuse treatments and restrictions. DHS continued providing Mother with substance abuse and sobriety support through CADREC while she simultaneously attended daily Cocaine Anonymous meetings as part of her treatment. In September 2018, Mother's CADREC therapist informed the juvenile court that Mother was on a positive trajectory with...