People v. D.B.

Decision Date02 November 2017
Docket NumberCourt of Appeals No. 16CA1916
PartiesThe People of the State of Colorado, Petitioner-Appellee, In the Interest of D.B., a Child, and Concerning A.C., Respondent-Appellant.
CourtColorado Court of Appeals

City and County of Denver Juvenile Court No. 15JV1149

Honorable Laurie A. Clarke, Judge


Division IV


Graham and Dunn, JJ., concur

Kristin M. Bronson, City Attorney, Laura Grzetic Eibsen, Assistant City Attorney, Denver, Colorado, for Petitioner-Appellee

Barry Meinster, Guardian Ad Litem

Stephen D. Benson, L.L.C., Stephen D. Benson, Colorado Springs, Colorado, for Respondent-Appellant ¶ 1 In this proceeding governed by the Indian Child Welfare Act of 1978 (ICWA), A.C. (mother) appeals the trial court's judgment terminating her parent-child legal relationship with D.B. (the child). We decide whether an expert must expressly opine as to whether the child is likely to suffer serious emotional or physical damage in the parent's care to satisfy a required ICWA statutory finding. Because we conclude that expert testimony does not need to recite the specific statutory language, we affirm the judgment.

I. The Dependency and Neglect Case

¶ 2 In July 2015, the Department of Human Services of the City and County of Denver (Department) initiated a dependency and neglect proceeding and assumed temporary custody of the child after he tested positive for marijuana at birth. Because mother and M.B. (father) each reported that they were members of the Navajo Nation and believed the child was eligible for membership, the Department sent notice of the proceeding to the Navajo Nation.

¶ 3 Less than a month later, the court adjudicated the child dependent and neglected and adopted a treatment plan for mother. It also returned custody of the child to the parents.

¶ 4 However, in early September 2015, mother left the child with an acquaintance while she went to a casino. When she returned, she had to be taken to detox and could not remember with whom she had left the child. After the Department located the child, the court again placed the child in the Department's custody.

¶ 5 Three months later, the Navajo Nation verified that the child was eligible for enrollment and began participating in the case.

¶ 6 The Department subsequently moved to terminate the parent-child legal relationship between mother and the child. Following a hearing in October 2016, the trial court found, among other things, that continued custody of the child by one of the parents would likely result in serious emotional or physical damage to the child due to the parents' extensive substance abuse, extensive domestic violence, lack of housing, and lack of income to meet the child's needs. Consequently, it terminated mother's parental rights.

II. Termination of Parental Rights

¶ 7 Mother contends that the trial court erred in terminating her parental rights in the absence of testimony from a qualified expert witness that continued custody of the child by mother would likelyresult in serious emotional or physical damage to the child as required by 25 U.S.C. § 1912(f) (2012). We disagree.

A. Preservation

¶ 8 Initially, the Department and guardian ad litem (GAL) assert that we should decline to address this issue because mother failed to raise it in the trial court. Generally in civil cases — including dependency and neglect actions — an appellate court will consider only issues that were raised in the trial court. However, ICWA provides that "any parent . . . may petition any court of competent jurisdiction to invalidate [an action for termination of rights to an Indian child] upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of [ICWA]." 25 U.S.C. § 1914 (2012); see People in Interest of J.O., 170 P.3d 840, 841 (Colo. App. 2007); People in Interest of S.R.M., 153 P.3d 438, 441 (Colo. App. 2006). A court of competent jurisdiction includes an appeals court. In re K.B., 301 P.3d 836, 840 (Mont. 2013).

¶ 9 Accordingly, we will address mother's argument. See Dep't of Human Servs. v. J.G., 317 P.3d 936, 944 (Or. Ct. App. 2014) (holding that a state rule that precludes a party from using 25U.S.C. § 1914 on appeal to assert a right under § 1912(d) stands as an obstacle to fully implementing ICWA).

B. Standard of Review

¶ 10 The interpretation of ICWA is a question of law that we review de novo. See People in Interest of A.R., 2012 COA 195M, ¶ 17. Statutes enacted for the benefit of Indians, as well as regulations, guidelines, and state statutes promulgated for their implementation, must be liberally construed in favor of Indian interests. Id. at ¶ 18; see also Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985).

¶ 11 Whether a child is likely to suffer serious emotional or physical damage from a parent's continued custody is a mixed question of fact and law. See A.R., ¶ 19 (concluding that whether a department made adequate active efforts under 25 U.S.C. § 1912(d) and whether to deviate from ICWA's placement preferences were mixed questions of facts and law). We accept the trial court's factual findings unless clearly erroneous and its legal conclusions de novo. People in Interest of A.J.L., 243 P.3d 244, 249 (Colo. 2010).

C. ICWA's Requirement

¶ 12 In order to protect Indian tribes and children, ICWA establishes minimal federal standards for child custody proceedings. 25 U.S.C. § 1902 (2012); see People in Interest of L.L., 2017 COA 38, ¶ 12. Such proceedings include any action that results in the termination of parental rights to an Indian child. 25 U.S.C. § 1903(1)(ii) (2012); B.H. v. People in Interest of X.H., 138 P.3d 299, 302 (Colo. 2006).

¶ 13 ICWA provides that a court may not terminate parental rights "in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." 25 U.S.C. § 1912(f); see People in Interest of A.N.W., 976 P.2d 365, 368 (Colo. App. 1999).

¶ 14 This provision contains two separate requirements. First, it requires the trial court to determine that there is proof beyond a reasonable doubt that the child is likely to suffer serious emotional or physical damage if the child remains in the parent's care. 25 U.S.C. § 1912(f). Second, the trial court's determination must besupported by evidence that includes testimony from qualified expert witnesses. Id.

¶ 15 But, contrary to mother's assertion, the statute does not mandate that an expert witness specifically opine that the child is likely to suffer emotional or physical damage in the parent's custody. People in Interest of A.B., 880 N.W.2d 95, 104 (S.D. 2016); see also Marcia V. v. State, 201 P.3d 496, 508 (Alaska 2009) (concluding that the trial judge, not the expert witness, must find the likelihood of serious emotional or physical damage to the child).

¶ 16 Nor does 25 U.S.C. § 1912(f) require that the expert testimony provide the sole basis for the trial court's conclusion. Marcia V., 201 P.3d at 508; see also Steven H. v. Ariz. Dep't of Econ. Sec., 190 P.3d 180, 185 (Ariz. 2008) (applying the same conclusion to 25 U.S.C. § 1912(e), which imposes the same requirement for foster care placement as § 1912(f) does for termination). Rather, the expert testimony must constitute some of the evidence that supports the court's finding of the likelihood of serious emotional or physical damage to the child. Marcia V., 201 P.3d at 508; Steven H., 190 P.3d at 186.

¶ 17 We recognize that two courts appear to have reached the opposite conclusion. The Montana Supreme Court has held that the failure to elicit expert testimony regarding whether continued custody will result in serious emotional or physical damage to the children required reversal of a termination order. K.B., 301 P.3d at 839 (expert testified only that placement with mother was "likely to result in immediate risk of harm to the children"). Likewise, the Michigan Court of Appeals observed that a trial court's beyond a reasonable doubt finding must be supported by testimony of a qualified expert witness who opines that continued custody of the Indian child by the parent will likely result in serious physical or emotional harm to the child. In re Payne/Pumphrey/Fortson, 874 N.W.2d 205, 211 (Mich. Ct. App. 2015) (only expert who testified at the termination hearing did not support termination and testified that returning children to parent's care "would not likely result in serious emotional or physical damage to either child").

¶ 18 To the extent that these cases can be read as requiring specific testimony using the language of the statute, we disagree with them because such a requirement would effectively delegate the termination decision to a qualified expert witness. Indeed, underthis approach, the trial court would be precluded from terminating parental rights to an Indian child unless the expert offered an opinion tracking the statutory language of 25 U.S.C. § 1912(f).

¶ 19 Congress's primary reason for requiring qualified expert testimony was to prevent courts from basing decisions "solely upon the testimony of social workers who possessed neither the specialized professional education nor the familiarity with Native [American] culture necessary to distinguish between cultural variations in child-rearing practices and actual abuse or neglect." Steven H., 190 P.3d at 185 (quoting L.G. v. State, 14 P.3d 946, 952-53 (Alaska 2000)). This purpose would not necessarily be furthered by a requirement that an expert witness recite the precise language of 25 U.S.C. § 1912(f).

¶ 20 Finally, we turn to the Bureau of Indian Affairs guidelines and rule interpreting 25 U.S.C. § 1912(f). Although the 2015 guidelines were in effect during this proceeding, they have been replaced by the 2016 guidelines and rule. L.L., ¶ 15. Because the 2016 guidelines and rule are...

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