People v. A.R.

• Decision Date: 27 December 2012
• Docket Number: No. 11CA1448.,11CA1448.
• Parties: The PEOPLE of the State of Colorado, Petitioner–Appellee, In the Interest of A.R., a Child, and Concerning F.N., Respondent–Appellant, and F.S. and A.S., Intervenors.
• Court: Colorado Court of Appeals

310 P.3d 1007

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

In the Interest of A.R., a Child,

and

Concerning F.N., Respondent–Appellant,

and

F.S. and A.S., Intervenors.

No. 11CA1448.

Colorado Court of Appeals,

Div. II.

Nov. 8, 2012.

As Modified on Denial of Rehearing Dec. 27, 2012.

Sheryl Rogers, County Attorney, Linda L. Boulder, Assistant County Attorney, Durango, Colorado, for Petitioner–Appellee.

Nancy J. Walker–Johnson, Guardian Ad Litem.

Steven Wells, Durango, Colorado, for Respondent–Appellant.

Opinion by Judge LICHTENSTEIN.

¶ 1 In this dependency and neglect proceeding, F.N. (mother) appeals from the judgment terminating her parent-child legal relationship with A.R. The Department of Human Services (department) joins mother's appeal of the termination and also challenges that part of the judgment addressing the department's guardianship. We affirm the judgment terminating mother's parental rights, reverse that part of the judgment addressing guardianship, and remand.

¶ 2 Because A.R. is an “Indian child” as defined in 25 U.S.C. § 1903(4) (2006), these proceedings are subject to the Indian Child Welfare Act, 25 U.S.C. §§ 1901 to 1963 (2006) (the ICWA).

¶ 3 This case revisits whether the ICWA's “active efforts” standard requires more effort than the “reasonable effort” standard in non-ICWA cases. Disagreeing with another division of this court, we conclude that it does.

¶ 4 We also conclude that, under the circumstances of this case, the termination judgment in this case may stand. However, we conclude that the court deviated from the ICWA's placement preferences when, in granting the department guardianship, it denied the department authorization to place A.R. with her maternal uncle (A.W.) and his wife (C.W.) for purposes of adoption.

I. Background

¶ 5 The department assumed custody of A.R. and placed her in foster care on June 1, 2009, after she was found wandering by herself near a river and a highway. At the time, A.R. was two and one-half years old and was being cared for by her adult sister. The department had received fourteen prior reports concerning A.R. and mother's other children, and at the time the department took custody of A.R., mother was homeless and struggling with alcohol addiction. The department temporarily placed A.R. with a foster family.

¶ 6 In July 2009, the court adjudicated A.R. dependent and neglected as to mother and approved the department's proposed treatment plan. The Navajo Nation, of which mother is an enrolled member, participated in the proceedings.

¶ 7 In October 2010, the department moved for termination and informed the court of the Navajo Nation's lack of progress in completing a home study and approving A.W. and C.W. for placement. The termination hearing began in January 2011.

¶ 8 However, at the April 2011 continuation of the termination hearing, the department altered its position. It had conducted a favorable home study on A.W. and C.W. and now urged the court that placement with A.W. and C.W. would be a less drastic alternative and would satisfy the ICWA's placement preferences. The Navajo Nation also supported A.R.'s placement with A.W. and C.W. But the guardian ad litem (GAL) urged the court to find good cause to deviate from the ICWA placement preference.

¶ 9 The court deferred any placement decisions, either in the context of considering less drastic alternatives to termination or in the context of placement following termination. It continued the termination hearing for sixty days to receive further information as to whether A.W. and C.W. were fully cognizant of A.R.'s pervasive developmental delays, were equipped to deal with her special needs, and would have the necessary services available to them in New Mexico, where they lived. In the meantime, it found, beyond a reasonable doubt, that each of the remaining requisites for termination had been met.

¶ 10 At the June 2011 hearing, the court received evidence concerning A.R.'s special needs, including testimony from A.W., C.W., A.R.'s foster mother, and various caseworkers, psychologists, and staff at A.R.'s current school.

¶ 11 At the conclusion of the hearing, the court terminated mother's parental rights. As pertinent here, it concluded that placement with A.W. and C.W. was not a less drastic alternative to termination. The court found, beyond a reasonable doubt, that long-term placement, whether with a relative or in a foster home, was not a viable alternative because, due to her need for permanency, it was not in A.R.'s best interests to leave her in limbo. In this regard, the court also considered the ICWA placement preferences. It applied the Guidelines for State Courts: Indian Child Custody Proceedings, 44 Fed.Reg. 67,584, 67,693 (1979) (BIA Guidelines), to find, beyond a reasonable doubt, that an ICWA placement was not a viable less drastic alternative due to A.R.'s “extraordinary physical or emotional needs.”

¶ 12 The court also found, beyond a reasonable doubt, that the department had exercised “best efforts” to rehabilitate mother, but that mother could not meet A.R.'s needs despite the treatment and services offered by the department.

¶ 13 Upon terminating mother's parental rights, the court (1) denied the department's motion for a trial home visit with A.W. and C.W. and (2) granted guardianship of A.R. to the department, “including the authority to consent to the adoption of [A.R.], except that the [d]epartment does not have authority to place her with [A.W. and C.W.] for this purpose.” This appeal followed.

¶ 14 Mother contends that the court erred in terminating her parental rights asserting that the department did not meet the ICWA's “active efforts” requirement, and there were viable less drastic alternatives to termination, including A.R.'s placement with A.W. and C.W. The department joins these arguments, and contends that, even if the court's termination of mother's parental rights was proper, the court erroneously deviated from the ICWA's placement preferences when, in granting the department guardianship, it denied the department permission to place A.R. with A.W. and C.W. for purposes of adoption. Under the circumstances here, we affirm the court's termination of mother's parental rights; however, we agree with the department that the court's guardianship order improperly deviated from the ICWA's placement preferences.

II. The ICWA

¶ 15 The ICWA protects the stability and security of Indian tribes and families by establishing minimum federal standards for removing Indian children from their families. 25 U.S.C. § 1902 (2006). It was the product of rising concern over the consequences to Indian children, families, and tribes of “abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.” Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). Senate hearings on the statute documented what one witness called “[t] he wholesale removal of Indian children from their homes, ... the most tragic aspect of Indian life today.” Id.

¶ 16 The ICWA applies to any child custody proceeding involving an Indian child, including one in which the state seeks to place an Indian child in foster care or the state seeks to terminate parental rights. See25 U.S.C. §§ 1911, 1912 (2006); People in Interest of S.R.M., 153 P.3d 438, 440 (Colo.App.2006). It also applies, after the termination of parental rights, to preadoptive and adoptive placements. See25 U.S.C. § 1915(a)-(b) (2006). The ICWA is based on the presumption that the protection of an Indian child's relationship with the tribe is in the child's best interests. People in Interest of A.T.W.S., 899 P.2d 223, 224 (Colo.App.1994). Section 19–1–126, C.R.S.2012, ensures compliance with and consistent application of the ICWA.

A. Standard of Review

¶ 17 The trial court's interpretation of the ICWA is a question of law that we review de novo. In re N.B., 199 P.3d 16, 18 (Colo.App.2007). When interpreting a statute, our primary goal is to determine and give effect to legislative intent. Spahmer v. Gullette, 113 P.3d 158, 161–62 (Colo.2005). Because we are construing a federal statute, we turn to well-established rules of federal statutory interpretation. See Copeland v. MBNA Am. Bank, 907 P.2d 87, 90 (Colo.1995). Therefore, we look first to the plain language of the statute, giving words and phrases their plain and ordinary meaning. Roberts v. Sea–Land Servs., Inc., ––– U.S. ––––, ––––, 132 S.Ct. 1350, 1356, 182 L.Ed.2d 341 (2012); see also Spahmer, 113 P.3d at 161–62.

¶ 18 The United States Supreme Court has instructed that 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. Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 764, 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985).

¶ 19 Whether the department made adequate “active efforts” is a mixed question of fact and law, as is whether there is “good cause” to deviate from the ICWA's placement preferences. Thus, we review the trial court's factual findings for an abuse of discretion and its legal conclusions de novo. People in Interest of C.Z., 262 P.3d 895, 905 (Colo.App.2010).

B. Active Efforts

¶ 20 Mother contends that the court erred in terminating her parental rights because (1) the court did not apply the ICWA's “active efforts” standard to the department, and (2) the department did not meet the ICWA's active efforts requirement. For the reasons set forth below, we agree that the court did not use the correct standard; nonetheless, we conclude that the department satisfied the “active efforts” requirement of the ICWA, and therefore, we decline to disturb the termination on this basis.

1. Burden of Proof

¶ 21 As a preliminary matter, we reject mother's...