People v. T.P.C.-J. (In re T.E.R.)

• Decision Date: 09 May 2013
• Docket Number: Court of Appeals No. 12CA2196
• Parties: The People of the State of Colorado, Petitioner-Appellee, v. In the Interest of T.E.R., a Child, and Concerning T.P.C.-J. and T.M.R., Respondents-Appellants.
• Court: Colorado Court of Appeals

2013 COA 73

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

v.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

COLORADO COURT OF APPEALS

Announced May 9, 2013

City and County of Denver Juvenile Court No. 11JV1711

Honorable Karen M. Ashby, Judge

ORDER AND JUDGMENT AFFIRMED

Division IV

Opinion by JUDGE WEBB

Lichtenstein and Fox, JJ., concur

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

Heather M. Gwinn Pabon, 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.

¶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

¶2 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 caseby-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:

Although the Act does not explicitly require transfer petitions to be timely, it does authorize the court to refuse to transfer a case for good cause. When a party who could have petitioned earlier waits until the case is almost complete to ask that it be transferred to another court and retried, good cause exists to deny the request.

Timeliness is a proven weapon of the courts against disruption caused by negligence or obstructionist tactics on the part of counsel. If a transfer petition must be honored at any point before judgment, a party could wait to see how the trial is going in state court and then obtain another trial if it appears the other side will win. Delaying a transfer request could be used as a tactic to wear down the other side by requiring the case be tried twice. The Act was not intended to authorize such tactics and the "good cause" provision is ample authority for the court to prevent them.

44 Fed. Reg. at 67,590.

¶12 Several courts have held that delay in requesting a transfer may constitute good cause to deny the transfer. In Interest of J.W., 528 N.W.2d 657, 660 (Iowa Ct. App. 1995) (motion to transfer was filed three and one half years after tribe received notice); In re M.H., 956 N.E.2d 510, 660 (Ill. App. Ct. 2011) (tribe moved to transfer more than fifteen months after receiving notice); In re M.F., 206 P.3d 57, 62 (Kan. Ct. App. 2009) (moved to transfer fifteen months after the proceedings began), aff'd, 225 P.3d 1177 (Kan. 2010); In re Wayne R.N., 757 P.2d 1333, 1335-36 (N.M. Ct. App. 1988) (upholding denial of request to transfer that was made on the morning of trial, six months after parents were served with notice of proceedings); In re Dependency & Neglect of A.L., 442 N.W.2d 233, 237 (S.D. 1989) (upholding denial of request to transfer due to untimeliness where request was filed one year after tribe received notice); see also In re Robert T., 200 Cal. App. 3d 657, 665, 246 Cal. Rptr. 168, 174 (1988) (good cause to deny transfer found based on sixteen-month delay between the permanency planning hearing and the tribe's request to transfer); but see J.L.P., 870 P.2d at 1258 (request to transfer was timely despite one-year delay between when tribe received notice and requested transfer).

¶13 Several courts have also held that good cause to deny transfer exists if substantial steps to terminate parental rights had been taken before the transfer request. Robert T., 200 Cal. App. 3d at 665, 246 Cal. Rptr. at 173 (a request to transfer should precede permanency planning in dependency proceedings); A.T.W.S., 899 P.2d at 226 (case was at advanced stage where department had filed a motion to terminate parental rights and foster parents had moved for a permanency planning hearing); J.W., 528 N.W.2d at 661 (case was at advanced stage where parent requested transfer after judgment to terminate her parental rights had been entered and appealed); M.H., 956 N.E.2d at 661 (case was at advanced stage where court had held adjudication, disposition, and permanency hearings before tribe's request for transfer); M.F., 206 P.3d at 62 (case was at advanced stage where permanency plan and motion to terminate had been filed); Wayne R.N., 757 P.2d at 1334 (request for transfer occurred after motion to terminate had been filed); cf. In re Interest of Zylena R., 825 N.W.2d 173, 184 (Neb. 2012) (case was not at advanced stage where the tribe requested a transfer one month prior to filing of motion to terminate).

¶14 Here, approximately eight months passed from the time the Tribe received notice of the proceedings until mother moved for transfer. During this time, the juvenile court adjudicated T.E.R. dependent and neglected; the court held a dispositional hearing at which it adopted treatment plans for mother and father; the court held a permanency planning hearing; the court held three review hearings; the GAL told the parties that she would be seeking to terminate mother's parental rights; the Tribe was allowed to intervene; and the Department moved to terminate mother's parental rights. Despite knowing that in April 2012 the GAL intended to seek termination and the Tribe had intervened in May 2012, mother waited until after the Department moved to terminate her parental rights before seeking a transfer.

¶15 The juvenile court concluded that by the time mother moved to transfer, the case was at an advanced stage. The record supports this conclusion.

¶16 Nevertheless, mother contends that by considering the expedited permanency planning (EPP) provisions, the court improperly compressed the advanced stage analysis. §§ 19-1- 102(1.6), 19-1-123, 19-3-703, C.R.S. 2012; People in Interest of M.T., 121 P.3d 309, 313 (Colo. App. 2005) (the EPP provisions apply to children less than six years old when removed from the home and require placement in a permanent home within twelve months). We reject this contention.

¶17 The juvenile court noted that, "[i]n an EPP case, the Court believes that it is necessary to look at the timeframes given...