as: 942 P.2d 1380)
Court of Appeals,
the Matter of CATHOLIC CHARITIES AND COMMUNITY SERVICES of the
Denver, Inc., Petitioner-Appellee.
the Interest of C.C.G., a Child, and Concerning R.F., Respondent-Appellant,
Ponca Tribe of Nebraska, Intervenor-Appellant,
Concerning A.J. and J.J., Respondents-Appellees.
July 10, 1997.
Child Welfare Act (ICWA) sets forth minimum standards for removal of Indian
child from his or her family, and thus "Indian child" must be
proceeding for ICWA to apply. Indian Child Welfare Act of 1978 § 3,
25 U.S.C.A. § 1902.
of child's Indian status required for application of Indian Child Welfare
Act (ICWA) is factual one. Indian Child Welfare Act of 1978 § 3,
25 U.S.C.A. § 1902.
Indian family" doctrine precludes application of Indian Child Welfare
Act (ICWA) when Indian child's parent or parents have not maintained significant
social, cultural, or political relationship with tribe. Indian Child
Welfare Act of 1978 § 3, 25 U.S.C.A. § 1902.
of "existing Indian family" doctrine, which affects applicability
of Indian Child Welfare Act (ICWA), requires resolution of factual issues.
Indian Child Welfare Act of 1978 § 3, 25 U.S.C.A. § 1902.
review of order terminating father's parental rights to child with alleged
Indian heritage, Court of Appeals would decline parties' request to adopt
or reject "existing Indian family" doctrine, which affects applicability
of Indian Child Welfare Act (ICWA), and would instead remand to juvenile
court for further proceedings, given paucity of evidence and lack of basis
in order for ruling. Indian Child Welfare Act of 1978 § 3,
25 U.S.C.A. § 1902; Juvenile Procedure Rule 1; Rules Crim.Proc.,
process requires state to provide fundamentally fair procedure in proceeding
for termination of parental rights. U.S.C.A. Const.Amend. 14.
parent who is represented by counsel does not have due process right to
be transported to hearings on proceeding to terminate parental rights.
U.S.C.A. Const.Amend. 14.
father's due process rights were not violated by juvenile court's refusal
to transport father from another state to attend all hearings on proceeding
to terminate parental rights, where father appeared in proceeding through
counsel, father presented evidence as to his parole date by affidavit,
and father submitted brief concerning application and construction of
statute concerning parent's ability to promptly assume custody of child.
U.S.C.A. Const.Amend. 14; West's C.R.S.A. § 19-5-105(3).
construing statute, court must give effect to intent of General Assembly
and adopt construction that best effectuates purpose of statutory scheme.
determine intent, court should look first to language of statute and give
words their ordinary meaning.
statutory language is clear and legislative intent appears with reasonable
certainty, resort to other rules of statutory construction is unnecessary.
supported juvenile court's conclusion, in proceeding to terminate incarcerated
father's parental rights, that father was not able to personally assume
physical and legal custody of infant promptly; affidavit submitted
by father established that he would not be eligible for parole for 17
months. West's C.R.S.A. § 19-5-105(3).
incarceration of parent does not ordinarily operate as forfeiture of parental
rights, General Assembly may provide otherwise. West's C.R.S.A.
Green & Josefiak, P.C., Philip B. Green, Denver; Law Office
of Gregory Garland, Gregory S. Garland, Denver, for Petitioner-Appellee.
Stephen J. Harhai, Guardian Ad
Cleaver and Cleaver, Thoburn
G. Cleaver, Boulder, for Respondent-Appellant.
Indian Law Clinic, University
of Colorado School of Law, H. Patrick Furman, Sarah A. Krakoff, Directors,
Laurel IronCloud, Cynthia M. Stovall, Student Attorneys, Boulder, for
Barbara Lavender, P.C., Barbara
Lavender, Boulder, for Respondents-Appellees.
Opinion by Chief Judge STERNBERG.
R.F. (father) appeals from a
juvenile court judgment terminating the parent-child legal relationship
between him and his daughter, C.C.G., pursuant to § 19-5-105,
C.R.S. (1996 Cum.Supp.). We reverse and remand for further
Shortly after the child was born
in May 1995, the mother initiated a proceeding pursuant to § 19-5-101,
et seq., C.R.S. (1996 Cum.Supp.) for voluntary relinquishment of her parental
rights. Custody of the child was given to Catholic Charities
and Community Services of the Archdiocese of Denver, Inc. (Catholic Charities),
and the child was placed with A.J. and J.J. (intervenors) for adoption.
On July 5, 1995, Catholic Charities
filed a petition to terminate father's parental rights pursuant to § 19-5-105.
Shortly thereafter, the Ponca Tribe of Nebraska (tribe) filed
a motion to intervene pursuant to the Indian Child Welfare Act, 25 U.S.C.
§ 1911(c) (1978) (ICWA), asserting that the child was an "Indian
child" and that the ICWA applied to the proceeding. Additionally,
father, who was incarcerated in Texas on a Colorado conviction, filed
a motion for an order to transport him to all hearings in the matter.
On December 4, 1995, a hearing was conducted to resolve all pending motions
and to determine the procedural course of the matter. Although
the tribe did not appear, argument took place on the motion to intervene
and the applicability of the ICWA. Following the hearing, the juvenile
court took the pending motions under advisement, delineated the procedural
course to be followed, ordered father to submit an affidavit as to his
parole eligibility date, and ordered the parties to submit written argument
concerning termination of parental rights under § 19-5-105(3),
C.R.S. (1996 Cum.Supp.).
On March 21, 1996, the juvenile
court entered a written order granting the tribe's motion to intervene,
but made no specific finding whether the ICWA applied. Five
days later, without hearing, the juvenile court entered judgment terminating
father's parental rights pursuant to § 19-5-105(3). This order
also did not address the applicability of the ICWA.
Father and the tribe contend that the juvenile court erred in failing
to apply the ICWA. They argue, among other things, that the juvenile court
impliedly acknowledged the applicability of the ICWA in granting the tribe's
motion to intervene. Catholic Charities, the intervenors,
and the guardian ad litem assert (1) that this is a voluntary relinquishment
proceeding to which, under 25 U.S.C. §§ 1912(a) and 1913
(1978), the ICWA does not apply, or (2) that the "existing Indian
family" doctrine precludes application of the ICWA. Because
the juvenile court failed to address explicitly the applicability of the
ICWA, we conclude that reversal and remand is required.
The ICWA sets forth minimum federal
standards for the removal of an Indian child from his or her family. 25
U.S.C. § 1902 (1978). Thus, an "Indian child"
must be involved in the proceeding in order for the ICWA to apply. People
in Interest of A.G.-G.,
899 P.2d 319 (Colo.App.1995). Determination of a child's Indian status is
a factual one. See
People in Interest of A.G.-G., supra; People in Interest of A.E.,
749 P.2d 450 (Colo.App.1987). No determination whether the child
is an Indian has been made.
"existing Indian family" doctrine, which has not been addressed
or adopted by the Colorado courts, precludes application of the ICWA when
the Indian child's parent or parents have not maintained a significant
social, cultural, or political relationship with his or her tribe. See
State in Interest of D.A.C.,
933 P.2d 993 (Utah App.1997); In
re Bridget R., 41 Cal.App.4th
1483, 49 Cal.Rptr.2d 507 (Cal.App.1996). Application of the
doctrine requires resolution of factual issues. See
In re Bridget R., supra.
No factual determinations of these questions have been made.
Moreover, the juvenile court
made no conclusions of law as to the applicability of the ICWA. Although
implicit in the order granting intervention is a determination that the
child is an "Indian child," see
§ 1911(c) (1978), the order does not reveal the basis of the
court's decision not to apply the ICWA, i.e.,
whether the proceeding was voluntary, whether the child's parents have
maintained sufficient relationship with the tribe, or whether the "existing
Indian family" exception to the ICWA applied. Furthermore, the record
contains little, if any, evidence upon which factual findings concerning
these issues could be based.
of the paucity of evidence and because the juvenile court's order gives
no basis for its ruling, we decline the parties' request either to reject
or to adopt the "existing Indian family" doctrine. Instead,
we remand the matter to the juvenile court for further proceedings. See
C.R.J.P. 1; C.R.C.P. 52(a); In
re Marriage of Van Inwegen,
757 P.2d 1118 (Colo.App.1988).
Father and the tribe next contend that father's right to due process was
violated because the juvenile court refused to transport father from Texas
to attend all hearings and did not conduct a termination hearing during
which he could present evidence. We disagree.
At the outset, Catholic Charities
asserts that the tribe does not have standing to raise *1383
issues concerning father's due process rights. Because the tribe's due
process arguments are substantially the same as those propounded by father
and because 25 U.S.C. § 1914 (1978) allows a tribe to petition
a court of competent jurisdiction to invalidate an action which violates
certain procedural requirements of the ICWA, we will assume for the purposes
of argument that the tribe has standing here. See
In re J.R.S., 690 P.2d
10 (Alaska 1984).
Due process requires the state
to provide a fundamentally fair procedure in a proceeding for termination
of parental rights. People
in Interest of A.M.D.,
648 P.2d 625 (Colo.1982). Thus, the Children's Code and case
law require that the criteria for termination be established by clear
and convincing evidence and that a parent be given notice of the termination
proceeding, an opportunity to be heard and to defend, and to receive advice
of counsel. Sections 19-1-105(2) and 19-5-105(5) C.R.S. (1996 Cum.Supp.);
People in Interest of
However, an incarcerated parent
who is represented by counsel does not have a due process right to be
transported to hearings. People
in Interest of C.G.,
885 P.2d 355 (Colo.App.1994).
Here, father appeared in the proceeding through counsel, presented evidence
as to his parole date by affidavit, and submitted a brief concerning the
application and construction of § 19-5-105(3). Thus,
we perceive no violation of father's right to due process. See
People in Interest of V.M.R.,
768 P.2d 1268 (Colo.App.1989).
Father and the tribe also contend that the juvenile court misconstrued
§ 19-5-105(3) in finding that father was unable personally to
assume custody of the child promptly. He argues that, if transported
to the court for a hearing, he could have assumed physical and legal custody
of the child, then have entrusted the child to her paternal grandmother
for temporary care. We find no error.
construing a statute, a court must give effect to the intent of the General
Assembly and adopt the construction that best effectuates the purpose
of the statutory scheme. M.S.
v. People, 812 P.2d
632 (Colo.1991). To determine intent, a court should look
first to the language of the statute and give the words their ordinary
in Interest of T.L.D.,
809 P.2d 1120 (Colo.App.1991). If the statutory language is
clear and the intent appears with reasonable certainty, resort to other
rules of statutory construction is unnecessary. People
v. District Court,
713 P.2d 918 (Colo.1986).
The express purpose of the relinquishment
and adoption statutes, § 19-5- 101, et seq., C.R.S. (1996 Cum.Supp.),
is to promote the integrity and finality of adoption to ensure that children
whose parents are unable or unwilling to provide proper parental care
will be raised in stable, loving, and permanent families. Section
19-5-101, C.R.S. (1996 Cum.Supp.).
To this end, § 19-5-105(3),
C.R.S. (1996 Cum.Supp.) provides that if the nonrelinquishing
parent appears in the termination proceeding, but "cannot personally
assume legal and physical custody promptly, taking into account the child's
age, needs, and individual circumstances," his or her parental rights
must be terminated. If the parent is able personally to assume
custody of the child promptly, the court may award custody to the parent
if the criteria set forth in § 19-5-105(3.5), C.R.S. (1996 Cum.Supp.)
We conclude that the language
of the statute is clear and that the General Assembly intended that custody
be given to a nonrelinquishing parent only if that parent can promptly
assume ongoing parental responsibility for the child. This intent is evinced
not only by use of the word "personally," but also by the express
requirement that the nonrelinquishing parent assume both physical and
legal custody of the child. See
§§ 19-1-103(35), 19-1-103(73), and 19-1-103(84), C.R.S.
(1996 Cum.Supp.). See
also In re Custody of C.C.R.S.,
892 P.2d 246 (Colo.1995). Furthermore, had the General Assembly
intended to allow a nonrelinquishing parent to avoid termination of his
parental rights by making alternative custodial arrangements, it would
have so provided.
Here, the affidavit submitted
by father established, clearly and convincingly, that he would not be
eligible for parole for seventeen months. Taking into account
the child's tender age, we agree with the juvenile court's conclusion
that father was not able personally to assume physical
and legal custody of the child promptly.
we reject father's argument that the order of termination is improperly
based on his incarceration. Although incarceration of a parent
does not ordinarily operate as a forfeiture of parental rights, Diernfeld
v. People, 137 Colo.
238, 323 P.2d 628 (1958); People
in Interest of S.B.,
742 P.2d 935 (Colo.App.1987), cert.
denied as improvidently granted sub nom. N.B. v. People,
754 P.2d 1177 (Colo.1988), the General Assembly may provide otherwise.
§ 19-3-604(1)(b)(III), C.R.S. (1996 Cum.Supp.); People
in Interest of M.C.C.,
641 P.2d 306 (Colo.App.1982).
Lastly, because father did not contend in the juvenile court that § 19-5-
105(3) was unconstitutionally vague, we decline to address this contention
on appeal. See
People in Interest of T.S.,
781 P.2d 130 (Colo.App.1989).
The judgment is reversed and
the cause is remanded to the juvenile court to conduct further evidentiary
proceedings and to make findings of fact and conclusions of law as to
the applicability of the ICWA, i.e.,
whether the proceeding was voluntary or whether the "existing Indian
family" doctrine applies. In the event that the juvenile
court determines that the ICWA is applicable, it is directed to reconsider
its judgment of termination and, if necessary, to conduct further evidentiary
proceedings with respect to termination of the parent-child legal relationship.
In the event that the juvenile
court determines that the ICWA does not apply, the judgment of termination
is affirmed, subject to appellate review of ICWA applicability.
JONES and ROY, JJ., concur.
942 P.2d 1380, 21 Colorado Journal