as: 160 P.3d 257)
ex rel. J.A.S.
Court of Appeals, Div. VI.
PEOPLE of the State of Colorado,
the Interest of J.A.S., L.V.S., and J.J.S., Children,
the Petition of the Denver Department of Human Services, Petitioner-Appellee,
L.L.W. and J.L.S., Respondents-Appellants.
Cole Finegan, City Attorney, Laura Grzetic Eibsen, Assistant City Attorney,
Denver, Colorado, for Petitioner-Appellee.
Ross, Guardian Ad Litem.
Gans, Denver, Colorado, for Respondent-Appellant L.L.W.
Robert James, Denver, Colorado, for Respondent-Appellant J.L.S.
by Judge J. JONES.
(mother) and J.L.S. (father) appeal from a judgment terminating the
parent-child legal relationships between them and their children.
this dependency and neglect proceeding was initiated in March 2004,
father was incarcerated and mother was providing care for the
the first hearing before a magistrate, information was presented indicating
that mother was of Indian descent with ties to the
Hualapai and Rosebud Sioux tribes.
Accordingly, the magistrate ordered the Department of Human Services (department)
to notify those tribes of the proceeding, as required by
the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C.
et seq. (2000), and §
April 2004, the parents admitted the petition in dependency and
neglect, and treatment plans were approved shortly thereafter.
In February 2006, the department filed a motion to terminate
their parent-child legal relationships, alleging that although the parents had
partially complied with their plans, they had failed to make
significant improvement in their ability to provide safe, nurturing care
for the children.
the first day of the May 2006 termination hearing, the
department informed the juvenile court that it had notified the
Hualapai and Ogalala Sioux tribes of the proceeding, both of
which had responded indicating that the children were not enrolled
or eligible for enrollment.
Mother asked that the hearing be continued so she could
present evidence regarding applicability of the ICWA.
Questions also arose as to why the Rosebud Sioux tribe
had not been notified.
The court ordered the department to make copies of the
notice and tribal responses for the parties, denied the motion
to continue, and proceeded with the hearing.
The hearing, however, could not be concluded that day and
was not concluded until three weeks later.
the interim, the department notified the Rosebud Sioux tribe of
The tribe responded, stating that the children were not enrolled
or eligible for enrollment in the tribe.
After the close of evidence, the juvenile court found that
the ICWA was inapplicable because the tribes had determined the
children were not enrolled or eligible for enrollment, and it
terminated the parents' rights under §
of the ICWA
contends that the juvenile court erred in determining that the
ICWA did not apply.
She argues that she was not given sufficient notice of
the tribes' determinations to permit her to independently ascertain*260
their status as Indian
We find no error.
of the ICWA depends on whether the child is an
Charities in Interest of C.C.G.,
942 P.2d 1380, 1382 (Colo.App.1997);
in Interest of A.G.-G.,
899 P.2d 319, 321 (Colo.App.1995).
The ICWA defines “Indian
unmarried person who is under age eighteen and is either
(a) a member of an Indian tribe or (b) is
eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe.”
membership is not defined by the ICWA.
Instead, each Indian tribe has the authority to determine its
membership criteria and to decide who meets those criteria.
v. People in Interest of X.H.,
138 P.3d 299, 303 (Colo.2006);
in Interest of A.E.,
749 P.2d 450, 452 (Colo.App.1987).
A tribe's determination of membership or membership eligibility is conclusive
33 Kan.App.2d 424, 428, 103 P.3d 976, 981 (2005);
re Welfare of S.N.R.,
617 N.W.2d 77, 84 (Minn.Ct.App.2000);
re Adoption of Riffle,
273 Mont. 237, 242, 902 P.2d 542, 545 (1995);
for State Courts:
Child Custody Proceedings, 44 Fed.Reg. 67,584, 67,586 (1979);
v. People in Interest of X.H., supra,
138 P.3d at 303;
in Interest of A.G.-G., supra,
899 P.2d at 321;
in Interest of A.E., supra,
749 P.2d at 452.
although mother was not advised of the tribes' determinations until
the termination hearing, additional time in which to ascertain the
children's tribal membership would have been unavailing because the tribes'
determinations were conclusive.
Accordingly, we perceive no error in the juvenile court's determination
that the ICWA did not apply.
with Treatment Plan
that she substantially complied with the treatment plan, mother contends
that the evidence was insufficient to support the criteria for
terminate the parent-child legal relationship under §
clear and convincing evidence must establish, among other things, that
an appropriate treatment plan, approved by the court, has not
been complied with by the parent or that the plan
has not been successful in rehabilitating the parent.
parent is responsible for securing compliance with and success of
a treatment plan.
in Interest of L.A.C.,
97 P.3d 363, 367-68 (Colo.App.2004);
in Interest of A.H.,
736 P.2d 425, 428 (Colo.App.1987).
Although absolute compliance is not required, partial compliance, or even
substantial compliance, may not result in success of the plan
by correcting or improving the parent's conduct or condition or
by rendering the parent fit.
in Interest of D.L.C.,
70 P.3d 584, 588 (Colo.App.2003).
as here, a proceeding involves a child under the age
of six, reasonable or successful compliance with a treatment plan
cannot be found if “[t]he
parent has not attended visitations with the child as set
forth in the treatment plan, unless good cause can be
shown for failing to visit”
parent exhibits the same problems addressed in the treatment plan
without adequate improvement, including but not limited to improvement in
the relationship with the child,”
and remains unable to meet the child's needs.
19-3-604(1)(c)(I)(A), (B), C.R.S.2006;
v. People in Interest of I.S.,
83 P.3d 627, 641 (Colo.2004);
in Interest of M.T.,
121 P.3d 309, 311 (Colo.App.2005).
credibility of the witnesses and the sufficiency, probative effect, and
weight of the evidence, as well as the inferences and
conclusions to be drawn from it, are within the discretion
of the trial court.
Thus, a trial court's findings and conclusions will not be
disturbed on review if the record supports them.
in Interest of C.A.K.,
652 P.2d 603, 613 (Colo.1982).
while noting mother's completion of parenting classes and cooperation with
the department and other service providers, the juvenile court found
that she did not reasonably*261
or successfully comply with the treatment plan.
In reaching this determination, the court cited mother's lack of
stable employment, which compromised her ability to maintain housing;
sporadic compliance with substance abuse treatment and her missed and
positive random urinalyses tests;
failure to follow through with mental health treatment;
failure to comply with the conditions of probation;
her failure to regularly attend supervised visits with the children.
the record supports these findings, we may not disturb them
in Interest of C.A.K., supra,
652 P.2d at 613.
Drastic Alternative to Termination
also contends that the juvenile court erred in refusing to
place the children with father as a less drastic alternative
In support of this contention, she argues that father was
allowed to have unsupervised visits with the children and should
have been given more time in which to complete the
challenge to the juvenile court's finding rejecting placement with father
as a less drastic alternative is essentially a challenge to
the court's findings that father was unfit and unlikely to
change within a reasonable time.
Father has not challenged these particular findings on appeal, and,
to the extent the challenged findings affect only father's rights,
mother lacks standing to do so. See
in Interest of J.M.B.,
60 P.3d 790, 792 (Colo.App.2002) (determining that one parent does
not have standing to raise issues regarding the propriety of
termination of the other parent's rights).
the extent mother is deemed to have standing by virtue
of her own interest in having the children placed with
father as a less drastic alternative to termination, see
People in Interest of J.M.B., supra
(court must consider and eliminate less drastic alternatives before terminating
the parent-child relationship), we nevertheless find no basis for reversal.
The record supports the court's finding that father was an
of Criminal History Report
contends that the juvenile court erred in admitting into evidence
his Colorado Bureau of Investigation criminal history report (CBI report).
We find no reversible error.
trial is to a court, rather than to a jury,
we presume that the trial court disregarded any immaterial, incompetent,
or hearsay evidence that may have been introduced.
in Interest of T.E.M.,
124 P.3d 905, 909 (Colo.App.2005);
in Interest of A.R.S.,
31 Colo.App. 268, 274, 502 P.2d 92, 95 (1972).
Further, error may not be predicated upon a ruling that
admits or excludes evidence unless a substantial right of the
party is affected.
without deciding, that the CBI report was improperly admitted, we
find no reversible error.
In overruling father's objection, which contested the accuracy of the
report, the juvenile court found that the report was self-authenticating
and stated that its weight would be determined in light
of any contradictory evidence.
Thereafter, father's parole officer testified about the conviction on which
father was incarcerated when the petition in dependency and neglect
was filed and his compliance with the conditions of parole
upon release from incarceration.
No evidence undermining the accuracy of the CBI report was
admitted, and there is no indication that the juvenile court
considered the report in ordering termination.
these circumstances, admission of the CBI report did not affect
father's substantial rights and does not require reversal.
in Interest of T.E.M., supra,
124 P.3d at 909;
in Interest of A.R.S., supra,
31 Colo.App. at 273-74, 502 P.2d at 95.
of the Evidence
also contends that the order of termination violates his right
to due process.*262
Specifically, he asserts that the evidence was insufficient to support
the order, arguing that the department's delay in contacting him
after the petition in dependency and neglect was filed and
its delay in providing a treatment plan, together with its
failure to observe his visits with the children to assess
his parenting skills, rendered its rehabilitative efforts unreasonable.
protect a parent's fundamental liberty interest in the care, custody,
and management of his or her child, due process requires
the state to provide fundamentally fair procedures in a dependency
and neglect proceeding.
785 P.2d 132, 136 (Colo.1990);
in Interest of A.M.D.,
648 P.2d 625, 632 (Colo.1982).
At a minimum, a parent must be given adequate notice
of the proceeding and an opportunity to protect his or
in Interest of M.M.,
726 P.2d 1108, 1115 (Colo.1986).
A parent may not obtain relief on a due process
claim absent a showing of harm or prejudice.
in Interest of A.L.B.,
994 P.2d 476, 480 (Colo.App.1999).
appropriate, the state must make reasonable efforts to reunite the
19-3-100.5(1), (4), C.R.S.2006.
means the exercise of diligence and care for children who
are placed out of the home.
A trial court may consider whether reasonable efforts have been
made to rehabilitate a parent in determining parental unfitness.
19-3-604(2)(h), (k)(III), C.R.S.2006.
reasonable efforts standard is deemed met if services are provided
in accordance with §
19-1-103(89), 19-3-100.5(4), C.R.S.2006.
Among the services required by §
are an assessment of the family, development of a case
plan for the provision of services, and visitation services.
19-3-208(2)(b)(I), (IV), C.R.S.2006.
The child's health and safety are the paramount concerns in
determining whether it is appropriate to provide visitation services.
Sections 19-1-103(89), 19-3-100.5(2), C.R.S.2006;
in Interest of D.G.,
140 P.3d 299, 302 (Colo.App.2006);
in Interest of B.C.,
122 P.3d 1067, 1070 (Colo.App.2005);
record here reveals that when the petition in dependency and
neglect was filed on March 26, 2004, father was incarcerated.
Four days later, the juvenile court appointed counsel to represent
On April 26, father admitted the petition, and the dispositional
hearing was set for June 7.
On that date, father asked for and received a continuance.
His treatment plan was approved at the following hearing on
In November, the paternal grandparents began facilitating visits between the
children and father.
caseworkers did not contact him directly while he was incarcerated.
Instead, they monitored his compliance with the treatment plan through
court hearings, during which he was represented by counsel and
appeared by telephone.
Upon his release to a community corrections halfway house in
May 2005, his treatment plan was amended to require participation
in services that were not available while he was incarcerated.
In October 2005, after he had progressed to intensive supervised
parole, his visits with the children became unsupervised.
the May 2006 termination hearing, the caseworker testified that she
did not observe father's visits because she had no concerns
about his interaction with the children.
Instead, her concerns about his parenting ability stemmed from his
lack of employment and housing and his recent violations of
the conditions of parole.
To address these concerns, the department provided housing and employment
assistance, bus passes and tokens, substance abuse monitoring, and intensive
in-home therapeutic services.
Had father participated in the in-home services, his interaction with
the children would have been observed.
the record reveals that the one-month delay in approval of
the treatment plan was due to father's request for a
to father's release from incarceration, the caseworkers monitored his compliance
with the treatment plan through court hearings;
interaction with the children was appropriate;
father was given one year to participate in appropriate rehabilitative
services after he was released *263
This evidence is sufficient to support the juvenile court's finding
that the department made reasonable efforts to rehabilitate father.
Therefore, we perceive no violation of his right to due
in Interest of C.A.K., supra,
652 P.2d at 610, 612, 613;
in Interest of A.M.D., supra,
648 P.2d at 631, 641.
the foregoing reasons, the judgment of the juvenile court is
WEBB and Judge CARPARELLI concur.
ex rel. J.A.S.