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(Cite
as: 749 P.2d 450)
Colorado
Court of Appeals,
Div.
III.
The
PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest
of
A.E.,
C.E., and J.E., Children,
And
Concerning M.E., Respondent-Appellant.
No.
87CA0087.
Nov.
12, 1987.
Rehearing
Denied Dec. 17, 1987.
The
Indian Child Welfare Act does not set forth requisite criteria
for membership in Indian tribe which would bring child within
purview of Act; instead, each Indian tribe has authority to
determine its membership criteria and to decide who meets those
criteria. Indian Child Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
Although
child's enrollment in Indian tribe is probative of membership, for
purposes of determining applicability of Indian Child Welfare Act, it
is not the sole means of establishing tribal membership, nor
is it determinative. Indian Child Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
Trial
court should not have concluded that children who were subject
of termination proceeding were Indian children within meaning of Indian
Child Welfare Act and should not have applied the Act
to termination proceeding in the absence of evidence establishing children's
membership or eligibility for membership in Indian tribe and in
the absence of evidence establishing mother's membership or eligibility for
membership in Indian tribe. Indian Child Welfare Act of 1978,
§ 2
et seq., 25 U.S.C.A. § 1901
et seq.
Appropriateness
of treatment plan, which must be tried before termination of
parental rights, must be measured by its likelihood of success
in reuniting family by eliminating those factors which initiated state
intervention.
Appropriateness
of treatment plan, which must be tried before termination of
parental rights, is not defeated simply because treatment plan is
ultimately unsuccessful; rather, its requirements must be assessed in light
of realities extant at time of its adoption.
Failure
of treatment plan to consider family's Indian heritage, which was
unknown at time of adoption of plan, did not render
plan inappropriate.
Visitation
provisions of treatment plan, which had to be tried before
termination of parental rights, were not so unreasonable as to
render treatment plan inappropriate; mother's failure to visit children was
not because of financial problems or lack of transportation, but
because mother refused
to accept transportational alternatives and failed to telephone or write
letters to children under modified plan.
Evidence
supported termination of mother's parental rights; mother was unwilling to
provide reasonable parental care, refused return of oldest child, failed
to maintain contact with social worker and children during four-year
pendency of matter, it was unlikely that mother would change
within reasonable time, efforts were made to facilitate rehabilitation of
mother, no feasible alternatives to termination existed, and termination was
in best interests of children. C.R.S. 19-11-105(1, 2).
*451
Robert J. Main, Asst. Co. Atty., Brighton, for petitioner-appellee.
Holland and Scott, Cynthia Rixey Scott, Denver, for respondent-appellant.
Deborah A. Cooper, Boulder, guardian ad litem.
BABCOCK, Judge.
M.E., mother, appeals an order of the trial court terminating
the parent-child legal relationship between her and her minor children,
A.E., C.E., and
J.E. She contends that termination of her parental rights was
improper under the Indian Child Welfare Act, 25 U.S.C. § 1901
et seq. (ICWA), and under the Colorado Children's Code, § 19-11-101
et seq., C.R.S. (1986 Repl.Vol. 8B). We affirm.
I.
On the second day of the termination hearing, the children's
father, who is not a party to this appeal, submitted
relinquishment papers to the trial court which indicated for the
first time in the four-year pendency of the matter that
the children were of Native American descent. To facilitate compliance
with the ICWA, the trial court continued the hearing for
notification of the Creek Nation, the Indian tribe with which
the children were allegedly associated.
Three months later, without having received a response from the
Creek Nation requesting or declining intervention or verifying the parents'
or the childrens' membership status, the termination hearing resumed. M.E.'s
attorney advised the trial court of efforts made to contact
the Creek Nation. An offer of proof as to the
testimony of a social worker affiliated with the Indian Child
Welfare Board was made, indicating that she believed the children
were eligible for membership in the Creek Nation; when questioned,
however, the social worker stated that she did not know
the membership criteria of the Creek Nation. In addition, an
offer of proof as to the testimony of the children's
maternal grandmother was made, showing that she had been an
enrolled member
of the Creek Nation all of her life.
In its memorandum opinion and order terminating the parent-child legal
relationship between mother and her children, the trial court found
that mother and the children were eligible for membership in
the Creek Nation and applied the ICWA. Mother contends that,
in terminating her parental rights, the trial court did not
comply with 25 U.S.C. § 1912
of the ICWA. The Department of Social Services (department) contends
that the ICWA is inapplicable. We agree with the department.
The ICWA sets forth minimum federal standards for the removal
of an Indian child from his family. 25 U.S.C. § 1902;
People
in Interest of J.L.G.,
687 P.2d 477 (Colo.App.1984). It defines "Indian child" as "any
unmarried person who is under the age of 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." 25 U.S.C. § 1903(4)
(emphasis added). Until it is established on the record that
the child meets one or both of these criteria, the
ICWA is not applicable. Matter
of Appeal of Maricopa County,
136 Ariz. 528, 667 P.2d 228 (App.1983).
*452
The ICWA does not set forth
requisite criteria for membership in an Indian tribe; instead, each
Indian tribe has the authority to determine its membership criteria and
to decide who meets those criteria. In
re Junious M., 144
Cal.App.3d 786, 193 Cal.Rptr. 40 (1983); Application
of Angus, 60 Or.App.
546, 655 P.2d 208 (1982); 44 Fed.Reg. 67,584, at 67,586 (1979).
Although enrollment in an Indian
tribe is probative of membership, it is not the sole means of establishing
tribal membership, nor is it determinative. In
re Junious M., supra;
44 Fed.Reg. 67,584 at 67,586 (1979). The Guidelines
for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg.
67,584 (1979), advise that determination by an Indian tribe as to a child's
eligibility for membership or membership in that tribe is conclusive.
In re Smith,
46 Wash.App. 647, 731 P.2d 1149 (1987); see
generally People in Interest of C.A.J.,
709 P.2d 604 (Colo.App.1985).
There
is nothing in the record establishing the children's membership or eligibility
for membership in the Creek Nation, and no evidence was adduced establishing
mother's membership or eligibility for membership in the Creek Nation.
Furthermore, the Creek Nation did not respond to the notice
of the proceedings, and no evidence concerning the membership criteria
of the Creek Nation was introduced.
Thus, the record fails to establish an evidentiary basis for
the trial court's finding that mother and the children were
eligible for membership in the Creek Nation. See
Matter of Appeal of Maricopa County, supra; People in Interest
of C.R.M.,
307 N.W.2d 131 (S.D.1981); In
re Smith, supra.
Accordingly, the trial court erred in concluding that the children
were Indian children
within the meaning of the ICWA and in applying the
ICWA to the termination proceeding. We conclude, however, that the
error does not require reversal because termination of the parent-child
legal relationship was proper under § 19-11-105,
C.R.S. (1986 Repl.Vol. 8B).
II.
Mother contends that termination was improper because the treatment plan
was inappropriate, arguing that it did not consider the family's
Indian heritage and that it unreasonably required her to drive
from Denver to Pueblo to visit the children. We disagree.
The
appropriateness of a treatment plan must be measured by its likelihood
of success in reuniting the family by eliminating those factors which
initiated state intervention. People
in Interest of M.M.,
726 P.2d 1108 (Colo.1986); People
in Interest of B.J.D.,
626 P.2d 727 (Colo.App.1981). Appropriateness is not defeated
simply because a treatment plan is ultimately unsuccessful; rather,
its requirements must be assessed in light of the realities extant at
the time of its adoption. People
in Interest of M.M., supra; People in Interest of C.A.K.,
652 P.2d 603 (Colo.1982).
Neither the trial court nor the
department became aware of the family's Indian heritage until the second
day of the termination hearing. The failure of the treatment
plan to consider something which was unknown at the time
of its adoption does not render it inappropriate.
Mother's failure to visit the
children was not because of financial problems or lack of transportation.
Instead, mother refused to accept transportational alternatives
offered by the department and failed to telephone or write letters to
the children under the modified plan. Under these circumstances,
we cannot conclude that the visitation provisions were so unreasonable
as to render the treatment plan inappropriate.
III.
Mother's
remaining contentions concern the sufficiency of the evidence with respect
to the statutory criteria for termination. See
§ 19-11-105(1) and (2), C.R.S. (1986 Repl.Vol. 8B). Our
review of the record reveals that clear and convincing evidence was adduced
to show that mother was unwilling to provide reasonable parental *453
care, refusing the return of her oldest child in August 1985; that
mother failed to maintain contact with her social worker and the children
during the four-year pendency of the matter; that, in light of mother's
past conduct, it was unlikely that she would change within a reasonable
time; that the department made monumental efforts to facilitate
rehabilitation of mother; that no feasible alternatives to termination
existed; and that termination was in the best interests of the children.
See People
in Interest of A.H.,
736 P.2d 425 (Colo.App.1987).
Judgment affirmed.
STERNBERG and TURSI, JJ., concur.
749 P.2d 450
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