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(Cite
as: 899 P.2d 319)
Colorado
Court of Appeals,
Div.
I.
The
People of the State of Colorado, In the Interest of
A.G.-G., a Child, Upon
the
Petition of the El Paso County Department of Social Services,
n/k/a the El
Paso
County Department of Human Services, Petitioner-Appellee,
and
Concerning A.G. and A.G., Jr., Respondents-Appellants.
Nos.
93CA2204, 94CA0009.
April 20, 1995.
Rehearing
Denied June 15, 1995.
Indian
Child Welfare Act (ICWA) sets forth minimum federal standards for
removal of Indian child from her family and therefore, for
ICWA to apply, "Indian child" must be involved in the
proceedings. Indian Child Welfare Act of 1978, § 3,
25 U.S.C.A. § 1902.
Until
party asserting applicability of Indian Child Welfare Act (ICWA) establishes,
on the record, that child meets the statutory definition of
"Indian child," ICWA is not applicable. Indian Child Welfare Act
of 1978, § 4(4),
25 U.S.C.A. § 1903(4).
Although
there is no one method of proof of membership in
Indian tribe, testimony of representative of tribal government or enrollment
in Indian tribe may be probative of membership for purposes
of determining whether child is "Indian child," such that Indian
Child Welfare Act (ICWA) is applicable. Indian Child Welfare Act
of 1978, § 4(4),
25 U.S.C.A. § 1903(4).
It
is unnecessary that Indian tribe or Bureau of Indian Affairs
(BIA) reach conclusive determination regarding child's eligibility for membership as
prerequisite for Indian Child Welfare Act (ICWA) to apply. Indian
Child Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
Without
conclusive determination regarding child's eligibility for membership in Indian tribe,
trial court must ascertain if child is "Indian child," such
that Indian Child Welfare Act (ICWA) is applicable. Indian Child
Welfare Act of 1978, § 4(4),
25 U.S.C.A. § 1903(4).
Party
asserting applicability of Indian Child Welfare Act (ICWA) has burden
to produce the necessary evidence for trial court to determine
if child is "Indian child" and such evidence can include
affidavit of tribal official stating tribe's requirement for enrollment and
that child's father or mother was enrolled as member of
tribe and owned property on reservation. Indian Child Welfare Act
of 1978, § 4(4),
25 U.S.C.A. § 1903(4).
Absent
evidence that child was "Indian child," Indian Child Welfare Act
(ICWA) was not applicable to parental rights termination proceeding; although
mother and father informed caseworker and also testified that each
had Indian heritage, nothing in the record established their or
child's membership or eligibility for membership in any tribe and
although Department of Human Services gave notice of these proceedings
to Secretary of Interior pursuant to ICWA, no tribe responded.
Indian Child Welfare Act of 1978, § 4(4),
25 U.S.C.A. § 1903(4).
Provisions
of treatment plan for parents of dependent and neglected child
must be designed to assist parent in overcoming problems that
led to state's intervention and to adjudication of child as
dependent and neglected. West's C.R.S.A. § 19-3-508(1)(e)(II).
Appropriateness
of treatment plan for parent of dependent and neglected child
is
measured against the factors in existence at time of adoption
of plan and is evaluated by likelihood of success in
reuniting family. West's C.R.S.A. § 19-3-508(1)(e)(II).
Fact
that treatment plan for parent of dependent and neglected child
is not ultimately successful does not mean that it was
therefore inappropriate. West's C.R.S.A. § 19-3-508(1)(e)(II).
Credibility
of witnesses, sufficiency, probative effect, and weight of the evidence,
and inferences and conclusions to be drawn therefrom are all
within province of trial court whose conclusions will not be
disturbed on review unless so clearly erroneous as to find
no support in the record. West's C.R.S.A. § 19-3-508(1)(e)(II).
Treatment
plan for father of dependent and neglected child was appropriate
when adopted; fact that father's Department of Corrections (DOC) case
manager recognized that he had problem with anger control did
not mean that Department of Human Services caseworker should have
been able to determine that he needed help with anger
control at time treatment plan was adopted because, unlike caseworker,
case manager had benefit of hindsight in making his determination.
West's C.R.S.A. § 19-3-508(1)(e)(II).
Findings
supporting order determining parent-child legal relationship are adequate as long
as they conform to statutory criteria for termination. West's C.R.S.A.
§ 19-3-604.
Trial
court's findings conformed to the statutory criteria for termination so
as to support its order terminating father's rights to dependent
and neglected child. West's C.R.S.A. § 19-3-604(1)(c).
*321
Catherine Woelk-Rudisill, guardian ad litem.
El Paso County Atty., Beth Whittier, County Atty., Judith L.
Hufford, Colorado Springs, for petitioner-appellee.
Thomas A. Barnes, Jr., Colorado Springs, for respondent-appellant A.G.
S. David Kutinsky, Woodland Park, for respondent-appellant A.G., Jr.
Opinion by Judge METZGER.
In this consolidated appeal, A.G. (mother) and A.G., Jr. (father)
appeal from a judgment of the district court which terminated
their parent-child legal relationship
with A.G.-G., their daughter (the child). We affirm.
In November 1991, mother and father, each 17 years old,
were living with the child, then four months old, in
Colorado Springs. Following unaccounted for injuries, i.e.,
a skull fracture and a fractured tibia, the child was
adjudicated dependent and neglected. A treatment plan was devised, pursuant
to statutory mandate, and after mother and father successfully completed
it, the child was returned home.
Three weeks later, the child was hospitalized with fractures to
her left femur and tibia, three frontal subdural hematomas as
a result of a skull fracture, soft tissue contusions, abrasion
of the temple, and bruises to the buttocks and to
the legs. The father took responsibility for inflicting these injuries
and was sentenced to a term in the Department of
Corrections (DOC) as a result. The Department of Social Services,
n/k/a the Department of Human Services (the Department), thereafter moved
to terminate the parent-child relationship and, after a trial, the
court entered the judgment here at issue.
I.
Mother and father first contend that the trial court erred
in not applying the standards for termination found in the
Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901,
et seq. (1988). We disagree.
The ICWA sets forth minimum federal
standards for the removal of an Indian child from his or her family. 25
U.S.C. § 1902 (1988); People
in Interest
of J.L.G., 687 P.2d
477 (Colo.App.1984). For the ICWA to apply, therefore, an
"Indian child" must be involved in the proceedings.
The
ICWA defines an "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) (1988) (emphasis
supplied). Until the party asserting the applicability of
the ICWA establishes, on the record, that the child meets one or both
of these criteria, the ICWA is not applicable. See
People in Interest of A.E.,
749 P.2d 450 (Colo.App.1987).
The
ICWA does not set forth the 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. Formal
membership requirements differ from tribe to tribe, as does each tribe's
method of keeping track of its own membership. There is no
one method of proof of membership, but the testimony of a representative
of tribal government, Application
of Angus, 60 Or.App.
546, 655 P.2d 208 (1982), or enrollment in an Indian tribe may be probative
of membership. People
in Interest of A.E., supra.
The
federal guidelines for state court Indian child custody proceedings advise
that determination by an Indian tribe as to a child's eligibility for
membership in that tribe is conclusive. Guidelines for State
Courts;
Indian Child Custody Proceedings, 44 Fed.Reg. 67,584 (1979); see
People in Interest of A.E., supra.
Nevertheless, it is unnecessary *322
that a tribe or the Bureau of Indian Affairs (BIA) reach a conclusive
determination regarding a child's eligibility for membership as a prerequisite
for the ICWA to apply. Without a conclusive determination,
the trial court must ascertain if the child is an "Indian child."
Matter of Baby
Boy Doe, 123 Idaho
464, 849 P.2d 925 (1993). See
also Conference of
Western Attorney Generals, American Indian Law Deskbook (1993).
The
party asserting the applicability of ICWA has the burden to produce the
necessary evidence for the trial court to determine if the child is an
"Indian child." In
re Interest of J.L.M.,
234 Neb. 381, 451 N.W.2d 377 (1990); Matter
of Baby Boy Doe, supra.
Such evidence could include an affidavit of a tribal official
stating the tribe's requirement for enrollment and that the child's
father or mother was enrolled as a member of the
tribe and owned property on the reservation. Matter
of Baby Boy Doe, supra.
Additionally, testimony by the child's biological parents that they are
members of federally recognized Indian tribes, corroborating testimony by tribal
authorities and tribal enrollment forms showing the parents' membership, has
been deemed to constitute sufficient evidence that a child was
an "Indian child". Application
of Angus, supra.
However, the evidence has been determined to be insufficient when
the record was
devoid of any indication that the child, father or mother
was a member of an Indian tribe, and only school
records indicated that the father was an Indian. Matter
of Adoption of Baby Boy W.,
831 P.2d 643 (Okla.1992).
We find mother's reliance on Matter
of N.S.,
474 N.W.2d 96 (S.D.1991) misplaced because that case is factually
inapposite. There, the mother of N.S. was non-Indian; however, N.S.'s
father was a member of the Cheyenne River Sioux tribe.
The father's tribe was notified of the custody termination proceedings,
and it acknowledged N.S. and his father's tribal membership in
a letter sent to the trial court.
Here, although mother and father
informed their caseworker and also testified that each had Indian heritage
in the Sioux or Blackfoot Indian tribes, nothing in the record established
their or the child's membership or eligibility for membership in any tribe.
Furthermore, although the Department gave notice of these
proceedings to the Secretary of the Interior pursuant to the ICWA, no
tribe responded. Finally, no evidence concerning the membership
criteria for any tribe was introduced.
The trial court here, therefore, did not err in determining
that the ICWA was not applicable to these proceedings.
II.
Father contends the trial court erred in determining that an
appropriate treatment plan had been adopted for him. We disagree.
An "appropriate treatment plan" is one "which is reasonably calculated
to render the particular [parent] fit to provide adequate parenting
to the child within a reasonable time and which relates
to the child's needs." Section 19-3-508(1)(e)(II), C.R.S. (1994 Cum.Supp.).
A
treatment plan's provisions must be designed to assist the parent in overcoming
the problems that led to the state's intervention and to adjudication
of the child as dependent and neglected. People
in Interest of L.G.,
737 P.2d 431 (Colo.App.1987).
The
appropriateness of a treatment plan is measured against the factors in
existence at the time of adoption of the plan and is evaluated by the
likelihood of success in reuniting the family. People
in Interest of M.M.,
726 P.2d 1108 (Colo.1986). However, the fact that a plan is
not ultimately successful does not mean that it was therefore inappropriate.
People in Interest of
M.M., supra.
Here, father argues that he specifically told his caseworker about
his anger control problem and his ongoing depression. Thus, he
contends, the treatment plan should have contained provisions such as
requirements for a psychological evaluation or counseling to remedy these
problems. Absent such provisions, he argues, the treatment plan was
inappropriate when adopted.
*323
However, the Department's pre-disposition report and the testimony of the
Department's caseworkers reveal that, at the time the treatment plan
was drafted
and adopted, the caseworkers knew of father's prior episode of
depression following his grandfather's death. However, there is no indication
that father indicated that he was suffering from ongoing depression.
Furthermore, the caseworkers were unaware that father might have a
problem with anger control. Moreover, the caseworkers testified that no
factors such as drug or alcohol abuse or marital discord,
which might indicate a need for a psychological evaluation, appeared
to be present at the time the treatment plan was
adopted.
The caseworker who drafted the treatment plan testified that the
Department workers felt that, although the injuries to the child
may have been an indicator of an anger control problem
by someone, the Department was never able to assign the
blame for her injuries to any particular person. Furthermore, the
Department caseworkers felt, the abuse to the child was more
likely to have been a result of the parents' youth
and lack of parenting knowledge and education.
The
credibility of witnesses, the sufficiency, probative effect and weight
of the evidence, and the inferences and conclusions to be drawn therefrom
are all within the province of the trial court, whose conclusions will
not be disturbed on review unless so clearly erroneous as to find no support
in the record. People
in Interest of C.A.K.,
652 P.2d 603 (Colo.1982).
Given this record, and the conflicting
evidence it contains, we find no error in the trial court's determination
that the treatment plan was appropriate when adopted. In so
concluding, we note and reject father's argument that, since his DOC case
manager recognized he had a problem with anger control and recommended
he take an anger control course after his incarceration for child abuse,
the Department's caseworker should have been able to determine that he
needed help with anger control at the time the treatment plan was drafted.
Unlike the caseworker, the case manager had the benefit of
hindsight in making his determination.
III.
Father finally contends that the trial court's findings are insufficient
to support its conclusion that his conduct was unlikely to
change within a reasonable time. We disagree.
The findings supporting an order
terminating the parent-child legal relationship are adequate as long as
they conform to the statutory criteria set forth in § 19-3-604,
C.R.S. (1994 Cum.Supp.). See
People in Interest of A.J.,
757 P.2d 1165 (Colo.App.1988).
Here, the trial court's findings
conform to the statutory criteria set forth in § 19-3-604(1)(c),
C.R.S. (1994 Cum.Supp.). Thus, we find no error.
Judgment affirmed.
MARQUEZ and CASEBOLT, JJ., concur.
899 P.2d 319
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