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(Cite
as: 709 P.2d 604)
Colorado
Court of Appeals,
Div.
I.
The
PEOPLE of the State of Colorado, Petitioner-Appellee,
In
the Interest of C.A.J., a child,
and
concerning, E.J., Respondent-Appellant.
No.
84CA1351.
Sept. 26, 1985.
Rehearing
Denied Oct. 31, 1985.
Trial
court in proceeding to terminate parental relationship was correct in
applying Indian Child Welfare Act of 1978, §§ 2 et seq.,
4, 25 U.S.C.A. §§ 1901 et seq., 1903, requiring proof beyond
reasonable doubt that continued custody of child is likely to result in
serious emotional or physical damage to child, rather than C.R.S. 19-11-101
et seq., which requires clear and convincing evidence, where child's native
American status was verified by Bureau of Indian Affairs.
Expert
testimony that child was special needs child who would not develop properly,
unless provided special education, placement in developmental preschool,
and constant attention at home, and evidence that father had failed to
obtain suitable residence, and had been unable and unwilling to comply
with court-approved treatment plans, was sufficient to sustain People's
burden of proving that father's continued custody of child was likely
to result in serious emotional or physical damage to child in proceeding
to terminate father's parental relationship with child pursuant to federal
Indian Child Welfare Act. Indian Child Welfare Act of 1978, § 4,
25 U.S.C.A. § 1903.
Evidence
that father could not provide child with special care needed, and that
child would experience serious emotional or physical damage if father
were given custody, was sufficient to show, by clear and convincing evidence,
criteria
for termination of parent-child relationship pursuant to C.R.S. 19- 11-101
et seq., governing state proceedings to terminate parental rights.
Motion
by Department of Social Services for termination of father's parental
relationship with child provided father with proper notice of proceeding,
even though notice did not set forth factual grounds for
termination, but merely recited language of applicable statute [C.R.S. 19-11-105].
Father's
contention that Indian Child Welfare Act [Indian Child Welfare Act
of 1978, § 4,
25 U.S.C.A. § 1903]
precluded mother from placing child in foster home within ten
days of child's birth was not properly before court upon
appeal from judgment terminating father's parental relationship with child, where
father failed to raise such issue at trial.
*605
Stephen H. Kaplan, City Atty., Robert Lubowitz, Asst. City Atty.,
Denver, for petitioner-appellee.
J. Patrick McCahill, Denver, Guardian Ad Litem.
James E. Hautzinger, Denver, for respondent-appellant.
ENOCH, Chief Judge.
E.J. (father) appeals from a trial court judgment terminating his
parental relationship with his child, C.A.J. We affirm.
Three days after the child was born, her mother, an
Alaskan Indian, voluntarily placed her with the Denver Department of
Social Services (Department). Mother then left the Denver area and
her whereabouts are unknown. She has had no further contact
with the child or authorities. Father was not aware of
the child's birth until the child was almost a month
old. Shortly thereafter, he requested parental custody from the Department.
The Department filed a dependency or neglect petition under § 19-1-103,
C.R.S. (1978 Repl.Vol. 8), which the court granted. The court
then approved a treatment plan for father, which it later
modified. Fourteen months later, the Department filed a motion to
terminate both parents' parent-child relationship, after which father's treatment plan
was again modified two more times. The court also ordered
a psychological/psychiatric reevaluation of father and required that father participate
in a parent-child interaction study.
A week before the termination hearing was scheduled, father filed
a motion opposing termination and a motion for an alternative
treatment plan, under which he would have received temporary custody
of *606
the child. The court denied his motions and ordered that
his parent-child relationship be terminated. The parent-child relationship as to
the child's mother was terminated through an entry of default
judgment. The court, however, stayed its order pending this appeal.
Father contends on appeal that the Department did not meet
the burden of proof required to terminate his parent-child relationship.
We disagree.
Clear and convincing evidence
is the constitutional standard of proof required in termination cases
under § 19-11-101, et seq., C.R.S. (1978 Repl. Vol. 8). People
in Interest of A.M.D,
648 P.2d 625 (Colo.1982). Here, however, because the child's
native American status was verified by the Bureau of Indian Affairs, the
court was correct in applying the provisions of the Federal Indian Child
Welfare Act (Act) 25 U.S.C. § 1901, et seq., which, in termination
cases, requires proof beyond
a reasonable doubt
that continued custody of the child is likely to result in serious emotional
or physical damage to the child. In
re J.L.H., 299 N.W.2d
812 (S.D.1980). See
also A.B.M. v. M.H. & A.H.,
651 P.2d 1170 (Alaska 1982); 25 U.S.C. §§ 1901 and
1903.
Here, the trial court entered
an order which contained extensive and thorough
findings of fact, all of which are amply supported by the record. The
evidence, which included significant expert testimony, established that
the child is a "special needs child," with language problems
and marginal development in other crucial areas, that she is emotionally
and physically fragile, withdrawn and inhibited, and that she has dietary
problems, all of which require close monitoring and supervision. The
evidence was uncontroverted that the child needs special education, placement
in a developmental pre-school, and constant attention at home. The
experts' opinion was that if her future environmental conditions were
inadequate, she would not develop properly, but would encounter serious
physical and emotional problems.
The evidence further established that father lives a "nomadic lifestyle."
Every witness who had contact with him described a long
history of missed appointments and failure to follow court-appointed instructions.
The record also contains extensive testimony that reasonable efforts by
child care agencies had been made to help him successfully
complete the various court-approved treatment plans. Nevertheless, he failed to
obtain a suitable residence, did not inform the Department of
his whereabouts, failed to obtain a psychiatric examination, and thus
demonstrated an inability and unwillingness to comply with the plans.
The evidence established beyond a reasonable doubt that father could
not provide the child with the special care needed, and
that she
would experience serious emotional or physical damage if he were
given custody. Thus, the court was correct in terminating father's
parental rights under the Act.
The
evidence also established, by clear and convincing evidence, the criteria
for termination of the parent-child relationship under § 19-11-101,
et seq., C.R.S. (1978 Repl.Vol. 8).
We
find no merit in father's contention that the Department's motion for
termination of the parent-child relationship failed to give proper notice
because it did not set forth factual grounds for termination, but merely
recited the language of § 19-11-105, C.R.S. (1978 Repl.Vol.
8). People in
Interest of M.H., 683
P.2d 807 (Colo.App.1984) is dispositive of this contention.
Because
it was not raised as an issue in the trial court, we do not address father's
contention that the Act precluded mother from placing the child in a foster
home within 10 days of the child's birth. See
Wickland v. Snyder,
39 Colo.App. 403, 565 P.2d 976 (1977).
Judgment affirmed.
SMITH and METZGER, JJ., concur.
709 P.2d 604
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