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(Cite
as: 961 P.2d 588)
Colorado
Court of Appeals,
Div.
III.
The
PEOPLE of the State of Colorado, In the Interest of
P.A.M., a Child, Upon
the
Petition of the Denver Department of Social Services, Petitioner-Appellee,
and
Concerning L.V.M., Respondent-Appellant.
No.
97CA1335.
May
14, 1998.
Rehearing
Denied June 11, 1998.
Certiorari
Denied July 27, 1998.
Blood
Tribe of Canada was not entitled to notice of dependency
or neglect proceeding pursuant to Indian Child Welfare Act (ICWA),
even assuming absence of Blood Tribe from list of tribes
eligible for services provided to Indians by Department of Interior
under the ICWA was not conclusive proof that this tribe
was not eligible, where mother failed to present any evidence
otherwise showing that tribe was eligible. Indian Child Welfare Act
of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
Party
asserting applicability of Indian Child Welfare Act (ICWA) has burden
of proving that tribe is recognized as eligible for services
to Indians by Department of Interior under the Act. Indian
Child Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
List
of Native American tribes eligible for services provided to Indians
by Department of Interior under the Indian Child Welfare Act
(ICWA) is published annually in the Federal register. Indian Child
Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
In
determining evidence was sufficient to show mother had not substantially
complied with treatment plan, in proceeding to terminate parent-child relationship,
trial court applied proper standard of proof by requiring clear
and
convincing evidence, rather than applying standard of beyond reasonable doubt,
as required by Indian Child Welfare Act. Indian Child Welfare
Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.; West's C.R.S.A. § 19-3-
604(1).
Parental
rights termination order was not invalid on theory that juvenile
court failed to consider less drastic alternatives to termination where
order contained express finding that there were no less drastic
alternatives available.
*589
Daniel E. Muse, City Attorney, Lori A. Mallia, Assistant City
Attorney, Denver, for Petitioner-Appellee.
Diana M. Richett, Guardian Ad Litem.
Gale A. Drexler, Littleton, Colorado; Sandra Shwayder Sanchez, Denver, for
Respondent-Appellant.
Opinion by Judge BRIGGS.
L.V.M. (mother) appeals from a judgment entered by the juvenile
court terminating
the parent-child legal relationship between her and her child, P.A.M.
We affirm.
I.
Mother
contends the juvenile court erred in finding that the Blood tribe of Canada
was not entitled to notice of the dependency or neglect proceeding, pursuant
to the Indian Child Welfare Act of 1978, 25 U.S.C. § 1901, et
seq. (1978)(ICWA). We find no error.
In a state court proceeding for termination of parental rights,
notice must be sent to the tribe of any child
the court has reason to know is an "Indian child."
25 U.S.C. § 1912(a)
(1978). Under the ICWA, an "Indian child" is defined 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)
(1978). "Indian tribe" is defined as "any Indian tribe, band,
nation, or other organized group or community of Indians recognized
as eligible for the services provided to Indians by the
Secretary [of the Interior] because of their status as Indians...."
Thus, the ICWA applies only to
"eligible" tribes. The burden of proof is on the
party asserting the ICWA is applicable. See
People in Interest of A.G.-G.,
899 P.2d 319 (Colo.App.1995); In
re Stiarwalt, 190 Ill.App.3d
547, 137 Ill.Dec. 420, 546 N.E.2d 44 (1989).
A list of eligible tribes is published
annually in the Federal register. See
Indian Entities Recognized and Eligible to Receive Services From the United
States Bureau of Indian Affairs, 62 Fed.Reg. 55,270 (1997); 61 Fed.Reg.
58,211 (1996); In
re Stiarwalt, supra
(lack of listing in Federal register demonstrates conclusively tribe is
not eligible); Application
of Angus, 60 Or.App.
546, 655 P.2d 208 (1982); In
re M.C.P., 153 Vt.
275, 571 A.2d 627 (1989). The Blood tribe of Canada was not
on the list. Even if we were to assume this was not conclusive,
mother failed to present any evidence otherwise showing that the Blood
tribe was eligible for services from the Secretary of the Interior.
*590
We therefore conclude the juvenile court properly determined the Blood
tribe was not entitled to notice. See
In re Stiarwalt, supra; Application of Angus, supra; In re
M.C.P., supra.
II.
In
a related argument, mother asserts the juvenile court applied an incorrect
standard of proof and thus erred in finding the evidence was sufficient
to show she had not substantially complied with the treatment plan. She
argues the court should have applied the standard of beyond a reasonable
doubt, as required by the ICWA, instead of requiring proof by clear and
convincing evidence.
However, for the reason just discussed, the juvenile court applied
the proper
standard of clear and convincing evidence, as required under § 19-3-
604(1), C.R.S.1997. See
People in Interest of A.E.,
749 P.2d 450 (Colo.App.1987); In
re B.R.B.,
381 N.W.2d 283 (S.D.1986). We further conclude the record contains
sufficient evidence regarding mother's lack of compliance to support the
juvenile court's finding under that standard. Hence, we will not
disturb the finding on review. People
in Interest of C.A.K.,
652 P.2d 603 (Colo.1982).
III.
Mother's final contention is that the juvenile court erred in failing
to consider less drastic alternatives to termination. However,
the juvenile court's order contains an express finding that there were
no less drastic alternatives. See
People in Interest of M.M.,
726 P.2d 1108 (Colo.1986). Because the record supports that finding, we
again will not disturb it on review. People
in Interest of C.A.K., supra.
The judgment is affirmed.
PLANK and CASEBOLT, JJ., concur.
961 P.2d 588, 98 CJ C.A.R. 2406
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