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(Cite
as: 961 P.2d 606)
Colorado
Court of Appeals,
Div.
I.
The
PEOPLE of the State of Colorado, in the Interest of
R.L., a Child, Upon the
Petition
of the Denver Department of Social Services, Petitioner-Appellee,
and
Concerning
L.A.L., Respondent-Appellant.
No.
97CA1786.
June 25, 1998.
Department
of Social Services (DSS) could not take contrary position on appeal,
that
the Indian Child Welfare Act (ICWA) did not apply to proceedings to terminate
mother's parental rights, where mother was advised of her rights under
the ICWA at her first appearance in the proceeding, the provisions of
the ICWA were applied at the adjudicatory stage of the proceeding at the
request of the DSS, and at the beginning of the termination hearing, counsel
for the DSS again reminded the trial court that the ICWA applied to the
proceeding. Indian Child Welfare Act of 1978, § 2 et seq., 25
U.S.C.A. § 1901 et seq.
Under
the Children's Code, the criteria for termination of the parent-child
legal relationship must be established by clear and convincing evidence.
West's C.R.S.A. § 19-3-604(1).
If
termination proceeding concern an Indian child, the Indian Child Welfare
Act (ICWA) imposes additional minimum federal standards with which a state
court must comply. Indian Child Welfare Act of 1978, § 3,
25 U.S.C.A. § 1902.
Clear
and convincing evidence supported termination of mother's parental rights
under Children's Code, where there was evidence that mother, who was serving
a 15-year sentence in the Department of Corrections on a felony conviction,
would not become eligible for parole until more than six years after the
date the child
had been adjudicated dependent or neglected. West's C.R.S.A. § 19-3-
604(1)(b)(III).
Trial
court did not make findings required for terminating parental rights under
Indian Child Welfare Act (ICWA), and thus, remand was required for further
proceedings. Indian Child Welfare Act of 1978, § 102(d, f),
25 U.S.C.A. § 1912(d, f).
Under
Indian Child Welfare Act (ICWA), Department of Social Services (DSS) was
required to prove beyond a reasonable doubt that active efforts were made
to provide remedial services and rehabilitative programs designed to prevent
the breakup of the Indian family and that these efforts were unsuccessful
before trial court could terminate parental rights. Indian Child Welfare
Act of 1978, § 102(d), 25 U.S.C.A. § 1912(d).
Witness
in action to terminate parental rights under Indian Child Welfare Act
(ICWA) did not have to have special knowledge of Indian life, and
it was sufficient that she had substantial education and experience in
the area of her specialty, where determination of unfitness supporting
the termination was based on culturally-neutral fact of mother's long-term
incarceration. Indian Child Welfare Act of 1978, § 102(f), 25
U.S.C.A. § 1912(f).
If
termination of parental rights of an Indian child is based on parental
unfitness unrelated to Indian culture or society, an expert witness qualified
to testify pursuant to Indian Child Welfare Act (ICWA) need not possess
special knowledge of Indian life. Indian Child Welfare Act of 1978, § 102(f),
25 U.S.C.A. § 1912(f).
Evidence
supported finding in action to terminate parental rights that mother's
sister was not an appropriate caretaker for the child, where there was
evidence of an unfavorable home evaluation of the mother's sister, and
there was no obligation to afford rehabilitative services to mother's
sister.
*607
Daniel E. Muse, City Attorney, Elizabeth A. Adams, Assistant City Attorney,
Denver, for Petitioner-Appellee.
Diana M. Richett, Lakewood, for
Respondent-Appellant.
Opinion by Judge KAPELKE.
L.A.L. (mother) appeals from
a trial court judgment terminating her parent-child legal relationship
with her child, R.L. We vacate the judgment and remand for further proceedings.
*608
I.
Mother contends that the trial court erred in not applying the provisions
of the Indian Child Welfare Act of 1978, 25 U.S.C. §1901, et seq.
(1978) (ICWA), in terminating her parental rights. In particular,
she asserts that
the trial court did not make the findings required by 25 U.S.C. §§ 1912(d)
and 1912(f) (1978). We agree.
Initially, we reject the assertion
of the Department of Social Services (the department) that the ICWA does
not apply because the record is devoid of evidence that the child is an
"Indian child" as defined by 25 U.S.C. § 1903(4) (1978).
Mother was advised of her rights
under the ICWA at her first appearance in the proceeding, and the provisions
of the ICWA were applied at the adjudicatory stage of the proceeding at
the request of the department. Also, at the beginning of the
termination hearing, counsel for the department again "reminded"
the trial court that the ICWA applied to the proceeding. Under
these circumstances, the department may not take a contrary position on
appeal. See
Kempter v. Hurd, 713
P.2d 1274 (Colo.1986); A.B.M.
v. M.H., 651 P.2d 1170
(Alaska 1982) (adoptive parents who acknowledged that the child was member
of Indian tribe were bound by that judicial admission).
Under
the Colorado Children's Code, the criteria for termination of the parent-child
legal relationship must be established by clear and convincing evidence.
Section §19-3-604(1), C.R.S.1997; People
in Interest of A.M.D.,
648 P.2d 625 (Colo.1982). However, if the termination proceeding
concerns an Indian child, the ICWA imposes additional minimum federal
standards with which a state court must comply. 25 U.S.C. §1902
(1978);
People in Interest
of A.E., 749 P.2d 450
(Colo.App.1987).
These federal standards include
determinations made pursuant to 25 U.S.C. § 1912, which, as
pertinent here, provides:
(d)
Any party seeking to effect a foster care placement of, or termination
of parental rights to, an Indian child under State law shall satisfy the
court that active efforts have been made to provide remedial services
and rehabilitative programs designed to prevent the breakup of the Indian
family and that these efforts have proved unsuccessful.
* * *
(f)
No termination of parental rights may be ordered in such a proceeding
in the absence of a determination, supported by evidence beyond a reasonable
doubt, including testimony of qualified expert witnesses, that the continued
custody of the child by the parent or Indian custodian is likely to result
in serious emotional or physical damage to the child.
See People in
Interest of C.A.J.,
709 P.2d 604 (Colo.App.1985); A.B.M.
v. M.H., supra; Guidelines
for State Courts--Indian Child Custody Proceedings, 44 Fed.Reg. 67,584,
at 67,592 (1979).
Here, the trial court found that
the criteria for termination under §19-3-604, C.R.S.1997, had been
established by clear and convincing evidence. The court's
finding was supported by evidence that mother, who was serving a 15-year
sentence in the Department of Corrections on a felony conviction,
would not become eligible for parole until August 2003, more than "six
years after the date the child had been adjudicated dependent or neglected."
See
§19-3-604(1)(b)(III), C.R.S.1997. See
also People in Interest of T.T.,
845 P.2d 539 (Colo.App.1992); People
in Interest of C.A.J., supra.
However, in ordering termination,
the trial court did not make the findings required by 25 U.S.C. §§1912(d)
and 1912(f) (1978). Thus, we must remand for further proceedings.
II.
As
to an issue that may arise on remand, mother contends that the findings
made pursuant to 25 U.S.C. §1912(d) (1978) must be supported by evidence
beyond a reasonable doubt. We agree.
Unlike 25 U.S.C. §1912(f)
(1978), which expressly requires that the pertinent determination under
this section be "supported by evidence beyond a reasonable doubt,"
25 *609
U.S.C. §1912(d) (1978) does not specify the requisite standard of
proof. See
People in Interest of C.A.J., supra; People in Interest of S.R.,
323 N.W.2d 885 (S.D.1982). In considering this issue, most
courts have concluded that, in a termination proceeding, the standard
of proof for findings under 25 U.S.C. §1912(d) (1978) is the same
as that set forth in 25 U.S.C. §1912(f) (1978). See
In re L.N.W., 457 N.W.2d
17 (Iowa App.1990); In
re Welfare of M.S.S.,
465 N.W.2d 412 (Minn.App.1991);
In re Kreft,
148 Mich.App. 682, 384 N.W.2d 843 (1986); People
in Interest of S.R., supra. But see In re Michael G.,
63 Cal.App.4th 700, 74 Cal.Rptr.2d 642 (1998).
Because findings pursuant to
25 U.S.C. §§1912(d) and 1912(f) (1978) are predicates to termination
under the ICWA, we conclude that logic compels application of the same
"beyond a reasonable doubt" standard of proof as to both statutory
provisions. See
In re Welfare of M.S.S., supra.
III.
Mother
also contends that a witness qualified as an expert to testify pursuant
to 25 U.S.C. §1912(f) (1978) must possess special knowledge of the
social and cultural aspects of Indian life. Thus, she argues,
the expert in this case, who did not possess such knowledge, was unqualified.
We disagree.
The ICWA does not define "qualified
expert witness." However, the Guidelines for State Courts--Indian
Child Custody Proceeding, supra,
at 67,593, instruct that:
(b)
Persons with the following characteristics are likely to meet the requirements
for a qualified expert witness for the purposes of Indian child custody
proceedings:
(i)
A member of the Indian child's tribe who is recognized by the tribal community
as knowledgeable in tribal customs as they pertain to family organization
and childrearing practices.
(ii)
A lay expert witness having substantial experience in the delivery of
child and family services to Indians, and extensive knowledge of prevailing
social and cultural standards and childrearing practices within the Indian
child's tribe.
(iii)
A professional person
having substantial education and experience in the area of his or her
specialty. (emphasis
added)
While
the Guidelines suggest that the persons most likely to meet the requirements
for a qualified expert witness would possess special knowledge of Indian
culture and society, such special knowledge is not required. Thus,
if termination is based on parental unfitness unrelated to Indian culture
or society, an expert witness qualified to testify pursuant to 25 U.S.C.
§ 1912(f) (1978) need not possess special knowledge of Indian
life. See
In re Kreft, supra; State ex rel. Juvenile Department v. Tucker,
76 Or.App. 673, 710 P.2d 793 (1985).
Here, the determination of unfitness
supporting the termination was based on mother's long-term incarceration,
a consideration that is culturally neutral. Thus, under these circumstances,
the witness qualified to testify as an expert pursuant to 25 U.S.C. §1912(f)
(1978) did not have to have special knowledge of Indian life; rather,
it was sufficient that she had substantial education and experience in
the area of her specialty. See
Guidelines for State Courts--Indian Child Custody Proceedings, supra,
at 67,593; State
ex rel.
Juvenile Department v. Tucker, supra.
IV.
Finally, we reject mother's
contention that the termination was improper because no efforts were made
to provide services to mother's sister to render her an appropriate caretaker
for the child. The record, which includes evidence of an unfavorable
home evaluation of the mother's sister, supports the trial court's determination
that there were no less drastic alternatives to termination. Under
the circumstances, there was no obligation to afford rehabilitative services
to mother's sister.
The judgment is vacated, and
the cause is remanded to the trial court for further proceedings including
the entry of findings pursuant to 25 U.S.C. §§ 1912(d)
and 1912(f) under *610
a "beyond a reasonable doubt" standard. The court may, in its
discretion, conduct an evidentiary hearing. If the court determines
that the requirements of those statutes have been established beyond a
reasonable doubt, the court may re-enter the judgment of termination subject
to mother's right to appeal that ruling.
METZGER and JONES, JJ., concur.
961 P.2d 606, 98 CJ C.A.R. 3430
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