COLORADO COURT OF APPEALS                                        2017COA61


Court of Appeals No. 16CA1366
Chaffee County District Court No. 15JV7
Honorable Patrick W. Murphy, Judge


The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of A.D. and Tr.D., Children,

and Concerning M.D. and T.D.,

Respondents-Appellants.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                 Division IV
                         Opinion by JUDGE FREYRE
                       Hawthorne and Ashby, JJ., concur

                            Announced May 4, 2017


Jennifer A. Davis, County Attorney, Chip E. Mortimer, Assistant County
Attorney, Salida, Colorado, for Petitioner-Appellee

Donald F. Cutler, IV, Guardian Ad Litem

The Gregory Law Firm, LLC, Christopher S.P. Gregory, Fort Collins, Colorado,
for Respondent-Appellant M.D.

Law Office of Poland Wheeler, P.C., Andrew C. Poland, Lakewood, Colorado, for
Respondent-Appellant T.D.
¶1    This termination of parental rights case presents a novel issue

 — may a county department of social services rely on its Indian

 Child Welfare Act of 1978 (ICWA) inquiries in a prior case involving

 the same respondent parents and one of the same children to

 satisfy its “continuing inquiries” obligation under section 19-1-

 126(1)(a), C.R.S. 2016, in a new case, and may a trial court find

 that ICWA does not apply in that new case based solely on the

 department’s inquiries in the prior case? We answer both of these

 questions “no” and conclude that the statute requires the

 department to inquire about Indian heritage in each new

 proceeding. Therefore, we reverse the judgment and remand the

 case to the trial court for further proceedings.

                            I.    Prior Case

¶2    In September 2013, the Chaffee County Department of Social

 Services (the Department) initiated a dependency and neglect

 proceeding involving five-year-old Tr.D. The shelter order stated,

 “The Respondents deny that their child, [Tr.D.] is a member of or

 eligible for membership in an Indian tribe.” The petition stated,

 “The Department of Human Services has questioned the child’s

 parents and has determined the child is not an Indian child.” The


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 petition was later withdrawn, and the case was successfully closed

 in September 2014.

                          II.   Current Case

¶3    In February 2015, the Department initiated another

 dependency and neglect proceeding concerning now six-year-old

 Tr.D. and six-month-old A.D. after M.D. (father) and T.D. (mother)

 were arrested on drug charges. The children were placed in foster

 care because of continued concern about the parents’ drug use.

¶4    The children were adjudicated dependent and neglected, and

 treatment plans were developed for both parents. Father’s

 treatment plan required him to (1) find ways to manage pain that

 did not include the use of controlled substances; (2) abstain from

 using illegal, prescribed, or nonprescribed controlled substances

 and live a substance-free lifestyle that would not put the children at

 risk; (3) maintain a relationship with the children through weekly

 visitation; and (4) provide a safe and stable living environment that

 would be suitable for the children. Mother’s treatment plan was

 identical to father’s.

¶5    Both parents struggled. Despite visitation schedule changes

 to accommodate their needs, both parents often arrived late, and a


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 number of visits were cancelled due to tardiness. They lost their

 right to unsupervised visits after testing positive for opiates during

 a visit, and they failed to maintain consistent employment, housing,

 and contact information.

¶6    Most significantly, neither could overcome addiction. Both

 parents delayed beginning outpatient treatment, and their

 participation in that treatment was described as “sporadic at best.”

 They were slow to begin drug testing, missed required tests, and on

 more than one occasion manipulated the test results. In December

 2015, the trial court ordered them to complete inpatient drug

 treatment. Father began an inpatient program but failed to

 complete it. Mother completed her inpatient program in February

 2016, but she tested positive for opiates only a few days after

 discharge.

¶7    Based on this record, the Department filed a petition to

 terminate parental rights. The petition stated that “the subject

 children are NOT Indian Children pursuant to the Indian Child

 Welfare Act, 25 U.S.C. § 1903(4).” No evidence concerning ICWA

 was elicited at the termination hearing. After the hearing, the trial




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  court issued a written order terminating parental rights. The order

  found, “The provisions of I.C.W.A. do not apply to this case.”

                      III.   Indian Child Welfare Act

¶8     Mother contends the record fails to support the court’s ICWA

  finding because the Department never asked about possible Indian

  heritage during the proceedings and, therefore, failed to satisfy its

  “continuing inquiry” duty under § 19-1-126(1)(a). She argues that

  the court’s reliance on the Department’s deficient inquiry is a

  material error because the applicability of ICWA affects the conduct

  of the case and the standard of proof to be met before termination

  of parental rights can be granted.

¶9     The Department responds that the ICWA issue was resolved

  with respect to Tr.D. in the prior case. It argues that the trial court

  satisfied the requirements of ICWA in this case by taking judicial

  notice of its ICWA finding in the prior case. It reasons that because

  A.D. is a full sibling of Tr.D., the court’s previous finding that Tr.D.

  was not an Indian child must also apply to her.

¶ 10   We conclude that § 19-1-126(1)(a), when considered with the

  relevant federal guidelines and the purposes of ICWA, required the

  Department to conduct new inquiries in this case to determine


                                       4
  whether the children were Indian children. Because no evidence in

  the record shows that any inquiries occurred, we agree with mother

  that the court’s order finding ICWA inapplicable is not supported by

  the record and that further proceedings are required.

                           A.    Relevant Law

¶ 11   Indian tribes have an interest in Indian children that is

  distinct from, but equivalent to, parental interests. B.H. v. People in

  Interest of X.H., 138 P.3d 299, 303 (Colo. 2006) (citing Miss. Band of

  Choctaw Indians v. Holyfield, 490 U.S. 30, 52 (1989)). Thus, in a

  proceeding in which ICWA may apply, tribes must have a

  meaningful opportunity to participate in determining whether a

  child who is a subject of the proceeding is an Indian child and to be

  heard on the issue of the applicability of ICWA. Id.

¶ 12   The policy underlying ICWA is “to protect the best interests of

  Indian children and to promote the stability and security of Indian

  tribes and families” by establishing federal standards for the

  removal of children from their families and for their placement in

  foster or adoptive homes. 25 U.S.C. § 1902 (2012). Inquiry into a

  child’s Indian heritage “ensures the tribe will be afforded the

  opportunity to assert its rights under [ICWA] irrespective of the


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  position of the parents, Indian custodian or state agencies.” In re

  Kahlen W., 285 Cal. Rptr. 507, 511 (Cal. Ct. App. 1991).

¶ 13   To ensure tribes have an opportunity to be heard, § 19-1-

  126(1)(a) provides that the petitioning or filing party shall “[m]ake

  continuing inquiries to determine whether the child who is the

  subject of the proceeding is an Indian child and, if so, shall

  determine the identity of the Indian child’s tribe.” See also B.H.,

  138 P.3d at 302 (“[T]he petitioning party has an affirmative duty to

  make continuing inquiries to determine whether the subject child is

  an Indian child.”). The trial court has the responsibility of

  monitoring compliance with ICWA and Colorado’s statute. Thus, if

  the initial pleading in a proceeding in which ICWA may apply does

  not disclose whether the subject child is an Indian child, it is the

  court’s duty to inquire of the parties whether the child is an Indian

  child and, if so, whether the parties have complied with ICWA’s

  procedural requirements. § 19-1-126(2); see also Guidelines for

  State Courts and Agencies in Indian Child Custody Proceedings, 80

  Fed. Reg. 10,146, 10,152, at B.2(b) (Feb. 25, 2015) (2015

  Guidelines) (requiring state courts to ask at the start of any relevant

  proceeding whether there is reason to believe the child is an Indian


                                     6
  child, and requiring participants in the proceeding to certify on the

  record whether they have discovered or know of any information

  suggesting the child is an Indian child).

¶ 14   Statutes enacted for the benefit of Indian tribes, including

  state-implementing statutes like § 19-1-126, “must be liberally

  construed in favor of Indian interests.” Montana v. Blackfeet Tribe

  of Indians, 471 U.S. 759, 766 (1985). Indeed, the importance of

  continuing inquiries is underscored in the 2015 Guidelines, which

  we recognize are not binding on state courts, but which are

  instructive when interpreting ICWA-implementing legislation. See

  B.H., 138 P.3d at 302 n.2 (citing the original Guidelines for State

  Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67584,

  67585-86 (Nov. 26, 1979), and noting that they “have been

  considered persuasive by state courts”).

¶ 15   Moreover, while not applicable here, we note that new federal

  regulations that codify this inquiry obligation became effective on

  December 12, 2016. See 25 C.F.R. §§ 23.107-.109, .111 (2016).

  The new regulations were quickly followed by new guidelines issued

  in December 2016. See Bureau of Indian Affairs, Guidelines for

  Implementing the Indian Child Welfare Act (Dec. 2016),


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https://perma.cc/3TCH-8HQM (2016 Guidelines). Consistent with

the 2015 Guidelines applicable here, these new regulations and

guidelines require the court to ask all participants in the case

whether there is reason to know the child is an Indian child and to

instruct the participants to inform the court if they later discover

information that provides reason to know the child is an Indian

child. See 25 C.F.R. § 23.107(a); 2016 Guidelines at 11. And, if a

new child custody proceeding is initiated for the same child, the

court must again inquire into whether there is a reason to know

that the child is an Indian child. 25 C.F.R. § 23.107(a).1

                            B.    Analysis


1 The guidelines issued in December 2016, Bureau of Indian Affairs,
Guidelines for Implementing the Indian Child Welfare Act (Dec.
2016), https://perma.cc/3TCH-8HQM (2016 Guidelines), require a
court to inquire about ICWA’s applicability even if a party fails to
assert that ICWA may apply. 2016 Guidelines at 11. They also
state that it is “critically important” for inquiries to be made “by
courts, State agencies, and participants to the proceedings as soon
as possible.” Id. Consistent with the regulations, the 2016
Guidelines require the court to instruct the participants to inform it
of any new information that provides a reason to know the child is
an Indian child, and in situations where a child was not identified
as an Indian child in a prior proceeding, the court has a continuing
duty to inquire whether the child is an Indian child. Id. Further, if
there is no reason to know a child is an Indian child, the State
agency (or party seeking placement) should document the basis for
this conclusion in the case file. Id. at 12.

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¶ 16   We begin with the observation that the Department specifically

  acknowledged its § 19-1-126(1)(a) obligation to make continuing

  inquiries “as to any possible Indian heritage of any of the children”

  in the dependency and neglect petition. However, it has not

  directed our attention to any evidence of such continuing inquiries,

  and it does not argue on appeal that such inquiries occurred.

  Indeed, because the court made no findings to support its

  conclusion that ICWA did not apply, we are unable to determine

  what evidence the court considered in reaching its conclusion.

¶ 17   The Department suggests that the court may have relied on its

  finding that ICWA did not apply in the previous case to support its

  conclusion that ICWA did not apply here, and it argues that such

  reliance satisfied ICWA requirements. See In Interest of C.A.B.L.,

  221 P.3d 433, 442 (Colo. App. 2009) (permitting a trial court to take

  judicial notice of its own records and adopt factual findings from a

  previous case as long as the previous case involved the same parties

  and the same issue); see also CRE 201(b) (court may take judicial

  notice of facts not subject to reasonable dispute). However, nothing

  in § 19-1-126, ICWA, or the 2015 Guidelines permits a court to

  make ICWA findings by taking judicial notice of prior proceedings.


                                    9
  In fact, the 2016 regulations and guidelines now explicitly prohibit

  a court from doing so.

¶ 18   Even assuming, without deciding, that the trial court could

  consider its findings and orders in the prior case to determine

  whether the children who are the subjects of this case are Indian

  children — and we note that the trial court did not indicate that it

  had done so — we conclude that the findings and orders from the

  prior case alone are insufficient to support the trial court’s

  conclusion that ICWA does not apply in this case.

¶ 19   Records from the prior case show that the Department

  inquired into Tr.D.’s possible Indian heritage, and that mother and

  father believed, for reasons not stated in the record, that the child

  was not a member of or eligible for membership in any Indian tribe.

  Possibly, mother and father were unaware of any Indian heritage in

  their families. Alternatively, they may have been aware of some

  Indian heritage, but they may have believed that the child could not

  meet the criteria for membership in the identified possible tribe(s).

  Or they may have had other reasons for their belief that the child

  could not, or should not, be identified as an Indian child. The

  record in this case shows no renewal inquiries. Yet it reveals the


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  active participation of grandparents with the Department, who may

  have had pertinent information concerning Indian heritage that was

  unknown to the parents.

¶ 20   We agree that in determining whether ICWA applies to the

  current proceeding, the court could properly consider a finding

  that, in 2013, mother and father denied that Tr.D. was an Indian

  child. However, the trial court could not rely solely upon that prior

  finding to determine that ICWA does not apply here. To do so

  would fail to give effect to § 19-1-126(1)(a), which obligates the

  Department to make continuing inquiries into a child’s Indian

  heritage before determining whether the child is an Indian child.

  Such continuing inquiries are necessary to ensure that any

  determination is not based on information that may be outdated

  and incorrect. See, e.g., People in Interest of T.M.W., 208 P.3d 272,

  275 (Colo. App. 2009) (stating that a court may not rely on notice

  that was given to a tribe concerning a sibling to determine whether

  another child is an Indian child because, even if the siblings have

  the same parents, the tribe is free to change its enrollment criteria

  at any point).




                                    11
¶ 21   In the absence of findings by the trial court, we are unable to

  determine the basis for the court’s conclusion that ICWA does not

  apply to this case. Nor are we able to satisfy ourselves that the

  information that the court relied upon in reaching its conclusion

  was obtained as the result of the Department’s “continuing

  inquiries” into the children’s Indian heritage and eligibility for tribal

  membership, as contemplated by § 19-1-126(1)(a), rather than

  outdated and possibly inaccurate information. The Department

  does not argue that this absence of information is harmless; it

  acknowledges that a “remand for the purpose of making any

  necessary additional inquiries” could be ordered. Under these

  circumstances, we conclude that the judgment must be reversed

  and remanded to the trial court for additional findings and further

  proceedings if needed. See People in Interest of A.G., 264 P.3d 615,

  621 (Colo. App. 2010) (stating that an order may be set aside if the

  court’s findings do not demonstrate compliance with statutory

  requirements and the appellate court cannot determine the basis

  for the order), rev’d in part and vacated in part on other grounds,

  262 P.3d 646 (Colo. 2011).




                                     12
¶ 22   Accordingly, on remand the Department must make the

  inquiries required by § 19-1-126(1)(a). If those inquiries reveal

  possible Indian heritage, then the Department must comply with

  the statute’s notice requirements. If the inquiries reveal no possible

  Indian heritage, then the trial court may enter its termination order

  based on its prior findings and the evidence adduced from the

  Department’s inquiries. Because it is possible that no ICWA notice

  will be required, and that, even if notice is required, no tribe will

  determine that the children are eligible for tribal membership, we

  also address the remaining issues raised by mother and father.

                     IV.   Sufficiency of the Evidence

¶ 23   Mother contends that the trial court erred in finding that the

  statutory grounds for terminating her parental rights under §

  19-3-604(1)(c), C.R.S. 2016, were established by clear and

  convincing evidence. Specifically, she argues that she was

  progressing in her substance abuse treatment, she was able to

  maintain employment, she interacted well with the children, she

  complied with most of the requirements of her treatment plan, and

  she would have been able to complete the other requirements

  within a reasonable time. She contends the record does not


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  support the trial court’s finding that her conduct or condition will

  not change within a reasonable time. We disagree.

¶ 24   Under § 19-3-604(1)(c), the legal relationship between a parent

  and his or her child may be terminated if the child has been

  adjudicated dependent or neglected and the court finds, based on

  clear and convincing evidence, that the parent did not reasonably

  comply with a treatment plan approved by the court or that the

  treatment plan has been unsuccessful, that the parent is unfit, and

  that the parent’s conduct or condition is unlikely to change within a

  reasonable time.

¶ 25   When a proceeding involves children under the age of six,

  reasonable or successful compliance with a treatment plan cannot

  be found if “[t]he parent exhibits the same problems addressed in

  the treatment plan without adequate improvement” and remains

  unable to meet the children’s needs. § 19-3-604(1)(c)(I)(B); People in

  Interest of J.A.S., 160 P.3d 257, 260 (Colo. App. 2007).

¶ 26   In determining whether a parent’s conduct or condition is

  unlikely to change within a reasonable time, the trial court may

  consider whether any change has occurred during the pendency of

  the dependency and neglect proceeding, the parent’s social history,


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  and the chronic or long-term nature of the parent’s conduct or

  condition. K.D. v. People, 139 P.3d 695, 700 (Colo. 2006).

¶ 27   A reasonable time is not an indefinite time, and it must be

  determined by considering the physical, mental, and emotional

  conditions and needs of the child. People in Interest of A.J., 143

  P.3d 1143, 1152 (Colo. App. 2006). A trial court’s findings and

  conclusions will not be disturbed on review if the record supports

  them. K.D., 139 P.3d at 702.

¶ 28   The trial court found that despite more than fifteen months of

  intervention and treatment, mother exhibited the same problems

  addressed in the treatment plan without any meaningful

  improvement, and she was unable or unwilling to meet the

  children’s needs. The court also found that mother’s conduct or

  condition was unlikely to change within a reasonable time.

¶ 29   These conclusions are based on lengthy and detailed factual

  findings supported by the record that contradict mother’s claims on

  appeal. Among other things, the record shows that mother did not

  complete a substance abuse assessment until June 2015, two

  months after adoption of her treatment plan and four months after

  the children’s initial removal. She attempted outpatient substance


                                    15
  abuse therapy, but attended less than fifty percent of the sessions

  and was terminated for poor attendance. She eventually completed

  an inpatient program, but relapsed almost immediately thereafter.

  Her employment was sporadic, and she incurred criminal charges

  during the case. She and father were often late for visits or

  cancelled them.

¶ 30   The record, therefore, amply supports the trial court’s findings

  and conclusions, and we will not disturb them.

                        V.    Reasonable Efforts

¶ 31   Father contends that the record does not support the trial

  court’s finding that reasonable efforts were made to avoid the

  removal of the children from their home and to promote

  reunification of the family, as required by § 19-3-100.5, C.R.S.

  2016. He argues that the Department’s opposition to changing

  venue from Chaffee County, which does not have a Family Intensive

  Drug Court (FITC), to Fremont County, which has an FITC program,

  represents a failure to make reasonable efforts. More specifically,

  he argues that the dispute over whether venue should be changed

  delayed his ability to participate in an FITC program “when [he was]

  motivated to engage in treatment.” He reasons “[r]easonable efforts


                                   16
  require[d] more than providing adequate services, they require[d]

  providing such services at the right time.” We perceive no error.

¶ 32   The state must make reasonable efforts to prevent

  out-of-home placement of an abused or neglected child and to

  reunite the family. §§ 19-1-103(89), 19-3-100.5(1), C.R.S. 2016;

  see also People in Interest of S.M.A.M.A., 172 P.3d 958, 963 (Colo.

  App. 2007). Such reasonable efforts must include screening,

  assessments, the development of an appropriate treatment plan, the

  provision of information and referrals to available public and private

  assistance resources, placement services, and visitation services, all

  as determined necessary and appropriate in a particular case.

  § 19-3-208(2)(b), C.R.S. 2016.

¶ 33   In July 2015, mother requested a transfer of venue to Fremont

  County, where she and father lived. She conceded they both had

  significant substance abuse issues and needed the intensity of

  Fremont County’s FITC program. The Department and the

  guardian ad litem opposed the motion, in part due to concerns that

  the children would be transferred to a different foster home. The

  Department consulted with Fremont County’s Department of

  Human Services and learned that if venue was changed, such a


                                   17
  transfer was likely. Additionally, the Department considered the

  parents’ admission into the FITC program “questionable,” in part

  because the eligibility criteria precluded the use of a “prescribed

  inhibitor” such as Suboxone, which the Department believed father

  had been prescribed.

¶ 34   The court observed that Fremont County had offered to

  collaborate with Chaffee County to provide FITC services to mother

  and father, minus the court oversight, while Chaffee County

  retained jurisdiction over the case. The court proposed holding the

  motion in abeyance while mother and father sought FITC services.

  Father agreed with this proposal.

¶ 35   Soon afterward, a Fremont County supervisor attempted to

  arrange a meeting with mother and father so that she could discuss

  the program, have them sign the necessary papers, and start

  scheduling appointments. However, mother and father repeatedly

  rescheduled this initial meeting and then failed to appear. They

  never took advantage of the opportunity to receive FITC services.

  And the record does not reflect any effort by father to seek a ruling

  on the outstanding motion.




                                    18
¶ 36   We conclude that father waived his right to raise this issue on

  appeal when he expressly agreed to hold the motion to change

  venue in abeyance, and thereafter failed to seek a ruling from the

  court. Accordingly, we will not consider it. See People in Interest of

  N.A.T., 134 P.3d 535, 537 (Colo. App. 2006) (stating that where

  mother did not object to the allocation of parental responsibilities to

  father during the hearing before the juvenile court, instead agreeing

  that the disposition was in the child’s best interests, the appellate

  court would not consider her contention on appeal that the

  allocation was not in the child’s best interests).

                             VI.   Conclusion

¶ 37   The judgment is reversed, and the case is remanded for the

  Department to conduct inquiries into the children’s possible Indian

  heritage. If such inquiries reveal possible Indian heritage, then the

  Department must comply with the notice provisions of § 19-1-126

  and ICWA, and the court must conduct further proceedings as

  necessary. If the inquiries reveal no possible Indian heritage, or if,

  after any required notice, no tribe has determined that the children

  are eligible for tribal membership, then the court may enter its




                                     19
termination order based on its prior findings and the evidence

adduced from the Department’s inquiries.

     JUDGE HAWTHORNE and JUDGE ASHBY concur.




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