     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                            October 17, 2019

                               2019COA157

No. 18CA2073, People in Interest of KNBE — Juvenile Court —
Dependency and Neglect — Termination of the Parent-Child
Legal Relationship — Expert Testimony; American Indian Law
— ICWA; Constitutional Law — Due Process

     A division of the court of appeals holds that a parent whose

parental rights may be terminated in a dependency and neglect

proceeding does not have a due process right to have an attorney

present during an interview with an expert retained by the

Department of Human Services.
COLORADO COURT OF APPEALS                                      2019COA157


Court of Appeals No. 18CA2073
City and County of Denver Juvenile Court No. 17JV275
Honorable Donna J. Schmalberger, Judge


The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of K.N.B.E. and M.B.B.E., Children,

and Concerning K.B.E.,

Respondent-Appellant.


                            JUDGMENT AFFIRMED

                                 Division VII
                         Opinion by JUDGE J. JONES
                          Fox and Tow, JJ., concur

                         Announced October 17, 2019


Kristin M. Bronson, City Attorney, Laura Grzetic Eibsen, Assistant City
Attorney, Denver, Colorado, for Petitioner-Appellee

Barry Meinster, Guardian Ad Litem

Tammy Tallant Law, LLC, Tammy Tallant, Palisade, Colorado, for Respondent-
Appellant
¶1    This is a dependency and neglect case. K.B.E. (mother)

 appeals the juvenile court’s judgment terminating her parent-child

 legal relationships with twins K.N.B.E. and M.B.B.E. (the children).

 She argues that the juvenile court erred by allowing testimony and

 evidence from a qualified expert witness obtained in an interview

 with her because she didn’t have her attorney with her during that

 interview. We conclude, however, that mother didn’t have a right to

 have counsel present during the interview, and therefore we affirm.

                             I. Background

¶2    The Denver Department of Human Services filed a petition in

 dependency and neglect alleging that mother had tested positive for

 marijuana and amphetamine when she was admitted to the

 hospital just before the children were born. The petition also

 alleged that the children had stayed in the hospital for nearly a

 month after being born to address problems stemming from

 prematurity and drug exposure and that mother was homeless and

 had nowhere to take the children when released from the hospital.

¶3    Mother is a member of the Northern Cheyenne Tribe (the

 Tribe). After verifying that the children were also eligible to be

 enrolled, the Tribe accepted the children for enrollment and


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 intervened in the case. At mother’s counsel’s request, the juvenile

 court appointed a guardian ad litem for mother.

¶4    The court accepted mother’s admission to the petition and

 adjudicated the children dependent and neglected. The juvenile

 court adopted a treatment plan requiring mother to, among other

 things, participate in substance abuse and mental health

 evaluations and follow through with recommended treatment,

 maintain stable housing, obtain legal employment, and visit the

 children regularly.

¶5    Acting pursuant to the Indian Child Welfare Act (ICWA), the

 Department retained an expert to determine whether allowing

 mother to retain custody of the children was likely to result in

 serious emotional or physical harm to the children. As part of his

 evaluation, that expert spoke with mother over the telephone.

¶6    Some time later, the Department moved to terminate mother’s

 parent-child relationships with the children. Following a hearing,

 at which the expert testified, the juvenile court terminated mother’s

 parental rights.




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                            II. Relevant Law

¶7    A juvenile court can terminate parental rights if it finds, by

 clear and convincing evidence, that (1) the child was adjudicated

 dependent and neglected; (2) the parent didn’t comply with an

 appropriate, court-approved treatment plan or the plan wasn’t

 successful; (3) the parent is unfit; and (4) the parent’s conduct or

 condition is unlikely to change within a reasonable time. § 19-3-

 604(1)(c), C.R.S. 2019; People in Interest of C.H., 166 P.3d 288, 289

 (Colo. App. 2007).

¶8    And when, as in this case, the termination proceedings

 concern Indian children, ICWA imposes additional federal

 prerequisites to termination. 25 U.S.C. § 1902 (2018); People in

 Interest of A.R., 2012 COA 195M, ¶ 39. As relevant to this case, a

 court may not terminate parental rights as to an Indian child

 unless evidence, including testimony of a qualified expert witness,

 establishes beyond a reasonable doubt that the parent’s continued

 custody of the child is likely to result in serious emotional or

 physical harm to the child. 25 U.S.C. § 1912(f) (2018); A.R., ¶ 39.




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                          III. Right to Counsel

¶9     Mother’s counsel filed a motion in limine seeking to exclude

  the testimony and report of the qualified expert witness from the

  termination hearing. Counsel argued that because the expert had

  obtained information from mother during an interview that took

  place without her counsel or the guardian ad litem being present to

  assist her, allowing the expert to testify and introduce his report

  would violate mother’s right to due process. After hearing

  argument, the juvenile court denied the motion.

¶ 10   On appeal, mother contends again that the interview with the

  qualified expert witness violated her procedural due process rights.

  As a result, she says, the juvenile court should have excluded the

  expert’s testimony and report.

¶ 11   We review a procedural due process claim de novo. See People

  in Interest of C.J., 2017 COA 157, ¶ 25.

¶ 12   “[T]o establish a violation of due process, one must first

  establish a constitutionally protected liberty interest that warrants

  due process protections.” Id. (quoting M.S. v. People, 2013 CO 35,

  ¶ 22). Although not articulated in her brief, mother’s due process

  argument appears to attempt to import into dependency and neglect


                                     4
  proceedings the criminal law concept that, under the Sixth

  Amendment, a criminal defendant has the right to have counsel

  present at all critical stages of the proceeding once she is charged

  with a crime. Iowa v. Tovar, 541 U.S. 77, 80-81 (2004).

¶ 13   A party to a dependency and neglect proceeding, however, isn’t

  entitled to the same due process rights as a defendant in a criminal

  proceeding. See People in Interest of C.G., 885 P.2d 355, 357 (Colo.

  App. 1994) (an action to potentially terminate the parent-child legal

  relationship is a civil action and therefore due process doesn’t

  confer certain rights available in criminal proceedings). Moreover,

  an indigent parent’s right to court-appointed counsel in a

  proceeding that potentially terminates parental rights is entirely

  statutory; it isn’t secured by constitutional mandate. C.H., 166

  P.3d at 290. If a respondent parent has an opportunity to appear

  through counsel and has an opportunity to present evidence and

  cross-examine witnesses, the parent’s due process rights aren’t

  violated. See C.G., 885 P.2d at 357; see also A.M. v. A.C., 2013 CO

  16, ¶ 29 (“Parents are entitled to notice of the allegations

  supporting the motion to terminate, to have a hearing on the




                                     5
  motion, and, at that hearing, to be assisted by legal counsel.”)

  (emphasis added).

¶ 14   Mother was represented by counsel at the termination

  hearing. That attorney cross-examined the qualified expert witness

  at length. Mother’s counsel also presented the report and

  testimony of mother’s own expert. We are persuaded that these

  procedural safeguards sufficiently protected mother’s due process

  rights.

¶ 15   Our determination squares with the decisions of other

  divisions of this court considering whether respondent parents had

  a right to counsel under analogous circumstances. Cf. People in

  Interest of S.L., 2017 COA 160, ¶¶ 49-50 (juvenile court didn’t

  abuse its discretion by denying father’s request for his counsel to be

  present during an in camera interview of a child who was the

  subject of a dependency and neglect petition); C.J., ¶¶ 29-30

  (mother wasn’t entitled to participate, and have the assistance of

  counsel, in the Department’s administrative review of placement

  where she was afforded a full opportunity to be heard and to

  present evidence at a motions hearing and the termination hearing).




                                    6
¶ 16   We aren’t persuaded by mother’s argument that she had a

  right to counsel because an interview with an expert witness is a

  “child-custody proceeding” as that phrase is defined by ICWA. The

  Guidelines for Implementing ICWA recommend that a qualified

  expert witness “be someone familiar with” the children in the case

  and suggest that the expert contact the parents to provide a more

  complete picture to the court. Bureau of Indian Affairs,

  Guidelines for Implementing the Indian Child Welfare Act 55 (Dec.

  2016), https://perma.cc/3TCH-8HQM. But nothing in ICWA’s

  language or in the Guidelines indicates that a parent is entitled to

  counsel during such contacts with a qualified expert witness, see

  25 U.S.C. § 1912(a); 25 C.F.R. § 23.2 (2019), and mother doesn’t

  cite any authority supporting such an interpretation. 1




  1 Moreover, if we were to adopt mother’s argument that an interview
  with a qualified expert witness is a “child-custody proceeding” as
  defined by ICWA, all of the notice procedures — such as notice to
  the Tribe by registered mail with return receipt requested and a
  ten-day waiting period before the proceeding could be held — would
  apply. See 25 U.S.C. § 1912(a) (2018); 25 C.F.R. § 23.2 (2019);
  § 19-1-126(1)(b), C.R.S. 2019; B.H. v. People in Interest of X.H., 138
  P.3d 299, 302 (Colo. 2006) (when the court knows that an Indian
  child is involved in a “child custody proceeding” the state must
  provide notice to the child’s tribe).

                                    7
¶ 17   Because we determine that mother didn’t have a due process

  right to counsel during the interview, we don’t need to address her

  contention that the juvenile court erred by refusing to exclude

  evidence and testimony about the statements she made to the

  qualified expert witness.

                              IV. Conclusion

¶ 18   We affirm the judgment.

       JUDGE FOX and JUDGE TOW concur.




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