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Date: 06-27-2022

Case Style:

The People of the State of Colorado, Petitioner In the Interest of Minor Children, My. K.M.. and Ma. K.m. v. V.K.L and T.A.M.

Case Number: 21sc245

Judge: MÁRQUEZ

Court: Supreme Court of Colorado on appeal from the District Court, Denver County

Plaintiff's Attorney: Assistance City Attorney Cathleen M. Giovannini

Defendant's Attorney:



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Description: Denver, Colorado family law lawyers represented Defendants in a parental rights termination matter.


¶1 This termination of parental rights case concerns the "active efforts" required under the Indian Child Welfare Act ("ICWA") to provide remedial services and rehabilitative programs to assist a parent in completing a court-ordered treatment plan. A division of the court of appeals reversed a juvenile court's judgment terminating Mother's parent-child legal relationship with her two Native American children,[1] holding that the Denver Department of Human Services ("DHS") did not engage in the "active efforts" required under ICWA to assist Mother in completing her court-ordered treatment plan because it did not offer Mother job training or employment assistance, even though Mother struggled to maintain sobriety and disappeared for several months.[2] We must now decide what constitutes "active efforts" under ICWA and whether the

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resources and rehabilitative services DHS afforded to Mother to complete her treatment plan satisfied that standard.[3]

¶2 We hold that "active efforts" is a heightened standard requiring a greater degree of engagement by agencies like DHS with Native American families than the traditional "reasonable efforts" standard. Agencies must provide a parent with remedial services and resources-such as those listed in 25 C.F.R. § 23.2 (2021)-to complete all of the parent's treatment plan objectives. While an agency's active efforts must be "affirmative, active, thorough, and timely," 25 C.F.R. § 23.2, such efforts also must be "tailored to the facts and circumstances of the case," id., and the agency retains discretion to prioritize certain services and resources to address a parent's and family's most urgent needs to assist parents with completing the court-ordered treatment plan.

¶3 Here, we conclude that the record amply supports the juvenile court's determination that DHS engaged in active efforts to provide Mother with services

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and programs to attempt to rehabilitate her and reunite the family. Accordingly, we reverse the judgment of the court of appeals and remand the case for the court of appeals to address Mother's remaining appellate contentions.

I. Facts and Procedural History

¶4 Given the fact-specific nature of an "active efforts" analysis, which hinges on the resources and services an agency such as DHS provided to a family, we offer a detailed overview of the relevant events in this case.

¶5 In October 2016, Father took twelve-month-old Ma.K.M. to the hospital, where she was intubated and transferred to the pediatric intensive care unit because she was unresponsive, lethargic, and unable to breathe. Medical staff could not confirm the cause of Ma.K.M.'s symptoms but believed that she may have ingested synthetic marijuana. The hospital contacted the police. After interviewing Father, officers conducted a welfare check at the family's home and discovered that five-year-old My.K.M. had been left unattended while Father and Ma.K.M. were at the hospital. Mother's whereabouts were unknown, and she was unreachable by phone. DHS filed a petition in dependency or neglect as to Ma.K.M. and My.K.M. and placed the children in emergency foster care.

¶6 At a temporary custody hearing held on October 7, 2016, Mother informed the juvenile court that she was an enrolled member of the Colville Tribe in

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Washington.[4] On November 21, the juvenile court adjudicated both children dependent or neglected as to Father. The parties also agreed to a deferred adjudication for Mother, who admitted that the children lacked proper care through no fault of her own and agreed to comply with the juvenile court's terms and conditions.[5] The terms and conditions required Mother, among other things, to complete a substance abuse evaluation and to follow the treatment recommendations. By December 20, DHS had returned both children to Mother.

¶7 By early 2017, a team composed of a DHS caseworker, a Court Appointed Special Advocates ("CASA") volunteer, and a service provider through the Denver Indian Family Resource Center ("DIFRC"), among others, began to assist Mother with achieving her deferred adjudication-agreement objectives and Father

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with his treatment plan objectives. DHS also approved the family for childcare assistance, but Mother struggled to identify a viable daycare option that the family liked and would accept the childcare assistance benefit. Mother underwent a cognitive evaluation, resulting in recommendations for parenting skills development services that included hands-on learning, substance-abuse monitoring, and domestic-violence education.

¶8 DIFRC had provided the family with culturally relevant, wrap-around services, but in spring 2017, it discontinued services due to the parents' noncompliance. The parents reported feeling that the organization was not a good fit for their family. By summer 2017, DHS connected the family with a new service provider, the Guadalupe Project ("GP"), which provided the family, and Mother individually, with services and support ranging from parenting skills to transportation for Mother and the children. The GP caseworker helped Mother secure suitable daycare to provide the children with structure during the day and enable both parents to work full time. Overall, the GP caseworker reported cooperation and positive improvements in both parents' engagement and the children's development.

¶9 However, for most of 2017, DHS had ongoing concerns about substance abuse for both parents based on positive urinalysis ("UA") results. Mother had a routine UA test positive for cocaine in October 2017 and missed multiple requests

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from the DHS caseworker for additional UAs.[6] Due to the ongoing concerns over Mother's sobriety, DHS implemented a safety plan to ensure Mother did not have unsupervised time with the children. DHS also moved to revoke Mother's deferred adjudication; the juvenile court granted the request and entered an adjudication against Mother at a hearing on November 21, 2017. The juvenile court adopted the terms and conditions of Mother's deferred adjudication agreement as the terms of her court treatment plan. Those terms provided:

[Mother] will complete a Signal substance abuse evaluation. [Mother] will fully comply with any and all treatment recommendations made by the Signal evaluator. . . . [Mother] will not miss any scheduled urinalysis; nor . . . provide any urinalyses which test as dilute or positive for any substances. If group or individual treatment sessions are recommended, [Mother] will attend all scheduled sessions.

[Mother] . . . will complete a Lifelong evaluation. [Mother] will fully comply with any and all treatment recommendations made by the Lifelong evaluator.

[Mother] . . . will continue working with in-home services . . . . [Mother] will cooperate with the services provided, attend all appointments, and will comply with any and all treatment recommendations.

[Mother] . . . will obtain and maintain employment, or another legal source of income, which is sufficient to provide for herself and her children.

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[Mother] . . . will maintain stable housing, adequate for herself and her children, which is maintained in a safe and cleanly manner.

[Mother] . . . will cooperate with [DHS], Guardian ad Litem, and all treating professionals. [Mother] will allow [DHS] and Guardian ad Litem access to her home for scheduled and unannounced home visits. [Mother] will maintain, at a minimum, monthly contact with the assigned caseworker. [Mother] will sign all necessary releases of information.

[Mother] . . . will not leave the minor children, [My.K.M. and Ma.K.M.], unattended.

¶10 With the support of service providers, DHS worked with the family to implement various safety plans to limit Mother's unsupervised oversight of the children and to address the children's unexcused absences from school and daycare. This approach assured that the children were always under at least one sober caretaker's supervision. Mother began receiving substance abuse services from a therapist at the Community Alcohol, Drug, Rehabilitation & Education Center ("CADREC"), and the provider reported that Mother engaged effectively in treatment. By April 9, 2018, the juvenile court lifted the supervision restrictions on Mother's time with the children based on her progress with her treatment plan objectives, and specifically with her sobriety.

¶11 Nonetheless, both parents continued to test positive for drugs at various times, raising ongoing substance abuse concerns. Mother tested positive again for cocaine in June 2018. At a July 2018 hearing, the juvenile court ordered the parents to comply with their respective substance abuse treatments and restrictions. DHS

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continued providing Mother with substance abuse and sobriety support through CADREC while she simultaneously attended daily Cocaine Anonymous meetings as part of her treatment. In September 2018, Mother's CADREC therapist informed the juvenile court that Mother was on a positive trajectory with her substance abuse treatment.

¶12 Unfortunately, things took a negative turn for the family in the fall of that year. In October 2018, Father was charged with domestic violence and assault against Mother. The juvenile court ordered the children to remain in the home with Mother and required that Father not contact the family. Shortly after the domestic violence incident, Mother tested positive for cocaine on October 4 and 5. Mother processed her relapse with her CADREC therapist and admitted on October 16 to using cocaine and alcohol. Mother's therapist increased Mother's treatment level to provide additional support.

¶13 The turning point in this case occurred on November 16, 2018, when Mother failed to pick up the children from school and daycare and could not be located by the police or DHS. DHS placed the children in foster care, where they have remained. Mother contacted the DHS caseworker a few days later to inform her that she had relapsed after she allowed Father back into the home. DHS arranged an intake for Mother with Stepping Stone inpatient program, but she failed to show for the appointment. Mother thereafter missed multiple scheduled visits

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with the children facilitated by the GP caseworker, including one scheduled on Christmas Eve. After that, Mother ended all substantive communication with DHS and her treatment providers until July 2019, when she reengaged with her caseworker to again request services for her sobriety.

¶14 DHS arranged for an intensive inpatient treatment program for Mother in July 2019. Mother successfully completed the twenty-eight-day program, and the facility recommended that Mother receive outpatient treatment as after-care. Although DHS referred Mother to an outpatient treatment program, Mother failed to follow through with the referral and disappeared, again ending communications with DHS and her support team.

¶15 After several additional months of relapses by Mother, coupled with her failure to meaningfully and consistently engage with the children or social workers, DHS moved to terminate parental rights. Following a seven-day termination hearing between January 2020 and March 2020, the juvenile court terminated Mother's and Father's parent-child legal relationships with Ma.K.M. and My.K.M. The juvenile court heard testimony from Sylvia Gonzalez, the social work intern assigned to the family at GP; Keenan Moore, the DHS social worker assigned to the case from December 2016 to April 2018; Kathy McGirt, the DHS social worker assigned to the case in April 2018; and Buffy Nicholson, the program manager for the Colville Tribe's child welfare program, who testified as an ICWA

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Qualified Expert Witness. Gonzalez, Moore, and McGirt testified regarding the services and resources provided to the parents to assist them in completing their respective treatment plan objectives and to prevent the breakup of the family. Nicholson‍ testified that the Tribe supported the termination because of the parents' lack of participation. In her professional opinion, allowing the parents to retain custody would likely result in emotional and physical damage to the children. She further testified that the placement of the children in foster care allowed them to remain together, which was a priority for the Tribe, and that efforts to locate an Indian home had not been successful. Notably, Nicholson testified that she believed DHS had made active efforts in the case to engage the parents and keep the family together, and that from the Tribe's perspective, the services provided were culturally appropriate. She noted, "I don't think it's a lack of cultural services being involved or offered; I think it's a lack of willingness [by the parents] to engage."

¶16 The juvenile court found that even though the parents demonstrated good compliance with their respective court treatment plans early in the case, their compliance as of fall 2018 was not successful. The juvenile court also found that throughout the case, DHS had made active efforts as required by ICWA to provide remedial services and rehabilitative support to prevent the breakup of the family, but that the active efforts were not successful. Therefore, the juvenile court

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concluded that it was in the best interest of the children to terminate Mother's and Father's parental rights.

¶17 The parents appealed the juvenile court's judgment terminating their parent-child legal relationships with the children. As relevant here, Mother asserted that the juvenile court erred in finding that DHS made active efforts to assist her with completing her court-ordered treatment plan, and specifically, to assist her with securing employment. See People in Int. of My.K.M, 2021 COA 33M, ¶ 28, 491 P.3d 495, 502. A division of the court of appeals agreed with Mother and held that DHS had not made active efforts because it did not provide Mother with employment assistance. Id. The division focused on the requirement in Mother's treatment plan that she have a legal form of income to support herself and the children. Id. at ¶ 37, 491 P.3d at 503. Noting Mother's request for job training at a hearing in summer 2017, id. at ¶¶ 38-39, 491 P.3d at 503-04, the division held that there was no support in the record that DHS had provided Mother with employment training, id. at ¶ 40, 491 P.3d at 504. Relying on two out-of-state cases, the division reasoned that "even significant efforts by the department may not satisfy the active efforts requirement if a critical service is overlooked." Id. at ¶ 36, 491 P.3d at 503 (citing Dep't of Hum. Servs. v. D.L.H., 284 P.3d 1233, 1242-43 (Or. Ct. App. 2012); In re Int. of Jamyia M., 791 N.W.2d 343, 349 (Neb. Ct. App. 2010)). Therefore, the division overturned the juvenile court's judgment terminating

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Mother's parental rights and remanded for further proceedings. My.K.M., ¶ 53, 491 P.3d at 505-06.

¶18 DHS and the children's guardian ad litem jointly petitioned for certiorari review, which we granted.
People ex rel. My. K.M., 2022 CO 35 (Colo. 2022)

Outcome:
¶48 We conclude that the record establishes that DHS met its burden under ICWA to make active efforts to provide Mother with services and programs to attempt to rehabilitate the parents and reunite the family. Accordingly, we reverse the judgment of the court of appeals with respect to Mother's parental rights and remand the case for the court of appeals to address Mother's remaining appellate contentions.
People ex rel. My. K.M., 2022 CO 35 (Colo. 2022)

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