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People ex rel. M.V.

Court of Appeals of Colorado, Second Division

November 15, 2018

The People of the State of Colorado, Petitioner-Appellee,
v.
In the Interest of M.V.; Ma.M.; P.M., a/k/a P.P.; and Mo.M., a/k/a M.M-B., Children, and Concerning M.M., Respondent-Appellant.

          El Paso County District Court No. 17JV1116 Honorable Theresa M. Cisneros, Judge

          Amy R. Folsom, County Attorney, Kevin G. Webster, Assistant County Attorney, Colorado Springs, Colorado, for Petitioner-Appellee

          Anna N.H. Ulrich, Guardian Ad Litem

          Davide C. Migliaccio, Office of Respondent Parents' Counsel, Colorado Springs, Colorado, for Respondent-Appellant

          ORDER

          DAILEY JUDGE.

         ¶ 1 In this dependency and neglect proceeding, M.M. (mother) appeals the juvenile court's judgment of adjudication and disposition following a jury trial. To resolve mother's arguments on appeal, we must delve into the provisions of the Indian Child Welfare Act of 1978 (ICWA). ICWA establishes standards that must be followed when a state court places an Indian child in a foster care placement.

         ¶ 2 However, we must decide an unanswered question in Colorado: whether a juvenile court lacks subject matter jurisdiction to enter adjudicatory and dispositional orders when it has not complied with ICWA. We must also determine whether ICWA's provisions regarding foster care placement apply to adjudicatory and dispositional orders. Ultimately, we conclude that (1) a lack of ICWA compliance does not deprive a juvenile court of subject matter jurisdiction and (2) ICWA's foster care placement provisions apply to a dispositional order, but not to an order adjudicating a child dependent and neglected.

         ¶ 3 We then examine mother's argument that the juvenile court erred in admitting video recordings of mother and the children at the adjudicatory trial. We agree that the court erred in admitting the recordings without proper authentication and further conclude that the error was not harmless. As a result, we reverse the adjudication and dispositional orders and remand the case to the juvenile court.

         I. Background

         ¶ 4 In August 2017, the El Paso County Department of Human Services (the Department) initiated a dependency and neglect case regarding seven-month-old M.V., six-year-old Ma.M., and an older half-sibling who is not subject to the appeal. Later that month, the Department filed an amended petition adding mother's other two children who had been in the care of the maternal grandmother -nine-year-old P.M., also known as P.P., and thirteen-year-old Mo.M., also known as M.M-B. (collectively the children).

         ¶ 5 In support of the petition, the Department asserted that

. it had received videos showing mother using methamphetamine as well as manufacturing and selling a white powder;
. mother had a history of substance use and was on probation for possession of a controlled substance; and
. M.V. was present during domestic violence between mother and his father.

         ¶ 6 Mother denied the allegations and requested a jury trial. At the conclusion of the trial, the jury found that mother had subjected the children to mistreatment or abuse, the children lacked proper parental care as a result of mother's acts or failures to act, and the children's environment was injurious to their welfare.

         ¶ 7 Based on the jury's verdict, the juvenile court adjudicated the children dependent and neglected. Following another hearing, the juvenile court entered a dispositional order that adopted a treatment plan for mother. And, as part of the dispositional order, the juvenile court placed Ma.M. in the custody of her father, P.M. in a relative's custody, and M.V. and Mo.M. in the Department's custody.

         II. ICWA

         ¶ 8 Mother contends that the record does not demonstrate compliance with ICWA's provisions and, as a result, the juvenile court lacked subject matter jurisdiction to adjudicate the children and enter a dispositional order. Specifically, mother asserts that (1) notice was not given to the applicable tribes; (2) the court failed to require qualified expert testimony of emotional or physical damage to the children; and (3) the court failed to consider whether the Department had made active efforts to rehabilitate mother. We reject mother's jurisdictional argument but agree that the dispositional order must be reversed to ensure ICWA compliance.

         A. Subject Matter Jurisdiction

         ¶ 9 We first consider whether the juvenile court's purported failure to comply with ICWA's provisions deprived it of subject matter jurisdiction over the proceeding.

         ¶ 10 ICWA's provisions, 25 U.S.C. §§ 1901-1963 (2018), are for the protection and preservation of Indian tribes and their resources, and to protect Indian children who are members of or are eligible for membership in an Indian tribe. 25 U.S.C. § 1901(2), (3) (2018). ICWA also recognizes that Indian tribes have a separate interest in Indian children that is equivalent to, but distinct from, parental interests. B.H. v. People in Interest of X.H., 138 P.3d 299, 303 (Colo. 2006); see also Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 52 (1989). To effectuate this purpose, it establishes federal standards for child custody proceedings involving Indian children. 25 U.S.C. § 1902 (2018).

         ¶ 11 Central to ICWA are its provisions governing jurisdiction over child custody proceedings involving Indian children. Holyfield, 490 U.S. at 36. 25 U.S.C. § 1911 (2018) of ICWA creates a "dual jurisdictional scheme" for Indian child custody proceedings. Holyfield, 490 U.S. at 36. In certain circumstances, ICWA provides for exclusive tribal jurisdiction over Indian children. 25 U.S.C. § 1911(a); Holyfield, 490 U.S. at 36. In other circumstances, ICWA creates concurrent subject matter jurisdiction in state and tribal courts. 25 U.S.C. § 1911(b); Holyfield, 490 U.S. at 36. In that sense, ICWA is a jurisdictional statute.

         ¶ 12 However, in addition to the jurisdictional provisions, ICWA sets forth procedural and substantive standards that apply when child custody proceedings concerning Indian children occur in state courts. Holyfield, 490 U.S. at 36; see also B.H., 138 P.3d at 302. Among other things, the procedural standards require that the applicable tribe or tribes receive notice of the termination proceeding and of their right to intervene. 25 U.S.C. § 1912(a) (2018); Holyfield, 490 U.S. at 36.

         ¶ 13 Significantly, the remedy that Congress has provided for a failure to comply with ICWA's provisions, including its notice provisions, is to allow an Indian child, parent, or tribe to petition to invalidate the termination judgment. 25 U.S.C. § 1914 (2018). But, the remedy does not void the court's subject matter jurisdiction. In re Antoinette S., 129 Cal.Rptr.2d 15, 24 (Cal.Ct.App. 2002); see also Carson v. Carson, 13 P.3d 523, 526 (Or. Ct. App. 2000). And, there is a substantial difference between a lack of subject matter jurisdiction that deprives the court of its ability to act and a mistake in the exercise of established jurisdiction. Antoinette S., 129 Cal.Rptr.2d at 23.

         ¶ 14 Several other jurisdictions have reached a similar conclusion. The fourth district of the California Courts of Appeal held that a court's failure to comply with ICWA's notice provisions did not constitute jurisdictional error. Id. at 24; see also In re K.B., 93 Cal.Rptr.3d 751, 758 (Cal.Ct.App. 2009). The Missouri Court of Appeals determined that a trial court was not divested of subject matter jurisdiction even if it erred in ruling that ICWA did not apply. In Interest of S.A.M., 703 S.W.2d 603, 606 (Mo.Ct.App. 1986).

         ¶ 15 Similarly, the Oregon Court of Appeals concluded that when the state court (as opposed to a tribal court) had properly exercised jurisdiction over a proceeding, the court was not divested of subject matter jurisdiction simply because it failed to comply with ICWA. State ex rel. Juvenile Dep't v. Charles, 688 P.2d 1354, 1360 n.5 (Or. Ct. App. 1984). And, the Michigan Supreme Court declined to adopt the argument that the mere triggering of the notice requirements under 25 U.S.C. § 1912(a) stripped the court of jurisdiction over the proceeding. In re Morris, 815 N.W.2d 62, 80 (Mich. 2012).

         ¶ 16 We recognize that two courts have held that a failure to comply with ICWA divests a court of subject matter jurisdiction. The South Dakota Supreme Court determined that ICWA was primarily a jurisdiction statute, and, thus, inadequate notice to the appropriate tribes divested the trial court of jurisdiction to terminate parental rights to Indian children. In re N.A.H., 418 N.W.2d 310, 311 (S.D. 1988). Similarly, the fifth district of the California Courts of Appeal recognized that state courts have no subject matter jurisdiction to proceed with dependency proceedings concerning a possible Indian child until at least ten days after the tribe has received notice of the proceeding. In re Desiree F., 99 Cal.Rptr.2d 688, 699 (Cal.Ct.App. 2000).

         ¶ 17 However, another district of the California Court of Appeal observed that the jurisdictional statement in Desiree F. was made in passing and appeared to have been a shorthand way of saying that the ICWA violation constituted serious legal error. Antoinette S., 129 Cal.Rptr.2d at 22-23. And, as previously discussed, multiple other courts have reached the opposite conclusion of N.A.H. and Desiree F. and determined that a failure to comply with ICWA's notice provisions does not divest a court of subject matter jurisdiction.

         ¶ 18 Finally, we note that mother also relies on In Interest of J.W., 498 N.W.2d 417 (Iowa Ct. App. 1993), to support her jurisdictional argument. In J.W., the Iowa Court of Appeals noted that there was authority supporting a finding that ICWA was jurisdictional and failure to give adequate notice to the tribes divested a state court of subject matter jurisdiction. Id. at 419. But, the Iowa Supreme Court has subsequently disavowed J.W. to the extent that it held that failure to give adequate notice divested a court of jurisdiction to terminate parental rights. In Interest of N.N.E., 752 N.W.2d 1, 10 n.3 (Iowa 2008).

         ¶ 19 Following the majority of states, we conclude that the juvenile court's asserted lack of compliance with ICWA's notice provisions under 25 U.S.C. § 1912(a) did not divest it of subject matter jurisdiction to enter the adjudicatory and dispositional orders.

         B. Personal Jurisdiction

         ¶ 20 In her reply brief, mother asserts that the juvenile court also lacked personal jurisdiction over the tribe, which became an indispensable party once ICWA's notice provisions were triggered. However, because mother raised this issue for the first time in her reply brief, the issue is not properly before us and thus we decline to address it. See People v. Czemerynski, 786 P.2d 1100, 1107 (Colo. 1990); In re Marriage of Smith, 7 P.3d 1012, 1017 (Colo.App. 1999).

         C. ICWA's Provisions

         ¶ 21 Next, we must determine whether the record demonstrates compliance with ICWA's provisions, and, if not, whether the adjudicatory and dispositional orders must be reversed.

         1. The Legal Framework

         ¶ 22 Recall that ICWA establishes minimum federal standards to be followed when an Indian child is involved in a child custody proceeding. People in Interest of C.A., 2017 COA 135, ¶ 8. A child custody proceeding includes a foster care placement. 25 U.S.C. § 1903(1)(i) (2018); C.A., ¶ 9. ICWA also applies to an action that may result in foster care placement, even if it ultimately does not. People in Interest of K.G., 2017 COA 153, ¶ 14; 25 C.F.R. § 23.2 (2018).

         ¶ 23 Under these circumstances, when the court knows or has reason to know or believe that an Indian child is involved in a child custody proceeding, including foster care placement, the party seeking the foster care placement must provide notice to the potentially concerned tribe or tribes. B.H., 138 P.3d at 302; see also 25 U.S.C. § 1912(a); § 19-1-126(1)(b), C.R.S. 2018.

         ¶ 24 An Indian child is defined as an unmarried person under the age of eighteen who is either (1) a member of an Indian tribe or (2) the biological child of a tribal member and eligible for membership in a tribe. 25 U.S.C. § 1903(4). But ICWA does not define tribal membership. B.H., 138 P.3d at 303. Rather, membership is left to the province of each individual tribe. Id. For example, an individual tribe's criteria for membership may or may not include formal enrollment or registration. Id.

         ¶ 25 Additionally, because Indian tribes have a separate interest in Indian children, they must have a meaningful opportunity to participate in determining whether a child is an Indian ...


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