Paso County District Court No. 17JV1116 Honorable Theresa M.
Folsom, County Attorney, Kevin G. Webster, Assistant County
Attorney, Colorado Springs, Colorado, for Petitioner-Appellee
N.H. Ulrich, Guardian Ad Litem
C. Migliaccio, Office of Respondent Parents' Counsel,
Colorado Springs, Colorado, for Respondent-Appellant
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
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
. mother had a history of substance use and
was on probation for possession of a controlled substance;
. 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.
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
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
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.
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
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.
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).
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.
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 ...