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.
and County of Denver Juvenile Court No. 17JV275 Honorable
Donna J. Schmalberger, Judge
Kristin M. Bronson, City Attorney, Laura Grzetic Eibsen,
Assistant City Attorney, Denver, Colorado, for
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
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 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
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.
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 ...