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People ex rel. K.N.B.E.

Court of Appeals of Colorado, Seventh Division

October 17, 2019

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.

          City 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 Petitioner-Appellee

          Barry Meinster, Guardian Ad Litem Tammy Tallant Law, LLC, Tammy Tallant, Palisade, Colorado, for Respondent-Appellant

          OPINION

          JUDGE J.

         ¶ 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 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.

         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, ΒΆ 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 ...


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