Peo in Interest of JM

Opinion

24CA0483 Peo in Interest of JM

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0483 El Paso County District Court No. 23JV30818 Honorable Lin Billings Vela, Judge

The People of the State of Colorado,

Appellee,

In the Interest of J.M., M.V., M.M., and P.M., Children,

and Concerning M.M.,

Appellant.

JUDGMENT AFFIRMED

Division VII Opinion by JUDGE JOHNSON Lipinsky and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 20, 2025

Kenneth R. Hodges, County Attorney, Mathew Feldman, Deputy County Attorney, Colorado Springs, Colorado, for Appellee

Josie L. Burt, Guardian Ad Litem, for J.M. and M.V.

Josie L. Burt, Counsel for Youth, Glenwood Springs, Colorado, for M.M. and P.M.

The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for Appellant ¶1 In this dependency and neglect proceeding, M.M. (mother)

appeals the juvenile court’s judgment adjudicating her children

dependent and neglected as to her following a jury trial. We affirm

the judgment.

I. Background

¶2 The El Paso County Department of Human Services (the

Department) filed a petition in dependency or neglect regarding

fifteen-year-old P.M., twelve-year-old M.M., six-year-old M.V., and

four-year-old J.M. The petition alleged that (1) mother was

homeless and living in her vehicle with the children; (2) the children

did not have access to food; (3) the children had not received recent

medical care; and (4) the children had suffered physical abuse at

the hands of mother. The petition further alleged that mother had a

history of substance dependence and that the children had access

to drugs and drugs paraphernalia while in her care.

¶3 The juvenile court conducted an adjudicatory jury trial and

the jury returned verdicts finding that all children were dependent

or neglected under section 19-3-102(a), (b), (c), (d), and (e), C.R.S.

2024. The jury additionally found that P.M. was dependent and

neglected under section 19-3-102(f).

1 ¶4 Following the jury trial, the juvenile court adjudicated the

children dependent and neglected as to mother and adopted a

treatment plan for mother.

II. ICWA

¶5 Mother first asserts that the juvenile court did not comply with

the Indian Child Welfare Act (ICWA) of 1978, 25 U.S.C. §§ 1901-

1963; § 19-1-126, C.R.S. 2024. She contends that the court had

“reason to know” the children were Indian children and, therefore,

the Department should have provided notice of the adjudicatory

trial to the Lakota and Apache tribes and treated the children as

“Indian children” in the meantime. We disagree.

A. Additional Facts

¶6 Mother filled out a form asserting that she was not an enrolled

member of a tribe, but that the children were eligible for tribal

membership. Mother listed Lakota Sioux and Apache as the tribes

the children were eligible to join. At the adjudicatory trial, mother

asserted that she was an enrolled member in “Lakota” and “Apache”

tribes. She informed the court that “the last step” she did to enroll

the children was to “upload [the children’s] birth certificates,” but

that she had not heard back from any tribe. She told the court she

2 had provided her birth certificate to the tribes five years before the

adjudication trial and had sent the children’s birth certificates

“recently once again” but had not heard back about enrollment.

Mother did not provide an enrollment number or identification card

for herself or any of the children or any other information indicating

that the children were Indian children. Based on the foregoing, the

juvenile court determined that mother had made “mere assertions”

of heritage and, pursuant to E.A.M., it therefore had no reason to

know that the children were Indian children.

¶7 The court again addressed ICWA at the dispositional hearing.

The Department informed the court that it had since sent notices to

all Lakota Sioux and Apache tribes and that it had received

responses from some of those tribes stating that the children were

not Indian children. Mother’s counsel notified the court that

mother “may have received some additional tribal related

documentation that hopefully we’ll be able to provide to the parties”

but did not explain what such documentation was. Nor does the

record contain any additional documentation from mother.

3 B. Standard of Review and Applicable Law

¶8 Whether the juvenile court and the Department complied with

ICWA is a question of law that we review de novo. People in Interest

of T.M.W., 208 P.3d 272, 274 (Colo. App. 2009).

¶9 For ICWA to apply in a dependency and neglect proceeding,

the case must involve an Indian child. See People in Interest of A.G.-

G., 899 P.2d 319, 321 (Colo. App. 1995). “Indian child” is defined

as “any unmarried person who is under the age of eighteen” and is

(1) “a member of an Indian tribe” or (2) “eligible for membership in

an Indian tribe” and “the biological child of a member of an Indian

tribe.” 25 U.S.C. § 1903(3); § 19-1-103(83), C.R.S. 2024. “Until the

party asserting the applicability of the ICWA establishes, on the

record, that the child meets one or both of these criteria, the ICWA

is not applicable.” A.G.-G., 899 P.2d at 321.

¶ 10 In a dependency and neglect proceeding in Colorado, a

juvenile court must inquire of the parties whether they know or

have reason to know that a child is an Indian child. § 19-1-

126(1)(a)(I)(A), C.R.S. 2024. Upon conducting the inquiry, the court

has reason to know that the child is an Indian child if one of the

following factors applies:

4 1. Any participant in the proceeding, officer of the court

involved in the proceeding, Native tribe or organization,

or agency informs the court that the child is an Indian

child.

2. Any participant in the proceeding, officer of the court

or agency informs the court that it has discovered

information indicating that the child is an Indian child.

3. The child who is the subject of the proceeding gives the

court reason to know he or she is an Indian child.

4. The court is informed that the domicile or residence of

the child, the child’s parent, or the child’s Native

custodian is on a reservation or in an Alaska Native

village.

5. The court is informed that the child is or has been a ward

of a Tribal court.

6. The court is informed that either parent or the child

possesses an identification card indicating membership

in a Tribe.

25 C.F.R. § 23.107(c) (2023); § 19-1-126(1)(a)(II).

5 ¶ 11 “If the court knows or has reason to know” that the child is an

Indian child, “the petitioning or filing party shall send notice by

registered or certified mail, return receipt requested, to the parent

or parents, the Indian custodian or Indian custodians of the child

and to the tribal agent of the Indian child's tribe . . . .”

§ 19-1-126(1)(b). “If there is reason to know the child is an Indian

child but the court does not have sufficient evidence to determine

that the child is or is not an Indian child,” the court must “[t]reat

the child as an Indian child, unless and until it is determined on

the record that the child does not meet the definition of an Indian

child.” § 19-1-126(2)(b).

¶ 12 A mere assertion of Native heritage, without more, however, is

insufficient to give the juvenile court reason to know that a child is

an Indian child. People in Interest of E.A.M. v. D.R.M., 2022 CO 42,

¶ 56. Rather, “these types of more generalized assertions of Indian

heritage” only “trigger the due diligence requirement” in section 19-

1-126(3). H.J.B. v. People in Interest of A-J.A.B., 2023 CO 48, ¶ 5.

Under those circumstances, section 19-1-126(3) requires the court

to direct the department to “exercise due diligence in gathering

6 additional information that would assist the court in determining

whether there is reason to know that the child is an Indian child.”

C. Analysis

¶ 13 Mother asserts that the adjudication must be reversed

because the juvenile court had reason to know that the children

were Indian children based on her assertion that she was an

enrolled tribal member and that the children were eligible to be

enrolled. She also claims that, considering these assertions, notice

should have been sent to the Lakota and Apache tribes before the

adjudicatory trial. We disagree for three reasons.

¶ 14 First, to the extent mother argues that the adjudication must

be reversed for lack of compliance with ICWA at the adjudicatory

stage, she is mistaken. This is because ICWA only applies when an

Indian child is the subject of a child custody proceeding, 25 C.F.R.

§ 23.103(a) (2023), and an adjudicatory trial is not a child custody

proceeding under ICWA, People in Interest of M.V., 2018 COA 163, ¶

35, overruled on other grounds by E.A.M., ¶ 56.

¶ 15 A dispositional hearing, however, requires the court to address

a child’s placement, and is a “child custody proceeding under

7 ICWA.” Id. at ¶ 42. We will therefore address the court’s findings at

that hearing for ICWA compliance.

¶ 16 Second, the record shows that mother provided no additional

information about her or the children’s enrollment before or at the

dispositional hearing. By the date of the dispositional hearing,

mother had made only general assertions of Native heritage and,

thus, the court had no “reason to know” that the children were

Indian children. See E.A.M., ¶ 56.

¶ 17 Third, about a month after the adjudicatory trial, in

accordance with its obligations under section 19-1-126(3) to

exercise due diligence to gather additional information, the

Department sent ICWA notices to all the Lakota Sioux and Apache

tribes. Most of those tribes indicated that the children were not

members of or eligible for membership in the tribe, although the

Department received some of these notices after the dispositional

hearing. The other tribes did not respond. The record, however,

shows they received the notice at least ten days before the

dispositional hearing. See 25 U.S.C. § 1912(a); People in Interest of

J.O., 170 P.3d 840, 842 (Colo. App. 2007) (noting that a child

8 custody hearing should not be held unless a tribe received notice at

least ten days before the hearing)

¶ 18 Nonetheless, mother asserts that, under section 19-1-

126(2)(b), the juvenile court was bound to treat the children as

Indian children until it was determined on the record that the

children did not meet the definition of “Indian child.” Accordingly,

she argues that the Department had to make active efforts to

reunify the children with mother and comply with ICWA-related

requirements before the children were removed. See 25 U.S.C. §§

1912(e), 1922; 25 C.F.R. § 23.113(a).

¶ 19 But as discussed, the court did not have “reason to know” the

children were Indian children based on mother’s general assertions

of Native heritage. And even if the court had “reason to know,” any

noncompliance with ICWA was harmless because the Department

properly notified all potential tribes, none of whom responded that

the children were Indian children. See C.A.R. 35(c); C.R.C.P. 61;

H.J.B., ¶ 64 (errors related to ICWA notice are harmless if the

record establishes that the child is not an Indian child); People in

Interest of C.B., 2019 COA 168, ¶ 31 (any error the court may have

9 committed by not complying with ICWA was harmless because the

children were not Indian children).

¶ 20 In sum, the record shows that, based on the information it

received, the juvenile court did not have reason to know that the

children were Indian children. See § 19-1-126(1)(a)(I)(A); C.R. ICWA

P. 3(a), (c); E.A.M., ¶ 56. We therefore conclude that the court

complied with the notice provisions of ICWA and that ICWA does

not apply in this case.

III. Caseworker as Expert Witness

¶ 21 Mother next argues that the juvenile court erred by qualifying

the Department’s caseworker as an expert witness because she did

not have the requisite qualifications. We disagree.

A. Standard of Review and Applicable Law

¶ 22 The decision to admit expert testimony lies within the juvenile

court’s discretion, and we will not disturb it absent an abuse of

discretion. People in Interest of M.W., 140 P.3d 231, 233 (Colo. App.

2006). A court abuses its discretion when “its ruling is manifestly

arbitrary, unreasonable, or unfair, or when it misapplies the law.”

People in Interest of E.R., 2018 COA 58, ¶ 6.

10 ¶ 23 CRE 702 provides that, “[i]f scientific, technical, or other

specialized knowledge will assist the trier of fact to understand the

evidence or to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or education, may

testify thereto in the form of an opinion or otherwise.”

¶ 24 A court may qualify a witness as an expert under any of the

five factors specified in CRE 702. Gresser v. Banner Health, 2023

COA 108, ¶ 47 (cert. granted on other grounds, Sept. 9, 2024). The

rule does not require a proposed expert to belong to any particular

organization or have any specific certification. People v. Bornman,

953 P.2d 952, 955 (Colo. App. 1997). When a witness is qualified to

provide expert testimony under one or more of the factors in CRE

702 but lacks certain additional knowledge or training within their

field of expertise, such deficiency goes to the weight of the expert’s

testimony, not its admissibility. See People v. Lehmkuhl, 117 P.3d

98, 104 (Colo. App. 2004); see also Core-Mark Midcontinent, Inc. v.

Sonitrol Corp., 2012 COA 120, ¶ 28 (the fact that an expert witness

cannot support their opinion with certainty goes only to the weight

to be given to the opinion and not to its admissibility).

11 B. Analysis

¶ 25 Over mother’s objection, the juvenile court qualified the

Department’s caseworker as an expert in child welfare. Although

mother argues that the caseworker did not have the requisite

background or knowledge to testify as an expert, the record

indicates otherwise. The caseworker testified that she held a

bachelor’s degree, attended the state’s caseworker academy, and

maintained her continuing education requirements. She also

testified that she took a nine-hour training about completing safety

assessments and an eight-hour course called “Working Toward

Closure,” among other trainings. She further testified that she had

been an intake caseworker for the Department for two years and

had completed over 300 safety assessments.

¶ 26 On appeal, mother emphasizes that the caseworker did not

have a master’s degree and had not read any peer-reviewed

publications on child welfare. And mother asserts that the

caseworker’s background was unrelated to social work and that she

had limited experience. But the juvenile court found that the

caseworker was qualified as an expert in child welfare and

protection, not social work. An expert is not required to have

12 performed a scientific or technical analysis for their testimony to be

admissible. See Core-Mark, ¶ 34. And even though a degree or

experience in social work, the study of peer-reviewed publications,

or more experience as a caseworker may have bolstered the

caseworker’s qualifications to opine about child protection and

welfare, none of these criteria was necessary to qualify her as an

expert in those areas. Rather, the caseworker’s lack of this

experience, which mother’s counsel highlighted during voir dire,

went to the weight, not the admissibility, of the caseworker’s expert

testimony. See Lehmkuhl, 117 P.3d at 104.

¶ 27 To the extent that mother asserts the juvenile court did not

make the findings required by People v. Schreck, 22 P.3d 68, 79

(Colo. 2001), regarding the reliability of the underlying scientific

principles or specialized knowledge upon which the expert

testimony is based, the helpfulness of the proposed expert

testimony, and whether the probative value of the evidence was

substantially outweighed by its prejudicial effect, she did not raise

such a challenge during the trial. Accordingly, we decline to review

these contentions on appeal. See People in Interest of M.B., 2020

13 COA 13, ¶ 14 (“[G]enerally appellate courts review only issues

presented to and ruled on by the lower court.”).

IV. Testimony and Body Camera Footage from Mother’s Arrest

¶ 28 Finally, mother argues that the juvenile court abused its

discretion when it allowed the jury to hear testimony from officers

who arrested mother and view footage from the arrest. She asserts

that, because no children were present during the incident, the

evidence was not relevant to whether the children were dependent

or neglected. We are not persuaded.

¶ 29 At the adjudicatory trial, the Department called two officers

who investigated a trespass call involving mother. Both officers

testified that, when they responded, they found mother “passed out”

and unresponsive in the cab of a truck. Both officers testified that

they observed drug paraphernalia in mother’s lap. One officer

testified that mother was very lethargic, unresponsive to their

commands, and not able to keep her head up. The officers further

testified that, when later categorizing evidence from the truck, they

found additional drug paraphernalia, drugs, a handgun, and a

14 binder of birth certificates, including those of mother, the children,

and others. No children were present on the night of that incident.

¶ 30 The Department also moved to admit the footage from one of

the officer’s body-worn cameras during his testimony. Mother

objected to the footage as not relevant because the children were

not present during the incident. The Department responded that,

even though the children were not present, the video established

safety concerns and was relevant to the question of prospective

harm if the children were returned to mother. Father’s counsel also

objected to the footage on the grounds that it was cumulative. The

court agreed that the evidence “could be” redundant but found that

“seeing something is very different than just hearing about it” and

overruled the parents’ objections.

B. Standard of Review and Applicable Law

¶ 31 We review the juvenile court’s decision to admit evidence for

an abuse of discretion. People in Interest of M.H-K., 2018 COA 178,

¶ 60.

¶ 32 Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of

the action more or less probable than it would be without the

15 evidence.” CRE 401. However, even relevant evidence may be

excluded under CRE 403 “if its probative value is substantially

outweighed by the danger of unfair prejudice.”

¶ 33 Mother did not object to the officers’ testimony and, thus, her

arguments related to the inadmissibility of their testimony are not

preserved for our review. M.B., ¶ 14.

¶ 34 In addition, the footage from the officer’s body-worn camera

was relevant to prospective harm. See People in Interest of G.E.S.,

2016 COA 183, ¶ 15. Prospective harm requires a prediction of

whether, based on the parent’s past conduct and current

circumstances, it is likely or expected that the parent will fail to

provide proper parental care for a child in the future. People in

Interest of S.N., 2014 COA 116, ¶ 18. Contrary to mother’s

argument, the circumstances of mother’s arrest were relevant to

whether she could provide the children with proper parental care

and whether the children would be in an injurious environment if

returned to her care. See id. (noting that, for purposes of

prospective harm analysis, a fact finder may consider a parent’s

conduct or condition, including drug use).

16 ¶ 35 Mother also argues that the body camera footage was unfairly

prejudicial and cumulative, it confused the jury, and it impaired the

basic fairness of the trial. But she does not point us to where in the

record she objected to the footage on these grounds or develop these

assertions in her appellate brief. Consequently, we decline to

address them further. See Woodbridge Condo. Ass’n, Inc. v. Lo

Viento Blanco, LLC, 2020 COA 34, ¶ 41 n.12 (“We don’t consider

undeveloped and unsupported arguments.”), aff’d, 2021 CO 56.

¶ 36 Based on the foregoing, the juvenile court did not abuse its

discretion when it allowed the jury to view the body camera footage

from mother’s arrest.

V. Conclusion

¶ 37 We affirm the judgment.

JUDGE LIPINSKY and JUDGE MOULTRIE concur.