People ex rel. A.V.

2012 COA 210, 297 P.3d 1019, 2012 Colo. App. LEXIS 1920, 2012 WL 5872504
CourtColorado Court of Appeals
DecidedNovember 21, 2012
DocketNo. 12CA0829
StatusPublished
Cited by940 cases

This text of 2012 COA 210 (People ex rel. A.V.) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People ex rel. A.V., 2012 COA 210, 297 P.3d 1019, 2012 Colo. App. LEXIS 1920, 2012 WL 5872504 (Colo. Ct. App. 2012).

Opinion

Opinion by

Judge ROMAN.

11 M.V. (father) appeals the trial court's judgment terminating the parent-child legal relationship between him and his children, AV. and J.V. We affirm.

I. Background

12 In February 2009, the Weld County Department of Human Services (Department) filed a petition in dependency and neglect regarding A.V., a two-year-old, J.V., a one-year-old, and an older half-sibling. The petition noted numerous concerns regarding the children's mother and alleged that the caseworker was unable to reach father, who reportedly used methamphet-amines.

13 The court adjudicated the children dependent and neglected and adopted a treatment plan that required father to (1) cooperate with the Department; (2) maintain a sober and drug-free lifestyle; (8) maintain a safe and stable environment for the children; (4) meet the children's needs; (5) maintain a safe and nurturing relationship with the children, including attending parenting time; and (6) comply with all requirements of his criminal case, including probation. However, the court subsequently suspended father's visits until he demonstrated thirty consecutive days of sobriety.

T4 In May 2010, the Cherokee Nation intervened in the matter after the children were enrolled in the tribe. The Cherokee Nation had determined that the children were eligible for membership in May 2009, but there was a delay in their enrollment.

In December 2011, the Department filed a motion to terminate the parent-child legal relationship between father and the children. Following a contested hearing in February 2012, the court granted the Department's motion and entered judgment terminating father's parental rights.

1 5 Father appeals.

II, Active Efforts Requirement

T6 Father contends that the Department and the court failed to make active efforts to prevent the breakup of the Indian family as required by the Indian Child Welfare Act (ICWA) because (1) he was prevented from visiting the children onee he was in community corrections in March 2011; and (2) no efforts were made to reunite him with the children between August 2010 and the termination hearing. We are not persuaded.

T7 When, as here, the court determines that the children are Indian children, it must apply the standards set forth in the ICWA. Under the ICWA, any party seeking to effectuate foster care placement of or terminate parental rights to an Indian child must satisfy the court that (1) active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and (2) these efforts have been unsuccessful. 25 U.S.C. § 1912(d) (2006).

T8 As an initial matter, father contends that the court was required to make active efforts findings by "clear and convincing evidence." We need not resolve this question. Divisions of this court have disagreed on which standard of proof to applies to 25 U.S.C. § 1912(d). Compare People in Interest of R.L., 961 P.2d 606, 609 (Colo.App.1998) ("Because findings pursuant to 25 U.S.C. §§ 1912(d) and 1912(f) (1978) are predicates to termination under the ICWA, we conclude that logic compels application of the same 'beyond a reasonable doubt' standard of [1022]*1022proof as to both statutory provisions."), with People in Interest of C.Z., 262 P.3d 895, 905 (Colo.App.2010) (applying "the same clear and convincing evidence standard to the active efforts requirements that we apply to the reasonable efforts requirement in non-ICWA cases").

T9 Because the trial court found that the department had met its burden of proof under the higher beyond a reasonable doubt standard, and we agree that the evidence was sufficient to support that finding, we need not decide whether to employ the clear and convincing standard or the beyond a reasonable doubt standard to findings made pursuant to 25 U.S.C. $ 1912(d).

€ 10 We turn next to what constitutes "active efforts" under ICWA. ICWA does not define "active efforts" and divisions of this court disagree as to whether it is more demanding than the non-ICWA "reasonable efforts" standard. One division of this court has held that " '[aletive efforts' are equivalent to reasonable efforts to provide or offer a treatment plan in a non-ICWA case." People in Interest of K.D., 155 P.3d 634, 637 (Colo.App.2007).

{11 Another division of this court expressly disagreed with K.D.,1 referring to (1) basic statutory interpretation and the plain and ordinary meaning of the word "active"; (2) legislative intent for ICWA to have nationwide application; and (8) the purpose and policy of ICWA to promote the best interests of Indian children. People in Interest of A.R., 2012 COA 195, ¶ --, -- P.3d --, 2012 WL 5457416 (Colo.App.2012). We agree with the division in A.R. that ICWA's "active efforts" standard requires more than "reasonable efforts." See In re Interest of Walter W., 274 Neb. 859, 865, 744 N.W.2d 55, 61 (2008) (active efforts standard requires more than reasonable efforts applicable in non-ICWA cases, and at least some of the efforts should be culturally relevant).

112 Nonetheless, active efforts under the ICWA does not mean persisting with futile efforts,. K.D., 155 P.3d at 637. Thus, the Department is not required to provide active efforts to a parent who voluntarily absents himself or herself from a proceeding and cannot be located. People in Interest of J.S.B., 691 N.W.2d 611, 620 (S.D.2005). The court may also consider a parent's unwillingness to participate in treatment as a factor in determining whether the Department made active efforts. Pravat P. v. State, 249 P.3d 264, 271 (Alaska 2011).

113 "Whether the department made adequate active efforts is a mixed question of fact and law. We review the trial court's factual findings for an abuse of discretion, and the legal issues de novo." C.Z., 262 P.3d at 905.

{14 Here, the trial court found, by evidence beyond a reasonable doubt, that the Department made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, including conducting multiple relative home studies, but these efforts were unsuccessful. We conclude the record supports this finding.

1 15 Evidence adduced at the termination hearing established that following the adoption of the treatment plan, the Department provided services to father, including a substance abuse evaluation, two substance abuse treatment programs (paid for by the Department), monitored sobriety services, supervised visits, and a parenting education program.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Peo in Interest of KE
Colorado Court of Appeals, 2025
Peo in Interest of BW
Colorado Court of Appeals, 2025
Peo in Interest of QAL
Colorado Court of Appeals, 2025
Peo in Interest of R-GJM
Colorado Court of Appeals, 2025
Peo in Interest of SIR
Colorado Court of Appeals, 2025
Peo in Int of MELR
Colorado Court of Appeals, 2025
Peo in Interest of ALG
Colorado Court of Appeals, 2025
Peo in Interest of AC
Colorado Court of Appeals, 2025
Peo in Interest of NRL
Colorado Court of Appeals, 2025
Peo in Interest of CMW
Colorado Court of Appeals, 2025
Peo in Interest of NC
Colorado Court of Appeals, 2025
Peo in Interest of LQ
Colorado Court of Appeals, 2025
Peo in Interest of EH
Colorado Court of Appeals, 2025
Peo in Interest of DRM
Colorado Court of Appeals, 2025
Peo in Interest of NRGV
Colorado Court of Appeals, 2025
Peo in Interest of MLD
Colorado Court of Appeals, 2025
Peo in Interest of DAC
Colorado Court of Appeals, 2025
People in Interest of E.D.
2025 COA 11 (Colorado Court of Appeals, 2025)
Peo In Interest of ALH
Colorado Court of Appeals, 2025
Peo in Interest of SR
Colorado Court of Appeals, 2025

Cite This Page — Counsel Stack

Bluebook (online)
2012 COA 210, 297 P.3d 1019, 2012 Colo. App. LEXIS 1920, 2012 WL 5872504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-av-coloctapp-2012.