People in Interest of M.V

2018 COA 163, 432 P.3d 628

• Court: Colorado Court of Appeals
• Decided: November 15, 2018
• Docket: 17CA2090
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY November 15, 2018

2018COA163

No. 17CA2090 People in Interest of M.V. — American Indian Law — ICWA — Placement of Indian Children — Foster Care or Preadoptive Placements; Juvenile Court — Dependency and Neglect

A division of the court of appeals considers two questions of

first impression regarding the application of the foster care

placement provisions of the Indian Child Welfare Act of 1978 (ICWA)

to a dependency and neglect proceeding. First, the division

concludes that a lack of compliance with ICWA’s foster care

placement provisions does not deprive a juvenile court of

jurisdiction to enter adjudicatory and dispositional orders. Second,

the division determines that ICWA’s foster care placement

provisions apply to a dispositional order, but not an order

adjudicating a child dependent and neglected. Because the record does not demonstrate compliance with ICWA, the division reverses

the dispositional order.

In addition, the division concludes that the juvenile court

erred in admitting video recordings of mother and the children at

the adjudicatory jury trial when there was no evidence establishing

the accuracy of the scenes depicted in the recordings or the

accuracy of the recording process. The division further concludes

that the erroneous admission of the recordings substantially

influenced the jury’s verdict and, thus, was not harmless. As a

result, the division reverses the adjudicatory order. COLORADO COURT OF APPEALS 2018COA163

Court of Appeals No. 17CA2090 El Paso County District Court No. 17JV1116 Honorable Theresa M. Cisneros, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of M.V.; Ma.M.; P.M., a/k/a P.P.; and Mo.M., a/k/a M.M-B., Children,

and Concerning M.M.,

Respondent-Appellant.

ORDERS REVERSED AND CASE REMANDED WITH DIRECTIONS

Division II Opinion by JUDGE DAILEY Lichtenstein and Ashby, JJ., concur

Announced November 15, 2018

Amy R. Folsom, County Attorney, Kevin G. Webster, Assistant County Attorney, Colorado Springs, Colorado, for Petitioner-Appellee

Anna N.H. Ulrich, Guardian Ad Litem

Davide 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

1 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 court.

I. Background

¶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

white powder;

 mother had a history of substance use and was on probation

for possession of a controlled substance; and

2  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.

II. ICWA

¶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)

3 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 ICWA compliance.

A. 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 proceeding.

¶ 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

4 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.

5 ¶ 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).

6 ¶ 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

7 tribe has received notice of the proceeding. In re Desiree F., 99 Cal.

Rptr. 2d 688, 699 (Cal. Ct. App. 2000).

¶ 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

8 to terminate parental rights. In Interest of N.N.E., 752 N.W.2d 1, 10

n.3 (Iowa 2008).

¶ 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.

B. Personal Jurisdiction

¶ 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).

C. ICWA’s Provisions

¶ 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.

9 1. 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

10 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 child and to

be heard regarding ICWA’s applicability. Id.

¶ 26 To adhere to ICWA’s notice provisions, the Department must

directly notify the tribe by registered mail with return receipt

requested of the pending child custody proceeding and its right to

intervene. People in Interest of L.L., 2017 COA 38, ¶¶ 34-35. The

Department should try to provide sufficient information to the tribe

for it to determine whether the child is a member or eligible for

membership. Id. at ¶ 37.

¶ 27 In 2016, the Bureau of Indian Affairs (BIA) issued regulations

and new guidelines clarifying ICWA’s notice requirements. People in

Interest of L.H., 2018 COA 27, ¶ 6; Indian Child Welfare Act

Proceedings, 81 Fed. Reg. 38,778 (June 14, 2016); BIA Guidelines

for Implementing the Indian Child Welfare Act (Dec. 2016),

https://perma.cc/3TCH-8HQM (2016 Guidelines); see also Notice

11 of Guidelines for Implementing the Indian Child Welfare Act, 81

Fed. Reg. 96,476 (Dec. 30, 2016). Although the 2016 Guidelines

are not binding, they provide useful guidance in interpreting ICWA.

L.H., ¶ 6.

¶ 28 Under the regulatory scheme, the notice sent to an Indian

tribe must include the following:

(1) The child’s name, birthdate, and birthplace;

(2) All names known (including maiden, married, and former names or aliases) of the parents, the parents’ birthdates, and birthplaces, and Tribal enrollment numbers if known;

(3) If known, the names, birthdates, birthplaces, and Tribal enrollment information of other direct lineal ancestors of the child, such as grandparents; [and]

(4) The name of each Indian Tribe in which the child is a member (or may be eligible for membership if a biological parent is a member)[.]

25 C.F.R. § 23.111(d)(1)-(4) (2018). The notice must also include a

copy of the petition, complaint, or other document by which the

child custody proceeding was initiated and, if a hearing has been

scheduled, information on the date, time, and location of the

hearing, and various statements related to the tribe’s right to

12 intervene and petition for a transfer to a tribal court. 25 C.F.R. §

23.111(d)(5)-(6). And, copies of these notices must be sent to the

appropriate regional director of the BIA. 25 C.F.R. § 23.11(a)

¶ 29 The 2016 Guidelines recognize that in some instances the

child or parent may not be certain of his or her membership status

in an Indian tribe but may indicate he or she is somehow affiliated

with a tribe or group of tribes. 2016 Guidelines at 18. To assist in

identifying federally recognized tribes and their agents for service,

the BIA publishes a list of recognized tribes and their agents in the

Federal Register by region and by historical tribal affiliation. See

Designated Tribal Agents for Service of Notice, 82 Fed. Reg. 12,986,

13,009 (Mar. 8, 2017); List of Designated Tribal Agents by Tribal

Affiliation, 82 Fed. Reg. 12,986, 13,009 (Mar. 8, 2017),

https://perma.cc/K3DD-KQR5.

¶ 30 When, as here, the parent or his or her relative is only able to

identify a tribal ancestral group, the Department must notify each

of the tribes in that ancestral group in order for the tribes to

identify whether the parent or child is a member of any such tribe.

L.H., ¶ 8.

13 ¶ 31 Additionally, if the court has reason to know that the child is

an Indian child, but it does not have sufficient evidence to

determine whether the child is or is not an Indian child, the court

must treat the child as an Indian child, unless and until it is

determined on the record that the child is not an Indian child. 25

C.F.R. § 23.107(b)(2) (2018). Among other things, before ordering a

foster care placement, the court must

 be satisfied that “active efforts have been made to provide

remedial services and rehabilitative programs designed to

prevent the breakup of the Indian family and that these efforts

have proved unsuccessful”; and

 make a determination, “supported by clear and convincing

evidence, including testimony of qualified expert witnesses,

that the continued custody of the child by the parent or Indian

custodian is likely to result in serious emotional or physical

damage to the child.”

25 U.S.C. § 1912(d), (e).

¶ 32 Whether ICWA applies to a dependency and neglect case is a

question of law that we review de novo. See In re M.H.C., 381 P.3d

710, 712 (Okla. 2016); see also People in Interest of T.M.W., 208

14 P.3d 272, 274 (Colo. App. 2009) (recognizing that whether ICWA’s

notice requirement was satisfied is a question of law that we review

de novo).

2. Application to Adjudicatory and Dispositional Orders

¶ 33 A foster care placement under ICWA is “any action removing

an Indian child” from his or her “parent or Indian custodian for

temporary placement in a foster home or institution or the home of

a guardian or conservator where the parent or Indian custodian

cannot have the child returned upon demand, but where parental

rights have not been terminated.” 25 U.S.C. § 1903(1)(i); C.A., ¶ 9.

¶ 34 The purpose of an adjudicatory trial is to determine whether

the factual allegations in the dependency and neglect petition are

supported by a preponderance of the evidence, and, thus, whether

the status of the child warrants intrusive protective or corrective

state intervention into the familial relationship. § 19-3-505(1),

C.R.S. 2018; People in Interest of S.G.L., 214 P.3d 580, 583 (Colo.

App. 2009).

¶ 35 But, the purpose of adjudication is not to determine the

children’s placement. Indeed, while evidence tending to establish

the necessity of separating a child from his or her parents may be

15 admitted at the adjudicatory hearing, it is not required for making

an order of adjudication. § 19-3-505(2). Thus, an adjudicatory

order does not constitute a foster care placement under ICWA.

¶ 36 True, another division of this court has reversed an

adjudicatory order and remanded the case to ensure compliance

with ICWA’s notice requirements. See L.L., ¶ 55. Yet, the same

division also concluded that ICWA concerns the placement of Indian

children in child custody proceedings, and an adjudicatory hearing

is not a child custody proceeding under ICWA. Id. at ¶ 51. We

agree with this conclusion.

¶ 37 However, a dispositional hearing serves a different purpose.

Once a child has been adjudicated dependent and neglected, the

court must hold a dispositional hearing and receive evidence on the

proper disposition that will serve the best interests of the child and

the public. §§ 19-3-507(1)(a), 19-3-508(1), C.R.S. 2018; People in

Interest of Z.P.S., 2016 COA 20, ¶ 14.

¶ 38 When, as here, the proposed disposition is not termination of

parental rights, the court must approve an appropriate treatment

plan that includes a provision concerning the child’s placement.

§ 19-3-508(1)(a)-(c). The court may place the child in the legal

16 custody of one or both parents, a relative or other suitable person,

or the Department for placement in a foster care home or other

child care facility. Id. In short, as part of the dispositional order,

the juvenile court must address the child’s placement, which may

include a foster care placement.

¶ 39 We recognize that the dispositional hearing is not necessarily

the first time that a court will address whether a child needs to be

in out-of-home placement. Often, as in this case, the court may

place a child in a relative’s custody or in foster care during a shelter

or temporary custody hearing prior to adjudication and disposition.

An earlier division of this court determined that a foster care

placement under ICWA had occurred on the date that a protective

order was entered that precluded the parent from removing the

children from foster care. People in Interest of J.L.G., 687 P.2d 477,

479 (Colo. App. 1984).

¶ 40 However, ICWA allows courts to issue temporary or emergency

custody orders without making the findings required by 25 U.S.C.

§ 1912(d) and (e). In re H.T., 343 P.3d 159, 168 (Mont. 2015); In re

Esther V., 248 P.3d 863, 872-73 (N.M. 2011). 25 U.S.C. § 1922

(2018) specifically provides that ICWA should not be construed to

17 prevent the emergency removal of an Indian child who is a resident

of or domiciled on a reservation, or the emergency placement of the

child in foster care when necessary to prevent imminent physical

harm to the child. Although this section only references Indian

children who are residents of or are domiciled on an Indian

reservation, its legislative history reveals that it was intended to

apply to all Indian children. In re S.B., 30 Cal. Rptr. 3d 726, 735-

36 (Cal. Ct. App. 2005); see also Esther V., 248 P.3d at 873.

¶ 41 And orders entered during the temporary protective or shelter

stage of a dependency and neglect proceeding are interim orders

pending a final factual determination of the allegations in the

petition. People in Interest of A.E.L., 181 P.3d 1186, 1191 (Colo.

App. 2008). They are not intended to determine a parent’s legal

interest in the child. W.H. v. Juvenile Court, 735 P.2d 191, 193

(Colo. 1987). Rather, the temporary protective or shelter hearing is

a pre-adjudicatory procedure which arises from exigencies requiring

temporary emergency measures designed to protect the welfare of

the child pending further judicial proceedings. Id. In contrast, the

dispositional hearing is the first time that the court addresses the

18 child’s placement once it has gained authority to intervene in the

familial relationship. See Z.P.S., ¶ 13.

¶ 42 Accordingly, a dispositional order constitutes a child custody

proceeding under ICWA.

3. Reason to Know

¶ 43 A court “has reason to know” a child “is an Indian child if”

(1) Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that the child is an Indian child;

(2) Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, 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 Indian 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; or

(6) The court is informed that either parent or the child possesses an identification card indicating membership in an Indian Tribe.

19 25 C.F.R. § 23.107(c). State courts and agencies are encouraged to

interpret these factors expansively. 2016 Guidelines at 11.

¶ 44 At the commencement of the case, mother completed an ICWA

assessment form regarding Ma.M. and M.V. On the form, mother

indicated that those children had American Indian heritage and

were eligible for membership in a Lakota or Sioux tribe. The BIA’s

list of Tribal Agents by Affiliation contains no reference to a Lakota

tribe, but it does identify multiple federally recognized Sioux tribes.

See List of Designated Tribal Agents by Tribal Affiliation, 82 Fed.

Reg. 12,986, 13,009 (Mar. 8, 2017), https://perma.cc/K3DD-

KQR5. This information was sufficient to give the court reason to

know the children were Indian children under 25 C.F.R. §

23.107(c)(2).

¶ 45 Yet, the record contains no indication that the Department

gave notice of the dispositional hearing to the Sioux tribes. To be

sure, the Department correctly asserts that mother had not

complied with the juvenile’s court earlier directive to complete a

second ICWA assessment form. Be that as it may, mother’s failure

to comply did not eliminate the Department’s duty to send notice of

the proceeding to the tribal affiliations identified by mother. See

20 People in Interest of J.O., 170 P.3d 840, 843 (Colo. App. 2007). And,

in response to the juvenile court’s inquiry at the dispositional

hearing, mother reported that the children had Apache and Sioux

heritage.

¶ 46 Moreover, the juvenile court did not make the necessary

findings under 25 U.S.C. § 1912(d) and (e) before it placed three of

the children, P.M., M.V. and Mo.M., out of a parent’s care

(effectively a foster care placement under ICWA).

¶ 47 Under these circumstances, the record does not demonstrate

compliance with ICWA, and we must therefore reverse the

dispositional order.

III. Admission of Video Recordings at the Adjudicatory Trial

¶ 48 Mother contends that the juvenile court reversibly erred in

admitting video recordings that had been anonymously provided to

the Department and were not properly authenticated. We agree.

A. Legal Standard for Authentication

¶ 49 Video recordings are ordinarily competent to illustrate or

explain something that a witness could describe in words. People v.

Armijo, 179 P.3d 134, 137 (Colo. App. 2007). However,

21 authentication is a condition precedent to admissibility. People v.

Baca, 2015 COA 153, ¶ 26.

¶ 50 The burden to authenticate is not high and requires only a

prima facie showing. People v. Heisler, 2017 COA 58, ¶ 7.

Authentication is satisfied by evidence sufficient to support a

finding that the evidence in question is what its proponent claims.

CRE 901; People v. Glover, 2015 COA 16, ¶ 12.

¶ 51 To authenticate a video recording, the proponent needs to

establish that the recording is an accurate reproduction of a scene

with which the witness is familiar. Armijo, 179 P.3d at 136-38; see

also Baca, ¶ 29. But, if no witness with independent knowledge of

the content of the recording can verify the accuracy of the scene,

the proponent may instead present a witness who can verify the

reliability of the recording process, including the reliability of the

recording system and the absence of any tampering with the

recording. See Baca, ¶ 30 (applying the same principle to a

recorded telephone call).

¶ 52 We review evidentiary rulings, including a trial court’s

determinations regarding foundation and authentication, for an

abuse of discretion. Id. at ¶ 18. A court abuses its discretion when

22 its ruling is based on an erroneous understanding or application of

the law or is manifestly arbitrary, unreasonable, or unfair. Heisler,

¶ 13.

B. The Authentication of the Video Recordings

¶ 53 Before the jury trial, mother filed a motion in limine to exclude

eleven video recordings — ten that purported to show mother using,

manufacturing, or distributing drugs in her home and one that

showed the children in the same area at a different time. She

asserted that the video recordings were not original and that it

would be unfair to admit the duplicate copies because they

appeared to have been altered based on some having time stamps

that did not accurately reflect the length of the recordings and

others having obvious scene jumps or skips. Mother also argued

that the video recordings had been anonymously provided and

could not be authenticated.

¶ 54 At the start of the jury trial, mother renewed her objection.

She reiterated that the Department would not be able to

authenticate the video recordings and there were issues with the

contents of the recordings. The juvenile court deferred ruling on

23 the admissibility of the recordings until they were offered into

evidence.

¶ 55 Evidence presented at the trial established that the

Department received the video recordings of mother and the

children through two separate mechanisms. First, an intake

caseworker testified that he had received an interoffice envelope

that contained a DVD with four video clips. The intake caseworker

explained that he did not know who had left the DVD for him.

¶ 56 Second, M.V.’s paternal uncle testified that he had received

three video files from an anonymous sender via email. He then sent

the video recordings, also via email, to a different intake caseworker

at the Department. The second intake caseworker testified that

after receiving the email, she downloaded the video recordings onto

a disc and deleted the email.

¶ 57 Several witnesses testified that they recognized persons or

furniture in the video recordings. For example, the initial intake

caseworker recognized mother in the clips on the DVD. Likewise,

the paternal uncle testified that he was able to recognize mother in

two of the recordings as well as the computer room and an adjacent

pool table and light in mother’s home.

24 ¶ 58 The second caseworker also recognized mother in two of the

video recordings as well as three of the children in another

recording. The second caseworker further testified that she showed

one of the video recordings to mother, who agreed that the

recording showed her desk and the children at their then-current

ages.

¶ 59 Based on this record, and over mother’s objection, the juvenile

court admitted six of the video recordings. A police officer

subsequently testified that the video recordings appeared to show

methamphetamine use and the selling of a substance that appeared

to be methamphetamine.

¶ 60 Still, the record is devoid of any testimony from a witness who

could independently verify the accuracy of the scenes depicted in

the video recordings — mother using and distributing

methamphetamine and the children later having access to the same

area. In fact, the paternal uncle admitted that he had never

witnessed mother using or selling drugs.

¶ 61 In short, the record does not establish that the police officer,

the caseworkers, or the paternal uncle was present when the scenes

depicted in the video recordings occurred. Thus, they could not

25 vouch for the accuracy of the recorded scene. See Baca, ¶ 31

(concluding that a witness could not vouch for the accuracy of a

recorded conversation since he did not hear the conversation as it

occurred).

¶ 62 Nor could any witness verify the reliability of the recording

process. Indeed, the paternal uncle acknowledged that he had no

idea how or when the video recordings were made. Likewise, the

second intake caseworker acknowledged that she could not verify

the accuracy of the time stamp seen in some of the recordings;

when the recordings were created; or whether any of the recordings

were altered, modified, or edited. The caseworker further agreed

that the video recordings “bounce[d]” and persons in the recordings

would suddenly jump from one position to another.

¶ 63 Given that the Department was unable to establish either the

accuracy of the scenes depicted in the video recordings or the

accuracy of the recording process, the juvenile court erred in

admitting the video recordings of mother and the children.

¶ 64 Relying on CRE 1002 and 1003, mother also argues that it

was unfair for the juvenile court to admit the video recordings when

she was unable to cross-examine the person who made the

26 recording or view the original recordings. Because we have already

determined that the juvenile court erred in admitting the recordings

without proper authentication, we need not decide this issue.

¶ 65 But this conclusion does not end our analysis. We must also

determine whether the admission of the video recordings requires

reversal of the jury’s verdict.

C. The Effect of the Admission of the Recordings

¶ 66 Generally, an error in the admission of evidence in a civil case

is harmless if it does not affect a substantial right of a party.

C.R.C.P. 61; People in Interest of D.B., 2017 COA 139, ¶ 31. An

error affects a substantial right if it can be said with fair assurance

that it substantially influenced the outcome of the case or impaired

the basic fairness of the trial itself. D.B., ¶ 31; see also Bly v. Story,

241 P.3d 529, 535 (Colo. 2010). This formulation closely tracks

error requiring reversal in the criminal context for non-

constitutional error. See James v. People, 2018 CO 72, ¶ 19.

¶ 67 The proper inquiry in determining a harmless error question is

not, then, whether there was sufficient evidence to support the

verdict without the improperly admitted evidence, but, rather,

whether the error substantially influenced the verdict or affected

27 the fairness of the trial proceedings. Yusem v. People, 210 P.3d

458, 469 (Colo. 2009). This assessment requires consideration of

the importance of the evidence to the proponent’s case, whether the

evidence was cumulative, the presence of other evidence

corroborating or contradicting the point for which the evidence was

offered, and the overall strength of the proponent’s case. People v.

Casias, 2012 COA 117, ¶ 64; see also People v. Bus. or Businesses

Located at 2896 W. 64th Ave., Unincorporated Adams Cty., 937 P.2d

873, 876-77 (Colo. App. 1996) (recognizing that the erroneous

admission of evidence may be harmless when there is ample or

conclusive evidence from other sources that establish the same

facts). But, the single most important factor is whether the case

was close. Casias, ¶ 69; see also People in Interest of G.E.S., 2016

COA 183, ¶ 34 (concluding that the erroneous admission of the

polygraph evidence was not harmless given the inherently

prejudicial nature of the evidence and the lack of otherwise

admissible evidence overwhelmingly proving the allegations of

dependency and neglect).

28 1. Basis for Adjudication

¶ 68 The purpose of an adjudicatory trial is to determine whether

the factual allegations in the dependency and neglect petition are

supported by a preponderance of the evidence, and, thus, whether

the status of the child warrants intrusive protective or corrective

state intervention in the familial relationship. § 19-3-505(1); S.G.L.,

214 P.3d at 583.

¶ 69 A child is dependent and neglected when the parent has

subjected the child to mistreatment or abuse or allowed another to

mistreat or abuse the child without taking lawful means to stop the

mistreatment or abuse and prevent it from recurring. § 19-3-

102(1)(a), C.R.S. 2018. As pertinent here, “abuse” includes an act

or omission that threatens the child’s health or welfare in any case

in which a child is in need of services because the parent fails to

take action to provide the supervision that a prudent parent would.

§ 19-1-103(1)(a)(III), C.R.S. 2018.

¶ 70 A child may also be adjudicated dependent and neglected if

the child lacks proper parental care through the parent’s actions or

omissions or the child’s environment is injurious to his or her

welfare. § 19-3-102(1)(b)-(c). An injurious environment exists when

29 a child is in a situation that is likely harmful to the child. People in

Interest of J.G., 2016 CO 39, ¶ 26. And it does not require proof of

parental fault. Id. at ¶ 32; see also People in Interest of M.M., 2017

COA 144, ¶ 21.

2. Harmless Error Analysis

¶ 71 To be sure, the video recordings were not the sole evidence

presented at the trial to support the Department’s assertion that

the children were dependent and neglected. The Department also

asserted that the children’s welfare was at risk because of the

chaotic environment and domestic violence that was occurring in

the home that mother shared with M.V.’s father (father). Still, we

cannot conclude that the admission of the video recordings did not

substantially influence the jury’s verdict.

¶ 72 First, the record reveals that considerable emphasis was

placed on the video recordings. In addition to playing the six

recordings for the jury, the Department elicited expert testimony

from a police officer to establish that five of the recordings appeared

to show methamphetamine use and distribution. The Department

also had three separate witnesses — the initial intake worker, the

30 paternal uncle, and a second caseworker — identify mother in the

recordings.

¶ 73 Indeed, the second intake caseworker opined that by the end

of July 2017, she was concerned by the video recordings but was

not immediately concerned by domestic violence (as opposed to

mother re-engaging in a violent relationship) because father had left

the home and a protection order was in place.

¶ 74 The record further reveals that the video recordings and their

significance were discussed at length during closing argument by

both the Department and the children’s guardian ad litem. And the

Department again referenced the recordings in its rebuttal

argument.

¶ 75 Second, the video recordings are not cumulative of or

corroborated by other evidence. Some, but not all, of the recordings

have time stamps showing that they were made in late June 2017.

In other words, they purport to show recent methamphetamine use

and distribution by mother. While mother admitted to using

methamphetamine in the past (she estimated twenty times) and was

on probation for drug possession, there was no other evidence

31 showing that she used or distributed drugs during the summer of

2017.

¶ 76 Rather, a police officer testified that in April 2016 —

approximately seventeen months before the trial — he searched

mother’s car during a traffic stop and found a shard of

methamphetamine on the driver’s seat as well as a cosmetic mirror

that contained methamphetamine mixed with water in the center

console. Although mother denied that the methamphetamine

belonged to her, she admitted that it had been found in her car and

resulted in her receiving a felony drug conviction and probation

sentence.

¶ 77 Third, the record contains other evidence that tends to

contradict that mother had recently used or distributed

methamphetamine. The initial intake caseworker acknowledged

that he had not seen any sign that mother was under the influence

of methamphetamine or other drugs when he met with her. The

paternal uncle testified that he had not seen mother use or sell

drugs.

¶ 78 The record further reveals that before the case was filed,

mother provided a urinalysis. Although she did not take the test at

32 a facility approved by the Department, the test was negative.

Mother also provided a second negative urinalysis on the day the

petition was filed.

¶ 79 Additionally, mother’s probation officer testified that she had

provided four urinalyses since mid-April 2017, which all tested

negative, and had completed a substance abuse evaluation that

showed she did not need treatment. Finally, mother testified that

the last time that she used methamphetamine occurred before she

learned that she was pregnant with M.V.

¶ 80 Fourth, without the video recordings, the record shows a

much closer case as to whether the children were dependent and

neglected. While mother acknowledged past methamphetamine

use, it occurred more than a year before the adjudicatory trial, and,

as previously discussed, there was evidence that tended to show

that the use was not continuing.

¶ 81 True, the record also shows that mother and father had a

contentious relationship and police officers had responded to the

home on multiple occasions. However, in the end, the officers

determined that these were disputes between adults that required

no further action. For example, a police officer testified that he

33 responded to mother’s home in January 2017 and observed mother

barricaded in a bedroom with M.V., then a newborn, and a twelve-

or thirteen-year-old child. Mother told the officer that father’s ex-

girlfriend had come over and challenged her to a physical

confrontation. The officer determined that the incident, as

described by mother, did not constitute a crime. And, when no

party was willing to take his suggestion to leave the home for the

night, he left.

¶ 82 Another police officer testified that he responded to mother’s

home in June 2017 as a result of a domestic disturbance call from

father. Father told the officer that mother had cut off the power to

the basement and mother indicated that father “yells at her and

locks her out of the house.” But, the officer concluded that there

was no evidence of domestic violence and described the incident as

a “verbal argument between male and female.”

¶ 83 The next day, a different police officer responded to mother’s

home based on a call from father. The officer testified that it

appeared that father and mother were having a verbal argument

“where nothing illegal was going on.”

34 ¶ 84 Additionally, it was undisputed that there was a violent

episode of domestic violence between mother and father as well as a

heated exchange of M.V. in early July 2017. On that day, M.V.’s

paternal aunt and uncle witnessed a verbal altercation between

mother and father. The aunt described mother and father as

“screaming back and forth at each other” while father was in the

garage holding M.V. in his arms and mother was parked halfway in

the garage. Father had a bleeding gash on his face and mother had

a torn shirt and blood under her arm.

¶ 85 At some point, the aunt took M.V. inside of mother’s home and

mother left. About an hour later, mother returned to the home with

Mo.M. and asked to take M.V. The aunt explained that she tried to

hand M.V. to mother, but the aunt’s son grabbed M.V. and then

either mother or Mo.M. grabbed M.V. from the aunt’s son. The aunt

also testified that after grabbing the baby, mother said “somebody is

going to die tonight, somebody is going to get shot.”

¶ 86 After the incident, a police officer met with mother at the

hospital. Mother told the officer that the night before and

throughout that morning, she and father had been arguing and,

while M.V. was present, father “had put his hands around her

35 throat and strangled her.” The officer observed that mother had

scratches on her face, marks around her neck, and a “good size”

laceration on the back of her arm.

¶ 87 Despite the serious nature of this incident, mother explained

that this was the first incident of physical violence between her and

father and the first time that she had been the victim of domestic

violence. She also testified that she had not threatened anyone that

evening and that she was no longer living with father. Furthermore,

the police officer determined that mother was the victim and had a

warrant issued for father for domestic violence and child abuse.

¶ 88 It may well be that, in the absence of the video recordings, this

other evidence — mother’s past methamphetamine use, the

contentious relationship resulting in police calls, and the single

incident of domestic violence — would have been sufficient to

support the jury’s verdict 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. But, this is not the

question that we must decide. See Yusem, 210 P.3d at 469.

36 ¶ 89 Rather, we conclude that the erroneous admission of the video

recordings substantially influenced the jury’s verdict given the

emphasis placed on the recordings, the lack of cumulative or

corroborative evidence, the evidence that tended to contradict

mother’s recent use, and the closeness of the case (without the

recordings). Accordingly, the error was not harmless, and we must

reverse the adjudicatory order.

IV. Conclusion

¶ 90 The adjudicatory and dispositional orders are reversed. The

case is remanded to the juvenile court to hold a new adjudicatory

trial. The court must also ensure, if it has not already done so, that

notice of the proceeding is given to the federally recognized Sioux

and Apache tribes as well as the BIA before the dispositional

hearing.

¶ 91 Additionally, if the children are again adjudicated dependent

and neglected, the juvenile court must treat the children as Indian

children unless and until it determines that they are not.

Accordingly, if at the time of the dispositional hearing, the court has

been unable to determine that the children are not Indian children,

37 it must comply with 25 U.S.C. § 1912(d) and (e) for any of the

children that remain out of a parent’s care and determine whether

 the Department has made active efforts to provide remedial

services and rehabilitative programs designed to prevent the

breakup of the family and these efforts have proved

unsuccessful; and

 clear and convincing evidence, including testimony of qualified

expert witnesses, demonstrates that the continued custody of

the child by the parent is likely to result in serious emotional

or physical damage to the child.

JUDGE LICHTENSTEIN and JUDGE ASHBY concur.