People v. M.V.

Opinion by JUDGE DAILEY

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 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. 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

• 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) 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 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.

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 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 ¶ 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 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 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.

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, 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 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 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).

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 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 ¶ 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, 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.