Tag Archives: Indian Child Welfare Act

Certiorari Grants, Grant and Remand, and an Interesting Denial

The Supreme Court granted certiorari in three civil cases: one involving the governor’s authority to issue certain honorary proclamations and a taxpayer’s standing to bring such a challenge, and a second case to determine whether certain amendments to the fire department’s disciplinary system are subject to the collective bargaining provisions of the Denver City Charter.

In the third case the Court took the unusual action of granting certiorari as to whether the notice requirements pursuant to Indian Child Welfare Act (ICWA) were satisfied under 25 U.S.C. section 1912(a) (2001) and CRS 19-1-126, Colorado’s Children’s Code. It then remanded with instructions to the trial court that notice be given in accordance with the provisions of the ICWA and the Children’s Code.  The Court also provisionally vacated the trial court’s order terminating parental rights but held that the trial court’s judgment terminating parental rights “shall be reinstated and will stand affirmed if it is ultimately determined, after proper notice, that the child is not an Indian child. If the child is determined to be an Indian child, the trial court must proceed in accordance with the ICWA.” A copy of the original Order of the Court is here: 13SC176.

Please visit the Certiori tab for a complete statement of the issues granted.

Petitions sought pursuant to C.A.R. 50 — which are appeals directly to the Supreme Court prior to Court of Appeals review are rare. Even more rare is a grant. Par for the course, the following petition for CAR 50 review was denied and will therefore be addressed by the court of appeals in the first instance; and any appeal from that opinion will be pursuant to the normal certiorari review process under CAR 49.

No. 13SC85, Richard L. Anderson; Stephanie Allen; James N. Dreisbach, MD; Nicholas G. Muller; Ray Blum, MD; K. Mason Howard, MD; Susan E. Ljunghag, MD; Richard Schaler, MD; and Richard Parker, MD v. John W. Suthers, as the Attorney General for the State of Colorado; HealthOne, d/b/a The Colorado Health Foundation; HealthOne of Denver, Inc.,; and HCA-HealthOne, LLC, Court of Appeals Case No. 12CA2313

Petition for Writ of Certiorari Pursuant to C.A.R. 50 DENIED.

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People in the Interest of A.V. and J.V., Children, and Concerning M.V., 2012COA210 (November 21, 2012)

“You can lead a horse to water, but you can’t make it drink.” This statement is a sad reality when attempting to rehabilitate parents before terminating their parental rights. In this case, a child enrolled in the Cherokee Nation was adjudicated dependent and neglected and removed from the mother’s care. The trial court entered a treatment plan for Father, who was addicted to drugs. Father was provided with substance abuse services and treatment, parenting education, supervised visits, and other help—all to no avail. Three years later, Father’s parental rights were terminated. On appeal, Father argued that “active efforts” were not made to rehabilitate him as required by the Indian Child Welfare Act. The court of appeals upheld the termination, and noted the Act does not require expert testimony to support a finding that active efforts were made and were later unsuccessful.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/12CA0829-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8760&courtid=1

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People In the Interest of A.R. a Child, and Concerning F.N., and F.S. and A.S., Intervenors, 2012COA195 (November 8, 2012)

The Indian Child Welfare Act (ICWA) was enacted to address a history of “wholesale removal of Indian children from their homes.” It places minimum federal standards on state proceedings involving an Indian child. In this case, Colorado sought to terminate the parental rights of an Indian mother whose  child had significant special needs. During the proceedings, the Department of Human Services changed course from seeking termination, to seeking placement with extended family. The trial court terminated parental rights, granted the Department guardianship, but precluded placement with extended family. The court of appeals affirmed termination, finding the Department used “active efforts” to rehabilitate mother, which failed. But, the trial court erroneously deviated from the ICWA’s placement preferences, thus, Department could place the child with extended family.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA1448-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8742&courtid=1

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Filed under Family Law