2019.05.22 Case Law Summary
People in Interest of H.T., 2019COA72 (May 9, 2019)
The procedural posture of this case is a little weird, which is what is driving the court’s ruling, so bear with me while I explain more procedure than usual.
A treatment plan was proposed and adopted prior to the entry of an adjudication. As part of the proposed treatment plan, father was required to complete an offense specific evaluation and comply with its recommendations. Although no adjudication had entered yet, Father submitted a “position statement” requesting the court to order the Department to pay for the evaluation and treatment. The Department objected and the court did not rule.
After some time passed with father working on the treatment plan, father stipulated to a deferred adjudication with a term of the stipulation stating that “the parties agree and consent that the Court shall hold a hearing regarding financial responsibility for the costs of treatment.” A month later, the Department filed a modified treatment plan incorporating recommendations from an offense specific evaluation. Father again filed a motion request that the department bear the costs for the treatment. The Department again objected.
After a hearing on the issue, the court ordered the Department to “either pay for the appropriate treatment or modify or eliminate the requirements from the treatment plan so that [father] has a reasonable opportunity to comply with the treatment plan and progress forward.”
The next day, father agreed to the entry of a formal adjudication. The court entered a dispo order that father’s initial treatment plan was approved and adopted. The Department filed a notice of appeal of the juvenile court’s order directing it to pay for treatment.
The court of appeals dismissed the appeal, concluding that an initial dispositional order, by itself, is not a final and appealable order. The court reasoned that, because the initial order to pay for treatment was part of the proposed treatment plan and not part of the final treatment plan adopted during the dispositional hearing, that the court’s order for the department to either pay or remove the requirement was interlocutory in nature.
The court had a number of reasons for reading the statute this way and emphasized that parties still have the right to appeal both the adjudicatory order and the initial dispositional order under 19-1-109(2). The court is simply holding that an initial dispositional order, by itself, is not a final appealable order. The court then dismissed the appeal. The county attorney has filed a petition for cert. in this case.
I think this case carries a note of caution with it: trial counsel should always object to every component of a treatment plan that does not help your client. Although those temporary treatment plans are not final and appealable, there are moments when you might need an interlocutory appeal on a component that no one can agree on, and a motion will take the appellate attorney a long way in making the argument to the Supreme Court. It’s also an important reminder here that the ORPC will appoint appellate attorneys for extraordinary interlocutory appeals, so it never hurts to ask!
Kudos to ORPC appellate attorney Chelsea Carr for her work on this case!
People in the Interest of Z.C., 2019COA71 (May 9, 2019)
On appeal from an order of termination of parental rights, mother contended that the county did not comply with the notice provisions of ICWA. The department initially conceded the deficiency of notice and the court issued an order for limited remand after the case was re-certified on appeal and notice was still deficient.
The ICWA division of the court of appeals found that the juvenile court did not fully comply with the initial remand order. Specifically, the juvenile court erred by concluding that all of the tribes received notice of the proceeding despite inadequate or missing return mail receipts from two tribes. Thus, the court remanded the case to the juvenile court again for compliance with ICWA.
The court then walked through the requirements of notice under ICWA:
• Notice must be provided by registered mail, with a return receipt requested
• Notice must be received by the Tribe at least ten days before the hearing described in the notice
• An original or copy of each notice sent, together with any return receipts or proof of service, must be filed with the juvenile court
If any one of those three requirements is not met, then ICWA has been violated. These are important to keep in mind as you hold the department and the court accountable for ensuring that ICWA is properly complied with in your cases. Otherwise, there might be a published remand from the ICWA division of the Court of Appeals, which could cause undue delay!