A mother of two children struggled with substance abuse and was the victim of domestic violence. When the children’s father assaulted her and moved out, she abandoned the children at daycare. The matter culminated in a Denver judge terminating both parents’ rights in 2020.

However, the child welfare case has now landed at the Colorado Supreme Court because of one detail that has major implications: the mother belongs to an American Indian tribe.

Her status as a member of the Confederated Tribes of the Colville Reservation, located in Washington, and the tribes’ recognition of her children as members are enough to trigger the Indian Child Welfare Act. Congress enacted ICWA, as it is known, more than four decades ago to address the large-scale removal of tribal children from their homes and to guard against further breakup of Indian families.

The portion of the law at issue in the Denver mother’s case was the requirement that state governments make “active efforts” to provide services designed to prevent the dissolution of the Indian family. The question before the justices is whether Denver’s human services department did so in this case, and more broadly, what “active efforts” means.

“We provided a great deal of support,” argued Cathleen Giovannini of the Denver City Attorney’s Office to the court last week. “We came running down and paid the rent on three or four occasions. When father assaulted mother in the home, the caseworker was at her doorstep the next day saying, ‘Here’s a special phone. Let’s go pay your rent. Let’s make sure you’re OK.'”

She added, “This is not a case where the department gave up.”

The city painted a picture of the mother as disengaged, homeless and a flight risk. Giovannini said that on one occasion, after the mother returned to treatment, the caseworker continued to offer assistance, including car rides.

“Mother didn’t accept the ride and disappeared again,” Giovannini said.

Earlier this year, the state’s intermediate appeals court reversed the termination of the mother’s parental rights, after a three-judge panel determined Denver had not, in fact, made active efforts to assist her. She had contended that Denver Human Services had not adequately helped her secure employment, housing or tribe-specific services.

The Court of Appeals panel agreed with her that “passively waiting” for a parent to follow a key part of their court-approved treatment program did not satisfy ICWA’s requirement to make active efforts.

“Mother’s treatment plan required her to have a legal form of income sufficient to support herself and the children,” wrote Judge Ted C. Tow III. “The plan directed mother to provide income documentation to the Department, pay all of her bills and rent on time, and provide the basic necessities for herself and the children, including food, clothing, and shelter. The plan did not identify any services that the Department would provide to assist mother in reaching these goals.”

Although the mother had turned to the Denver Indian Family Resource Center (until, reportedly, she stopped engaging with them), the juvenile court judge ordered the human services department to help her find job training services. There was no indication to the court that Denver subsequently assisted her in doing so.

“Thus, the record demonstrates that the Department required mother to have a legal form of income adequate to support herself and the children and passively waited for her to comply without offering any services,” Tow concluded.

During oral arguments, several Supreme Court justices were skeptical of the claim that the city should have done more to help the mother despite her repeated disappearances. 

“How should a court assess active efforts when a parent can’t be tracked down?” asked Justice Monica M. Márquez.

“‘Here’s your plan, good luck’ would not be active efforts,” said Justice Richard L. Gabriel, “but here, there’s a whole bunch of things the department did.”

Justice Carlos A. Samour Jr. was the most vocal member of the court in pointing out the struggles Denver Human Services had to endure in engaging the mother with her treatment plan.

“How do you help someone get employment when they’re gone for lengthy periods of time, when they abandon the children, and when they are clearly struggling with substance abuse to the point that they had to be in inpatient treatment?” he asked. “I’m having a hard time being critical of the department for not making enough employment efforts given those circumstances.”