People in Interest of M.V

     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

                               

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                                     

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, 

 (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. 

(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., 

 (Colo.

  2006); see also Mississippi Band of Choctaw Indians v. Holyfield,

  

 (1989). To effectuate this purpose, it establishes




                                      4
  federal standards for child custody proceedings involving Indian

  children. 

 (2018).

¶ 11   Central to ICWA are its provisions governing jurisdiction over

  child custody proceedings involving Indian children. Holyfield, 

. 

 (2018) of ICWA creates a “dual

  jurisdictional scheme” for Indian child custody proceedings.

  Holyfield, 

. In certain circumstances, ICWA provides

  for exclusive tribal jurisdiction over Indian children. 

(a); Holyfield, 

. In other circumstances, ICWA

  creates concurrent subject matter jurisdiction in state and tribal

  courts. 

(b); Holyfield, 

. 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, 

; see also B.H., 

.

  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. 

(a)

  (2018); Holyfield, 

.


                                       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. 

 (2018). But,

  the remedy does not void the court’s subject matter jurisdiction. In

  re Antoinette S., 

 (Cal. Ct. App. 2002); see

  also Carson v. Carson, 

 (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.,

  

.

¶ 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. 

; see also In re K.B., 

 (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., 

 (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, 

, 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 

(a) stripped the court of

  jurisdiction over the proceeding. In re Morris, 

, 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., 

 (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., 

 (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.,

  

. 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.,

  

 (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. 

. 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., 

, 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 

(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, 

  (Colo. 1990); In re Marriage of Smith, 

 (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., 

. A child

  custody proceeding includes a foster care placement. 

(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., 

, ¶ 14; 

  (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., 

; see

  also 

(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. 

(4). But ICWA does not define tribal

  membership. B.H., 

. Rather, membership is left to


                                    10
  the province of each individual tribe. 

 For example, an

  individual tribe’s criteria for membership may or may not include

  formal enrollment or registration. 

¶ 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. 

¶ 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., 

, ¶¶ 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., 

; Indian Child Welfare Act

  Proceedings, 

 (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, 

 (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)[.]

  

(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. 

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

  appropriate regional director of the BIA. 

(a)

  (2018).

¶ 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, 

,

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

  Affiliation, 

, 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. 

(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.”

  

(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., 

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

                                     

 (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.” 

(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., 

 (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., 

, ¶ 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., 

 (Colo. App. 1984).

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

  custody orders without making the findings required by 

(d) and (e). In re H.T., 

 (Mont. 2015); In re

  Esther V., 

 (N.M. 2011). 

  (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., 

, 735-

  36 (Cal. Ct. App. 2005); see also Esther V., 

.

¶ 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., 

 (Colo.

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

  interest in the child. W.H. v. Juvenile Court, 

  (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. 

 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
  

(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, 

, 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 

(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., 

 (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 

(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, 

 (Colo. App. 2007). However,




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

  Baca, 

.

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

  prima facie showing. People v. Heisler, 

.

  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, 

.

¶ 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, 

; 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., 

, ¶ 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,

  

 (Colo. 2010). This formulation closely tracks

  error requiring reversal in the criminal context for non-

  constitutional error. See James v. People, 

.

¶ 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, 

 (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, 

; see also People v. Bus. or Businesses

Located at 2896 W. 64th Ave., Unincorporated Adams Cty., 

 (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., 

 (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.,

  

.

¶ 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., 

. And it does not require proof of

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

, ¶ 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, 

.




                                    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 

(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.




                                  38