in Interest of K.R

2020 COA 35

• Court: Colorado Court of Appeals
• Decided: February 27, 2020
• Docket: 18CA2258, People
• Status: Published

Opinion

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 February 27, 2020

2020COA35

No. 18CA2258, People in Interest of K.R. — Juvenile Court —

Dependency and Neglect — Termination of the Parent-Child

Legal Relationship; American Indian Law — ICWA

In this dependency and neglect case, a special division of the

court of appeals remands for the juvenile court to determine if the

children are Indian children under the Indian Child Welfare Act

(ICWA). The division remands because the children appear to have

lineage that makes them eligible for tribal membership, but the

record is silent on whether either of the children’s parents is a tribal

member, which is a necessary condition for ICWA to apply. COLORADO COURT OF APPEALS 2020COA35

Court of Appeals No. 18CA2258 Costilla County District Court No. 17JV4 Honorable Pattie P. Swift, Judge

The People of the State of Colorado,

Appellee,

In the Interest of K.R. and S.R., Children,

and Concerning T.K.D.,

Appellant.

JUDGMENT VACATED AND CASE REMANDED WITH DIRECTIONS

Division A Opinion by JUDGE FURMAN Bernard, C.J., and Welling, J., concur

Announced February 27, 2020

Thompson Law LLC, David A. Thompson, Creede, Colorado, for Appellee

Rebecca N. Rian, Anna N.H. Ulrich, Guardians Ad Litem

Law Office of Jennifer B. Bryan, LLC, Jennifer B. Bryan, Oak View, California, for Appellant ¶1 In this dependency and neglect proceeding, T.K.D. (mother)

appeals the juvenile court judgment terminating her parent-child

legal relationships with S.R. and K.R. (the children) and asserts that

the record does not demonstrate compliance with the Indian Child

Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963 (2018). A division of

this court agreed that the record did not demonstrate compliance

with ICWA and remanded the case to the juvenile court to, among

other things, ensure that appropriate notice of the termination

proceeding was given to the two Sioux tribes who did not respond to

the earlier notice.

¶2 After receiving additional notice on remand, the Oglala Sioux

Tribe (the Tribe) sent a letter indicating that the children were

eligible for enrollment. Based on the Tribe’s response, the juvenile

court determined that ICWA’s protections were triggered. We then

recertified the appeal and directed the parties to submit

supplemental briefs.

¶3 After receiving the parties’ briefs and the juvenile court record,

we conclude that the record does not establish whether the children

are Indian children under ICWA. We reach this conclusion because

the record is silent on whether either parent is a tribal member. As

1 a result, we must vacate the termination judgment and remand the

case to the juvenile court. On remand, the court must again

determine whether the children are Indian children under ICWA. If

the court determines the children are not Indian children, it may

reinstate its judgment terminating mother’s parental rights. But if

the court determines the children are Indian children, it must then

comply with ICWA’s mandates.

I. ICWA’s Applicability

¶4 ICWA applies to any child custody proceeding, including the

termination of parental rights, involving an Indian child. People in

Interest of A.R., 2012 COA 195M, ¶ 16. Thus, in any such

proceeding, the juvenile court must consider two fundamental

questions to determine whether ICWA applies to a case: (1) Does

ICWA apply to this child? (2) Does ICWA apply to the proceeding?

See People in Interest of L.L., 2017 COA 38, ¶ 13.

¶5 An Indian child under ICWA is an unmarried person under the

age of eighteen who is either

• a member of an Indian tribe or

• eligible for membership in a tribe and the biological child of a

tribal member.

2 25 U.S.C. § 1903(4) (2018); see also L.L., ¶ 20. Consequently,

eligibility for membership, in and of itself, is not enough to meet the

definition of an Indian child. See State in Interest of P.F., 405 P.3d

755, 762 (Utah Ct. App. 2017) (recognizing that ICWA does not

apply when a child is eligible for membership in a tribe but neither

of the child’s biological parents is a member of the tribe).

¶6 But ICWA does not define tribal membership. People in

Interest of M.V., 2018 COA 163, ¶ 24. Rather, membership is left to

the province of each individual tribe. Id. A tribe’s determination of

membership or membership eligibility is conclusive and final.

People in Interest of J.A.S., 160 P.3d 257, 260 (Colo. App. 2007).

¶7 Whether ICWA applies to a proceeding is a question of law that

we review de novo. M.V., ¶ 32.

II. The Supplemental Record

¶8 The Tribe’s response appears to indicate that the children have

lineage that makes them eligible for tribal membership and that the

Tribe is intervening in the proceeding. But, as the Department

points out, the Tribe’s response does not indicate whether either

parent is also a tribal member. And while the maternal

3 grandmother indicated that the children have Sioux heritage,

neither mother nor the children’s father identified a tribal affiliation.

¶9 As a result, we are unable to determine from the supplemental

record whether the children are Indian children under ICWA.

III. Conclusion

¶ 10 We vacate the judgment and remand the case to the juvenile

court so that it may conduct further proceedings to determine if the

children are Indian children. On remand, the court shall direct the

children’s guardian ad litem and the Department to work with the

Tribe to determine, as soon as possible (1) whether either parent is

a tribal member; and (2) if so, whether the parent became a member

before the juvenile court entered the judgment terminating mother’s

parental rights. See People in Interest of J.C.R., 259 P.3d 1279,

1283 (Colo. App. 2011) (concluding that ICWA’s provisions were not

triggered when the parent asserted the children’s possible Indian

heritage after the termination proceeding).

¶ 11 After receiving this information from the Tribe, the court must

again determine whether the children meet the definition of Indian

children under 25 U.S.C. § 1903(4).

4 ¶ 12 If the court determines that the children are not Indian

children, the court may reinstate the termination judgment.

Mother may appeal from the judgment.

¶ 13 If, on the other hand, the court determines that the children

are Indian children, the court must follow ICWA’s procedural and

substantive standards that apply when a termination proceeding

concerning Indian children occurs in state court.

CHIEF JUDGE BERNARD and JUDGE WELLING concur.