in the Interest of L.R.B

2019 COA 85

• Court: Colorado Court of Appeals
• Decided: May 30, 2019
• Docket: 18CA1478, 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 May 30, 2019

2019COA85

No. 18CA1478, People in the Interest of L.R.B. — American Indian Law — ICWA — Indian Tribe Jurisdiction Over Indian Child Custody Proceedings — Transfer of Proceedings; Appeals — Final Appealable Order — Collateral Order Doctrine

A division of the court of appeals concludes that a juvenile

court’s order denying a tribe’s request to transfer jurisdiction to a

tribal court is a final, appealable order based on the collateral order

doctrine. COLORADO COURT OF APPEALS 2019COA85

Court of Appeals No. 18CA1478 Montezuma County District Court No. 15JV9 Honorable Douglas S. Walker, Judge

The People of the State of Colorado,

Petitioner-Appellee,

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

and Concerning Navajo Nation,

Intervenor-Appellant,

and

E.S. and R.S.,

Intervenors-Appellees.

ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS

Division A Opinion by JUDGE FURMAN Dunn and Welling, JJ., concur

Announced May 30, 2019

John Baxter, County Attorney, Ian MacLaren, Special Assistant County Attorney, Cortez, Colorado, for Petitioner-Appellee

Beth Padilla, Guardian Ad Litem

James Shaner, Cortez, Colorado; Keith Andrew Fitzgerald, Moab, Utah, for Intervenor-Appellant

The Law Office of Jill M. Carlson, LLC, Jill M. Carlson, Cortez, Colorado, for Intervenors-Appellees ¶1 In this post-termination of parental rights proceeding, the

Montezuma County Department of Social Services (Department)

and the guardian ad litem (GAL) of L.R.B., S.B.B., and K.B.B. (the

children) stipulated to the Navajo Nation’s request to transfer

jurisdiction to the tribal court for preadoptive and adoptive

placement proceedings. But the children’s former foster parents,

E.S. and R.S., who filed petitions to adopt the children, opposed the

transfer.

¶2 After a contested hearing, the juvenile court denied the Navajo

Nation’s request to transfer jurisdiction. The court recognized that

the transfer section of the Indian Child Welfare Act of 1978 (ICWA),

25 U.S.C. § 1911(b) (2018), generally permits a tribe to request a

transfer of jurisdiction. But the court concluded that the plain

language of this section does not apply to preadoptive and adoptive

placement proceedings and, even if it did apply, the former foster

parents presented evidence of good cause to deny the request.

¶3 We disagree based on the plain language of the Children’s

Code. Section 19-1-126(1), (4)(a), and (4)(b), C.R.S. 2018 — our

state’s ICWA-implementing legislation as it existed at the time of

this hearing — applies transfer of jurisdiction requests to

1 preadoptive and adoptive placement proceedings. It also places the

burden of proof on the party opposing the transfer. Because the

former foster parents lacked standing to oppose the Navajo Nation’s

request, the juvenile court erred in entertaining their opposition.

¶4 Accordingly, we reverse the juvenile court’s order and remand

for the juvenile court to (1) transfer jurisdiction to the Navajo

Nation’s tribal court and (2) vacate and dismiss the former foster

parents’ petitions to adopt.

I. Post-Termination Proceedings

¶5 It is undisputed that the children are registered members of

the Navajo Nation and, therefore, Indian children under ICWA. See

25 U.S.C. §§ 1901 to 1963 (2018).

¶6 The juvenile court entered judgment terminating the parent-

child legal relationship between the children and their parents, and

a division of this court affirmed the judgment. People in Interest of

L.R.B., (Colo. App. No. 17CA0607, Feb. 1, 2018) (not published

pursuant to C.A.R. 35(e)). Following termination, the Department

filed a motion to remove the children from the home of the former

foster parents and place them in an ICWA preferred placement. The

court granted the motion.

2 ¶7 The Navajo Nation then moved to intervene; the juvenile court

granted the motion. While the parents appealed the termination of

their parental rights, the Navajo Nation moved to transfer

jurisdiction from the state court to the tribal court under section 25

U.S.C. § 1911(b). The Department and the GAL did not oppose this

motion. But the juvenile court denied the Navajo Nation’s motion

because the court lacked jurisdiction to act while the case was on

appeal. Yet, it noted that if it had jurisdiction, it would have

concluded that good cause existed to deny transfer based on the

age of the case.

¶8 Later, the former foster parents filed petitions to adopt the

children; the Navajo Nation and the Department opposed the

petitions. The juvenile court also “re-joined” the former foster

parents to the dependency and neglect case under C.R.C.P. 20. The

court did so based on the former foster parents’ petitions to adopt

the children.

¶9 After our court issued the mandate on the denial of the

parents’ appeal, the Navajo Nation again moved to transfer

jurisdiction in the dependency and neglect case. The Navajo Nation

asserted that the tribal court was the proper venue for preadoptive

3 and adoptive placement proceedings regarding the children. The

Department and the GAL stipulated to the Navajo Nation’s motion,

but the former foster parents opposed it.

¶ 10 After a hearing, in which the Navajo Nation, the Department,

the GAL, and the former foster parents participated, the juvenile

court denied the Navajo Nation’s motion to transfer jurisdiction.

The court also ordered the Department to place the children with

the former foster parents pending the final hearing on their

petitions to adopt.

¶ 11 The Navajo Nation and the Department moved to stay the

juvenile court’s order denying the motion to transfer jurisdiction

and placing the children with the former foster parents. But the

court denied the motion to stay.

¶ 12 The Navajo Nation then filed in this court a notice of appeal

and an emergency motion for a stay and requested that the children

be kept in their current foster home rather than be placed with the

former foster parents. A division of this court granted the stay and

issued a show cause order asking the parties to address the finality

of the court’s order denying the motion to transfer jurisdiction. To

address the order’s finality, the division asked the parties to

4 respond to several questions, including whether the order was

immediately appealable and whether there was any other basis for

the court to exercise jurisdiction over this appeal.

¶ 13 We first address finality.

II. Finality

¶ 14 We conclude that a juvenile court’s order denying a tribe’s

request to transfer jurisdiction to a tribal court is a final, appealable

order based on the collateral order doctrine.

¶ 15 “Because we must always satisfy ourselves that we have

jurisdiction to hear an appeal, we may raise jurisdictional defects

sua sponte, regardless of whether the parties have raised the issue.”

People v. S.X.G., 2012 CO 5, ¶ 9. This court has “no authority to

expand [our] appellate jurisdiction [as] specified by” the General

Assembly, Holdridge v. Bd. of Educ., 881 P.2d 448, 450-51 (Colo.

App. 1994), and we cannot “modify the jurisdiction granted [us] by

statute.” People v. Meyers, 43 Colo. App. 63, 64, 598 P.2d 526, 527

(1979).

¶ 16 Once the General Assembly establishes a statutory right of

judicial review, “such review must be sought in strict compliance

with the mandatory provisions of the statute”; otherwise, the court

5 does not have jurisdiction “to act.” Mile High United Way, Inc. v. Bd.

of Assessment Appeals, 801 P.2d 3, 5 (Colo. App. 1990); accord

Barber v. People, 127 Colo. 90, 95, 254 P.2d 431, 434 (1953) (“[I]n

an action which is entirely statutory, the procedure therein

prescribed is the measure of the power of the tribunal to which

jurisdiction of causes arising under the statute is given.”).

¶ 17 Section 19-1-109, C.R.S. 2018, of the Children’s Code governs

our review of dependency and neglect proceedings. People in

Interest of R.S. v. G.S., 2018 CO 31, ¶ 16. Regarding our review of

these proceedings,

[s]ubsection (1) [of section 19-1-109] states that an appeal may be taken from “any order, decree, or judgment,” “as provided in the introductory portion to section 13-4-102(1), C.R.S.” § 19-1-109(1). In turn, section 13-4- 102(1) provides that the court of appeals shall have initial jurisdiction over appeals from “final judgments” of district courts, including juvenile courts that preside over dependency or neglect proceedings.

Id. (footnote omitted).

¶ 18 “A final judgment is one which ends the particular action in

which it is entered, leaving nothing further for the court

pronouncing it to do in order to completely determine the rights of

6 the parties involved in the proceeding.” People in Interest of S.M.O.,

931 P.2d 572, 573 (Colo. App. 1996) (citing Harding Glass Co. v.

Jones, 640 P.2d 1123 (Colo. 1982)); see G.S., ¶ 37.

¶ 19 Generally, a court’s order denying a motion to transfer

jurisdiction does not “end[] the particular action in which it is

entered, leaving nothing further for the court pronouncing it to do.”

S.M.O., 931 P.2d at 573. This is so because the denial, by its very

nature, means that continued proceedings are to occur in the

current forum. G.S., ¶ 37. And here, continued proceedings are to

occur because the juvenile court has retained jurisdiction to

consider the preadoptive and adoptive placements of the children.

¶ 20 But special considerations are in play when a court addresses

a request by an Indian tribe to transfer jurisdiction to the tribal

court because tribes are domestic dependent nations that exercise

inherent sovereign authority over their members and territories.

Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of

Oklahoma, 498 U.S. 505, 507 (1991); see Cash Advance & Preferred

Cash Loans v. State, 242 P.3d 1099, 1106 (Colo. 2010). Tribal

sovereignty is an inherent, retained sovereignty that pre-dates

European contact, the formation of the United States, the United

7 States Constitution, and individual statehood. Cash Advance, 242

P.3d at 1107. And, under ICWA, “there is no resource that is more

vital to the continued existence and integrity of Indian tribes than

their children and . . . the United States has a direct interest, as

trustee, in protecting Indian children who are members of or are

eligible for membership in an Indian tribe.” 25 U.S.C. § 1901(3).

Delaying appellate review of the juvenile court’s order would also

imperil the Navajo Nation’s interest in protecting children who are

members of or eligible for membership in the tribe, particularly at

the preadoptive and adoptive stages of the case.

¶ 21 Thus, we apply the collateral order doctrine. See Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949) (There are

some decisions that “finally determine claims of right separable

from, and collateral to, rights asserted in the action, too important

to be denied review and too independent of the cause itself to

require that appellate consideration be deferred until the whole case

is adjudicated.”).

¶ 22 The collateral order doctrine permits — in limited

circumstances — appellate review of an interlocutory order despite

its non-final nature. U.S. Taekwondo Comm. v. Kukkiwon, 2013

8 COA 105, ¶ 12. This doctrine takes “a ‘practical construction’ of the

finality require[ment] . . . and permits, under highly circumscribed

situations, interlocutory review of a trial court ruling even if the

ruling is not the last decision issued in the case.” Id. (quoting Will

v. Hallock, 546 U.S. 345, 349 (2006)); see also Paul v. People, 105

P.3d 628, 631-32 (Colo. 2005) (noting that the Colorado supreme

court has not decided whether the collateral order doctrine applies

to final judgments under C.A.R. 1(a)).

¶ 23 Several cases support our application of the collateral order

doctrine to a denial of a tribe’s request to transfer jurisdiction. See,

e.g., In re Children of Shirley T., 199 A.3d 221, 224 n.6 (Me. 2019)

(considering denial of a motion to transfer jurisdiction under ICWA

“pursuant to the collateral order exception to the final judgment

rule”); see also In re Interest of Brittany C., 693 N.W.2d 592, 602

(Neb. Ct. App. 2005) (“We conclude that the trial court’s orders

denying the requests to transfer jurisdiction affected a substantial

right in a special proceeding and were, therefore, final, appealable

orders.”); In re Adoption of A.B., 245 P.3d 711, 722 (Utah 2010)

(stating the Navajo Nation could have appealed “the order denying

the Nation’s motion for transfer of jurisdiction over the children”).

9 ¶ 24 “Pursuant to the collateral order doctrine, to be immediately

appealable a decision must ‘[1] conclusively determine the disputed

question, [2] resolve an important issue completely separate from

the merits of the action, and [3] be effectively unreviewable on

appeal from a final judgment.’” U.S. Taekwondo Comm., ¶ 13

(quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)).

Regarding the third condition, “the decisive consideration is

whether delaying review until the entry of final judgment ‘would

imperil a substantial public interest’ or ‘some particular value of a

high order.’” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 107

(2009) (quoting Will, 546 U.S. at 352-53).

¶ 25 We conclude that the juvenile court’s order denying the Navajo

Nation’s motion to transfer jurisdiction satisfies all three

requirements of the collateral order doctrine.

¶ 26 First, the order “conclusively determine[d]” the disputed issue

of whether the Navajo Nation has jurisdiction over preadoptive and

adoptive placement proceedings concerning the children. U.S.

Taekwondo Comm., ¶ 13.

¶ 27 Second, the order resolved an “important issue completely

separate from the merits.” Id. We remain cognizant that the

10 underlying merits of this case involve the children’s adoption — a

matter of great public importance. See, e.g., § 19-1-102(1)(d),

C.R.S. 2018 (The Children’s Code is meant to ultimately “secure for

any child removed from the custody of his parents the necessary

care, guidance, and discipline to assist him in becoming a

responsible and productive member of society.”). But the question

at issue, whether the juvenile court erred by denying transfer of

jurisdiction to the Navajo Nation, is separate from the ultimate

resolution of the former foster parents’ adoption proceeding. And

resolution of this proceeding will not address the validity of the

juvenile court’s order denying transfer.

¶ 28 Third, the order is “effectively unreviewable on appeal,” U.S.

Taekwondo Comm., ¶ 13, because delaying review would “imperil a

substantial public interest,” Mohawk, 558 U.S. at 107 (quoting Will,

546 U.S. at 352-53). Congress has told us that protecting Indian

children is vital to the continued existence and integrity of Indian

tribes and that “it is the policy of this Nation to protect the best

interests of Indian children and to promote the stability and

security of Indian tribes and families . . . .” 25 U.S.C. § 1902

(2018); see Mohawk, 588 U.S. at 107. While a tribe may challenge

11 the denial of a motion to transfer jurisdiction following a final

adoption decree, the children will have been placed in permanent

homes. And if it is determined at that time that the court

erroneously denied the motion to transfer jurisdiction, the

children’s permanency would be seriously disrupted.

¶ 29 Accordingly, a juvenile court’s order denying a tribe’s motion

to transfer jurisdiction in a proceeding involving an Indian child is

an interlocutory order that may be immediately appealed under the

collateral order doctrine. We therefore conclude that we have

jurisdiction over the order on appeal and that the appeal may

proceed.

¶ 30 We next address the question of standing.

III. Standing

¶ 31 We conclude that the former foster parents lack standing in

the dependency and neglect case to oppose the Navajo Nation’s

motion to transfer jurisdiction.

¶ 32 Whether a party has standing is a question of law that we

review de novo. Boudette v. State, 2018 COA 109, ¶ 15.

¶ 33 “Standing is a threshold issue that must be satisfied in order

to decide a case on the merits.” Ainscough v. Owens, 90 P.3d 851,

12 855 (Colo. 2004). To have standing, a party must have (1) suffered

an injury in fact (2) to a legally protected interest. C.W.B. v. A.S.,

2018 CO 8, ¶ 18. The legally protected interest requirement

recognizes that “parties actually protected by a statute or

constitutional provision are generally best situated to vindicate their

own rights.” Id. (quoting City of Greenwood Village v. Petitioners for

Proposed City of Centennial, 3 P.3d 427, 437 (Colo. 2000)).

¶ 34 We need not decide whether the former foster parents have

standing to oppose the motion to transfer jurisdiction in the

adoption cases because resolution of the jurisdiction question in

this dependency and neglect case could result in vacating and

dismissing the former foster parents’ petitions to adopt. See § 19-3-

205(1), C.R.S. 2018; People in Interest of L.M., 2018 CO 34, ¶ 38

(noting a “preference for addressing issues relating to a child’s

status under the provisions of Article 3” when a dependency and

neglect proceeding is pending). We thus consider whether the

former foster parents have standing to oppose the motion in the

dependency and neglect case.

¶ 35 We conclude that the former foster parents lack standing to

oppose the transfer of jurisdiction for three reasons. First, the

13 former foster parents no longer have intervenor status. Foster

parents may intervene as a matter of right and fully participate in

dependency and neglect proceedings if “the child [is] in their care

for more than three months” and they “have information or

knowledge concerning the care and protection of the child.” § 19-3-

507(5)(a), C.R.S. 2018; see People in Interest of O.C., 2013 CO 56,

¶¶ 16, 19-20; A.M. v. A.C., 2013 CO 16, ¶ 20 (“Foster parents who

meet the required statutory criteria to intervene may participate

fully in the termination hearing without limitation.”). But the

former foster parents here do not meet these criteria. True, they

properly intervened under section 19-3-507(5)(a), following

adjudication and while the children were in their care. Yet, once

the children were removed from their home following termination of

parental rights, they no longer had intervenor status.

¶ 36 Second, the former foster parents do not have a

constitutionally protected liberty interest in the continuation of

their relationships with the children. See C.W.B., ¶ 26 (stating that

section 19-3-507(5)(a) does not automatically confer standing to

foster parents to appeal a judgment denying the termination

14 motion); M.S. v. People, 2013 CO 35, ¶ 21; People in Interest of

A.W.R., 17 P.3d 192, 197 (Colo. App. 2000).

¶ 37 Third, civil joinder rules cannot confer standing in this case.

This is so because the Colorado Rules of Civil Procedure only apply

to dependency and neglect proceedings when the proceedings are

not governed by the Colorado Rules of Juvenile Procedure or the

procedures set forth in the Children’s Code. C.R.J.P. 1; see People

in Interest of K.J.B., 2014 COA 168, ¶ 9; § 19-1-106(1), C.R.S. 2018.

Because the Children’s Code, here section 19-3-507(5)(a), addresses

persons who may intervene in a dependency and neglect

proceeding, the Colorado Rules of Civil Procedure, and more

specifically, C.R.C.P. 20, do not apply to allow intervention. See,

e.g., L.O.W. v. Dist. Court, 623 P.2d 1253, 1257 n.15 (Colo. 1981)

(Crim. P. 46 did not apply to the extent that it was inconsistent with

the Children’s Code and the juvenile procedure rule regarding bail);

see also Dash v. FirstPlus Home Loan Owner Tr. 1996-2, 248 F.

Supp. 2d 489, 503 (M.D.N.C. 2003) (parties “cannot use joinder

rules to cure their lack of standing”).

15 ¶ 38 For these reasons, the former foster parents lack standing in

the dependency and neglect case to oppose the Navajo Nation’s

IV. Motion to Transfer Jurisdiction

¶ 39 We last conclude that the juvenile court erroneously denied

the Navajo Nation’s motion to transfer jurisdiction.

¶ 40 Initially, we acknowledge recent legislation that amends the

Children’s Code’s ICWA-implementing provisions. H.B. 1232, 72nd

Gen. Assemb., 1st Reg. Sess. (Colo. 2019). It conforms these

provisions to the updated federal ICWA regulations. See id. Even

so, we apply the law that existed at the time the juvenile court

denied transfer of jurisdiction to the Navajo Nation. § 2-4-202,

C.R.S. 2018 (“A statute is presumed to be prospective in its

operation.”); AviComm, Inc. v. Colo. Pub. Utils. Comm’n, 955 P.2d

1023, 1029 (Colo. 1998) (“Absent clear legislative intent to the

contrary, statutes are given prospective application only.”).

¶ 41 Under ICWA, “the state and the tribe have concurrent

jurisdiction over Indian children who live off the reservation.”

People in Interest of T.E.R., 2013 COA 73, ¶ 7. The tribal court,

however, is the preferred jurisdiction. People in Interest of J.L.P.,

16 870 P.2d 1252, 1256 (Colo. App. 1994). Thus, in the absence of

good cause and upon request by “either parent or the Indian

custodian or the Indian child’s tribe,” the state court must transfer

jurisdiction to the tribal court. 25 U.S.C. § 1911(b); People in

Interest of A.T.W.S., 899 P.2d 223, 224 (Colo. App. 1994); J.L.P.,

870 P.2d at 1256.

¶ 42 Although ICWA does not define good cause to deny transfer,

the Bureau of Indian Affairs has issued guidelines for determining

whether good cause exists. Bureau of Indian Affairs, Guidelines for

Implementing the Indian Child Welfare Act (Dec. 2016),

https://perma.cc/3TCH-8HQM (2016 Guidelines); see Notice of

Guidelines, 81 Fed. Reg. 96, 476 (Dec. 30, 2016). The 2016

Guidelines provide that the good cause provision “is intended to

permit a State court to apply a modified doctrine of forum non

conveniens, in appropriate cases, to insure that the rights of the

child as an Indian, the Indian parents or custodian, and the Tribe

are fully protected.” 2016 Guidelines at 48-49.

¶ 43 Under the Children’s Code, the party opposing transfer of

jurisdiction bears the burden of proof for establishing good cause to

deny the transfer. § 19-1-126(4)(b), C.R.S. 2018; T.E.R., ¶ 9.

17 And in reviewing a juvenile court’s denial of a motion to transfer

jurisdiction, we examine the record to determine whether

substantial evidence supports the court’s findings. T.E.R., ¶ 9;

J.L.P., 870 P.2d at 1256.

¶ 44 We initially note that even though the juvenile court found

that ICWA does not apply to the Navajo Nation’s motion to transfer

jurisdiction, it nonetheless exercised its discretion and considered

the request.

¶ 45 We acknowledge that ICWA only addresses a request to

transfer jurisdiction during foster care placement and termination

of parental rights proceedings. 25 U.S.C. § 1911(b). It does not

mention such a request during preadoptive or adoptive placement

proceedings. See id. Even so, the Children’s Code, as it existed at

the time the juvenile court denied transfer, permits a juvenile court

to consider transfer of jurisdiction to a tribal court “[i]n any of the

cases identified in subsection (1) of this section involving an Indian

child.” § 19-1-126(1), (4)(a). The cases identified in subsection (1)

include “pre-adoptive and adoption proceedings.” § 19-1-126(1).

¶ 46 As noted, the Navajo Nation, the Department, and the GAL

stipulated to the motion. And because the former foster parents

18 lack standing to oppose the motion, they should have been

precluded from participating in the matter and presenting evidence

of good cause to deny the transfer. Thus, because no party with

standing opposed the transfer, no party met the burden of opposing

transfer of jurisdiction. See § 19-1-126(4)(b).

¶ 47 Accordingly, we conclude that the juvenile court erred by

denying the Navajo Nation’s motion to transfer jurisdiction.

V. Conclusion

¶ 48 We reverse the juvenile court’s order denying the Navajo

Nation’s motion to transfer jurisdiction.

¶ 49 We remand this case to the juvenile court with directions to (1)

transfer jurisdiction to the Navajo Nation’s tribal court and (2)

vacate and dismiss the former foster parents’ petitions to adopt.

JUDGE DUNN and JUDGE WELLING concur.