in the Interest of Z.C

2019 COA 71

• Court: Colorado Court of Appeals
• Decided: May 9, 2019
• Docket: 18CA0560, 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 9, 2019

2019COA71

No. 18CA0560, People in the Interest of Z.C. — Juvenile Court — Dependency and Neglect; American Indian Law — ICWA — Notice

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

appeals addresses the sufficiency of notice under the Indian Child

Welfare Act of 1978 (ICWA) when the return receipts deposited with

the trial court are in some way incomplete or absent. In response

to an order from this court, the El Paso County Department of

Human Services (Department) sent ICWA notice to eight tribes. The

Department received return receipts from seven of the eight tribes.

But the return receipts from three tribes were to some degree

incomplete and the Department never received a return receipt from

one of the tribes. Notwithstanding the deficiencies, the juvenile court concluded

that all eight tribes received adequate notice. The division

concludes that notice was sufficient for six of the eight tribes and

the defect with respect to one of the two remaining tribes was

harmless. But because the division concludes that notice was

insufficient and the deficiency was not harmless with respect to one

of the tribes, the division remands the case to the juvenile court for

the limited purpose of complying with ICWA and, upon doing so,

making further findings.

2 COLORADO COURT OF APPEALS 2019COA71

Court of Appeals No. 18CA0560 El Paso County District Court No. 16JV895 Honorable Timothy Schutz, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of Z.C., a Child,

and Concerning S.C.,

Respondent-Appellant.

ORDER OF LIMITED REMAND

Division A Furman, Ashby, and Welling, JJ. PER CURIAM

Announced May 9, 2019

Amy R. Folsom, County Attorney, Jessica T. Driver, Assistant County Attorney, Colorado Springs, Colorado, for Petitioner-Appellee

Anna N.H. Ulrich, Guardian Ad Litem

Ingelhart Law Office, LLC, Kimberly A. Ingelhart, Glenwood Springs, Colorado, for Respondent-Appellant ¶1 In this dependency and neglect action, S.C. (mother) appeals

the juvenile court’s judgment terminating her parent-child

relationship with her son, Z.C. Among the issues raised in her

appeal, mother contends that the juvenile court and the El Paso

County Department of Human Services (Department) did not

comply with the notice requirements of the Indian Child Welfare Act

of 1978 (ICWA), 25 U.S.C. §§ 1901-1963 (2018).

¶2 This is the second time this case has come before the ICWA

division of this court to consider the adequacy of ICWA notice. The

Department initially conceded that some tribes had not received

proper notice of the termination proceeding. Based on our review of

the record, we agreed that the Department did not meet its notice

obligations with regard to eight tribes — namely, the three federally

recognized Cherokee tribes, the Navajo Nation, and four of the

federally recognized Apache tribes. See People in Interest of Z.C.,

(Colo. App. No. 18CA0560, Oct. 10, 2018) (unpublished order).

Thus, we issued a limited remand order directing the juvenile court

to ensure compliance with ICWA. Id.

¶3 The supplemental record on remand, however, does not

demonstrate that the juvenile court fully complied with the remand

1 order. In particular, the juvenile court erred when it found that all

of the tribes received notice of the proceeding despite inadequate or

missing return mail receipts from two tribes. As a result, we again

remand the case to the juvenile court for the limited purpose of

ensuring compliance with ICWA.

I. ICWA’s Purpose and Provisions

¶4 ICWA aims to protect and preserve Indian tribes and their

resources and to protect Indian children who are members of or are

eligible for membership in an Indian tribe. 25 U.S.C. § 1901(2), (3)

(2018). ICWA “recognizes that Indian tribes have a separate

interest in Indian children that is equivalent to, but distinct from,

parental interests.” People in Interest of I.B-R., 2018 COA 75, ¶ 4.

The statute reflects the presumption that the protection of an

Indian child’s relationship with the tribe serves the child’s best

interests. People in Interest of S.R.M., 153 P.3d 438, 440 (Colo. App.

2006). And it is up to each tribe to make the determination as to

whether a child is eligible for membership. People in Interest of

T.M.W., 208 P.3d 272, 274 (Colo. App. 2009) (“[E]ach Indian tribe

has the authority to determine its membership criteria and to

2 decide who meets those criteria.” (citing People in Interest of J.A.S.,

160 P.3d 257, 260 (Colo. App. 2007))).

¶5 “Accordingly, in a proceeding in which ICWA may apply, tribes

must have a meaningful opportunity to participate in determining

whether the child is an Indian child and to be heard on the issue of

ICWA’s applicability.” I.B-R., ¶ 4. To ensure tribes have an

opportunity to be heard, the federal regulations and guidelines

implementing ICWA require juvenile courts and human services

departments to notify any identified Indian tribes when there is

reason to know or believe an Indian child is involved in a child

custody proceeding. People in Interest of L.L., 2017 COA 38, ¶ 29;

see also 25 C.F.R. 23.11 (2018); 25 C.F.R. 23.111 (2018); see also

Bureau of Indian Affairs, Guidelines for Implementing the Indian

Child Welfare Act 11 (Dec. 2016), https://perma.cc/3TCH-8HQM;

see also Notice of Guidelines, 81 Fed. Reg. 96,476 (Dec. 30, 2016).

In doing so, the department must directly notify the tribe by

registered mail with return receipt requested of the pending

proceeding and its right to intervene. L.L., ¶¶ 34-35; see

also § 19-1-126, C.R.S. 2018.

3 ¶6 If the court has reason to know or believe that a child is an

Indian child, but lacks sufficient evidence to make a determination,

the court must confirm that the department involved in the case

used due diligence to identify and work with all relevant tribes to

verify the child’s membership status. 25 C.F.R. § 23.107(b)(1)

(2018). The department must also make continuing inquiries to

determine whether a child is an Indian child. § 19-1-126(1)(a); see

also B.H. v. People in Interest of X.H., 138 P.3d 299, 302 (Colo.

2006); S.R.M., 153 P.3d at 442-43 (unless tribe expressly states that

it will not intervene, it retains the right to receive notice and

intervene in subsequent proceedings).

¶7 Juvenile courts may not hold a termination of parental rights

proceeding until at least ten days after receipt of notice by the tribe.

25 U.S.C. § 1912(a) (2018).

II. Relevant Procedural Background

A. Notice to Tribes on Limited Remand

¶8 On remand, the Department sent notices to the eight tribes

identified in the limited remand order. The supplemental record

shows that the Department sent notices to all eight tribes and that

all eight notices contained the information required by ICWA and

4 the state’s implementing statute. Signed and dated return receipts

show that four of the tribes — the Fort Sill Apache Tribe, the

Mescalero Apache Tribe, the Cherokee Nation of Oklahoma, and the

United Keetoowah Band of Cherokee Indians — received the notices

on November 19, 2018.

¶9 For two tribes — the Navajo Nation and the Tonto Apache

Tribe of Arizona — the Department received and filed with the

juvenile court return receipts that were signed but not dated. The

Department’s date stamp, however, shows that the Department

processed the return receipts on November 27, 2018.

¶ 10 The evidence of receipt for the final two tribes is more

problematic. The return receipt from the notice addressed to the

White Mountain Apache Tribe is neither signed by the receiving

party nor dated. The Department’s date stamp shows that the

Department processed the undated and unsigned return receipt on

November 27, 2018.

¶ 11 And the supplemental record does not include a return receipt

from the Eastern Band of Cherokee Indians.

5 B. Juvenile Court’s Findings on Limited Remand

¶ 12 At a hearing on December 11, 2018, the juvenile court found

that the child was not an Indian child. The juvenile court made the

following findings with respect to the receipt of notice by the eight

tribes:

The [c]ourt concludes, based upon what has been filed with the [c]ourt, that appropriate notices were sent to all of the tribes, even though one of the tribes has not yet provided a return receipt and one of the other tribes provided a return receipt without a signature and a couple of the other tribes provided return receipts without dating their signatures — based on the fact that the four tribes that acknowledged the return receipt, dated their return receipts November 19th, and based on the fact that the ICWA [n]otices were sent on November 19th and this hearing was held on December 11th, the [c]ourt finds and concludes that each of the tribes has received notice in conformity with what the Court of Appeals has directed and what is required by the Indian Child Welfare Act.

....

The [c]ourt recognizes that the Eastern Band of Cherokee Indians has not responded, but the [c]ourt concludes as a matter of fact and law that the notice was sent on or about . . . November 14th, some [twenty-seven] days in advance of this hearing, and that that was appropriate notice under the Indian Child Welfare Act, though because of the tribe’s

6 non-response to the certified mail, we don’t know the precise date on which it was received. The [c]ourt nevertheless concludes that it was received more than ten days prior to the scheduled hearing today.

III. Analysis

¶ 13 We now turn to the question whether ICWA’s notice

requirements were satisfied with respect to all eight tribes.

“Whether the notice requirement of the ICWA was satisfied is a

question of law, which this court reviews de novo.” T.M.W., 208

P.3d at 274 (citing In re TM, 628 N.W.2d 570, 572 (Mich. Ct. App.

2001)); see also L.L., ¶ 46.

¶ 14 The juvenile court found that all eight tribes received adequate

notice. We agree that the juvenile court’s findings with respect to

six of the tribes are supported by the record that was before the

juvenile court at the time of the hearing. But we conclude that the

record that was before the juvenile court at the time of the hearing

does not support its findings with respect to the White Mountain

Apache Tribe and the Eastern Band of Cherokee Indians. We

discuss the adequacy of notice with respect to each of the tribes, in

turn, below.

7 A. The Record Supports the Juvenile Court’s Determination that Six of the Eight Tribes Received Adequate Notice

¶ 15 Pursuant to 25 U.S.C. § 1912(a) and section 19-1-126(1)(a)-(b),

if there is reason to know or believe that an Indian child is involved

in a dependency and neglect action, the petitioning party “must

provide notice to the Indian child’s tribe . . . by registered mail, with

return receipt requested, of the pending proceedings and of the

tribe’s right to intervene.” People in Interest of C.Z., 262 P.3d 895,

904 (Colo. App. 2010). This notice must be received by the tribe at

least ten days before the hearing described in the notice. See 25

U.S.C. § 1912(a). And in order to demonstrate compliance, “the

Department must file with the juvenile court an original or copy of

each notice sent together with any return receipts or other proof of

service.” L.L., ¶ 41 (citing 25 C.F.R. § 23.111(a)(2); § 19-1-

126(1)(c)).

¶ 16 With respect to the Fort Sill Apache Tribe, the Mescalero

Apache Tribe, the Cherokee Nation of Oklahoma, and the United

Keetoowah Band of Cherokee Indians, the signed and dated return

receipts contained in the supplemental record reflect that each tribe

received notice on November 19, 2018, which was twenty-two days

8 before the December 11 hearing. Thus, the juvenile court properly

concluded that ICWA’s notice requirement was satisfied with

respect to these four tribes. See 25 U.S.C. § 1912(a); People in

Interest of N.D.C., 210 P.3d 494, 497 (Colo. App. 2009) (“Following

the Guidelines’ filing requirements is the most efficient way of

meeting the department’s burden of proof of notice to the tribes.”).

¶ 17 With respect to the Navajo Nation and the Tonto Apache Tribe

of Arizona, the Department received and filed with the juvenile

court return receipts that were signed but not dated. At first blush,

it would seem that the absence of a date of receipt on the return

receipts would fatally undermine the juvenile court’s determination

that these tribes received timely notice. See, e.g., In re Morris, 815

N.W.2d 62, 78 (Mich. 2012) (“[T]he trial court cannot determine the

date on which the 25 U.S.C.A. § 1912(a) waiting period begins to

run without knowing the date on which the tribe . . . received the

notice, as shown by the registered-mail return receipt.”). But the

Department’s date stamp shows that the Department processed the

return receipts on November 27, 2018. So even though the signed

return receipts are not dated, we know that these tribes received

notice sometime before November 27, meaning that notice was

9 received by the tribes at least fourteen days before the hearing.

Accordingly, the juvenile court properly concluded that ICWA’s

notice requirement was satisfied with respect to these two tribes.

B. The Record Before the Juvenile Court Does Not Support Its Determination that the White Mountain Apache Tribe and the Eastern Band of Cherokee Indians Received Notice

¶ 18 As noted above, the only evidence in the record regarding

notice to the White Mountain Apache Tribe is the unsigned and

undated return receipt. That receipt does not support the juvenile

court’s finding that the tribe received the notice. True, the

Department’s date stamp suggests that someone may have received

the notice at least ten days before the hearing. But it is unclear

who. And, because the outgoing mail receipts in the supplemental

record contain no postmarks, it is unclear whether the Department

even sent the notice at all.

¶ 19 And because there was no return receipt at all in the

supplemental record from the notice sent to the Eastern Band of

Cherokee, the juvenile court had no evidence before it that the

Eastern Band of Cherokee received any notice of the hearing.

¶ 20 This absence of evidence does not necessarily end our (or the

juvenile court’s) inquiry into whether timely notice was in fact

10 timely received. Bureau of Indian Affairs regulations required the

juvenile court to “[c]onfirm, by way of a report, declaration, or

testimony included in the record that the [Department] used due

diligence to identify and work with all of the Tribes . . . to verify” the

child’s membership status. 25 C.F.R. 23.107(b)(1). And Colorado’s

ICWA-implementing legislation required the Department to make

continuing inquiries after it sent the notices to determine the child’s

status. § 19-1-126(1)(a). But there is no evidence in the

supplemental record that the Department attempted to contact

either the White Mountain Apache Tribe or the Eastern Band of

Cherokee Indians by telephone, email, fax, or any other means to

confirm receipt of the notices or otherwise work with the tribes to

verify the child’s membership status.

¶ 21 Thus, we conclude that the juvenile court erred when it found

that the White Mountain Apache and Eastern Band of Cherokee

Tribes had received notice of the hearing. And “absent evidence the

notice was sufficient, a tribe’s non-response can not be deemed a

determination that the child is not an Indian child within the

meaning of the ICWA.” N.D.C., 210 P.3d at 497 (citing In re Karla

C., 6 Cal. Rptr. 3d 205, 212 (Cal. Ct. App. 2003)).

11 C. Information in the Supplemental Record Received After the Hearing Shows that the Erroneous Finding Regarding the Notice to Eastern Band of Cherokee Indians Was Harmless

¶ 22 After the juvenile court entered its findings, the Department

filed a letter from the Eastern Band of Cherokee Indians stating

that the child was not a member or eligible for membership. That

letter is part of the supplemental record on appeal. “The primary

purpose of giving notice to the tribe is to enable it to determine

whether the child is an Indian child.” S.R.M., 153 P.3d at 441. And

because the Eastern Band of Cherokee Indians was able to

determine that the child was not a member of or eligible for

membership in the tribe (albeit in a letter that was not before the

juvenile court at the time of the hearing), the error in the juvenile

court’s finding that the Eastern Band of Cherokee Indians received

proper notice is harmless. Id. at 441-42 (an error in providing

notice may be considered harmless if the tribe has actual

knowledge of the child’s eligibility to enroll).

¶ 23 Thus, only the White Mountain Apache Tribe remains to be

notified of the termination proceeding.

12 IV. Procedure on Remand

¶ 24 We remand the case to the juvenile court for the limited

purpose of directing the Department to (1) make continuing

inquiries to determine whether the child is an Indian child; and (2)

use due diligence to work with the White Mountain Apache Tribe to

verify the child’s membership status. The juvenile court may, in its

discretion, order the Department to again send appropriate notice of

the termination proceeding to the White Mountain Apache Tribe in

accordance with ICWA and section 19-1-126(1)(b).

¶ 25 After receiving a response from the Tribe, or the expiration of

the timeframe under 25 U.S.C. § 1912(a) or a reasonable additional

time determined by the juvenile court, the court shall again enter

factual findings and legal conclusions regarding the application of

ICWA.

¶ 26 If the juvenile court determines that the child is an Indian

child, within seven days of the issuance of the juvenile court’s order

making such determination, the Department must file notice with

this court along with a copy of the juvenile court’s order. The

appeal shall be recertified to permit a division of this court to issue

an opinion vacating the termination judgment and remanding the

13 case to the juvenile court with directions to proceed in accordance

with ICWA.

¶ 27 If the juvenile court determines that the child is not an Indian

child, within seven days of issuance of the juvenile court’s order

making such determination, the Department must file notice with

this court along with a copy of the juvenile court’s order, and the

appeal shall be recertified. A supplemental record, consisting of the

court record created on remand including the juvenile court’s order

as well as any notices sent and responses received is due fourteen

days after recertification. Within seven days of the matter being

recertified, if any party wishes to supplement the record with

transcripts of hearings that occurred on remand, that party shall

file a supplemental designation of transcripts with the juvenile

court and this court and, if supplemental transcripts are

designated, the complete supplemental record including the court

record will be due twenty-one days after the filing of the

supplemental designation of transcripts.

¶ 28 Additionally, within fourteen days of recertification, mother

may file a supplemental brief, not to exceed ten pages or 3500

words, limited to addressing the juvenile court’s ICWA

14 determination. If father, who is not currently a party to this appeal,

wishes to file a brief addressing the ICWA determination, he may do

so, but his brief must be accompanied by a notice of appeal

indicating his intent to appeal the ICWA determination. If either

parent files a supplemental brief, the other parties may file, within

fourteen days, supplemental briefs in response, not to exceed ten

pages or 3500 words.

¶ 29 This court further orders that the Department notify this court

in writing of the status of the juvenile court proceedings in the

event that this matter is not concluded within twenty-eight days

from the date of this order, and that the Department shall do so

every twenty-eight days thereafter until the juvenile court issues its

order on remand.

BY THE COURT: Furman, J. Ashby, J. Welling, J.