of J.D

2020 COA 66

• Court: Colorado Court of Appeals
• Decided: April 9, 2020
• Docket: 19CA0806, Adoption
• 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 April 9, 2020

2020COA66

No. 19CA0806, Adoption of J.D. — Juvenile Court — Dependency and Neglect — Termination of the Parent-Child Legal Relationship — Stepparent Adoption; Indian Law — ICWA— Definitions — Indian Child

In this stepparent adoption proceeding, biological mother

contends that the juvenile court erred by not applying the Indian

Child Welfare Act (ICWA) after finding that the child and father were

eligible for enrollment. A division of the court of appeals disagrees.

An “Indian child” means “any unmarried person who is under

age eighteen and is either (a) a member of an Indian tribe or (b) is

eligible for membership in an Indian tribe and is the biological child

of a member of an Indian tribe[.]” 25 U.S.C. § 1903(4) (2018).

Thus, although the child is eligible for enrollment, because the child

is not a biological child of a member of an Indian tribe, the child

does not meet ICWA’s definition of Indian child. COLORADO COURT OF APPEALS 2020COA66

Court of Appeals No. 19CA0806 Weld County District Court No. 18JA31 Honorable Ryan L. Kamada, Judge

In re the Petition of M.G.,

Appellee,

for the Adoption of J.D., a Child,

and Concerning C.D.,

Appellant.

JUDGMENT AFFIRMED

Division IV Opinion by JUDGE FURMAN Welling and Pawar, JJ., concur

Announced April 9, 2020

Melanie Jordan, Office of Respondent Parents’ Counsel, Golden, Colorado, for Appellee

Cynthia Jones Fletcher, Centennial, Colorado, for Appellant ¶1 In this stepparent adoption proceeding, biological mother

contends that the juvenile court erred by not applying the Indian

Child Welfare Act (ICWA) after finding that the child and father were

eligible for enrollment in an Indian tribe. We disagree. Although

the child is eligible for enrollment, because the child is not a

biological child of a member of an Indian tribe, the child does not

meet ICWA’s definition of Indian child. 25 U.S.C. § 1903(4) (2018).

I. The Petition for Adoption

¶2 The child was born in 2006 to mother and J.G. (father).

¶3 Stepmother filed a petition for stepparent adoption and a

motion to terminate mother’s parental rights. Stepmother alleged

that the child may be eligible to enroll in a tribe under ICWA, 25

U.S.C. §§ 1901 to 1963 (2018). Stepmother sent notice to various

tribes, and the Comanche Nation responded that the child was

eligible for enrollment.

¶4 After a hearing, the juvenile court terminated mother’s

parental rights and entered an adoption decree. The court found

that mother had abandoned the child. Regarding ICWA, the court

found that it did not apply because, although the child was eligible

1 for membership, she was not residing with a parent who was an

enrolled member.

II. ICWA

¶5 We review the juvenile court’s interpretation of ICWA de novo.

People in Interest of A.R., 2012 COA 195M, ¶ 17.

¶6 ICWA applies to stepparent adoptions even where a child

remains with one biological parent. People in Interest of N.B., 199

P.3d 16, 19-20 (Colo. App. 2007).

¶7 For ICWA’s substantive provisions to apply, the child must be

an Indian child. People in Interest of N.D.C., 210 P.3d 494, 499

(Colo. App. 2009). An “Indian child” means “any unmarried person

who is under age eighteen and is either (a) a member of an Indian

tribe or (b) is eligible for membership in an Indian tribe and is the

biological child of a member of an Indian tribe[.]” 25 U.S.C. §

1903(4). Thus, eligibility for membership, in and of itself, is not

enough to meet the definition of an Indian child. People in Interest

of K.R., 2020 COA 35, ¶ 5 (citing State in Interest of P.F., 405 P.3d

755, 762 (Utah Ct. App. 2017)).

¶8 If the party asserting the applicability of ICWA does not

establish, on the record, that the child meets one or both of these

2 criteria, ICWA does not apply. See People in Interest of A.G-G., 899

P.2d 319, 321 (Colo. App. 1995).

¶9 Based on the record, we conclude that the child did not meet

ICWA’s definition of “Indian child” under 25 U.S.C. section 1903(4).

The child was not a member of the Comanche Nation. And even

though the child was eligible to enroll, her father was not a member

of the Tribe. Rather, he was only eligible for enrollment.

¶ 10 And mother does not assert that she is affiliated with any

Tribe.

¶ 11 Because the child was not an “Indian child” under ICWA, we

further conclude that the juvenile court did not have to use the

higher burden of proof (beyond a reasonable doubt).

¶ 12 We note that mother does not challenge the evidence or the

juvenile court’s findings regarding the termination of her parental

rights.

¶ 13 Accordingly, we discern no basis for reversal.

III. Conclusion

¶ 14 The judgment is affirmed.

JUDGE WELLING and JUDGE PAWAR concur.