People in re J.L

2018 COA 11, 428 P.3d 612

• Court: Colorado Court of Appeals
• Decided: January 25, 2018
• Docket: 17CA0339
• 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 January 25, 2018

2018COA11

No. 17CA0339, People In the Interest of J.L. – Juvenile Court — Dependency and Neglect — American Indian Law — ICWA — Notice

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

appeals concludes that a written advisement form directing parents

to inform the court whether a child is an Indian child does not meet

the inquiry requirements of the Indian Child Welfare Act of 1978

(ICWA). The division also concludes that the trial court did not

comply with ICWA’s notice requirements with regard to three

potentially concerned tribes. For these reasons, the division

remands the case to the trial court for the limited purpose of

complying with ICWA and, upon doing so, to make further findings

regarding the applicability of ICWA. COLORADO COURT OF APPEALS 2018COA11

Court of Appeals No. 17CA0339 Alamosa County District Court No. 15JV114 Honorable Martin A. Gonzalez, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of J.L. and S.M., Children,

and Concerning J.C.,

Respondent-Appellant.

ORDER OF LIMITED REMAND

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

Announced January 25, 2018

Jason T. Kelly, County Attorney, Alamosa, Colorado, for Petitioner-Appellee

Mérida I. Zerbi, Guardian Ad Litem

Catherine A. Madsen, P.C., Catherine A. Madsen, Westminster, Colorado, for Respondent-Appellant ¶1 In this dependency and neglect proceeding, J.C. (mother)

appeals the judgment terminating the parent-child legal

relationship with her children, S.M. and J.L. Mother’s third child,

J.A., was named in the original proceeding but is not a subject of

this appeal.

¶2 The record indicates that the trial court and the Alamosa

County Department of Human Services (Department) did not

comply with the inquiry requirements of the Indian Child Welfare

Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963 (2012), and section 19-

1-126, C.R.S. 2017. And, although the court’s belated inquiry

revealed sufficient information to trigger ICWA’s notice

requirements, the Department did not fulfill its duty in this regard.

Therefore, we remand the case to the trial court for the limited

purpose of ensuring that the Department provides notice in

accordance with ICWA.

I. ICWA’s Inquiry and Notice Requirements

¶3 ICWA’s provisions protect and preserve Indian tribes and their

resources and protect Indian children who are members of or are

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

(2012). ICWA recognizes that Indian tribes have a separate interest

1 in Indian children that is equivalent to, but distinct from, parental

interests. B.H. v. People in Interest of X.H., 138 P.3d 299, 303 (Colo.

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

490 U.S. 30, 52 (1989). Accordingly, in a proceeding in which ICWA

may apply, tribes must have a meaningful opportunity to

participate in determining whether a child is an Indian child and to

be heard on the issue of ICWA’s applicability. B.H., 138 P.3d at

303.

¶4 To ensure that tribes have an opportunity to be heard,

Colorado’s ICWA implementing legislation provides that in

dependency and neglect proceedings, the petitioning party must

“[m]ake continuing inquiries to determine whether the child who is

the subject of the proceeding is an Indian child.” § 19-1-126(1)(a).

The petitioning party must make one of two disclosures in the

petition or other commencing pleading: (1) “that the child who is the

subject of the proceeding is an Indian child and the identity of the

Indian child’s tribe” or (2) “what efforts the petitioning or filing party

has made in determining whether the child is an Indian child.”

§ 19-1-126(1)(c).

2 ¶5 Thus, to fulfill its duties under ICWA, the Department must

investigate the child’s status early in the case. People in Interest of

L.L., 2017 COA 38, ¶ 30. And, because only the tribe itself may

determine its membership, id. at ¶ 20, the Department must

promptly notify each tribe in which the child may be a member or

eligible for membership, id. at ¶ 34; see also B.H., 138 P.3d at 302.

¶6 The Bureau of Indian Affairs (BIA) regulations and guidelines

implementing ICWA contain similar inquiry and notice provisions

for trial courts. For example, the guidelines issued in 2015 — in

effect during the initial proceedings in this case — directed agencies

and courts, in every child-custody proceeding, to ask whether the

child is or could be an Indian child and to conduct an investigation

into whether the child is an Indian child. Guidelines for State

Courts and Agencies in Indian Child Custody Proceedings, 80 Fed.

Reg. 10,146, 10,152 (Feb. 25, 2015) (2015 Guidelines).

¶7 In 2016, the BIA repealed the 2015 Guidelines and replaced

them with regulations and guidelines that impose similar duties of

inquiry and notice on trial courts. L.L., ¶ 15; Indian Child Welfare

Act Proceedings, 81 Fed. Reg. 38,778 (June 14, 2016); Bureau of

Indian Affairs, Guidelines for Implementing the Indian Child

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

Guidelines); see also 25 C.F.R. § 23.107-.109, .111 (2017). These

regulations and guidelines were in effect during the termination

hearing in this case.

¶8 25 C.F.R. § 23.107(a) requires trial courts to “ask each

participant in an emergency or voluntary or involuntary

child-custody proceeding whether the participant knows or has

reason to know that the child is an Indian child. The inquiry is

made at the commencement of the proceeding and all responses

should be on the record.” Likewise, the 2016 Guidelines, which

were adopted as examples of best practices for the implementation

of ICWA, see L.L., ¶¶ 15-16, reiterate that inquiry is required at

each new child-custody proceeding. They explain this inquiry duty

as follows:

The rule does not require an inquiry at each hearing within a proceeding; but, if a new child-custody proceeding (such as a proceeding to terminate parental rights or for adoption) is initiated for the same child, the court must make a finding as to whether there is “reason to know” that the child is an Indian child. In situations in which the child was not identified as an Indian child in the prior proceeding, the court has a continuing duty to inquire whether the child is an Indian child.

4 2016 Guidelines at 11.

¶9 If, upon conducting the required inquiry, the petitioning party

knows or has reason to believe that an Indian child is involved in a

termination proceeding, the party must provide notice of the

proceeding to the potentially concerned tribe or tribes.

§ 19-1-126(1)(b); B.H., 138 P.3d at 302; see also 25 U.S.C. § 1912(a)

(2012).

¶ 10 What constitutes “reason to believe” in any particular set of

circumstances is not precisely defined. See B.H., 138 P.3d at 303.

But the threshold for notice was not intended to be high. Id.

Because ICWA intends for tribes themselves to decide whether

children are tribal members, sufficiently reliable information of

virtually any criteria is sufficient to trigger ICWA’s notice

requirements. Id. at 304. “When in doubt, it is better to conduct

further investigation into a child’s status early in the case; this

establishes which laws will apply to the case and minimizes the

potential for delays or disrupted placements in the future.” 2016

Guidelines at 11.

¶ 11 Departments must directly notify each concerned tribe by

registered mail with return receipt requested of the pending

5 child-custody proceedings and its right to intervene. L.L., ¶¶ 34-35.

The notice must include:

(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 . . .; [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).

25 C.F.R. § 23.111(d)(1)-(4).

¶ 12 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 intervene and petition for a transfer.

25 C.F.R. § 23.111(d)(5)-(6).

6 II. The Trial Court and the Department Did Not Comply with ICWA

¶ 13 In this case, the trial court first inquired about the

applicability of ICWA at a termination hearing regarding J.A. after

orally ordering termination of parental rights. For purposes of

ICWA, this was the second child-custody proceeding involving J.A.

Under 25 C.F.R. § 23.107(a), the trial court should have made that

inquiry at the first hearing after the petition in dependency and

neglect was filed and again at the start of the termination

proceeding.

¶ 14 Mother responded that (1) both she and the father of J.A. and

J.L. had Native American blood and (2) she and her family had been

“kicked off the tribe.” The trial court ordered her to file a relative

affidavit identifying her tribal connections. The court did not ask

her about J.A. and J.L.’s father’s Indian heritage. And, although

the court asked the boys’ father about his heritage at the

termination hearing involving J.L. and S.M., it never inquired

whether any participant knew or had reason to know S.M. was an

Indian child. (S.M. has a different father than her brothers; S.M.’s

7 father was not identified, and his parental rights were terminated

after service by publication.)

¶ 15 At a subsequent hearing, mother indicated that she had

Indian heritage through her biological family. She indicated her

tribe was either “Sangre de Cristo de Pueblo in Taos,” Aztec, or

Kiowa. Mother, an adoptee, did not know about registered tribal

affiliation, but she asserted that her biological mother would have

that information. Mother’s counsel indicated that he would provide

information on mother’s biological parents to the Department as

soon as he received it from mother. The Department stated that it

believed ICWA did not apply, but did not describe what efforts it

had made to determine whether any of the children was an Indian

child.

¶ 16 The federally recognized tribes include the Kiowa Indian Tribe

of Oklahoma and the Pueblo of Taos, New Mexico, which is located

in the Sangre de Cristo mountains. See Indian Entities Recognized

and Eligible to Receive Services From the United States Bureau of

Indian Affairs, 82 Fed. Reg. 4915 (Jan. 17, 2017). So mother’s

disclosures gave the court reason to believe the children were

8 Indian children. But the record contains no evidence that the

Department sent notice to either of these tribes.

¶ 17 The Department asserts that mother did not provide a relative

affidavit identifying her biological parents. It is true that the

Department should try to provide sufficient information for the tribe

to make the determination as to whether the child is a member or

eligible for membership. L.L., ¶ 37. But the lack of complete

information does not relieve the Department of its duty to send

notice with the information it has. Accord 25 C.F.R. § 23.111(d)(3)

(notice shall include direct lineal ancestors if known). Thus, we

must remand the case to the trial court so the Department may

comply with the notice requirements of ICWA.

¶ 18 At the termination hearing, mother’s counsel stated that he

had spoken with mother’s adoptive family and determined that “the

ICWA relationship that [mother] had brought to the [c]ourt’s

attention was not viable.” But he did not elaborate, so we don’t

know the basis for his representation. Moreover, it was for the

Kiowa and Pueblo of Taos tribes, not mother’s adoptive family, to

determine whether the children were members or eligible for

membership. See L.L., ¶ 20; accord B.H., 138 P.3d at 304

9 (statements, actions, or waiver of a parent cannot overcome

otherwise sufficiently reliable information). So counsel’s statement

did not relieve the Department of its duty to notify the tribes of the

child-custody proceeding, and, absent further information from the

tribes, did not support a finding by the trial court that the children

were not Indian children.

¶ 19 The Department contends that the written advisement of

rights mother signed shortly after the shelter hearing served as the

court’s initial inquiry. The advisement form stated the following:

If you, your child or children are a registered member [sic] of a [N]ative American Indian tribe or are eligible to become a member of a [N]ative American Indian tribe, you may be entitled to additional rights and protections under the Indian Child Welfare Act. You must advise the court of this in order to receive these additional rights and protections.

¶ 20 But the 2015 Guidelines directed courts to “ask[] each party to

the case, including the guardian ad litem and the agency

representative, to certify on the record whether they have

discovered or know of any information that suggests or indicates

the child is an Indian child.” 80 Fed. Reg. at 10,152. A written

advisement form provided to one participant falls far short of

10 meeting this requirement. See also 25 C.F.R. § 23.107(a) (codifying

the duty of inquiry). So we reject the Department’s contention.

¶ 21 We recognize that the 2015 Guidelines, unlike the regulations

promulgated in 2016, were not binding on the trial court. But, as

recognized by both the 2015 Guidelines and the 2016 Guidelines,

early identification of ICWA applicability promotes proper

implementation of ICWA at an early stage, protects the rights of

Indian children and their families, prevents delays, and avoids

sometimes tragic consequences. See 2016 Guidelines at 11; 80

Fed. Reg. at 10,148.

¶ 22 Regardless, as discussed above, the termination proceeding

was subject to the 2016 Guidelines and regulations. And, more

importantly, the Department failed to send notice to the appropriate

tribes when mother identified a reason to believe the children were

Indian children. Under these circumstances, the record does not

support the trial court’s finding that ICWA does not apply.

III. Instructions on Remand

¶ 23 We remand the case to the trial court for the limited purpose

of directing the Department to send appropriate notice to the Kiowa

Indian Tribe of Oklahoma and the Pueblo of Taos.

11 ¶ 24 The trial court must afford the tribes a reasonable amount of

time to respond to notices sent and must proceed in accordance

with 25 U.S.C. § 1912(a). Section 1912(a) provides that no foster

care placement hearing or termination of parental rights proceeding

shall be held until at least ten days after receipt of notice by the

tribe. This section further provides that a tribe shall be granted

twenty additional days to prepare for such proceeding if the tribe so

requests.

¶ 25 After receiving responses from the tribes or, if no response is

received from one or more of the noticed tribes, after the expiration

of the time frame under section 1912(a) or a reasonable additional

time deemed appropriate by the trial court, the court shall enter

factual findings and legal conclusions regarding the application of

ICWA.

¶ 26 If the trial court determines that either of the children is an

Indian child, within seven days of the issuance of the trial court’s

order making such determination, the Department must file notice

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

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

an opinion vacating the termination judgment and remanding the

12 case to the trial court with directions to proceed in accordance with

¶ 27 If the trial court determines that the children are not Indian

children, within seven days of issuance of the trial court’s order

making such determination, the Department must file notice with

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

appeal shall be recertified. Within seven days of recertification, the

Department must file either (1) a supplemental record consisting of

the trial court’s order on remand, a transcript of the proceedings on

remand, and any notices sent and responses received; or (2) a

supplemental designation of record of the same.

¶ 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 trial court’s ICWA determination.

If mother files a supplemental brief, the other parties may file,

within fourteen days of the filing of mother’s brief, 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 trial court proceedings in the event

that this matter is not concluded within twenty-eight days from the

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

twenty-eight days thereafter until the trial court issues its order on

remand.

BY THE COURT:

Furman, J. Ashby, J. Welling, J.