People v. Concerning L.H

2018 COA 27, 431 P.3d 663

• Court: Colorado Court of Appeals
• Decided: February 22, 2018
• Docket: 17CA0608
• 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 22, 2018

2018COA27

No. 17CA0608, People In the Interest of L.H. — Juvenile Court — Dependency and Neglect — 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 a parent identifies a potential

affiliation with an ancestral group but does not identify a specific

tribe. The division concludes that if only a tribal ancestral group is

indicated, then the Department must notify each of the tribes in

that ancestral group to identify whether the parent or child is a

member of any such tribe.

In this case, mother identified potential “Navajo” ancestry, but

she did not indicate a specific tribal affiliation. Based upon this,

the Jefferson County Department of Human Services (Department)

sent notice to the Navajo Nation, but did not send notice to the Colorado River Indian Tribes, which are designated by the Bureau

of Indian Affairs as having a historical affiliation with the Navajo.

The division holds that under the circumstances presented here,

the Department was required to send notice to all tribes historically

affiliated with the Navajo, including the Colorado River Indian

Tribes. Because the division concludes that the trial court did not

comply with ICWA’s notice requirements, it remands the case to the

trial court for the limited purpose of complying with ICWA and,

upon doing so, making further findings regarding the applicability

of ICWA. COLORADO COURT OF APPEALS 2018COA27

Court of Appeals No. 17CA0608 Jefferson County District Court No. 15JV650 Honorable Ann Gail Meinster, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of L.H., a Child,

and Concerning L.H.,

Respondent-Appellant.

ORDER OF LIMITED REMAND

Division A Loeb, C.J., Román, and Welling, JJ. PER CURIAM

Announced February 22, 2018

Ellen G. Wakeman, County Attorney, Sarah Oviatt, Assistant County Attorney, Golden, Colorado, for Petitioner-Appellee

Laura L. Locke, Guardian Ad Litem

Levi Guthrie, Colorado Springs, Colorado, for Respondent-Appellant ¶1 In this dependency and neglect proceeding, L.H. (mother)

appeals the judgment terminating the parent-child legal

relationship with her child, L.H. Based on our review of the record,

we are unable to determine whether the Jefferson County

Department of Human Services, Division of Children, Youth and

Families (Department) complied with the Indian Child Welfare Act of

1978 (ICWA), 25 U.S.C. §§ 1901-1963 (2012); see also § 19-1-126,

C.R.S. 2017. Because the record does not show that the

Department sent notice to tribes historically affiliated with the tribe

mother asserted her biological brother belonged to, we remand the

case to the trial court for the limited purpose of ensuring that

ICWA’s notice requirements are satisfied.

I. Background

¶2 Congress enacted ICWA to address “rising concern” over the

consequences of “child welfare practices that resulted in the

separation of large numbers of Indian children from their families

and tribes through adoption or foster care placement, usually in

non-Indian homes.” Mississippi Band of Choctaw Indians v.

Holyfield, 490 U.S. 30, 32 (1989). ICWA’s provisions protect and

preserve Indian tribes and their resources and protect Indian

1 children who are members of or are eligible for membership in an

Indian tribe. 25 U.S.C. § 1901(2), (3).

¶3 ICWA recognizes that Indian tribes have a separate interest 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 Holyfield, 490 U.S. at 52. 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. B.H., 138 P.3d at 303. Therefore, if there is a reason

to know or believe that a child is an Indian child, the Department

must provide notice to any identified Indian tribes. See 25 U.S.C.

§ 1912(a) (2012); § 19-1-126(1)(b); People in Interest of N.D.C., 210

P.3d 494, 497 (Colo. App. 2009).

¶4 In doing so, the Department must directly notify the tribe by

registered or certified mail with return receipt requested of the

pending child custody proceedings and its right to intervene. 25

C.F.R. § 23.111(a) (2017); see People in Interest of L.L., 2017 COA

38, ¶¶ 34-35. The notice must include:

(1) The child’s name, birthdate, and birthplace;

2 (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).

¶5 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 In 2016, the Bureau of Indian Affairs (BIA) issued regulations

and guidelines that clarify ICWA’s inquiry and notice requirements.

See 25 C.F.R. §§ 23.107-.109, .111 (2017); Bureau of Indian Affairs,

Guidelines for Implementing the Indian Child Welfare Act 11, 30-38

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

3 Federal guidelines on ICWA are not binding, but they provide useful

guidance in interpreting the statute. See Interest of L.L., ¶ 16.

¶7 Where the identity and location of the tribe is not known with

particularity, the challenge is identifying what tribe must be

notified. This is so because sometimes the child or parent may not

be certain of their membership status in an Indian tribe, but may

indicate they are somehow affiliated with a tribe or group of tribes.

2016 Guidelines at 18. To assist in identifying federally recognized

tribes and their agents for service, the BIA publishes a list of

recognized tribes and their agents in the Federal Register by region

and by historical tribal affiliation. See Designated Tribal Agents for

Service of Notice, 82 Fed. Reg. 12,986-01, 12,986-13,009 (Mar. 8,

2017); List of Designated Tribal Agents by Tribal Affiliation, 82 Fed.

Reg. 12,986-01, 13,009 (Mar. 8, 2017), https://perma.cc/K3DD-

KQR5 (Tribal Agents by Affiliation).

¶8 The 2016 Guidelines recommend that if only the tribal

ancestral group is indicated, then the Department should notify

each of the tribes in that ancestral group to identify whether the

parent or child is a member of any such tribe. 2016 Guidelines at

18. Thus, because ICWA’s intent is to provide notice to tribes so

4 that the tribes themselves can decide whether children are tribal

members, see B.H., 138 P.3d at 303-04, when a parent is unable to

provide detailed information on potential tribal affiliations, the

Department should provide notice to all identified tribes and the

tribes that have been historically affiliated with those identified

tribes, see Tribal Agents by Affiliation, https://perma.cc/K3DD-

KQR5.

II. Analysis

¶9 Whether the notice requirements of ICWA were satisfied is a

question of law that we review de novo. People in Interest of T.M.W.,

208 P.3d 272, 274 (Colo. App. 2009).

¶ 10 The record indicates that, after initially denying Native

American heritage, mother informed the Department that her

biological brother is registered with “Navajo-Deni [sic].”1 Mother,

however, was unable to provide a census number or any additional

information regarding how, or with whom, her brother was enrolled.

1 “Diné” is a Navajo word meaning “Navajo” or “the people.” See Leon Wall & William Morgan, Navajo-English Dictionary 29 (Bureau of Indian Affairs 1958), https://perma.cc/XF6Y-6LWH; see also United States v. Wheeler, 435 U.S. 313, 331 n.33 (1978) (“‘Navaho’ is not their own word for themselves. In their own language, they are diné, ‘The People.’” (quoting C. Kluckhohn & D. Leighton, The Navaho 23 (rev. ed. 1974))).

5 ¶ 11 Upon learning that mother might have possible Native

American heritage, the Division sent six separate notices to the

Navajo Nation at six different addresses. The Navajo Nation

responded that, based on the enrollment verification performed by

the Navajo Office of Vital Records, there was no record of the family

with the Navajo Nation, and, therefore, the child was not enrolled or

eligible for enrollment with the Navajo Nation. Based on that

response, the trial court found, at the termination hearing, that

ICWA did not apply to this case.

¶ 12 However, a review of the BIA’s list of Tribal Agents by

Affiliation shows that the Colorado River Indian Tribes are also

tribes historically affiliated with the Navajo. See Tribal Agents by

Affiliation, https://perma.cc/K3DD-KQR5 (search for “Colorado

River Indian Tribes” in the document). Therefore, because mother’s

statements regarding her possible Native American ancestry

included a general reference to Navajo, and not just the Navajo

Nation, we conclude that the Department was required to also

6 notify the Colorado River Indian Tribes because it is recognized by

the BIA as being historically affiliated with the Navajo.2

¶ 13 Since it appears from the record that the Department only

provided notice to the Navajo Nation, we conclude that the notice

given in this case was insufficient to satisfy ICWA’s requirement.

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

purpose of directing the Department to send appropriate notice to

the Colorado River Indian Tribes.

III. Procedure on Remand

¶ 14 After receiving responses from the Colorado River Indian

Tribes or the expiration of the timeframe under 25 U.S.C. § 1912(a)

or a reasonable additional time determined by the trial court, the

court shall again enter factual findings and legal conclusions

regarding the application of ICWA.

2 The Colorado River Indian Tribes include four distinct Tribes — the Chemehuevi, Hopi, Mojave, and Navajo. But for ICWA notice purposes, the Colorado River Indian Tribes have a single designated point of contact (i.e., agent for service of ICWA notice). See List of Designated Tribal Agents by Tribal Affiliation, 82 Fed. Reg. 12,986- 01, 13,009 (Mar. 8, 2017), https://perma.cc/K3DD-KQR5 (search for “Colorado River Indian Tribes” in the document). And the Colorado River Indian Tribes’ agent for service of ICWA notice is distinct from the agent for service of ICWA notice for the Navajo Nation. Id. (search for “Colorado River Indian Tribes” and “Navajo” in the document).

7 ¶ 15 If the trial court determines that the child 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 case to the

trial court with directions to proceed in accordance with ICWA.

¶ 16 If the trial court determines that the child is not an Indian

child, 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.

¶ 17 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 father, who is not currently a party to this appeal, wishes to file a

8 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 from 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.

¶ 18 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

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:

Loeb, C.J. Román, J. Welling, J.