in the Interest of Z.C ( 2019 )

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.
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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
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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
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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.
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¶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
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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.
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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
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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.
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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
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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
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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
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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)).
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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.
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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
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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
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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.
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