People In Interest of M.M. and E.M., Children ( 2022 )

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
June 2, 2022
2022COA61
No. 21CA0760, Peo in Interest of MM — American Indian Law —
ICWA — Notice; Juvenile Court — Dependency and Neglect —
Termination of the Parent-Child Legal Relationship —
Compliance with the Federal “Indian Child Welfare Act” —
Knows — Reason to Know — Due Diligence
In this dependency and neglect proceeding, a division of the
court of appeals determines that a parent’s assertion of a lineal
tribal affiliation is sufficient to give the court reason to know that
the children are Indian children and, thus, trigger the notice
requirements of the Indian Child Welfare Act of 1978 (ICWA), 25
U.S.C. §§ 1901-1963. Consistent with People in Interest of E.M.,
2021 COA 152, ¶¶ 16-18 (cert. granted in part Mar. 7, 2022), the
division concludes that such information falls under one of the
reason to know factors — a participant in the case informs the
court that he or she has discovered information indicating that the
child is an Indian child.
In reaching this conclusion, the division rejects the reasoning
of two other divisions of this court that have determined that an
assertion of tribal affiliation (or heritage) does not give the court
reason to know that a child is an Indian child under this factor.
See People in Interest of Jay.J.L., 2022 COA 43, ¶¶ 28-35; People in
Interest of A-J.A.B., 2022 COA 31, ¶¶ 72-77. The division reasons
that our supreme court has previously determined that lineage was
sufficient to trigger ICWA’s notice requirements after considering
similar definitions of what constituted “reason to know” or “reason
to believe” that a child is an Indian child and that such an
approach is consistent with the federal guidelines implementing
ICWA.
The division further determines that the addition of section
19-1-126(3), C.R.S. 2021, to Colorado’s ICWA-implementing statute
has not changed the standard for triggering ICWA’s notice
requirements under 25 U.S.C. § 1912(a).
Because the record in this case does not show that proper
notice was given to the appropriate tribes or the Bureau of Indian
Affairs, the division remands the case to the juvenile court to
ensure compliance with ICWA’s notice requirements.
COLORADO COURT OF APPEALS 2022COA61
Court of Appeals No. 21CA0760
Arapahoe County District Court No. 20JV191
Honorable Bonnie H. McLean, Judge
The People of the State of Colorado,
Appellee,
In the Interest of M.M. and E.M., Children,
and Concerning M.M. and T.M.,
Appellants.
ORDER OF LIMITED REMAND
Division I
Opinion by JUDGE DAILEY
Fox and Schutz, JJ., concur
Announced June 2, 2022
Ron Carl, Arapahoe County Attorney, Jordan Lewis, Assistant County Attorney,
Aurora, Colorado, for Appellee
Alison A. Bettenberg, Sheena Knight, Guardians Ad Litem
Gregory Lansky, Office of Respondent Parents’ Counsel, Aurora, Colorado, for
Appellant M.M.
Pamela K. Streng, Office of Respondent Parents’ Counsel, Georgetown,
Colorado, for Appellant T.M.
¶1 In this dependency and neglect proceeding, M.M. (mother) and
T.M. (father) appeal the juvenile court’s judgment terminating their
parent-child legal relationships with their children, M.M. and E.M.
Among other issues mother raises, she contends that the record
does not demonstrate compliance with the Indian Child Welfare Act
of 1978 (ICWA), 25 U.S.C. §§ 1901-1963.
¶2 When the court knows or has reason to know that an Indian
child is involved in a termination proceeding, it must ensure that
notice of the proceeding is given to applicable Indian tribes or, in
some circumstances, the Bureau of Indian Affairs (BIA). However,
we must decide whether father’s assertion of a lineal tribal
affiliation constituted a reason to know that the children are Indian
children or, in the alternative, whether it required the petitioning
party to exercise due diligence to gather additional information
under section 19-1-126(3), C.R.S. 2021.
¶3 We conclude that father’s assertion of a lineal tribal affiliation
gave the juvenile court reason to know that the children are Indian
children, thus triggering ICWA’s notice requirements. Because the
record does not show that proper notice was given to the
1
appropriate tribes or the BIA, we remand the case to the juvenile
court to ensure compliance with ICWA’s notice requirements.
I. The Juvenile Court Proceeding
¶4 In April 2020, the Arapahoe County Department of Human
Services initiated a dependency and neglect proceeding concerning
nine-year-old M.M. and ten-month-old E.M. At the initial
temporary custody hearing, father, through counsel, reported that
“his grandmother [is a] registered tribal member in Delaware,” but
that he was not sure of which tribe. Father further expounded that
“[i]t’s a Delaware tribe, and I think she was 100 percent.” However,
father was unsure of which tribe and “what their registration looks
like, potentially, for him and the [children].”
¶5 In response to father’s report, the juvenile court directed
father to complete an ICWA assessment form. The court reiterated
the same requirement at the next hearing but did not otherwise
address ICWA’s applicability at that time. Father did not submit an
ICWA assessment form.
¶6 Later, the Department moved to terminate the legal
relationships between the children and the parents. At the
termination hearing in May 2021, the juvenile court determined
2
that ICWA was inapplicable because inquiries made by it and the
Department had shown that there was “no potential Native
American heritage on either parent’s side.” The court entered
judgment terminating both parents’ parental rights.
II. ICWA
¶7 Mother contends that the record does not demonstrate
compliance with ICWA’s requirements because there was no further
inquiry or notice provided based on father’s report of a lineal
affiliation with a Delaware tribe. The Department and the children’s
guardian ad litem assert that ICWA is inapplicable because, while
the appeal was pending, they provided notice to the BIA and the BIA
responded that no further action would be taken because the
children’s tribal affiliation was unknown.
¶8 We conclude that father’s report of lineage with a Delaware
tribe was sufficient to give the court reason to know that the
children are Indian children and the notice that the Department
provided to the BIA was inadequate.
A. Preservation
¶9 To start, we recognize that, as part of a joint trial management
certificate filed in anticipation of the termination hearing, the
3
parties agreed that “[t]hroughout the case, additional ICWA
inquiries were made, and all parties maintained that the child[ren]
did not have Native American heritage such that ICWA was
applicable.”
¶ 10 Nonetheless, ICWA’s notice requirements serve the interests of
Indian tribes. People in Interest of J.O., 170 P.3d 840, 842 (Colo.
App. 2007). Thus, they cannot be waived by a parent and may be
raised for the first time on appeal. Id.B. Standard of Review and Statutory Interpretation
¶ 11 Whether ICWA applies to a proceeding is a question of law that
we review de novo. People in Interest of M.V., 2018 COA 163, ¶ 32.
We also review de novo questions of statutory interpretation. People
in Interest of K.C. v. K.C., 2021 CO 33, ¶ 21.
¶ 12 In construing a statute, we consider the entire statutory
scheme in order to give consistent, harmonious, and sensible effect
to all of its parts, and we interpret words and phrases in
accordance with their plain and ordinary meanings. Id. In
addition, statutes enacted for the benefit of Indians, as well as
regulations, guidelines, and state statutes promulgated for their
implementation, must be liberally construed in favor of Indian
4
interests. People in Interest of A.R., 2012 COA 195M, ¶ 18; see also
Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985).
C. The Legal Framework
¶ 13 ICWA aims to protect and to 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);
M.V., ¶ 10. 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 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 ICWA’s applicability. B.H., 138 P.3d at 303.
¶ 14 If the court knows or has reason to know that an Indian child
is involved in a child custody proceeding, including termination of
parental rights, the petitioning party — here the Department —
must provide notice to any identified Indian tribes. 25 U.S.C.
§ 1912(a); § 19-1-126(1)(b); see also B.H., 138 P.3d at 302. To
comply with ICWA’s notice provisions, the court must confirm that
5
the Department uses due diligence to identify and work with all
tribes of which there is reason to know the child may be a member
or eligible for membership and the child of a parent who is a
member. 25 C.F.R. § 23.107(1)(b)(1) (2021); see also People in
Interest of L.L., 2017 COA 38, ¶ 25.
¶ 15 The Department must directly notify each tribe by registered
mail with return receipt requested of the pending child custody
proceeding and its right to intervene. M.V., ¶ 26; see also 25 C.F.R.
§ 23.111 (2021). The notice must also include:
 the child’s name, birthdate, and birthplace;
 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;
 the names, birthdates, birthplaces, and tribal enrollment
information of other direct lineal ancestors of the child, such
as grandparents, if known; and
 the name of each Indian tribe of which the child is a member
(or may be eligible for membership if a biological parent is a
member).
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25 C.F.R. § 23.111(d)(1)-(4). Copies of these notices must then be
sent to the appropriate regional director of the BIA. 25 C.F.R.
§ 23.11(a) (2021); see also M.V., ¶ 28.
D. Determining When ICWA Applies
¶ 16 The juvenile court must ask each participant on the record at
the start of every child custody proceeding whether the participant
knows or has reason to know that the child is an Indian child. 25
C.F.R. § 23.107(a); L.L., ¶ 19. And it must instruct the parties to
inform it if they later receive information that provides reason to
know that the child is an Indian child. 25 C.F.R. § 23.107(a).
¶ 17 For purposes of ICWA, an Indian child is an unmarried person
under age eighteen who is either (1) a member of an Indian tribe or
(2) eligible for membership in an Indian tribe and the biological
child of a member of an Indian tribe. 25 U.S.C. § 1903(4). Thus, a
child’s eligibility for membership in a tribe does not, in and of itself,
render the child an Indian child under ICWA. K.C., ¶ 24.
¶ 18 But ICWA does not define tribal membership. Id. at ¶ 28.
Rather, membership and membership eligibility are left exclusively
to the control of each individual tribe. Id. This means that a tribe’s
determination of membership or membership eligibility is
7
conclusive and final. People in Interest of J.A.S., 160 P.3d 257, 260
(Colo. App. 2007); see also Santa Clara Pueblo v. Martinez, 436 U.S.
49, 72 n.32 (1978) (“A tribe’s right to define its own membership for
tribal purposes has long been recognized as central to its existence
as an independent political community.”). And the court may not
substitute its own determination regarding a child’s membership in
a tribe, a child’s eligibility for membership in a tribe, or a parent’s
membership in a tribe. 25 C.F.R. § 23.108(b) (2021).
¶ 19 Against this backdrop, the federal regulations implementing
ICWA provide that a court has reason to know that a child is an
Indian child if
(1) Any participant in the proceeding, officer of
the court involved in the proceeding, Indian
Tribe, Indian organization, or agency informs
the court that the child is an Indian child;
(2) Any participant in the proceeding, officer of
the court involved in the proceeding, Indian
Tribe, Indian organization, or agency informs
the court that it has discovered information
indicating that the child is an Indian child;
(3) The child who is the subject of the
proceeding gives the court reason to know he
or she is an Indian child;
(4) The court is informed that the domicile or
residence of the child, the child’s parent, or the
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child’s Indian custodian is on a reservation or
in an Alaska Native village;
(5) The court is informed that the child is or
has been a ward of a Tribal court; or
(6) The court is informed that either parent or
the child possesses an identification card
indicating membership in an Indian Tribe.
25 C.F.R. § 23.107(c). These factors for determining reason to know
— incorporated into the Children’s Code under section 19-1-
126(1)(a)(II) — should be interpreted expansively. See People in
Interest of S.B., 2020 COA 5, ¶ 10; M.V., ¶ 43.
E. Analysis
1. Reason to Know
¶ 20 The record establishes that many of the factors governing
when a court has reason to know that a child is an Indian child
were inapplicable. No participant informed the court that the
children are Indian children. Nor did the children give the court
reason to know that they are Indian children. And there is no
indication that the children had lived on a reservation, had been
wards of a tribal court, or had tribal identification cards.
¶ 21 As a result, we turn to the one remaining reason to know
factor — a participant in the case informs the court that he or she
9
has discovered information indicating that the child is an Indian
child. See 25 C.F.R. § 23.107(c)(2); § 19-1-126(1)(a)(II)(B). This
factor does not necessarily require a parent (or another participant)
to provide information definitively establishing that the child is
either a member of a federally recognized Indian tribe or eligible for
membership in a tribe and the biological child of a tribal member.
¶ 22 As a division of this court recently explained, information
indicating that the child is an Indian child cannot have the same
meaning as being informed that the child is an Indian child because
holding otherwise would render one of the factors superfluous.
People in Interest of E.M., 2021 COA 152, ¶ 16 (cert. granted in part
Mar. 7, 2022). Indeed, by its very terms, discovering information
indicating that the child is an Indian child conveys less certainty
than when a participant informs the court that the child is an
Indian child. Given this distinction, the division determined that a
court had reason to know under this less certain factor when it
receives information showing that the child has Indian heritage
connected to specific tribal groups even though the information
does not establish that the child meets the definition of an Indian
child. Id. at ¶¶ 16-18.
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¶ 23 Likewise, our supreme court has determined that the
threshold requirement for notice was clearly not intended to be
high, and sufficiently reliable information of virtually any criteria
upon which tribal membership might be based must be considered
adequate to trigger ICWA’s notice provisions. B.H., 138 P.3d at
303-04. These criteria include, but are not limited to, lineage. Id.
at 304.
¶ 24 In reaching this holding, the supreme court reasoned that the
ability of a court to ascertain membership in a particular tribe
without a tribal determination may vary greatly depending upon an
individual tribe’s criteria for membership, or its process for
acquiring or establishing membership. Id. at 303. For example,
while many tribes may have some form of formal enrollment or
registration, others automatically include descendants of members.
Id.; see also In re Termination of Parental Rts. to Arianna R.G., 2003
WI 11, ¶ 17.
¶ 25 True, our supreme court decided B.H. before the current
factors defining reason to know — including a participant informing
the court that he or she has discovered information indicating that
the child is an Indian child — were incorporated into 25 C.F.R.
11
§ 23.107(c) and section 19-1-126(1)(a)(II). Additionally, two other
divisions of this court have subsequently determined that an
assertion of tribal heritage does not give the court reason to know
that a child is an Indian child under this factor. People in Interest
of Jay.J.L., 2022 COA 43, ¶¶ 28-35; People in Interest of A-J.A.B.,
2022 COA 31, ¶¶ 72-77. They emphasized that an assertion of
Indian heritage connected to specific tribal ancestral groups does
not, in and of itself, demonstrate a substantial chance that the
child is a tribal member or eligible for membership. Jay.J.L., ¶ 28;
A-J.A.B., ¶¶ 36, 40
¶ 26 However, we are not persuaded by their reasoning. In
determining that lineage was sufficient to trigger ICWA’s notice
requirements, our supreme court considered similar definitions of
what constituted “reason to know” or “reason to believe” that a child
is an Indian child. See B.H., 138 P.3d at 303. At that time, the BIA
Guidelines implementing ICWA set forth examples of circumstances
that created “reason to believe,” which included that
 any party to the case, or public or private agency informs the
court that the child is an Indian child;
12
 any public or state-licensed agency involved in child protection
services or family support has discovered information which
suggests that the child is an Indian child; or
 an officer of the court involved in the proceeding has
knowledge that the child may be an Indian child.
Id.; see also Guidelines for State Courts; Indian Child Custody
Proceedings, 44 Fed. Reg. 67,584, 67,586 (Nov. 29, 1979).
¶ 27 While not the same, this second factor — any agency has
discovered information which suggests that the child is an Indian
child — is similar to the current reason to know factor of any
participant having discovered information indicating that the child
is an Indian child. Webster’s defines “suggest” as “to mention or
imply as a possibility.” Webster’s Third New International
Dictionary 2286 (2002). And “indicate” means “to be a sign,
symptom, or index of” or “to demonstrate or suggest the necessity
or advisability of.” Id. at 1150. Applying these definitions,
information that a parent has tribal lineage both implies and is a
sign that a child is an Indian child. Thus, a report of lineage would
meet the definition of reason to know under 25 C.F.R.
§ 23.107(c)(2).
13
¶ 28 This approach is also consistent with the federal guidelines
implementing ICWA. They recognize that, in some instances,
parents may not be certain of their membership status in an Indian
tribe but may indicate that they are somehow affiliated with a tribe
or group of tribes. BIA, Guidelines for Implementing the Indian
Child Welfare Act (Dec. 2016), https://perma.cc/3TCH-8HQM
(2016 Guidelines); see also Notice of Guidelines for Implementing
the Indian Child Welfare Act, 81 Fed. Reg. 96,476 (Dec. 30, 2016).
The 2016 Guidelines further recommend that when a parent is only
able to indicate a tribal ancestry group, state agencies or courts
should contact 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. Although the 2016 Guidelines are not binding,
they provide useful guidance in interpreting ICWA. M.V., ¶ 27. And
the principles of statutory construction governing ICWA require us
to liberally construe both the reason to know factors under 25
C.F.R. § 23.107(c) and the 2016 Guidelines in favor of Indians, with
ambiguous provisions interpreted to their benefit. See People in
Interest of O.S-H., 2021 COA 130, ¶ 30.
14
¶ 29 Moreover, other divisions of this court have determined that
the court has reason to know that the child is an Indian child when
it receives information that the child’s family may have connections
to specific tribes or ancestral groups. See S.B., ¶¶ 13, 21; M.V.,
¶¶ 43-45; People in Interest of L.H., 2018 COA 27, ¶¶ 1, 11-12; L.L.,
¶¶ 21, 47-48. The division in L.H. emphasized the point that while
parents may be uncertain of their membership status in an Indian
tribe, they may indicate they are somehow affiliated with an
ancestral group of tribes. L.H., ¶ 7. And the L.H. division
determined that, in these circumstances, the Department must
notify each tribe in that ancestral group. Id. at ¶ 8. Another
division held that a parent’s identification of a tribal connection to a
specific state or region may be sufficient to give a court a reason to
know that a child is an Indian child. See People in Interest of I.B-R.,
2018 COA 75, ¶¶ 13-16.
¶ 30 Finally, we recognize that in 2019, our legislature modified
Colorado’s ICWA-implementing statute. E.M., ¶ 19. As pertinent
here, it added section 19-1-126(3), which provides that
[i]f the court receives information that the child
may have Indian heritage but does not have
sufficient information to determine that there
15
is reason to know that the child is an Indian
child pursuant to subsection (1)(a)(II) of this
section, the court shall direct the petitioning or
filing party to exercise due diligence in
gathering additional information that would
assist the court in determining whether there
is reason to know that the child is an Indian
child. The court shall direct the petitioning or
filing party to make a record of the effort taken
to determine whether or not there is reason to
know that the child is an Indian child.
¶ 31 To be sure, this language can be read to mean that, at least in
some instances, information relating to a child’s Indian heritage
may not rise to the level of giving a court reason to know that a
child is an Indian child. Even so, the addition of section 19-1-
126(3) has not changed the standard for triggering ICWA’s notice
requirements under 25 U.S.C. § 1912(a).
¶ 32 Recall once again that our supreme court has previously
concluded that sufficiently reliable information of virtually any
criteria upon which tribal membership might be based, including
lineage, was adequate to trigger ICWA’s notice requirements. B.H.,
138 P.3d at 304. We must presume that the legislature was aware
of B.H. and its interpretation of what constituted reason to know or
believe that a child is an Indian child when enacting this legislation.
See Vaughan v. McMinn, 945 P.2d 404, 409 (Colo. 1997)
16
(recognizing that the legislature is presumed to be aware of the
judicial precedent in an area of law when it legislates in that area).
And our legislature did not expressly indicate that it was intending
to change this analysis when adopting subsection (3) and other
changes to section 19-1-126.
¶ 33 Further, the legislature signaled its intent to “align Colorado’s
statute with the updated ICWA regulations to ensure continuing
compliance with federal law.” Ch. 305, sec. 1, 2019 Colo. Sess.
Laws 2791; see also E.M., ¶ 19. Indeed, the statute directs “the
court and each party to the proceeding” to “comply with the federal
implementing regulations” of ICWA. § 19-1-126(1). This is
significant because Congress exercises plenary power over Indian
affairs. See Cash Advance & Preferred Cash Loans v. State, 242
P.3d 1099, 1107 (Colo. 2010).
¶ 34 In enacting ICWA, Congress authorized states, including
Colorado, to extend additional protection to the rights of a parent of
an Indian child. See 25 U.S.C. § 1921 (providing that in any case
where state or federal law applicable to a child custody proceeding
provides a higher standard of protection to the rights of the parent
17
of an Indian child than the rights provided under ICWA, the state
court shall apply the state or federal standard).
¶ 35 But a state may not reduce the protections offered by ICWA so
easily. Under the preemption doctrine, the Supremacy Clause
invalidates state laws that interfere with, or are contrary to, federal
laws. People in Interest of C.Z., 2015 COA 87, ¶ 24. Thus, while
state statutes may clarify ICWA or add protections to child custody
proceedings involving Indian children, they may not reduce the
protection offered by ICWA. In re Dependency of Z.J.G., 471 P.3d
853, 863 (Wash. 2020). And, here, interpreting section 19-1-126(3)
to mean that a parent’s report of tribal lineage (or ancestry) is not
reason to know that a child is an Indian child for purposes of
triggering ICWA’s notice requirements under 25 U.S.C. § 1912(a)
would impermissibly reduce the protections offered by ICWA.
¶ 36 For these reasons, we conclude that father’s report of a lineal
Delaware tribal affiliation was sufficient to give the court reason to
know that the children are Indian children and, thus, to trigger
ICWA’s notice requirements.
18
2. Adequacy of Notice to BIA
¶ 37 Having determined that the court had reason to know that the
children are Indian children, we next turn to the adequacy of the
notice that the Department provided following the termination
proceeding. Although the record does not clearly establish whether
father reported a lineal affiliation with a Delaware tribe or a tribe in
the State of Delaware, we conclude that the notice was insufficient
in either circumstance.
¶ 38 To assist in identifying federally recognized tribes and their
agents for service, the BIA has created lists of recognized tribes and
their agents by region and by historical tribal affiliation. See
Designated Tribal Agents for Service of Notice, 86 Fed. Reg. 54,709(Oct. 4, 2021); List of Designated Tribal Agents by Tribal Affiliation,
https://perma.cc/K3DD-KQR5. These lists show two federally
recognized Delaware tribes that are located within the State of
Oklahoma — the Delaware Tribe of Indians and the Delaware
Nation. But there are no federally recognized tribes within the State
of Delaware.
¶ 39 If, on the one hand, father was indicating a lineal affiliation
with a Delaware tribe, the record does not demonstrate compliance
19
with ICWA because no notice of the proceeding was given to the
Delaware Tribe of Indians and the Delaware Nation. On the other
hand, even if father was reporting a lineal affiliation with a tribe in
the State of Delaware, the notice was inadequate because it did not
alert the BIA that father had reported a tribal connection to that
state. See I.B-R., ¶¶ 13-16.
III. Procedure on Remand
¶ 40 We therefore remand the case for the juvenile court to
expeditiously determine whether the children are Indian children
before recertifying the case to our court for a decision. See § 19-1-
109(1), C.R.S. 2021 (providing that appeals “shall be decided at the
earliest practical time”).
¶ 41 On remand, the juvenile court shall conduct a further inquiry
of father or otherwise confirm that the Department has used due
diligence to determine whether father has a lineal affiliation to a
Delaware tribe or to a tribe in the State of Delaware. See 25 C.F.R.
§ 23.107(b)(1). Based on the information received through this
inquiry or otherwise through the Department’s due diligence, the
court shall direct the Department to provide notice of the
20
proceeding to the appropriate federally recognized Delaware tribes
or the BIA.
¶ 42 After receiving responses from the tribes or the BIA, 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.
¶ 43 If the juvenile court determines that the children are Indian
children, 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. 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 juvenile court with directions to proceed in accordance
with ICWA.
¶ 44 If the juvenile court determines that the children are not
Indian children, 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.
21
¶ 45 A supplemental record, consisting of the court record created
on remand, 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. If supplemental
transcripts are designated, the complete supplemental record,
including the court record, will be due twenty-one days after the
supplemental designation of transcripts was filed. And within
fourteen days of recertification, mother may file a supplemental
brief, not to exceed 3,500 words, limited to addressing the juvenile
court’s determination. If mother files a supplemental brief, then the
other parties may file supplemental briefs in response, within
fourteen days of the filing of the supplemental brief, not to exceed
3,500 words.
¶ 46 We further order the Department to notify this court in writing
of the status of the juvenile court proceedings if this matter is not
concluded within twenty-eight days from the date of this order, and
to do so every twenty-eight days thereafter until the juvenile court
issues its order on remand.
22
JUDGE FOX and JUDGE SCHUTZ concur.
23