People in interest of I.B.-R , 439 P.3d 38 ( 2018 )

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 17, 2018
2018COA75
No. 17CA1534, People In the Interest of I.B.-R. — Juvenile
Court — Dependency and Neglect — Termination of the Parent-
Child Legal Relationship; American Indian Law — ICWA —
Notice
In this dependency and neglect case, a division of the court of
appeals considers the duty and content of notice to the Bureau of
Indian Affairs (BIA) under the Indian Child Welfare Act of 1978
(ICWA), 25 U.S.C. §§ 1901-1963 (2012). The division concludes
that where a parent reports a connection to an unknown Native
American tribe in a state with no designated tribal agents, the
department of human services must notify the BIA of the parent’s
report, and the notice the department sends to the BIA must
include the state that the parent identified. Because the notice to
the BIA in this case omitted the state that the parent identified, the
division remands the case to the trial court for the limited purpose
of ensuring compliance with ICWA.
COLORADO COURT OF APPEALS 2018COA75
Court of Appeals No. 17CA1534
Weld County District Court No. 16JV231
Honorable Elizabeth B. Strobel, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of I.B.-R., A.B.-R., M.B.-R., and A.R., children,
and Concerning J.S.R., C.M.H. f/k/a C.M.R., and S.B.-R.,
Respondents-Appellants
ORDER OF LIMITED REMAND
Division A
Loeb, C.J., Ashby and Welling, JJ.
PER CURIAM
Announced May 17, 2018
Bruce T. Barker, County Attorney, David S. Anderson, Assistant County
Attorney, Greeley, Colorado, for Petitioner-Appellee
Keren C. Weitzel, Guardian Ad Litem
Van Gaasbeek Law, Christine Van Gaasbeek, Fort Collins, Colorado, for
Respondent-Appellant J.S.R.
Henson Law, LLC, Patrick R. Henson, Denver, Colorado, for Respondent-
Appellant C.M.H.
Pamela K. Streng, Georgetown, Colorado, for Respondent-Appellant S.B.-R.
¶1 In this dependency and neglect proceeding, C.M.H. (mother),
formerly known as C.M.R., appeals the trial court’s judgment
terminating her parent-child relationships with her children,
I.B.-R., A.B.-R., M.B.-R., and A.R. J.S.R., who is the father of A.R.,
appeals the judgment terminating his parent-child relationship with
A.R. S.B.-R., who is the father of A.B.-R. and I.B.-R., appeals the
judgment terminating his parent-child relationships with A.B.-R.
and I.B.-R.
¶2 One of J.S.R.’s contentions is that the trial court and the Weld
County Department of Human Services (the Department) did not
comply with the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C.
§§ 1901-63 (2012), after he asserted Native American heritage.
¶3 We agree that, although the Department notified some tribes
and the Bureau of Indian Affairs (BIA), the notice was inadequate.
Further, the trial court did not make the required inquiry of the
participants as to all of the children after the Department initiated
the proceeding to terminate parental rights. Therefore, we remand
the case to the trial court for the limited purpose of ensuring
compliance with ICWA.
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I. ICWA’s Inquiry and Notice Provisions
¶4 ICWA’s provisions are for the protection and preservation of
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) (2012). 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 the
child is an Indian child and to be heard on the issue of ICWA’s
applicability. B.H., 138 P.3d at 303.
¶5 To ensure tribes have an opportunity to be heard, Colorado’s
ICWA-implementing legislation provides that in dependency and
neglect proceedings, the petitioning party must make continuing
inquiries to determine whether the child is an Indian child.
§ 19-1-126(1)(a), C.R.S. 2017; see also B.H., 138 P.3d at 302.
¶6 The federal regulations and guidelines implementing ICWA
impose a duty of inquiry and notice on trial courts. 25 C.F.R.
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23.107(a) (2017); Bureau of Indian Affairs, Guidelines for
Implementing the Indian Child Welfare Act, 81 Fed. Reg. 96,476
(Dec. 30, 2016), https://perma.cc/3TCH-8HQM (2016 Guidelines);
see also Notice of Guidelines, 81 Fed. Reg. 96,476 (Dec. 30, 2016).
The trial court must ask each participant on the record at the
beginning of every emergency, voluntary, or involuntary 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); see
also People in Interest of L.L., 2017 COA 38, ¶ 19. A proceeding to
terminate parental rights is a separate child custody proceeding
under ICWA. See 25 U.S.C. § 1903(1) (2012); see also § 19-1-
126(1); People in Interest of C.A., 2017 COA 135, ¶ 10. Accordingly,
the court must inquire at the commencement of the termination
proceeding, and all responses should be on the record. 25 C.F.R.
§ 23.107(a).
¶7 When there is reason to know or believe that a child involved
in a child custody proceeding is an Indian child, the petitioning
party must send notice of the proceeding to the potentially
concerned tribe or tribes. B.H., 138 P.3d at 302; see also 25 U.S.C.
§ 1912(a) (2012); § 19-1-126(1)(b). The BIA publishes a list of
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designated tribal agents for service of ICWA notice in the Federal
Register each year and makes the list available on its website. 2016
Guidelines, pp. 19-20; see also 82 Fed. Reg. 12,986-13,009 (Mar. 8,
2017). If the identity or location of the tribe cannot be determined,
notice must be given to the BIA. B.H., 138 P.3d at 302; see 25
U.S.C. § 1912(a).
¶8 The 2016 Guidelines recommend the following steps when the
reporting party has not identified a specific tribe:
If only the Tribal ancestral group (e.g.,
Cherokee) is indicated, then . . . State agencies
or courts [should] contact each of the Tribes in
that ancestral group (see . . . the published list
of ICWA designated agents) to identify whether
the parent or child is a member of any such
Tribe. If the State agency or court is unsure
that it has contacted all the relevant Tribes, or
needs other assistance in identifying the
appropriate Tribes, it should contact the BIA
Regional Office. Ideally, State agencies or
courts should contact the BIA Regional Office
for the region in which the Tribe is located, but
if the State agency or court is not aware of the
appropriate BIA Regional Office, it may contact
any BIA Regional Office for direction.
2016 Guidelines, p. 18. Thus, “courts [and state agencies] are not
required to become experts in tribal genealogy.” In re J.T., 693 A.2d
283, 289 (Vt. 1997) (father’s statement that his father was a
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“full-blooded Mohican” did not require court to resolve whether he
might be affiliated with the federally recognized Mohegan tribe or
the unrecognized Mahican tribe; court’s duty was only to notify the
BIA). Instead, the BIA is available to assist in identifying
appropriate tribes. 2016 Guidelines, p. 18; accord In re Trever I.,
973 A.2d 752, 758-59 (Me. 2009) (child welfare agency properly
investigated father’s vague claim of Indian heritage by notifying BIA
of supporting information).
II. Procedural History
¶9 The Department filed a petition in dependency and neglect in
April 2016. That same month, J.S.R. told the Department he had
Cherokee heritage on his father’s side. A month later, he told the
trial court his father’s lineage descended from a tribe in Arkansas,
but he did not know which tribe. The Department did not notify
any tribe or the BIA of the dependency and neglect proceeding.
¶ 10 The Department filed a motion to terminate mother’s, J.S.R.’s
and S.B.-R.’s parental rights in November 2016. In December
2016, the Department sent notice of the termination proceeding to
the three federally recognized Cherokee Tribes. Each of the tribes
responded that A.R. was not a member or eligible for membership.
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¶ 11 The Department also notified the BIA. The notice stated that
J.S.R. had indicated he had Cherokee heritage, but it did not
mention his reported affiliation to an unknown tribe in Arkansas.
The BIA replied that the notice indicated the child’s possible tribal
affiliation was Cherokee, the Certificate of Mailing showed the
Cherokee Tribes had been notified, and the BIA does not research
or determine tribal enrollment for tribes.
¶ 12 The trial court terminated all three parents’ parental rights in
July 2017. Although the court held eight hearings in the eight
months following the initiation of the termination proceeding in
November 2016, it made no further inquiry regarding the children’s
possible Indian status at any time.
III. Analysis
¶ 13 J.S.R. contends that the Department failed to comply with
ICWA’s notice requirements because it did not send notice to any
tribes in Arkansas. We agree in part.
¶ 14 There are no federally recognized tribes with designated tribal
agents in Arkansas. See Indian Entities Recognized and Eligible to
Receive Services From the United States Bureau of Indian Affairs,
82 Fed. Reg. 4915-02 (Jan. 17, 2017). Nevertheless, J.S.R.
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contends that ICWA required the Department to research whether
any federally recognized tribes are located at least partially in that
state. In particular, he asserts that an investigation would have
revealed that the Osage Nation, a federally recognized tribe with its
designated tribal agent in Oklahoma, identifies its territory to
include land in the state of Arkansas. See Historic Preservation |
Osage Nation (Apr. 9, 2018), https://perma.cc/C7V7-RN2M. (We
note that J.R.’s opening brief characterizes Arkansas as included in
“Osage lands,” while the website describes the area as part of its
“ancestral lands.”)
¶ 15 ICWA does not, however, require courts or departments of
human services to ferret out tribal connections from such vague
information as the name of a state with no designated tribal agents.
See In re Desiree F., 99 Cal. Rptr. 2d 688, 695 (Cal. Ct. App. 2000).
Instead, that burden shifts to the BIA, which presumably has the
resources and expertise necessary for the task. See id.; see also
2016 Guidelines, p. 18.
¶ 16 But the notice in this case did not alert the BIA that J.S.R.
had reported a tribal connection to Arkansas. This omission
frustrated the BIA’s ability to fully discharge its responsibility under
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ICWA to identify potentially relevant tribes. Therefore, we must
remand the case to the trial court to ensure compliance with ICWA.
IV. Remand Instructions
¶ 17 On remand, the trial court shall direct the Department to (1)
procure the appearance of all the parents, if possible, so that the
court may inquire of each of them on the record and (2) inquire of
such persons with whom it has contact who may have knowledge of
the children’s possible Native American ancestry.
¶ 18 The court shall then hold a hearing and ask the participants
to state on the record whether they know or have reason to know or
reason to believe that any of the children is an Indian child. 25
C.F.R. § 23.107; see also 2016 Guidelines, p. 11; § 19-1-126(1)(b).
At the hearing, the Department shall make a record of its efforts to
determine whether the children are Indian children. See
§ 19-1-126(1)(a). The court shall then issue an order detailing its
findings.
¶ 19 If any participant provides reason to know or believe that any
of the children may be affiliated with a particular tribe, the trial
court should proceed in accordance with the ICWA notice
requirements and direct the Department to send notice to the
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applicable tribe or tribes. Otherwise, based on the information that
J.S.R. has already provided regarding A.R., the court shall direct
the Department to send notice to the BIA indicating J.S.R.’s
reported tribal connection to Arkansas.
¶ 20 The trial court must afford the tribes or the BIA a reasonable
amount of time to respond to notices and must proceed in
accordance with 25 U.S.C. § 1912(a), which provides that (1) 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; and (2) a tribe shall be granted twenty additional
days to prepare for such proceeding if the tribe so requests.
¶ 21 After the expiration of the timeframe under 25 U.S.C.
§ 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.
¶ 22 If the trial court determines that any of the children is an
Indian child, within 7 days of issuance of the trial court’s order
making such determination, the Department shall file notice with
this court along with a copy of the trial court’s order. The appeal
shall then be recertified to permit a division of this court to issue an
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opinion vacating the termination judgment as to the Indian child or
children and remanding the case to the trial court with directions to
proceed in accordance with ICWA as to that child or children. The
appeal shall be recertified as to any non-Indian children.
¶ 23 If the trial court determines none of the children is an Indian
child, within 7 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. A supplemental record consisting of the court record
created on remand, including the trial court’s order, is due 14 days
after recertification. However, within 7 days of the matter being
recertified, if any party wishes to supplement the record with
transcripts of hearings that occurred on remand, that party must
file a supplemental designation of transcripts with the trial court
and this court. If supplemental transcripts are designated, the
complete supplemental record, including the court record, will be
due 21 days after the filing of the supplemental designation of
transcripts.
¶ 24 Within 14 days of the filing of the supplemental record, any
parent may file a supplemental brief, not to exceed 3500 words,
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limited to addressing the trial court’s ICWA determination. If
M.B.-R.’s father, although 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. Within 14
days of any supplemental brief by a parent, any other party may file
supplemental response brief not to exceed 3500 words.
¶ 25 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 28 days from the date of
this order, and that the Department shall do so every 28 days
thereafter until the trial court issues its order on remand.
BY THE COURT:
Loeb, C.J.
Ashby, J.
Welling, J.
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