People in re J.L , 428 P.3d 612 ( 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
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
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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).
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¶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
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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.
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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
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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).
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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
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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
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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
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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.
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¶ 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
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case to the trial court with directions to proceed in accordance with
ICWA.
¶ 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
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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.
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