People In Interest of Jay.J.L. and Jac.J.L., 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
April 14, 2022
2022COA43
No. 21CA0659, People in Interest of J.J.L. — 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 holds that a parent’s assertion of Indian heritage,
standing alone, is not a “reason to know” the child is an Indian
child that triggers the notice requirements of the Indian Child
Welfare Act of 1978, 25 U.S.C. §§ 1901-1963, and section 19-1-126,
C.R.S. 2021. But such an assertion does trigger the petitioning
party’s obligation under section 19-1-126(3) to “exercise due
diligence” to assist the juvenile court in determining whether there
is “reason to know” that the child is an Indian child.
The division clarifies section 19-1-126(3)’s due diligence
obligation. Like the division in People in Interest of A-J.A.B., 2022
COA 31, this division concludes that the exercise of due diligence
requires the petitioning party — usually a department of human
services — to follow up with any parent who discloses Indian
heritage to determine the basis of the parent’s belief or
understanding. Unlike A-J.A.B., however, this division concludes
that there is no prescribed set of steps that the department must
follow to satisfy section 19-1-126(3)’s due diligence obligation.
Instead, what constitutes due diligence is flexible and will
necessarily depend on the circumstances of, and the information
presented to the court in, each case.
Because the record in this case does not show that section
19-1-126(3)’s obligation was met, the division remands the case
with instructions for the juvenile court to direct the department to
“exercise due diligence” and assist the juvenile court to properly
determine whether, with more adequate information, there is
“reason to know” that the child is an Indian child under section
19-1-126(3).
COLORADO COURT OF APPEALS 2022COA43
Court of Appeals No. 21CA0659
City and County of Denver Juvenile Court No. 19JV1672
Honorable Pax Moultrie, Judge
The People of the State of Colorado,
Appellee,
In the Interest of Jay.J.L. and Jac.J.L., Children,
and Concerning B.J.L. and J.M.G.,
Appellants.
ORDER OF LIMITED REMAND
Division V
Opinion by JUDGE YUN
Dunn and Welling, JJ., concur
Announced April 14, 2022
Kristin M. Bronson, City Attorney, Amy J. Packer, Assistant City Attorney,
Denver, Colorado, for Appellee
Jeffrey C. Koy, Jordan Oates, Lauren Dingboom, Claire Collins, Guardians Ad
Litem
Lindsey Parlin, Office of Respondent Parents’ Counsel, Kaneohe, Hawaii, for
Appellant B.J.L.
The Morgan Law Office, Kris P. Morgan, Colorado Springs, Colorado, for
Appellant J.M.G.
¶1 In this dependency and neglect proceeding, J.M.G. (mother)
and B.J.L. (father) appeal the juvenile court’s judgment terminating
their parent-child legal relationships with J.J.L. (the child). To
decide this appeal, we must dive into the requirements of the Indian
Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963, and
section 19-1-126, C.R.S. 2021.
¶2 It is well established that when the court knows or has reason
to know that an Indian child is involved in a termination
proceeding, the court must ensure that the party seeking
termination provides notice of the proceeding to the potentially
concerned tribe or tribes. But, in this case, we must determine
whether mother’s assertion of Indian heritage, which she connected
to specific tribal ancestral groups, constituted a reason to know
that the child was an Indian child or, in the alternative, whether it
required the petitioning party to exercise due diligence to gather
additional information under section 19-1-126(3).
¶3 We conclude that a parent’s assertion of Indian heritage,
standing alone, is insufficient to trigger ICWA’s notice requirements
but, rather, it invokes the petitioning party’s obligation to exercise
due diligence under section 19-1-126(3). We further conclude that
1
the exercise of due diligence under this provision is flexible and
depends on the circumstances of, and the information presented to
the court in, each case. Nonetheless, the record needs to show that
the petitioning party earnestly endeavored to gather additional
information that would assist the court in determining whether
there is reason to know that the child is an Indian child.
¶4 Because the record does not demonstrate that the petitioning
party met this obligation, we remand the case to the juvenile court
for further proceedings.
I. The Juvenile Court Proceeding
¶5 In November 2019, the Denver Department of Human Services
filed a dependency and neglect petition concerning the two-year-old
child and a younger sibling who is not subject to this appeal. In the
petition, the department indicated that mother reported having
Cherokee or Navajo heritage but was “uncertain which and does not
know if anyone in her family was an enrolled member.”
¶6 At the initial temporary custody hearing, mother also told the
juvenile court that she had Cherokee or Navajo heritage. The court
determined that this was not reason to know that the child is an
Indian child. Still, it told mother to complete an ICWA ancestry
2
chart and directed the department to exercise due diligence to
gather additional information that would assist it in determining
whether there was reason to know that the child is an Indian child.
¶7 Mother promptly completed and submitted an ICWA inquiry
form, as well as an ICWA ancestry chart. On the form, mother
again indicated that either she or someone in her family had Indian
heritage, but she also checked boxes indicating that she was not
enrolled in an Indian tribe and that the child was neither enrolled
in a tribe nor eligible for enrollment. In the ICWA ancestry chart,
mother identified her tribe as Cherokee, but she did not fill in
additional sections that sought tribal affiliations for the maternal
grandparents and great-grandparents.
¶8 The court adjudicated the child dependent and neglected and
entered dispositional orders concerning both parents. Although the
court did not expressly address ICWA’s applicability as part of the
dispositional orders, it later reiterated that the department should
investigate mother’s claim of Cherokee or Navajo heritage.
¶9 In December 2020, the department moved to terminate the
legal relationships between the child and his parents. As part of its
termination motion, the department asserted that there was no
3
reason to know, based on inquiries of both parents, that the child is
an Indian child.
¶ 10 About a month later, the department filed a declaration listing
additional diligent efforts it had made to determine whether there
was reason to know that the child is an Indian child. These
included the following:
• contacting the maternal grandmother, who indicated that
she “was not aware of any Native American heritage for
her family”;
• contacting a maternal aunt, who “reported not knowing if
there was any Native American heritage for her family”;
• reviewing the “Colorado Courts System,” which showed
that the parents had been subject to two earlier
dependency and neglect cases — one in 2008 and one in
2010 — and the court had determined that ICWA was
inapplicable in each case; and
• reviewing the “TRAILS” system, which revealed that a
social history record for mother “[did] not indicate any
Native American heritage other than possible Cherokee
heritage.”
4
¶ 11 Following a multi-day termination hearing between January
and April 2021, the juvenile court again addressed ICWA’s
applicability. The court determined that ICWA was inapplicable
because the department’s efforts to investigate mother’s report of
heritage had not shown reason to know that the child is an Indian
child. The court entered judgment terminating the parental rights
of mother and father.
II. ICWA’s Notice Requirement
¶ 12 We first address mother’s assertion that ICWA required the
department to give notice of the proceeding to the federally
recognized Cherokee and Navajo tribes.
A. Preservation
¶ 13 Initially, we note that, before the termination hearing, the
parties stipulated that “there does not appear to be reason to know
that ICWA applies to these proceedings” based on the department’s
declaration of its efforts to investigate “possible Native American
heritage for the family.”
¶ 14 Even so, ICWA’s notice requirements serve the interests of
Indian tribes, giving them “a meaningful opportunity to participate
in determining whether the child is Indian.” B.H. v. People in
5
Interest of X.H., 138 P.3d 299, 303 (Colo. 2006); People in Interest of
J.O., 170 P.3d 840, 842 (Colo. App. 2007). Consequently, they
cannot be waived by a parent and may be raised for the first time
on appeal. J.O., 170 P.3d at 842.
B. Standard of Review and Statutory Interpretation
¶ 15 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.
¶ 16 In construing a statute, we consider the entire statutory
scheme to give consistent, harmonious, and sensible effect to all 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 to implement those statutes, must be liberally
construed in favor of Indian 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).
6
C. The Legal Framework
¶ 17 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., 138 P.3d at 303; see also Mississippi Band
of Choctaw Indians v. Holyfield, 490 U.S. 30, 52 (1989).
¶ 18 If the court knows or has reason to know that an Indian child
is involved in a child custody proceeding, including one for the
termination of parental rights, the petitioning party — often the
department of human services — 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.
¶ 19 To comply with ICWA’s notice provisions, the department must
notify each tribe by registered mail, with return receipt requested, of
the pending child custody proceeding and the tribe’s right to
intervene. M.V., ¶ 26. And copies of these notices must be sent to
the appropriate regional director of the Bureau of Indian Affairs
(BIA). 25 C.F.R. § 23.11(a) (2021); see also M.V., ¶ 28.
7
D. Determining When ICWA Applies
¶ 20 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) (2021); People in Interest of L.L., 2017 COA
38, ¶ 19.
¶ 21 For purposes of ICWA, an Indian child is an unmarried person
under the age of 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.
¶ 22 But ICWA does not define tribal membership. Id. at ¶ 28.
Rather, membership is left exclusively to the control of each
individual tribe. Id. This means that a tribe’s determination of
membership or membership eligibility is conclusive and final.
People in Interest of J.A.S., 160 P.3d 257, 260 (Colo. App. 2007).
And the court may not substitute its own determination regarding a
child’s membership in a tribe, a child’s eligibility for membership in
8
a tribe, or a parent’s membership in a tribe. 25 C.F.R. § 23.108(b)
(2021).
¶ 23 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
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 are incorporated into the
Colorado Children’s Code under section 19-1-126(1)(a)(II).
9
E. Analysis of Reason to Know
¶ 24 The record established that five of these six factors are not at
issue in this case. Mother did not inform the court that the child is
an Indian child. Recall that, while mother reported Cherokee or
Navajo heritage, she checked boxes indicating that neither she nor
the child was enrolled in a tribe. Nor did the child give the court
reason to know that he is an Indian child. And mother confirmed
that neither she nor the child had lived on a reservation, the child
had not been a ward of a tribal court, and neither she nor the child
had a tribal identification card.
¶ 25 Thus, we turn to the remaining reason-to-know factor — a
participant in the case informs the court that he or she 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).
¶ 26 In People in Interest of E.M., 2021 COA 152, ¶¶ 14-15 (cert.
granted in part Mar. 7, 2022), a division of this court recently
concluded that a juvenile court had reason to know that a child is
an Indian child under this factor based on information about the
child’s Indian heritage. The division reasoned that, because this
factor had a different meaning than being informed that the child is
10
an Indian child, it applied when the court had information that the
child may have ancestors affiliated with a specific tribe but the
information does not satisfy all the criteria of the Indian child
definition. Id. at ¶¶ 16-17.
¶ 27 However, another division of this court later determined that
an assertion of tribal heritage — similar to mother’s assertion of
Cherokee or Navajo heritage in this case — does not give the court
reason to know that a child is an Indian child. See People in
Interest of A-J.A.B., 2022 COA 31, ¶¶ 72-77. The division in
A-J.A.B. emphasized that the definition of an Indian child “does not
apply simply based on a child[’s] or parent’s Indian ancestry” but
depends on “a political relationship” to a tribe. Id. at ¶ 72 (citation
omitted). And it concluded that the difference between the
reason-to-know factors based on a participant informing the court
that the child is an Indian child, see 25 C.F.R. § 23.107(c)(1),
§ 19-1-126(1)(a)(II)(A), and a participant informing the court that it
has discovered information that the child is an Indian child, see
25 C.F.R. § 23.107(c)(2); § 19-1-126(1)(a)(II)(B), is temporal,
A-J.A.B., ¶ 73. This latter reason-to-know factor applies when a
11
participant has discovered information during the proceeding
indicating that the child is an Indian child. Id. at ¶¶ 72-74.
¶ 28 We are persuaded by the reasoning of A-J.A.B. because
determining whether a court has reason to know that a child is an
Indian child turns on whether a child is either (1) a tribal member
or (2) eligible for membership and the biological child of a tribal
member. To be sure, tribal ancestry and lineage are among the
criteria that tribes may use to determine membership. See B.H.,
138 P.3d at 303. Still, 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. See A-J.A.B., ¶¶ 36, 40 (defining reason
to know as demonstrating a substantial chance that the child is an
Indian child under the six reason-to-know factors).
¶ 29 We recognize our supreme court has determined that the
threshold requirement for ICWA notice was not intended to be high
and that sufficiently reliable information of virtually any criteria on
which tribal membership might be based was adequate to trigger
ICWA’s notice provisions. B.H., 138 P.3d at 303-04.
12
¶ 30 However, at that time, Colorado’s ICWA-implementing statute
required departments to notify tribes if they knew or had reason to
believe that the child involved in the proceeding was an Indian
child. A-J.A.B., ¶ 76; see also § 19-1-126(1)(b), C.R.S. 2005. Our
legislature has since removed that standard from the statute and
replaced it with a requirement to notify tribes when there is reason
to know. Ch. 305, sec. 2, § 19-1-126, 2019 Colo. Sess. Laws 2793.
¶ 31 The B.H. court also relied on the 1979 BIA Guidelines. These
guidelines contained examples of circumstances that created reason
to believe, including when
• any public or state-licensed agency involved in child
protection services or family support has discovered
information suggesting 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.
Guidelines for State Courts; Indian Child Custody Proceedings,
44 Fed. Reg. 67,584, 67,586 (Nov. 29, 1979).
¶ 32 But the 1979 Guidelines are no longer in effect. And these
definitions are not included as reasons to know that a child is an
13
Indian child under 25 C.F.R. § 23.107(c) or section
19-1-126(1)(a)(II). As a result, B.H. required notice to tribes under a
different standard than the one in effect today. A-J.A.B., ¶ 76.
¶ 33 For these reasons, we conclude that mother’s report of
Cherokee or Navajo heritage was not reason to know that the child
is an Indian child triggering ICWA’s notice requirements.
III. Colorado’s Due Diligence Requirement
¶ 34 Having determined that mother’s report of Indian heritage did
not give the court reason to know that the child is an Indian child,
we must next consider whether the department met its obligation to
exercise due diligence under section 19-1-126(3).
A. Standard of Review
¶ 35 A determination of the proper legal standard to be applied in a
case and the application of that standard to the particular facts of
the case are questions of law that we review de novo. M.A.W. v.
People in Interest of A.L.W., 2020 CO 11, ¶ 31. However, the
decision of whether a party has exercised due diligence is within the
court’s discretion. See People in Interest of J.C.S., 169 P.3d 240,
243 (Colo. App. 2007). And we will not disturb the court’s factual
14
findings when they are supported by the record. Id.; see also
M.A.W., ¶ 32.
B. The Due Diligence Requirement
¶ 36 In addition to implementing ICWA’s requirements, section
19-1-126(3) imposes an additional due diligence requirement in
cases that are brought under the Children’s Code. It provides:
If the court receives information that the child
may have Indian heritage but does not have
sufficient information to determine that there
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.
§ 19-1-126(3) (emphasis added).
¶ 37 Our legislature did not define due diligence under section
19-1-126(3). When a statute does not define a term, we assume
that the legislature intended to give the term its usual and ordinary
meaning. Roup v. Com. Rsch., LLC, 2015 CO 38, ¶ 8. Diligence is
defined as “steady, earnest, and energetic effort” and “devoted and
15
painstaking work and application to accomplish an undertaking.”
A-J.A.B., ¶ 50 (citation omitted). Due diligence is commonly
understood as “[t]he diligence reasonably expected from, and
ordinarily exercised by, a person who seeks to satisfy a legal
requirement or to discharge an obligation.” Id. (citation omitted);
see also Minshall v. Johnston, 2018 COA 44, ¶ 18.
¶ 38 As a result, we agree with the division in A-J.A.B. that the
record needs to establish that the department (the petitioning party)
earnestly endeavored to gather additional information that would
assist the court in determining whether there is reason to know
that the child is an Indian child. A-J.A.B., ¶ 59. We also agree that,
to meet this standard, the department must follow up with any
parent who discloses Indian heritage to determine the basis of the
parent’s belief or understanding. See id. at ¶ 61. Indeed, the basis
for a parent’s belief or understanding will be the key to determining
what due diligence is required in any particular case. Id.
¶ 39 However, we part ways with A-J.A.B.’s determination that the
department must take certain other steps to satisfy due diligence
under section 19-1-126(3). Specifically, the division in A-J.A.B. held
that the department was required to contact available family
16
members and determine whether they have additional information
that would help the court determine whether the child is an Indian
child. See id. at ¶ 62. These efforts, in turn, would enable the
department to determine whether any other persons, agencies,
organizations, or tribes may have additional information concerning
whether there is a reason to know that the child is an Indian child.
Id. at ¶ 63. And the division determined that it may be necessary to
contact a tribe or tribes when there are no other satisfactory
sources of additional information. Id. at ¶ 64.
¶ 40 We are not persuaded that a petitioning party must
necessarily take such steps to satisfy due diligence under section
19-1-126(3). First, the statute does not enumerate specific steps
that a party must take to satisfy due diligence. Second, “[t]here is
no objective, formulaic standard for determining what is, or is not,
due diligence.” Owens v. Tergeson, 2015 COA 164, ¶ 45 (quoting
Abreu v. Gilmer, 985 P.2d 746, 749 (Nev. 1999)). Nor does due
diligence necessarily require the party exercising it to actually
succeed in its efforts or exhaust every possible option in attempting
to do so. See Minshall, ¶ 18.
17
¶ 41 Consequently, apart from following up with any parent who
discloses Indian heritage to determine the basis of the parent’s
belief or understanding, the department is not required to take
prescribed steps to satisfy due diligence under section 19-1-126(3).
Rather, a determination of what constitutes due diligence is flexible
and will necessarily depend on the circumstances of, and the
information presented to the court in, each case. See Owens, ¶ 45
(recognizing that due diligence must be tailored to fit the
circumstances of each case).
¶ 42 After obtaining the additional information necessary to satisfy
due diligence, the department must advise the court of the efforts
that it has taken and whether it believes that the information rises
to the level of reason to know under 25 C.F.R. § 23.107(c) and
section 19-1-126(1)(a)(II). See A-J.A.B., ¶ 63.
¶ 43 Based on this additional information, the court must then
determine whether the department exercised due diligence and
whether there is reason to know that the child is an Indian child.
This determination may be based on (1) the recognition that only a
tribe can determine who is a member or eligible for tribal
membership; (2) the nature and the credibility of the source of the
18
information; and (3) the basis of the source’s knowledge. Id. at
¶ 66.
¶ 44 In lieu of taking these steps to ascertain the basis for the
parent’s claim of heritage and following up on that information, the
department may of course give notice of the proceeding to the
federally recognized tribes that are included within the ancestral
group identified by the parent. Sending such notice achieves the
same purpose as exercising due diligence under section
19-1-126(3). Each tribe can then provide a definitive answer as to
whether the child is a tribal member or eligible for membership and
the child of a tribal member. See J.A.S., 160 P.3d at 260. This
information will enable the juvenile court to determine whether the
child is an Indian child for purposes of ICWA.
C. Application
¶ 45 The record does not establish that the department satisfied its
obligation to exercise due diligence under section 19-1-126(3). The
department’s declaration of diligent efforts shows that it contacted
family members and reviewed records concerning past cases to
determine whether the child is an Indian child. True, the
declaration indicates that mother did not know who in her family
19
was a tribal member. But, significantly, it does not show that the
department followed up with mother to ascertain the basis for her
belief or understanding that she and the child had Cherokee or
Navajo heritage.
¶ 46 Specifically, on the ICWA ancestry chart, mother identified an
“unknown” tribal affiliation for her father (the child’s maternal
grandfather). Although mother also indicated that her father (as
well as his parents) were deceased, the declaration of diligent efforts
does not show that the department investigated whether mother’s
understanding or belief that she had Cherokee or Navajo heritage
came from her paternal family members and, if so, whether there
was any other person who would have additional information.
¶ 47 Additionally, the information that the department obtained
from other family members and past court records focused
exclusively on whether the family had Indian heritage. The
declaration does not establish whether the family members had
additional information beyond an assertion of heritage that would
assist the court in determining whether there was reason to know
that the child is an Indian child.
20
¶ 48 Under these circumstances, the record does not demonstrate
compliance with the due diligence requirement of section
19-1-126(3), and we must remand the case to the juvenile court.
IV. Procedure on Remand
¶ 49 For the reasons discussed, we remand the case for the juvenile
court to expeditiously determine whether there is reason to know
that the child is an Indian child 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”).
¶ 50 On remand, the juvenile court shall give the department the
option of either giving ICWA-compliant notice to the federally
recognized Cherokee and Navajo tribes or gathering additional
information under section 19-1-126(3). If the department
undertakes the latter option, the court shall direct the department
to exercise due diligence by inquiring of mother about the basis of
her belief or understanding about the family’s Indian heritage. This
inquiry should include whether mother’s understanding or belief
that she has Cherokee or Navajo heritage came from her paternal
family members, and, if so, whether there is any other person who
has additional information.
21
¶ 51 Based on the information obtained during this follow up
inquiry, the department should take further steps to gather
additional information that would help the court determine whether
there is reason to know that the child is an Indian child.
¶ 52 After obtaining additional information, the department must
make a record of its efforts and advise the court as to whether the
information satisfies one of the reason-to-know factors under
25 C.F.R. § 23.107(c) and section 19-1-126(1)(a)(II).
¶ 53 The juvenile court must then enter findings as to whether the
department has satisfied the due diligence requirement under
section 19-1-126(3) and whether there is reason to know that the
child is an Indian child, considering the nature and credibility of
the source of the information and the basis of the source’s
knowledge. See B.H., 138 P.3d at 303.
¶ 54 If the juvenile court determines that there is not a reason to
know that the child is an Indian child, the department must file a
notice with this court along with a copy of the juvenile court’s order
within seven days after the issuance of the order making this
determination. The appeal shall then be recertified. A
supplemental record, consisting of the court record created on
22
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, not to exceed 3,500 words.
¶ 55 If the juvenile court determines that it has reason to know that
the child is an Indian child, the department must file a notice with
this court along with a copy of the juvenile court’s order within
seven days after the issuance of the order making this
determination. 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
23
follow the substantive and procedural requirements under ICWA
and section 19-1-126.
¶ 56 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.
JUDGE DUNN and JUDGE WELLING concur.
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