The People of the State of Colorado, Petitioner-Appellee, In the Interest of L.L., a Child, and Concerning A.T., Respondent-Appellant.
and County of Denver Juvenile Court No. 16JV510 Honorable D.
Brett Woods, Judge
Cristal D. Torres, City Attorney, Laura Grzetic Eibsen,
Assistant City Attorney, Denver, Colorado, for
W. Dodd, Greeley, Colorado, for Respondent-Appellant
1 In this dependency and neglect case, mother, A.T., told the
juvenile court at a shelter hearing that she had possible
Apache Native American ancestry. But, for reasons not
disclosed in the record, the parties and the juvenile court
did not follow certain procedures mandated by the Indian
Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§
1901-1963 (2012); see § 19-1-126, C.R.S. 2016.
Following a jury verdict, the court adjudicated the child,
L.L., dependent and neglected. The court then held a
2 On appeal, mother contends that we should reverse the
adjudicatory judgment for two reasons: (1) the Denver
Department of Human Services (Department) did not comply with
the ICWA notice requirements; and (2) the juvenile court
violated ICWA by not requiring the jury to base its findings
on a heightened clear and convincing evidentiary standard. We
agree with mother that the Department did not comply with the
ICWA notice requirements. But, we disagree that ICWA imposes
a heightened evidentiary standard at the adjudicatory
hearing. Thus, we reverse the judgment and remand the case
with directions that notice be given in accordance with ICWA.
Mother's Alleged Apache Heritage
3 A truancy court magistrate ordered the Department to
investigate this case based on mother refusing to take her
son, L.L., to school. A recording from a cell phone showed
L.L. cowering in a corner of a bedroom, while mother yelled
and threatened to beat him with a belt. The Department
subsequently filed a petition in dependency and neglect,
which alleged mother had refused to cooperate with a Denver
Police welfare check. She told the authorities that L.L. was
staying with family in Rifle, Colorado, but would not provide
an address, and that she had bipolar disorder, but had not
been taking her medications.
4 At a shelter hearing, mother denied the allegations in the
petition and requested a jury trial. She also stated that she
had Apache heritage, although she did not subsequently fill
out an ICWA assessment form. The Bureau of Indian Affairs
(BIA) lists eight Apache Tribes on its website,
https://perma.cc/MHN5-B3F7: Jicarilla Apache Nation,
Mescalero Apache Tribe, San Carlos Apache Tribe, Tonto Apache
Tribe of Arizona, White Mountain Apache Tribe of the Fort
Apache Reservation, Yavapai-Apache Nation of the Camp Verde
Indian Reservation, Fort Sill Apache Tribe of Oklahoma, and
Apache Tribe of Oklahoma. Two months later, mother filed
written information that included tribal card numbers and
5 Even so, the Department did not send notice of the
proceedings to any of the Apache Tribes.
6 At a pretrial hearing, mother again stated that she had
Indian heritage. But, at that hearing, the juvenile court did
not address whether the Department used due diligence to
identify and work with an Apache Tribe to verify whether L.L.
is a member or is eligible for membership. And, the court did
not treat L.L. as an Indian child pending the Tribes'
7 On the first day of the adjudicatory hearing, the juvenile
court instructed the jury that the Department had the burden
of proving the allegations set forth in the petition by a
preponderance of the evidence. The court did not address
whether ICWA applied. Mother did not object to the
court's preponderance instruction.
8 Based on the jury's verdict, the juvenile court
adjudicated L.L. dependent and neglected.
Application of ICWA
9 The positions of the parties before the juvenile court
demonstrate significant confusion about the application of
ICWA and the practices to be followed in implementing it. For
. At the shelter hearing, the Department
acknowledged that it would send notices. But, at a pretrial
hearing, the Department did not indicate whether notices to
any Apache Tribes had been sent. In the end, the Department
did not send notice to any Apache Tribe, and concedes so on
. L.L.'s guardian ad litem (GAL) voiced
no position regarding ICWA's applicability to this case,
and does not assert any position on appeal.
. Mother did not state that she was enrolled
in an Apache Tribe or that L.L. was eligible for membership.
Rather, she asserted that her great grandmother was "an
Apache out of Nebraska"; she had "the
bloodline"; and she "was able to continue with the
10 To address the application of ICWA to this case, we first
discuss Congress's purpose in enacting ICWA. We then
discuss the roles of the juvenile court and the parties in
determining whether a child is an "Indian child"
under ICWA. We conclude by addressing mother's two
arguments on appeal that: (1) the Department did not comply
with ICWA's notice requirements; and (2) ICWA imposes a
heightened evidentiary standard at the adjudicatory hearing.
Congress's Purpose in Enacting ICWA
11 Congress enacted ICWA "for the protection and
preservation of Indian tribes and their resources." 25
U.S.C. § 1901(2) (2012). Congress found "that an
alarmingly high percentage of Indian families are broken up
by the removal, often unwarranted, of their children from
them by nontribal public and private agencies and that an
alarmingly high percentage of such children are placed in
non-Indian foster and adoptive homes and institutions."
25 U.S.C. § 1901(4). Congress also found that States
have often "failed to recognize the essential tribal
relations of Indian people and the cultural and social
standards prevailing in Indian communities and
families." 25 U.S.C. § 1901(5).
12 To address this failure, ICWA establishes "minimum
Federal standards for the removal of Indian children from
their families and the placement of such children in foster
or adoptive homes which will reflect the unique values of
Indian culture." 25 U.S.C. § 1902 (2012). In other
words, ICWA establishes minimum federal standards for an
"Indian child" involved in a "child custody
proceeding." 25 U.S.C. § 1903(1), (4) (2012).
13 Of course, ICWA does not apply to every child-custody
proceeding. Hence, in any such proceeding, the parties and
juvenile court must ask two fundamental questions to
determine whether ICWA applies to a case: (1) Does ICWA apply
to this child? (2) Does ICWA apply to the proceeding?
See Bureau of Indian Affairs, Guidelines for
Implementing the Indian Child Welfare Act 9 (Dec. 2016),
https://perma.cc/3TCH-8HQM (2016 Guidelines). B. The Juvenile
Court and the Parties' Role
14 The juvenile court and the parties each play an important
role in determining whether ICWA applies to a child who is
subject to a custody proceeding.
15 On appeal, the Department cites the 2015 Guidelines for
State Courts and Agencies in Indian Child Custody Proceedings
(2015 Guidelines) and 2016 Department of the Interior Final
Rule (2016 Final Rule) as guidance to State courts related to
inquiry and verification issues in Indian Child Welfare Act
proceedings. See Indian Child Welfare Act
Proceedings, 81 Fed. Reg. 38, 778 (June 14, 2016) (to be
codified at 25 C.F.R. pt. 23); Guidelines for State Courts
and Agencies in Indian Child Custody Proceedings, 80 Fed.
Reg. 10, 146 (Feb. 25, 2015). In 2016, the BIA published new
guidelines intended "to assist those involved in child
custody proceedings in understanding and uniformly
applying" ICWA. 2016 Guidelines at 4, 6. The 2016
Guidelines repeal the 2015 Guidelines and incorporate the
2016 Final Rule. Id. The 2016 Guidelines thus
clarify the practices of courts and parties involved in child
custody proceedings to ensure compliance with ICWA, and the
Department appears to concede their value in doing so.
16 Although the 2016 Guidelines are not binding, we consider
them persuasive. See B.H. v. People in Interest of
X.H., 138 P.3d 299, 302 n.2 (Colo. 2006) (referring to
the 1979 guidelines). Therefore, we look to the 2016
Guidelines for guidance to ensure compliance with ICWA.
17 In determining whether ICWA applies to a child who is
subject to a dependency and neglect proceeding, the juvenile
court, the Department, the GAL, and the respondent parent
each have various duties. We address them here.
Juvenile Court's Duties
18 The juvenile court's duty is to ask whether the child
is an "Indian child, " follow certain procedures if
it has reason to know a child is an Indian child, and, if the
child is not an Indian child, instruct the parties to inform
the court if they later receive information that provides
reason to know the child is an Indian child. 25 C.F.R. §
19 The juvenile court must first ask each participant on the
record at the commencement 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
§ 19-1-126(2) (When the petition "does not disclose
whether the child" is an Indian child, "the court
shall inquire of the parties at the first hearing whether the
child is an Indian child and, if so, whether the parties have
complied with the procedural requirements" of ICWA.).
20 An "Indian child" means "any unmarried
person who is under the age of eighteen and is either: (a) a
member of an Indian tribe or (b) is eligible for membership
in an Indian tribe and is the biological child of a member of
an Indian tribe[.]" 25 U.S.C. § 1903(4);
see 19-1-103(65.3), C.R.S. 2016. Tribal membership
for purposes of ICWA is left up to the individual Tribes.
B.H., 138 P.3d at 303.
Reason to Know
21 The juvenile court also has certain duties if it has
"reason to know" that a child is an Indian child.
25 C.F.R. § 23.107. The juvenile court has "reason
to know" that a child is an ...