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People ex rel. J.L.

Court of Appeals of Colorado, Division A

January 25, 2018

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.

          Alamosa County District Court No. 15JV114 Honorable Martin A. Gonzalez, Judge

          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

          PER CURIAM

          ¶ 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 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).

          ¶ 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 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., ΒΆΒΆ ...


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