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.
T. Kelly, County Attorney, Alamosa, Colorado, for
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.
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."
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)
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., ¶¶ ...