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People ex rel. L.H.

Court of Appeals of Colorado, Division A

February 22, 2018

The People of the State of Colorado, Petitioner-Appellee, In the Interest of L.H., a Child, and Concerning L.H., Respondent-Appellant.

         Jefferson County District Court No. 15JV650 Honorable Ann Gail Meinster, Judge

          Ellen G. Wakeman, County Attorney, Sarah Oviatt, Assistant County Attorney, Golden, Colorado, for Petitioner-Appellee

          Laura L. Locke, Guardian Ad Litem Levi Guthrie, Colorado Springs, Colorado, for Respondent-Appellant

          Loeb, C.J., Román, and Welling, JJ.

          PER CURIAM

          ¶ 1 In this dependency and neglect proceeding, L.H. (mother) appeals the judgment terminating the parent-child legal relationship with her child, L.H. Based on our review of the record, we are unable to determine whether the Jefferson County Department of Human Services, Division of Children, Youth and Families (Department) complied with the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963 (2012); see also § 19-1-126, C.R.S. 2017. Because the record does not show that the Department sent notice to tribes historically affiliated with the tribe mother asserted her biological brother belonged to, we remand the case to the trial court for the limited purpose of ensuring that ICWA's notice requirements are satisfied.

         I. Background

         ¶ 2 Congress enacted ICWA to address "rising concern" over the consequences of "child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes." Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989). 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).

         ¶ 3 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 Holyfield, 490 U.S. at 52. Accordingly, in a proceeding in which ICWA may apply, tribes must have a meaningful opportunity to participate in determining whether the child is an Indian child and to be heard on the issue of ICWA's applicability. B.H., 138 P.3d at 303. Therefore, if there is a reason to know or believe that a child is an Indian child, the Department must provide notice to any identified Indian tribes. See 25 U.S.C. § 1912(a) (2012); § 19-1-126(1)(b); People in Interest of N.D.C., 210 P.3d 494, 497 (Colo.App. 2009).

         ¶ 4 In doing so, the Department must directly notify the tribe by registered or certified mail with return receipt requested of the pending child custody proceedings and its right to intervene. 25 C.F.R. § 23.111(a) (2017); see People in Interest of L.L., 2017 COA 38, ¶¶ 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 . . .;

         (4) The name of each Indian Tribe in which the child is a member (or may be eligible for membership if ...


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