The People of the State of Colorado, Petitioner-Appellee, In the Interest of I.B.-R., A.B.-R., M.B.-R., and A.R., children, and Concerning J.S.R., C.M.H. f/k/a C.M.R., and S.B.-R., Respondents-Appellants
County District Court No. 16JV231 Honorable Elizabeth B.
T. Barker, County Attorney, David S. Anderson, Assistant
County Attorney, Greeley, Colorado, for Petitioner-Appellee
C. Weitzel, Guardian Ad Litem Van Gaasbeek Law, Christine Van
Gaasbeek, Fort Collins, Colorado, for Respondent-Appellant
Law, LLC, Patrick R. Henson, Denver, Colorado, for
K. Streng, Georgetown, Colorado, for Respondent-Appellant
C.J., Ashby and Welling, JJ.
1 In this dependency and neglect proceeding, C.M.H. (mother),
formerly known as C.M.R., appeals the trial court's
judgment terminating her parent-child relationships with her
children, I.B.-R., A.B.-R., M.B.-R., and A.R. J.S.R., who is
the father of A.R., appeals the judgment terminating his
parent-child relationship with A.R. S.B.-R., who is the
father of A.B.-R. and I.B.-R., appeals the judgment
terminating his parent-child relationships with A.B.-R. and
2 One of J.S.R.'s contentions is that the trial court and
the Weld County Department of Human Services (the Department)
did not comply with the Indian Child Welfare Act of 1978
(ICWA), 25 U.S.C. §§ 1901-63 (2012), after he
asserted Native American heritage.
3 We agree that, although the Department notified some tribes
and the Bureau of Indian Affairs (BIA), the notice was
inadequate. Further, the trial court did not make the
required inquiry of the participants as to all of the
children after the Department initiated the proceeding to
terminate parental rights. Therefore, we remand the case to
the trial court for the limited purpose of ensuring
compliance with ICWA.
ICWA's Inquiry and Notice Provisions
4 ICWA's provisions are for the protection and
preservation of 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) (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
the child is an Indian child and to be heard on the issue of
ICWA's applicability. B.H., 138 P.3d at 303.
5 To ensure tribes have an opportunity to be heard,
Colorado's ICWA-implementing legislation provides that in
dependency and neglect proceedings, the petitioning party
must make continuing inquiries to determine whether the child
is an Indian child. § 19-1-126(1)(a), C.R.S. 2017;
see also B.H., 138 P.3d at 302.
6 The federal regulations and guidelines implementing ICWA
impose a duty of inquiry and notice on trial courts. 25
C.F.R. 23.107(a) (2017); Bureau of Indian Affairs, Guidelines
for Implementing the Indian Child Welfare Act, 81 Fed. Reg.
96, 476 (Dec. 30, 2016), https://perma.cc/3TCH-8HQM (2016
Guidelines); see also Notice of Guidelines, 81 Fed.
Reg. 96, 476 (Dec. 30, 2016). The trial court must ask each
participant on the record at the beginning 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
also People in Interest of L.L., 2017 COA 38, ¶ 19.
A proceeding to terminate parental rights is a separate child
custody proceeding under ICWA. See 25 U.S.C. §
1903(1) (2012); see also § ...