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People ex rel. I.B.-R.

Court of Appeals of Colorado, Division A

May 17, 2018

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

          Weld County District Court No. 16JV231 Honorable Elizabeth B. Strobel, Judge.

          Bruce T. Barker, County Attorney, David S. Anderson, Assistant County Attorney, Greeley, Colorado, for Petitioner-Appellee

          Keren C. Weitzel, Guardian Ad Litem Van Gaasbeek Law, Christine Van Gaasbeek, Fort Collins, Colorado, for Respondent-Appellant J.S.R.

          Henson Law, LLC, Patrick R. Henson, Denver, Colorado, for Respondent-Appellant C.M.H.

          Pamela K. Streng, Georgetown, Colorado, for Respondent-Appellant S.B.-R.

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

          PER CURIAM.

         ¶ 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 I.B.-R.

         ¶ 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.

         I. 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 ยง ...


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