The People of the State of Colorado, Petitioner-Appellee, In the Interest of Z.C., a Child, and Concerning S.C., Respondent-Appellant.
Paso County District Court No. 16JV895 Honorable Timothy
Folsom, County Attorney, Jessica T. Driver, Assistant County
Attorney, Colorado Springs, Colorado, for Petitioner-Appellee
N.H. Ulrich, Guardian Ad Litem
Ingelhart Law Office, LLC, Kimberly A. Ingelhart, Glenwood
Springs, Colorado, for Respondent-Appellant
Furman, Ashby, and Welling, JJ.
ORDER OF LIMITED REMAND
1 In this dependency and neglect action, SC (mother) appeals
the juvenile court's judgment terminating her
parent-child relationship with her son, Z.C. Among the issues
raised in her appeal, mother contends that the juvenile court
and the El Paso County Department of Human Services
(Department) did not comply with the notice requirements of
the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C.
§§ 1901-1963 (2018).
2 This is the second time this case has come before the ICWA
division of this court to consider the adequacy of ICWA
notice. The Department initially conceded that some tribes
had not received proper notice of the termination proceeding.
Based on our review of the record, we agreed that the
Department did not meet its notice obligations with regard to
eight tribes - namely, the three federally recognized
Cherokee tribes, the Navajo Nation, and four of the federally
recognized Apache tribes. See People in Interest of
Z.C., (Colo.App. No. 18CA0560, Oct. 10, 2018)
(unpublished order). Thus, we issued a limited remand order
directing the juvenile court to ensure compliance with ICWA.
3 The supplemental record on remand, however, does not
demonstrate that the juvenile court fully complied with the
remand order. In particular, the juvenile court erred when it
found that all of the tribes received notice of the
proceeding despite inadequate or missing return mail receipts
from two tribes. As a result, we again remand the case to the
juvenile court for the limited purpose of ensuring compliance
ICWA's Purpose and Provisions
4 ICWA aims to protect and preserve 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) (2018). ICWA "recognizes that Indian
tribes have a separate interest in Indian children that is
equivalent to, but distinct from, parental interests."
People in Interest of I.B-R., 2018 COA 75, ¶ 4.
The statute reflects the presumption that the protection of
an Indian child's relationship with the tribe serves the
child's best interests. People in Interest of
S.R.M., 153 P.3d 438, 440 (Colo.App. 2006). And it is up
to each tribe to make the determination as to whether a child
is eligible for membership. People in Interest of
T.M.W., 208 P.3d 272, 274 (Colo.App. 2009) ("[E]ach
Indian tribe has the authority to determine its membership
criteria and to decide who meets those criteria."
(citing People in Interest of J.A.S., 160 P.3d 257,
260 (Colo.App. 2007))).
5 "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."
I.B-R., ¶ 4. To ensure tribes have an
opportunity to be heard, the federal regulations and
guidelines implementing ICWA require juvenile courts and
human services departments to notify any identified Indian
tribes when there is reason to know or believe an Indian
child is involved in a child custody proceeding. People
in Interest of L.L., 2017 COA 38, ¶ 29; see
also 25 C.F.R. 23.11 (2018); 25 C.F.R. 23.111 (2018);
see also Bureau of Indian Affairs, Guidelines for
Implementing the Indian Child Welfare Act 11 (Dec. 2016),
https://perma.cc/3TCH-8HQM; see also Notice of
Guidelines, 81 Fed. Reg. 96, 476 (Dec. 30, 2016). In doing
so, the department must directly notify the tribe by
registered mail with return receipt requested of the pending
proceeding and its right to intervene. L.L.,
¶¶ 34-35; see also § 19-1-126, C.R.S.
6 If the court has reason to know or believe that a child is
an Indian child, but lacks sufficient evidence to make a
determination, the court must confirm that the department
involved in the case used due diligence to identify and work
with all relevant tribes to verify the child's membership
status. 25 C.F.R. § 23.107(b)(1) (2018). The department
must also make continuing inquiries to determine whether a
child is an Indian child. § 19-1-126(1)(a); see also
B.H. v. People in Interest of X.H., 138 P.3d 299, 302
(Colo. 2006); S.R.M., 153 P.3d at 442-43 (unless
tribe expressly states that it will not intervene, it retains
the right to receive notice and intervene in subsequent
7 Juvenile courts may not hold a termination of parental
rights proceeding until at least ten days after receipt of