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People ex rel. Z.C.

Court of Appeals of Colorado, Division A

May 9, 2019

The People of the State of Colorado, Petitioner-Appellee, In the Interest of Z.C., a Child, and Concerning S.C., Respondent-Appellant.

          El Paso County District Court No. 16JV895 Honorable Timothy Schutz, Judge.

          Amy R. Folsom, County Attorney, Jessica T. Driver, Assistant County Attorney, Colorado Springs, Colorado, for Petitioner-Appellee

          Anna N.H. Ulrich, Guardian Ad Litem

          Ingelhart Law Office, LLC, Kimberly A. Ingelhart, Glenwood Springs, Colorado, for Respondent-Appellant

          Furman, Ashby, and Welling, JJ.


          PER CURIAM.

         ¶ 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 No. 18CA0560, Oct. 10, 2018) (unpublished order).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. Id.

         ¶ 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 with ICWA.

         I. 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),; 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. 2018.

         ¶ 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 proceedings).

         ¶ 7 Juvenile courts may not hold a termination of parental rights proceeding until at least ten days after receipt of ...

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