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People ex rel. L.R.B.

Court of Appeals of Colorado, Division A

May 30, 2019

The People of the State of Colorado, Petitioner-Appellee, In the Interest of L.R.B., S.B.B., and K.B.B., Children, and Concerning Navajo Nation, Intervenor-Appellant, and E.S. and R.S., Intervenors-Appellees.

          Montezuma County District Court No. 15JV9 Honorable Douglas S. Walker, Judge

          John Baxter, County Attorney, Ian MacLaren, Special Assistant County Attorney, Cortez, Colorado, for Petitioner-Appellee

          Beth Padilla, Guardian Ad Litem

          James Shaner, Cortez, Colorado; Keith Andrew Fitzgerald, Moab, Utah, for Intervenor-Appellant

          The Law Office of Jill M. Carlson, LLC, Jill M. Carlson, Cortez, Colorado, for Intervenors-Appellees

          ORDER

          FURMAN, JUDGE

         ¶ 1 In this post-termination of parental rights proceeding, the Montezuma County Department of Social Services (Department) and the guardian ad litem (GAL) of L.R.B., S.B.B., and K.B.B. (the children) stipulated to the Navajo Nation's request to transfer jurisdiction to the tribal court for preadoptive and adoptive placement proceedings. But the children's former foster parents, E.S. and R.S., who filed petitions to adopt the children, opposed the transfer.

         ¶ 2 After a contested hearing, the juvenile court denied the Navajo Nation's request to transfer jurisdiction. The court recognized that the transfer section of the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. § 1911(b) (2018), generally permits a tribe to request a transfer of jurisdiction. But the court concluded that the plain language of this section does not apply to preadoptive and adoptive placement proceedings and, even if it did apply, the former foster parents presented evidence of good cause to deny the request.

         ¶ 3 We disagree based on the plain language of the Children's Code. Section 19-1-126(1), (4)(a), and (4)(b), C.R.S. 2018 - our state's ICWA-implementing legislation as it existed at the time of this hearing - applies transfer of jurisdiction requests to preadoptive and adoptive placement proceedings. It also places the burden of proof on the party opposing the transfer. Because the former foster parents lacked standing to oppose the Navajo Nation's request, the juvenile court erred in entertaining their opposition.

         ¶ 4 Accordingly, we reverse the juvenile court's order and remand for the juvenile court to (1) transfer jurisdiction to the Navajo Nation's tribal court and (2) vacate and dismiss the former foster parents' petitions to adopt.

         I. Post-Termination Proceedings

         ¶ 5 It is undisputed that the children are registered members of the Navajo Nation and, therefore, Indian children under ICWA. See 25 U.S.C. §§ 1901 to 1963 (2018).

         ¶ 6 The juvenile court entered judgment terminating the parent-child legal relationship between the children and their parents, and a division of this court affirmed the judgment. People in Interest of L.R.B., (Colo.App. No. 17CA0607, Feb. 1, 2018) (not published pursuant to C.A.R. 35(e)). Following termination, the Department filed a motion to remove the children from the home of the former foster parents and place them in an ICWA preferred placement. The court granted the motion.

         ¶ 7 The Navajo Nation then moved to intervene; the juvenile court granted the motion. While the parents appealed the termination of their parental rights, the Navajo Nation moved to transfer jurisdiction from the state court to the tribal court under section 25 U.S.C. § 1911(b). The Department and the GAL did not oppose this motion. But the juvenile court denied the Navajo Nation's motion because the court lacked jurisdiction to act while the case was on appeal. Yet, it noted that if it had jurisdiction, it would have concluded that good cause existed to deny transfer based on the age of the case.

         ¶ 8 Later, the former foster parents filed petitions to adopt the children; the Navajo Nation and the Department opposed the petitions. The juvenile court also "re-joined" the former foster parents to the dependency and neglect case under C.R.C.P. 20. The court did so based on the former foster parents' petitions to adopt the children.

         ¶ 9 After our court issued the mandate on the denial of the parents' appeal, the Navajo Nation again moved to transfer jurisdiction in the dependency and neglect case. The Navajo Nation asserted that the tribal court was the proper venue for preadoptive and adoptive placement proceedings regarding the children. The Department and the GAL stipulated to the Navajo Nation's motion, but the former foster parents opposed it.

         ¶ 10 After a hearing, in which the Navajo Nation, the Department, the GAL, and the former foster parents participated, the juvenile court denied the Navajo Nation's motion to transfer jurisdiction. The court also ordered the Department to place the children with the former foster parents pending the final hearing on their petitions to adopt.

         ¶ 11 The Navajo Nation and the Department moved to stay the juvenile court's order denying the motion to transfer jurisdiction and placing the children with the former ...


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