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
Baxter, County Attorney, Ian MacLaren, Special Assistant
County Attorney, Cortez, Colorado, for Petitioner-Appellee
Padilla, Guardian Ad Litem
Shaner, Cortez, Colorado; Keith Andrew Fitzgerald, Moab,
Utah, for Intervenor-Appellant
Law Office of Jill M. Carlson, LLC, Jill M. Carlson, Cortez,
Colorado, for Intervenors-Appellees
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
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
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.
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
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
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
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 ...