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People ex rel. S.B.

Court of Appeals of Colorado, Fourth Division

January 2, 2020

The People of the State of Colorado, Appellee, In the Interest of S.B., a Child, and Concerning R.B., Appellant.

          Montrose County District Court No. 17JV83 Honorable D. Cory Jackson, Judge.

          Julie R. Andress, Assistant County Attorney, Montrose, Colorado, for Appellee

          Barbra J. Remmenga, Guardian Ad Litem

          Michael Kovaka, Littleton, Colorado, for Appellant

          OPINION

          HAWTHORNE JUDGE.

         ¶ 1 In this dependency and neglect proceeding, R.B. (father) appeals the judgment terminating his parental rights to S.B. (the child). We affirm.

         I. Factual Background and Procedural History

         ¶ 2 In August 2017, law enforcement officials placed the child in protective custody because during a drug raid they found the child alone in unsafe conditions where he and father lived. The Montrose County Department of Health and Human Services (Department) initiated a dependency and neglect proceeding, and the juvenile court granted custody of the child to the Department. The Department placed the child in the care of his paternal great aunt and uncle, whom the court appointed as special respondents in the case. The child's mother had died earlier that year.

         ¶ 3 In September 2017, father admitted that the child was dependent and neglected and the court adopted a treatment plan for father.

         ¶ 4 Father was later arrested on several offenses, and under a plea agreement was sentenced to six years in the custody of the Department of Corrections in March 2018.

         ¶ 5 In August 2018, the Department moved to terminate father's parent-child legal relationship with the child. The court held a termination hearing and terminated father's parental rights.

         II. The Juvenile Court's Errors Under ICWA Were Harmless

         ¶ 6 Father contends that the juvenile court failed to comply with the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963 (2018), in two ways: (1) it failed to make proper ICWA inquiries during the termination proceeding and (2) it and the Department failed to send proper notice of the termination proceeding to the Jena Band of the Choctaw Tribe. We conclude the errors in the court's inquiry and notice procedures under ICWA were harmless.

         A. Standard of Review and Applicable Law

         ¶ 7 We review de novo whether ICWA's requirements applied to the proceeding and were satisfied. People in Interest of M.V., 2018 COA 163, ¶ 32; People in Interest of T.M.W., 208 P.3d 272, 274 (Colo.App. 2009).

         ¶ 8 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. 2018;[1] see also B.H. v. People in Interest of X.H., 138 P.3d 299, 302 (Colo. 2006).

         ¶ 9 The federal guidelines implementing ICWA impose a duty of inquiry and notice on trial courts. 25 C.F.R. § 23.107(a) (2019); Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act (Dec. 2016), https://perma.cc/3TCH-8HQM; see also Notice of Guidelines, 81 Fed. Reg. 96, 476 (Dec. 30, 2016). The 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 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) (2018); see also § 19-1-126(1); People in Interest of C.A., 2017 COA 135, ¶ 10.

         ¶ 10 When there is reason to know or believe that a child involved in a custody proceeding is an Indian child, the petitioning party must send notice of the proceeding to the potentially concerned tribe or tribes. B.H., 138 P.3d at 302; see 25 U.S.C. § 1912(a) (2018); § 19-1-126(1)(b). A court "has reason to know" a child is an Indian child if, in relevant part, "[a]ny participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that the child is an Indian child . . . [or] informs the court that it has discovered information indicating that the child is an Indian child[.]" 25 C.F.R. § 23.107(c). State courts and agencies are encouraged to interpret these factors expansively. M.V., ¶ 43. If the tribe's identity or location can't be determined, notice must be given to the Bureau of Indian Affairs. B.H., 138 P.3d at 302; see 25 U.S.C. § 1912(a).

         B. Additional Facts

         ¶ 11 Prior to the dependency and neglect adjudication, the court asked father on two occasions whether the child had Indian heritage. Father said that the child didn't and that he was unaware of any Indian heritage from the child's mother.

         ¶ 12 At the adjudication hearing, the Department notified the court that it was inquiring into the child's possible Indian heritage from his mother.

         ¶ 13 Months later at a review hearing, the Department updated the court on its efforts to determine the child's possible Indian heritage. Its counsel said that the Department had communicated with the child's maternal grandfather, who said that he was a registered member of a Choctaw tribe. Counsel said that the Department had sent notices to the three federally recognized Choctaw tribes, and that two had responded that the grandfather wasn't a member or eligible to be one. The Department hadn't heard back from the third tribe, the Jena Band, and hadn't been able to contact the tribe by telephone.

         ¶ 14 In July 2018, the court held a "permanency planning hearing." It adopted the Department's primary termination and adoption plan. The court found that "ICWA continues not to be an issue," and that it "does not know or have reason to know that [the child] is [an] Indian child."

         ¶ 15 On August 1, 2018, the Department moved to terminate father's parent-child legal relationship with the child. In the motion, the Department stated that it

made appropriate inquiries to determine that [the child is] not subject to [ICWA]. . . . Inquiries were made into the [m]other's heritage and the Choctaw Tribes were noticed. The People do not know or have reason to know or believe that the child is an Indian Child under the meaning of [ICWA].

         ¶ 16 On August 15, 2018, in a "pre-hearing" order, the court stated that it "hereby inquires of [father] whether [he] or the child[] are members of a Native American Indian tribe or are eligible for membership in a Native American Indian tribe. [Father] shall file a report indicating whether ICWA is a[n] issue in this case within [seven] days." Father didn't respond.

         ¶ 17 Eight days before the termination hearing on November 6, 2018, the Department filed a "Notice Regarding [ICWA]." In the notice the Department detailed its efforts to inquire into the child's possible Indian heritage, including what counsel had already provided at the review hearing. The Department also sent information to the Bureau of Indian Affairs, but the Bureau had responded that it couldn't identify a tribe. The Jena Band of the Choctaw Tribe still hadn't responded to the notice or to the Department's follow-up efforts.

         ¶ 18 The notice also said that the Department had called grandfather in July 2018 prior to the termination motion, and he had "confirmed that the tribe he is enrolled in is the 'Metis' tribe," a federally unrecognized tribe. Thus, the Department concluded that it didn't believe or have reason to know that the child was an Indian child for ICWA purposes.

         C. Analysis

         ¶ 19 We agree that the court's inquiry and notice procedures under ICWA were insufficient.

         ¶ 20 "The trial court must ask each participant on the record at the beginning of each emergency, voluntary, or involuntary child custody proceeding 'whether the participant knows or has reason to know that the child is an Indian child.'" People in Interest of K.G., 2017 COA 153, ¶ 21 (quoting 25 C.F.R. § 23.107(a)). Yet the court inquired only of father. See K.G., ¶ 25 ("Nor did the court make the required inquiry on the record as to any of the three parents, the guardian ad litem, or the Department."); see also People in Interest of J.L., 2018 COA 11, ¶ 20 ("A written advisement form provided to one participant falls far short of meeting this requirement.").

         ¶ 21 And at the time the Department sought termination, based on the existing record, the court had "reason to know" the child may have Indian heritage and should have required the Department to send notice to the Jena Band. See M.V., ¶ 44 (parent indicating that children had Indian heritage and were eligible for membership in a federally recognized tribe was "sufficient to give the court reason to know the children were Indian children"); L.L., ¶ 39 ("If a Tribe does not respond to the notice . . . the Department must continue to send the Tribe notices of subsequent proceedings for which notice is required, such as a termination of parental rights proceeding.").

         ¶ 22 But these errors were harmless. Grandfather's claim to be a registered member of a Choctaw tribe was the sole basis for believing or having reason to know that the child possibly had Indian heritage. So when grandfather later clarified that he was enrolled in a federally unrecognized tribe, further notice wasn't required and the previous errors were harmless. See People in Interest of Z.C, 2019 COA 71M, ¶ 22 ("And because the [tribe] was able to determine that the child was not a member of or eligible for membership in the tribe (albeit in a letter that was not before the juvenile court at the time of the hearing), the error in the juvenile court's finding that the [tribe] received proper notice is harmless."); People in Interest of S.R.M., 153 P.3d 438, 441 (Colo.App. 2006).

         III. ...


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