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
R. Andress, Assistant County Attorney, Montrose, Colorado,
J. Remmenga, Guardian Ad Litem
Michael Kovaka, Littleton, Colorado, for Appellant
1 In this dependency and neglect proceeding, R.B. (father)
appeals the judgment terminating his parental rights to S.B.
(the child). We affirm.
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.
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.
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; 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).
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
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.
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