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.
Furman, J., specially concurs. Navarro, J., specially
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
[¶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
[¶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
Standard of Review and Applicable Law
[¶7] We review de novo whether ICWA's
requirements applied to the proceeding and were satisfied.
People ex rel. M.V., 432 P.3d 628, 2018 COA 163, ¶
32; People in Interest of T.M.W., 208 P.3d 272, 274
[¶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 v. L.L., 2017 COA 38,
¶ 19, 395 P.3d 1209. 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 ex rel. C.A., 2017 COA 135, ¶
10, 417 P.3d 909.
[¶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. §
[¶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.
[¶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 ex rel.
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 ex rel.
J.L., 2018 COA 11, ¶ 20, 428 P.3d 612 (" A written
advisement form provided to one participant falls far short
of meeting this requirement." ).
[¶21] And at the time the Department sought