H.J.B. v. People ex rel. A-J.A.B.

535 P.3d 67

H.J.B., Petitioner,

v.The PEOPLE of the State of Colorado, Respondent,IN the INTEREST OF A-J.A.B., Minor Child.

Supreme Court Case No. 22SC670

Supreme Court of Colorado.

September 11, 2023

Attorneys for Petitioner: The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado

Attorneys for Respondent: Adams County Attorney's Office, Katherine Gregg, Deputy County Attorney, Westminster, Colorado

Attorney for Minor Child: Josi McCauley, guardian ad litem, Superior, Colorado

Attorney for Amicus Curiae Colorado Office of Respondent Parents' Counsel: Zaven T. Saroyan, Denver, Colorado

Attorneys for Amici Curiae Southern Ute Indian Tribe and Ute Mountain Ute Tribe: David C. Smith, Lorelyn Hall, James Washinawatok II, Ignacio, Colorado, Peter Ortego, Towaoc, Colorado

En Banc

CHIEF JUSTICE BOATRIGHT, JUSTICE MARQUEZ, JUSTICE HOOD, III, JUSTICE GABRIEL, JUSTICE HART, and JUSTICE SAMOUR, Jr. joined.

JUSTICE BERKENKOTTER delivered the Opinion of the Court.

¶1 The federal Indian Child Welfare Act ("ICWA") was enacted in 1978 amidst a rising crisis in Indian Country: Abusive child welfare practices resulted in up to a third of all Indian children being forcibly removed from their homes and sent off-reservation to be fostered and adopted by non-Indian families. See Felix Cohen, Handbook of Federal Indian Law §§ 11.01[1], [2] (Nell Jessup Newton ed., 2012); see also People in Int. of My. K.M. v. V.K.L. , 2022 CO 35, ¶ 21, 512 P.3d 132,139 ("Congress enacted ICWA in response to ‘an alarmingly high percentage of Indian families broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.’ ") (citation omitted). As Indian tribes and families faced the loss of their children, Congress codified "substantive and procedural guardrails against the unjustified termination of parental rights and removal of Indian children from tribal life." Haaland v. Brackeen, 599 U.S. 255, 143 S. Ct. 1609, 1646, 216 L.Ed.2d 254 (2023) (Gorsuch, J., concurring); V.K.L., ¶¶ 22–23, 512 P.3d at 140.

¶2 Among these important guardrails are ICWA's notice provisions. One purpose of these provisions is to ensure that Indian tribes know about their right to intervene in, or, where appropriate, exercise jurisdiction over child custody proceedings involving an Indian child. 25 U.S.C. § 1912(a).¹ To that end, both ICWA and Colorado's ICWA implementing statute, section 19-1-126, C.R.S. (2022), impose specific notice requirements. Thus, if a juvenile court in a dependency and neglect case² "knows" a child is an Indian child, ICWA requires the court to ensure that the petitioning party complies with the notice requirements found in 25 C.F.R. § 23.111 (2023). Colorado's ICWA statute requires compliance with the same notice provision. § 19-1-126(1)(b) ; see also 25 U.S.C. § 1912(a).

¶3 And when the juvenile court does not "know," but instead has "reason to know," that a child is an Indian child, the court has the same obligation to ensure compliance with ICWA's notice provision. § 19-1-126(1)(b) ; 25 U.S.C. § 1912(a) ; 25 C.F.R. § 23.111. In these cases, the court must treat the child as an Indian child until it is determined on the record that the child does not meet the definition of an Indian child. § 19-1-126(2)(b).

¶4 But in some cases, a juvenile court is presented with a more general assertion that a child has Indian heritage. In some, like the case here, a parent asserts that a member of the child's family may have Indian heritage through a particular tribe or a tribal ancestry group. That type of information, without more—as this court concluded last year in People in Int. of E.A.M. v. D.R.M. , 2022 CO 42, ¶ 56, 516 P.3d 924, 937 —is not sufficient to give the court a "reason to know" that a child is an Indian child, and thus ICWA's notice requirements are not triggered.

¶5 Instead, these types of more generalized assertions of Indian heritage, without more, trigger the due diligence requirement, which is an additional obligation imposed by the General Assembly in section 19-1-126(3). Thus, when a juvenile court doesn't "know" or have "reason to know" that a child who is the subject of a dependency and neglect hearing is an Indian child, but learns that the child may have Indian heritage, the court must then direct the petitioning party to exercise due diligence in gathering additional information that would assist the court in determining if there is reason to know that the child is an Indian child. § 19-1-126(3).

¶6 But what, exactly, does that mean? More to the point, what constitutes due diligence in the context of section 19-1-126(3) ? Today, we answer that question and identify the steps that a petitioning party must take to satisfy its due diligence obligation under section 19-1-126(3). We then apply this framework to the facts here and conclude that the petitioning party here satisfied its statutory due diligence obligation under section 19-1-126(3). Accordingly, we affirm the division, albeit on different grounds.

I. Facts and Procedural History

¶7 A-J.A.B. tested positive at birth for methamphetamine. H.J.B. ("Mother") admitted methamphetamine use during her pregnancy. In March 2020, less than a month after A-J.A.B.'s birth, the Adams County Human Services Department ("the Department") filed a petition in dependency and neglect concerning A- J.A.B. See People in Int. of A-J.A.B. , 2022 COA 31, ¶ 3, 511 P.3d 750, 753, abrogated on other grounds by E.A.M. , ¶ 56, 516 P.3d at 937 (" A-J.A.B. I "). The Department's petition noted that it had no information indicating that A-J.A.B. was an Indian child or eligible for membership in an Indian tribe, although the petition did not identify what efforts, if any, the Department took to determine whether A-J.A.B. was an Indian child.

¶8 At the shelter hearing, Mother's counsel informed the court that Mother may have "some Cherokee and Lakota Sioux³ [heritage] through [A-J.A.B.'s maternal great-grandmother]."⁴ Id. at ¶ 4, 511 P.3d at 753. However, Mother was uncertain if anyone in her family was actually registered with a tribe and acknowledged that she "probably [wouldn't] qualify" for any tribal membership herself. Id. The juvenile court ordered Mother to "fill out the ICWA paperwork," but the court did not direct the Department to exercise its due diligence obligation under section 19-1-126(3). Id.

¶9 At the next hearing, Mother, who had not filled out the ICWA paperwork, again stated that she had "Native American heritage" through A-J.A.B.'s maternal great-grandmother. Id. at ¶ 5, 511 P.3d at 753. Because of these assertions, the juvenile court found that the case " ‘may’ be an ICWA case." Id. But the court did not order the Department to take any action to investigate Mother's claim of Indian heritage. In June 2020, the juvenile court entered a dispositional order; the order did not address ICWA or whether A-J.A.B. may be an Indian child.

¶10 In October 2020, "the Department's attorney asked the court to make another ICWA inquiry because the Department had ‘not resolved that issue’ yet." Id. at ¶ 6, 511 P.3d at 754. The juvenile court again stated that the case "may be an ICWA case," but did not expressly direct the Department to exercise its due diligence obligation under section 19-1-126(3). Id. And again, the juvenile court "ordered [M]other to submit an ICWA assessment form." Id. But Mother never did.

¶11 In December 2020, the Department moved to terminate Mother's parental rights. At the pretrial conference, Mother's attorney informed the court that she spoke with A-J.A.B.'s maternal grandmother, who stated that she "thought that the heritage may be Lakota." Id. at ¶ 7, 511 P.3d at 754. A-J.A.B.'s maternal grandmother told Mother's attorney that "if there's heritage then the [child's] great aunt would have the information." Nonetheless, Mother's attorney told the court "it doesn't sound like there's a reason to believe that ICWA would apply" and acknowledged that neither Mother nor A-J.A.B. were enrolled members of any tribe. Id. The juvenile court subsequently concluded that "there [was] no reason to believe that this case [was] governed by [ICWA]." Id. (alterations in original).

¶12 At the April 2021 termination hearing, the juvenile court reiterated that ICWA did not apply in this case "because ‘no information ha[d] been provided to the [c]ourt regarding the respondent [M]other's enrollment [or] eligibility for enrollment in a federally recognized tribe.’ " Id. at ¶ 8, 511 P.3d at 754 (alterations in original). The juvenile court terminated Mother's parental rights. Mother appealed.

¶13 Before a division of the court of appeals, Mother argued that the juvenile court erred in finding that ICWA did not apply because the court had a reason to know that A-J.A.B. was an Indian child. Id. at ¶ 9, 511 P.3d at 754 ; see also § 19-1-126(1)(a)(I)(A). According to Mother, her assertions of Cherokee and Lakota Sioux heritage triggered the Department's obligation under ICWA to send notice of the dependency and neglect proceeding to all Cherokee and Lakota Sioux tribes pursuant to section 19-1-126(1)(b).⁵ A-J.A.B. I, ¶ 9, 511 P.3d at 754. The Department and A-J.A.B.'s guardian ad litem disagreed, maintaining that Mother provided insufficient information to trigger the notice obligation under section 19-1-126(1)(b) when the juvenile court was only provided vague assertions of tribal heritage without meaningful elaboration. Id.

¶14 In a published opinion, the division agreed with Mother in part. While it concluded that there was no reason to know A-J.A.B. was an Indian child, the division held that the juvenile court nevertheless erred by not directing the Department to exercise its separate due diligence obligation under section 19-1-126(3) to assist the court in determining whether there is reason to know that A-J.A.B. is an Indian child. Id. at ¶ 10, 511 P.3d at 754.

¶15 The division explained that when a department initiates a dependency and neglect...