People ex rel. Jay.J.L.

514 P.3d 312

2022 COA 43

The PEOPLE of the State of Colorado, Appellee,

IN the INTEREST OF JAY.J.L. and Jac.J.L., Children,

and

Concerning B.J.L. and J.M.G., Appellants.

Court of Appeals No. 21CA0659

Colorado Court of Appeals, Division V.

Announced April 14, 2022

Kristin M. Bronson, City Attorney, Amy J. Packer, Assistant City Attorney, Denver, Colorado, for Appellee

Jeffrey C. Koy, Jordan Oates, Lauren Dingboom, Claire Collins, Guardians Ad Litem

Lindsey Parlin, Office of Respondent Parents’ Counsel, Kaneohe, Hawaii, for Appellant B.J.L.

The Morgan Law Office, Kris P. Morgan, Colorado Springs, Colorado, for Appellant J.M.G.

Opinion by JUDGE YUN

¶ 1 In this dependency and neglect proceeding, J.M.G. (mother) and B.J.L. (father) appeal the juvenile court's judgment terminating their parent-child legal relationships with J.J.L. (the child). To decide this appeal, we must dive into the requirements of the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901 - 1963, and section 19-1-126, C.R.S. 2021.

¶ 2 It is well established that when the court knows or has reason to know that an Indian child is involved in a termination proceeding, the court must ensure that the party seeking termination provides notice of the proceeding to the potentially concerned tribe or tribes. But, in this case, we must determine whether mother's assertion of Indian heritage, which she connected to specific tribal ancestral groups, constituted a reason to know that the child was an Indian child or, in the alternative, whether it required the petitioning party to exercise due diligence to gather additional information under section 19-1-126(3).

¶ 3 We conclude that a parent's assertion of Indian heritage, standing alone, is insufficient to trigger ICWA's notice requirements but, rather, it invokes the petitioning party's obligation to exercise due diligence under section 19-1-126(3). We further conclude that the exercise of due diligence under this provision is flexible and depends on the circumstances of, and the information presented to the court in, each case. Nonetheless, the record needs to show that the petitioning party earnestly endeavored to gather additional information that would assist the court in determining whether there is reason to know that the child is an Indian child.

¶ 4 Because the record does not demonstrate that the petitioning party met this obligation, we remand the case to the juvenile court for further proceedings.

I. The Juvenile Court Proceeding

¶ 5 In November 2019, the Denver Department of Human Services filed a dependency and neglect petition concerning the two-year-old child and a younger sibling who is not subject to this appeal. In the petition, the department indicated that mother reported having Cherokee or Navajo heritage but was "uncertain which and does not know if anyone in her family was an enrolled member."

¶ 6 At the initial temporary custody hearing, mother also told the juvenile court that she had Cherokee or Navajo heritage. The court determined that this was not reason to know that the child is an Indian child. Still, it told mother to complete an ICWA ancestry chart and directed the department to exercise due diligence to gather additional information that would assist it in determining whether there was reason to know that the child is an Indian child.

¶ 7 Mother promptly completed and submitted an ICWA inquiry form, as well as an ICWA ancestry chart. On the form, mother again indicated that either she or someone in her family had Indian heritage, but she also checked boxes indicating that she was not enrolled in an Indian tribe and that the child was neither enrolled in a tribe nor eligible for enrollment. In the ICWA ancestry chart, mother identified her tribe as Cherokee, but she did not fill in additional sections that sought tribal affiliations for the maternal grandparents and great-grandparents.

¶ 8 The court adjudicated the child dependent and neglected and entered dispositional orders concerning both parents. Although the court did not expressly address ICWA's applicability as part of the dispositional orders, it later reiterated that the department should investigate mother's claim of Cherokee or Navajo heritage.

¶ 9 In December 2020, the department moved to terminate the legal relationships between the child and his parents. As part of its termination motion, the department asserted that there was no reason to know, based on inquiries of both parents, that the child is an Indian child.

¶ 10 About a month later, the department filed a declaration listing additional diligent efforts it had made to determine whether there was reason to know that the child is an Indian child. These included the following:

• contacting the maternal grandmother, who indicated that she "was not aware of any Native American heritage for her family";

• contacting a maternal aunt, who "reported not knowing if there was any Native American heritage for her family";

• reviewing the "Colorado Courts System," which showed that the parents had been subject to two earlier dependency and neglect cases — one in 2008 and one in 2010 — and the court had determined that ICWA was inapplicable in each case; and

• reviewing the "TRAILS" system, which revealed that a social history record for mother "[did] not indicate any Native American heritage other than possible Cherokee heritage."

¶ 11 Following a multi-day termination hearing between January and April 2021, the juvenile court again addressed ICWA's applicability. The court determined that ICWA was inapplicable because the department's efforts to investigate mother's report of heritage had not shown reason to know that the child is an Indian child. The court entered judgment terminating the parental rights of mother and father.

II. ICWA's Notice Requirement

¶ 12 We first address mother's assertion that ICWA required the department to give notice of the proceeding to the federally recognized Cherokee and Navajo tribes.

A. Preservation

¶ 13 Initially, we note that, before the termination hearing, the parties stipulated that "there does not appear to be reason to know that ICWA applies to these proceedings" based on the department's declaration of its efforts to investigate "possible Native American heritage for the family."

¶ 14 Even so, ICWA's notice requirements serve the interests of Indian tribes, giving them "a meaningful opportunity to participate in determining whether the child is Indian." B.H. v. People in Interest of X.H. , 138 P.3d 299, 303 (Colo. 2006) ; People in Interest of J.O. , 170 P.3d 840, 842 (Colo. App. 2007). Consequently, they cannot be waived by a parent and may be raised for the first time on appeal. J.O. , 170 P.3d at 842.

B. Standard of Review and Statutory Interpretation

¶ 15 Whether ICWA applies to a proceeding is a question of law that we review de novo. People in Interest of M.V. , 2018 COA 163, ¶ 32, 432 P.3d 628. We also review de novo questions of statutory interpretation. People in Interest of K.C. v. K.C. , 2021 CO 33, ¶ 21, 487 P.3d 263.

¶ 16 In construing a statute, we consider the entire statutory scheme to give consistent, harmonious, and sensible effect to all its parts, and we interpret words and phrases in accordance with their plain and ordinary meanings. Id. In addition, statutes enacted for the benefit of Indians, as well as regulations, guidelines, and state statutes promulgated to implement those statutes, must be liberally construed in favor of Indian interests. People in Interest of A.R. , 2012 COA 195M, ¶ 18, 310 P.3d 1007 ; see also Montana v. Blackfeet Tribe of Indians , 471 U.S. 759, 766, 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985).

C. The Legal Framework

¶ 17 ICWA aims to protect and to preserve Indian tribes and their resources and to protect Indian children who are members of or are eligible for membership in an Indian tribe. 25 U.S.C. § 1901(2), (3) ; M.V. , ¶ 10. ICWA recognizes that Indian tribes have a separate interest in Indian children that is equivalent to, but distinct from, parental interests. B.H. , 138 P.3d at 303 ; see also Mississippi Band of Choctaw Indians v. Holyfield , 490 U.S. 30, 52, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989).

¶ 18 If the court knows or has reason to know that an Indian child is involved in a child custody proceeding, including one for the termination of parental rights, the petitioning party — often the department of human services — must provide notice to any identified Indian tribes. 25 U.S.C. § 1912(a) ; § 19-1-126(1)(b) ; see also B.H. , 138 P.3d at 302.

¶ 19 To comply with ICWA's notice provisions, the department must notify each tribe by registered mail, with return receipt requested, of the pending child custody proceeding and the tribe's right to intervene. M.V. , ¶ 26. And copies of these notices must be sent to the appropriate regional director of the Bureau of Indian Affairs (BIA). 25 C.F.R. § 23.11(a) (2021) ; see also M.V. , ¶ 28.

D. Determining When ICWA Applies

¶ 20 The juvenile court must ask each participant on the record at the start of every 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) (2021) ; People in Interest of L.L. , 2017 COA 38, ¶ 19, 395 P.3d 1209.

¶ 21 For purposes of ICWA, an Indian child is an unmarried person under the age of eighteen who is either (1) a member of an Indian tribe or (2) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. 25 U.S.C. § 1903(4). Thus, a child's eligibility for membership in a tribe does not, in and of itself, render the child an Indian child under ICWA. K.C. , ¶ 24.

¶ 22 But ICWA does not define tribal membership. Id. at ¶ 28. Rather, membership is left exclusively to the control of each individual tribe. Id. This means that a tribe's determination of membership or membership eligibility is conclusive and final. People in Interest of J.A.S. , 160 P.3d 257, 260 (Colo. App. 2007). And the court may not...