People ex rel. K.C. v. K.C.

487 P.3d 263

The PEOPLE of the State of Colorado, Petitioner/Cross-Respondent

IN the INTEREST OF Minor Children: K.C. and L.C.,

v.K.C. and L.C., Respondents/Cross-PetitionersandConcerning D.C., Respondent

Supreme Court Case No. 20SC533

Supreme Court of Colorado.

May 24, 2021

Attorneys for Petitioner/Cross Respondent: Logan County Attorney's Office, Alan W. Samber, County Attorney, Kimberlee R. Keleher, Assistant County Attorney, Sterling, Colorado

Attorney for Respondents/Cross-Petitioners: Josi McCauley, Guardian ad litem, Fort Collins, Colorado

Attorneys for Respondent: Dodd Law, PC, Debra W. Dodd, Berthoud, Colorado

Attorneys for Amicus Curiae Chickasaw Nation: Indian Law Clinic, Michigan State University College of Law, Kathryn Fort, East Lansing, Michigan, Chickasaw Nation Legal Division, Debra Gee, Ada, Oklahoma, Van Ness Feldman, LLP, Laura Jones, Denver, Colorado

Attorney for Amicus Curiae Office of Respondent Parents' Counsel: Melanie Jordan, Denver, Colorado

En Banc

JUSTICE GABRIEL delivered the Opinion of the Court.

¶1 This is a termination of parental rights proceeding involving two children who are eligible for enrollment as members of the Chickasaw Nation ("the Nation") but who are not Indian children, as defined by the Indian Child Welfare Act ("ICWA"), 25 U.S.C. § 1903(4) (2018). The court of appeals division below reversed a district court order terminating mother D.C.'s ("mother's") parental rights and ordered the district court on remand to conduct an enrollment hearing to determine whether the children's best interests mandate enrollment as citizens of the Nation. The Logan County Department of Human Services (the "Department") then petitioned for certiorari, the guardian ad litem ("GAL") cross-petitioned, and we granted those petitions.

¶2 In their petitions, the parties asked us to address whether (1) ICWA requires a district court to hold an enrollment hearing in circumstances like those present here as a prerequisite to the termination of parental rights; (2) a district court can order the Department to enroll children over a parent's objection; and (3) the division below erred in reversing the district court's judgment rather than ordering a limited remand.¹

¶3 All of the parties before us, and the Nation itself, agree that the division erred in requiring an enrollment hearing. Because we perceive no statutory basis for such a hearing, and because such a hearing conflicts with the Nation's exclusive right to determine who is an enrolled citizen, we agree that the division erred in requiring such a hearing.²

¶4 With respect to the second issue presented, we note that neither parent objected to the children's enrollment. Accordingly, the issue as presented in the petition for certiorari is not properly before us. In their briefs, however, the parties appear to construe the question presented more broadly, namely, as asking us to decide whether the Department has an obligation to assist children who are eligible for enrollment in becoming enrolled citizens of a tribal nation. Although the issue is an important one and may call for legislative action, we conclude that under current law, the Department has no such obligation. In certain circumstances, however, it might well be the better practice for the Department to advise on and perhaps assist with the enrollment process.

¶5 For these reasons, we reverse the judgment of the division below and need not reach the issue of whether a limited remand would have been appropriate.

I. Facts and Procedural History

¶6 Twins K.C. and L.C. (the "children") were born about twelve weeks prematurely, and both tested positive for marijuana at birth. Their premature birth necessitated a prolonged stay in the neonatal intensive care unit, during which mother visited them only twice.

¶7 While the children were still in the hospital, the Department filed a motion for removal from the home and for temporary protective custody. In this motion, the Department asserted that allowing the children to continue to reside with mother would endanger their lives or health. The Department based this assertion on the children's positive drug tests, mother's lack of stable housing or transportation, and her history of felony drug charges. The district court granted the Department's motion.

¶8 Two days later, mother submitted forms declaring that the children were not members of any Indian tribe, they were not believed to be eligible for membership in any tribe, and no biological member of the children's family has American Indian or Alaska Native heritage.

¶9 The Department subsequently sought to ascertain the identity of the children's father, who was not then known (mother reported that any one of three individuals could be the father). Ultimately, T.B. ("father") was identified as the children's father.

¶10 In addition, the Department filed a dependency and neglect petition, and after the children were adjudicated dependent and neglected, treatment plans were adopted for both mother and father.

¶11 As pertinent here, after father was identified, he indicated that he had Chickasaw Native American heritage, although he himself was not a member of that Nation. Accordingly, pursuant to ICWA, the Department sent notices to the Nation, seeking confirmation of the children's Indian status, and filed with the district court a notice of the Department's certified mailings and signed return receipts.

¶12 The Nation subsequently responded in writing, "At this time, the children do not qualify as ‘Indian Children’ under [ICWA]." The Nation added, however, that the children and father were "eligible for citizenship" through the lineage of the children's paternal grandfather, who was an enrolled citizen of the Nation. The Nation thus observed, "Once either the biological father or the children are enrolled, the children will qualify as ‘Indian Children.’ " And the Nation stated, "Although the ICWA does not yet apply in this case, we have a vested interest in the welfare of children who are eligible for citizenship with the Chickasaw Nation." The Nation therefore requested that the Department advise the children's parent or legal custodian to complete, on behalf of the children, enclosed applications for a Certificate of Degree of Indian Blood and for Chickasaw citizenship. The Department, however, does not appear to have advised either mother or father to complete these applications.

¶13 Five and a half months later, the Department filed a motion to terminate mother's and father's parental rights. In this motion, the Department asserted, among other things, that in addition to having "picked up 3 new felony charges out of Nebraska," mother did not comply with her treatment plan, remained unemployed and without stable housing, did not complete the court-ordered substance abuse or mental health treatment, and missed over 43% of her scheduled visits with the children. In addition, the Department attached the Nation's above-referenced response indicating that neither the children nor father were citizens of the Nation but that the children were eligible for citizenship. This apparently marked the first time that the Department had disclosed the Nation's letter to mother and father.

¶14 Several weeks after the Department filed its motion to terminate, the district court held a review hearing and advised mother's attorney and father (mother did not appear) of respondent parents' rights relating to a motion to terminate the parent-child legal relationship. In connection with this advisement, the court stated that it was still operating under the assumption that ICWA might apply in this case, but it also noted that ICWA might not apply unless father took further action to enroll with the Nation. The court then confirmed with father that he had not chosen to enroll himself, and, after stating that the court could not enroll the children for father, the court asked father whether he had taken any steps toward enrollment or otherwise changed the children's status for ICWA purposes. Father replied, "No, I haven't." The court ended the hearing by reiterating that if the matter proceeded to termination, then the court might find that ICWA was inapplicable based on father's having taken no action to enroll with the Nation.

¶15 The matter then proceeded to a termination hearing. At this hearing, father confessed the motion to terminate, and the court again confirmed with father that he had not taken steps to enroll—and that it was his desire not to enroll—himself in the Nation. In addition, the Department stated on the record that father had indicated that he did not complete the paperwork that the Nation had provided to enroll the children and that "it didn't sound like he had any desire to do so." And the court verified with mother that she had not enrolled the children with the Nation and that she herself had no Indian heritage.

¶16 After hearing all of the evidence, the court entered an order terminating mother's and father's parental rights. With respect to ICWA, the court expressly found that (1) it had inquired of both parents regarding the statute; (2) the Department had made diligent efforts to determine if the children were Indian children; and (3) based on the Nation's response to the Department's inquiries and father's decision not to enroll in the Nation, the children were not Indian children and thus ICWA did not apply. The court then noted that although it had made the requisite findings supporting termination by clear and convincing evidence, as required by state law, had the court been asked to do so, it "could easily [have found] that the allegations in the Motion to Terminate [had] been proven beyond a reasonable doubt," as ICWA would have required if it applied.

¶17 Mother appealed, arguing, among other things, that the judgment terminating her parental rights should be vacated because the Department had not taken steps to assist in enrolling the children in the Nation, as the Nation had...