People ex rel. E.M.

507 P.3d 113

2021 COA 152

The PEOPLE of the State of Colorado, Appellee,

IN the INTEREST OF E.M., a Child,

and

Concerning D.R.M., Appellant.

Court of Appeals No. 21CA0381

Colorado Court of Appeals, Division VII.

Announced December 16, 2021

Kristin M. Bronson, City Attorney, Laura Grzetic Eibsen, Assistant City Attorney, Denver, Colorado, for Appellee

Josi McCauley, Guardian Ad Litem

Kris P. Morgan, Office of Respondent Parents' Counsel, Colorado Springs, Colorado, for Appellant

Opinion by JUDGE NAVARRO

¶ 1 In this dependency and neglect proceeding, D.R.M. (mother) appeals the juvenile court's judgment terminating her parent-child legal relationship with E.M. (the child). Mother contends that the record does not show compliance with the notice requirements of the Indian Child Welfare Act of 1978 (ICWA). 25 U.S.C. §§ 1901 - 1963 ; see also § 19-1-126, C.R.S. 2021. We agree with mother. In doing so, we reject the notion that recently revised section 19-1-126(3) alters the applicability of ICWA's notice requirements. Therefore, we vacate the judgment and remand the case to the juvenile court with directions to ensure that ICWA's notice requirements are satisfied.

I. Background

¶ 2 In August 2019, the Denver Department of Human Services filed a dependency and neglect petition concerning the child. Mother indicated that she has Apache and Sioux heritage. The juvenile court decided it did not have reason to know the child is an Indian child but 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.

¶ 3 The Department subsequently filed several affidavits of diligent efforts related to ICWA. The court continued to find it had no reason to know the child is an Indian child and ordered the Department to continue to investigate. The Department did not send a notice to any tribe or to the Bureau of Indian Affairs (BIA) as part of its investigation.

¶ 4 The Department later moved to terminate the legal relationship between mother and the child. Following a hearing, the court again decided that it had no reason to know the child is an Indian child and, therefore, this case was not governed by ICWA. The court entered a judgment terminating mother's parental rights.

II. ICWA Compliance

¶ 5 Mother contends that the juvenile court failed to comply with ICWA because it did not ensure that appropriate notice of the proceeding was given to the tribes identified by her and other maternal relatives. The Department and the child's guardian ad litem counter that ICWA's notice provisions were not triggered because neither the Department nor the court had reason to know that the child is an Indian child. We agree with mother.

A. Legal Framework

¶ 6 ICWA aims to protect and to preserve Indian tribes and their resources and to protect Indian children who are members of or eligible for membership in an Indian tribe. 25 U.S.C. § 1901(2), (3) ; In re Marriage of Stockwell , 2019 COA 96, ¶ 6, 446 P.3d 957. Indian tribes have an interest in Indian children distinct from, but equivalent to, parental interests. B.H. v. People in Interest of X.H. , 138 P.3d 299, 303 (Colo. 2006) ; see also Mississippi Band of Choctaw Indians v. Holyfield , 490 U.S. 30, 52, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). Therefore, in a proceeding in which ICWA may apply, tribes must have a meaningful opportunity to participate in determining whether a child is an Indian child and to be heard on ICWA's applicability. B.H. , 138 P.3d at 303.

¶ 7 If the court knows or has reason to know that an Indian child is involved in a child custody proceeding, including termination of parental rights, the petitioning party must provide notice to any identified Indian tribes. 25 U.S.C. § 1912(a) ; § 19-1-126(1)(b) ; see also People in Interest of L.L. , 2017 COA 38, ¶ 34, 395 P.3d 1209. To comply with ICWA's notice provisions, the Department must directly notify each tribe by registered mail with return receipt requested of the pending child custody proceeding and its right to intervene. People in Interest of M.V. , 2018 COA 163, ¶ 26, 432 P.3d 628. And copies of these notices must be sent to the appropriate regional director of the BIA. 25 C.F.R. § 23.11(a) (2020) ; see also M.V. , ¶ 28.

¶ 8 Whether ICWA's notice requirements are satisfied is a question of law that we review de novo. People in Interest of T.M.W. , 208 P.3d 272, 274 (Colo. App. 2009).

B. Reason to Know

¶ 9 The juvenile court must ask each participant on the record at the commencement 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) (2020) ; Stockwell , ¶¶ 8-9. An "Indian child" means "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) ... eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." 25 U.S.C. § 1903(4).

¶ 10 The juvenile court has "reason to know" that a child is an Indian child if

(1) Any 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; (2) Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child;

(3) The child who is the subject of the proceeding gives the court reason to know he or she is an Indian child;

(4) The court is informed that the domicile or residence of the child, the child's parent, or the child's Indian custodian is on a reservation or in an Alaska Native village;

(5) The court is informed that the child is or has been a ward of a Tribal court; or

(6) The court is informed that either parent or the child possesses an identification card indicating membership in an Indian Tribe.

25 C.F.R. § 23.107(c) ; § 19-1-126(1)(a)(II). These factors should be interpreted expansively. See People in Interest of S.B. , 2020 COA 5, ¶ 10, 459 P.3d 745 ; M.V. , ¶ 43.

¶ 11 Likewise, our supreme court has determined that the threshold requirement for sending notice is not intended to be high. B.H. , 138 P.3d at 303. This follows because a court's ability to ascertain membership in a particular tribe without a tribal determination may vary greatly depending on an individual tribe's criteria for membership and its process for acquiring or establishing membership. Id. Under ICWA, qualification for membership is left to the individual tribes. Id.

¶ 12 The "reason to know" standard does not necessarily require a participant to identify the specific tribe with which a child or a child's biological parent is affiliated. In some circumstances, a participant may be able to identify only a tribal ancestral group and, if so, the Department must notify each tribe in that group. See People in Interest of L.H. , 2018 COA 27, ¶ 8, 431 P.3d 663. Also, a participant's identification of a tribal connection to a specific state or region may be sufficient to give a court a reason to know that a child is an Indian child. See People in Interest of I.B.R. , 2018 COA 75, ¶¶ 13-16, 439 P.3d 38.

¶ 13 To assist in identifying federally recognized tribes and their agents for service, the BIA publishes a list of recognized tribes and their agents in the Federal Register by region and historical tribal affiliation. L.H. , ¶ 7 ; see also Designated Tribal Agents for Service of Notice, 85 Fed. Reg. 24004-02 (April 30, 2020) ; List of Designated Tribal Agents by Tribal Affiliation, 84 Fed. Reg. 20,387 -02, 20,424 (May 9, 2019), https://perma.cc/K3DD-KQR5 (Tribal Agents by Affiliation).

C. Analysis

¶ 14 In response to the juvenile court's inquiry on the record, mother said she has Sioux or Apache heritage. She also submitted forms indicating that she (or someone in her family) has Indian heritage, the child is eligible for enrollment in an Indian tribe, and the child has "Sioux Apache" ancestry. The Department later presented an affidavit averring that

• Mother "suspects" she has Native American heritage through Sioux and Apache, New Mexico and South Dakota;

• Maternal grandmother reported the family has some Native American heritage including "Cherokee and something else and might have some Sioux," but family members are not registered in any tribe;

• Maternal grandfather reported his father is "Sioux Indian";

• Maternal great-grandmother reported the family "might have a little bit of Indian," including Apache; and

• Other family members deny Native American heritage and allege that family members saying they have Indian heritage are confused or misinformed.

¶ 15 To be sure, this information does not definitively establish that the child is either a member of a tribe or eligible for membership in a tribe and the biological child of a tribal member. But such certainty is not necessary for the court to have reason to know that the child is an Indian child.

¶ 16 Recall that the federal regulation and the Colorado statute implementing ICWA's "reason to know" component distinguish between information that the child is an Indian child, 25 C.F.R. § 23.107(c)(1) ; § 19-1-126(1)(a)(II)(A), and information indicating that the child is an Indian child, 25 C.F.R. § 23.107(c)(2) ; § 19-1-126(1)(a)(II)(B). These two provisions cannot have the same meaning because that would make one superfluous. See Lombard v. Colorado Outdoor Educ. Ctr., Inc. , 187 P.3d 565, 571 (Colo. 2008) ("[W]hen examining a statute's language, we give effect to every word and render none superfluous because we ‘do not presume that the legislature used language idly and with no intent that meaning should be given to its language.’ ") (citation omitted). So the latter provision — pertaining to information indicating that the child is an Indian child — can apply...