People ex rel. M.M.

517 P.3d 87

2022 COA 61

The PEOPLE of the State of Colorado, Appellee,

IN the INTEREST OF M.M. and E.M., Children, and Concerning M.M. and T.M., Appellants.

Court of Appeals No. 21CA0760

Colorado Court of Appeals, Division I.

Announced June 2, 2022

Ron Carl, Arapahoe County Attorney, Jordan Lewis, Assistant County Attorney, Aurora, Colorado, for Appellee

Alison A. Bettenberg, Sheena Knight, Guardians Ad Litem

Gregory Lansky, Office of Respondent Parents’ Counsel, Aurora, Colorado, for Appellant M.M.

Pamela K. Streng, Office of Respondent Parents’ Counsel, Georgetown, Colorado, for Appellant T.M.

Opinion by JUDGE DAILEY

¶ 1 In this dependency and neglect proceeding, M.M. (mother) and T.M. (father) appeal the juvenile court's judgment terminating their parent-child legal relationships with their children, M.M. and E.M. Among other issues mother raises, she contends that the record does not demonstrate compliance with the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901 - 1963.

¶ 2 When the court knows or has reason to know that an Indian child is involved in a termination proceeding, it must ensure that notice of the proceeding is given to applicable Indian tribes or, in some circumstances, the Bureau of Indian Affairs (BIA). However, we must decide whether father's assertion of a lineal tribal affiliation constituted a reason to know that the children are Indian children or, in the alternative, whether it required the petitioning party to exercise due diligence to gather additional information under section 19-1-126(3), C.R.S. 2021.

¶ 3 We conclude that father's assertion of a lineal tribal affiliation gave the juvenile court reason to know that the children are Indian children, thus triggering ICWA's notice requirements. Because the record does not show that proper notice was given to the appropriate tribes or the BIA, we remand the case to the juvenile court to ensure compliance with ICWA's notice requirements.

I. The Juvenile Court Proceeding

¶ 4 In April 2020, the Arapahoe County Department of Human Services initiated a dependency and neglect proceeding concerning nine-year-old M.M. and ten-month-old E.M. At the initial temporary custody hearing, father, through counsel, reported that "his grandmother [is a] registered tribal member in Delaware," but that he was not sure of which tribe. Father further expounded that "[i]t's a Delaware tribe, and I think she was 100 percent." However, father was unsure of which tribe and "what their registration looks like, potentially, for him and the [children]."

¶ 5 In response to father's report, the juvenile court directed father to complete an ICWA assessment form. The court reiterated the same requirement at the next hearing but did not otherwise address ICWA's applicability at that time. Father did not submit an ICWA assessment form.

¶ 6 Later, the Department moved to terminate the legal relationships between the children and the parents. At the termination hearing in May 2021, the juvenile court determined that ICWA was inapplicable because inquiries made by it and the Department had shown that there was "no potential Native American heritage on either parent's side." The court entered judgment terminating both parents’ parental rights.

II. ICWA

¶ 7 Mother contends that the record does not demonstrate compliance with ICWA's requirements because there was no further inquiry or notice provided based on father's report of a lineal affiliation with a Delaware tribe. The Department and the children's guardian ad litem assert that ICWA is inapplicable because, while the appeal was pending, they provided notice to the BIA and the BIA responded that no further action would be taken because the children's tribal affiliation was unknown.

¶ 8 We conclude that father's report of lineage with a Delaware tribe was sufficient to give the court reason to know that the children are Indian children and the notice that the Department provided to the BIA was inadequate.

A. Preservation

¶ 9 To start, we recognize that, as part of a joint trial management certificate filed in anticipation of the termination hearing, the parties agreed that "[t]hroughout the case, additional ICWA inquiries were made, and all parties maintained that the child[ren] did not have Native American heritage such that ICWA was applicable."

¶ 10 Nonetheless, ICWA's notice requirements serve the interests of Indian tribes. People in Interest of J.O. , 170 P.3d 840, 842 (Colo. App. 2007). Thus, they cannot be waived by a parent and may be raised for the first time on appeal. Id.

B. Standard of Review and Statutory Interpretation

¶ 11 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.

¶ 12 In construing a statute, we consider the entire statutory scheme in order to give consistent, harmonious, and sensible effect to all of 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 for their implementation, 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

¶ 13 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. 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). Accordingly, 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.

¶ 14 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—here the Department—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. To comply with ICWA's notice provisions, the court must confirm that the Department uses due diligence to identify and work with all tribes of which there is reason to know the child may be a member or eligible for membership and the child of a parent who is a member. 25 C.F.R. § 23.107(1)(b)(1) (2021) ; see also People in Interest of L.L. , 2017 COA 38, ¶ 25, 395 P.3d 1209.

¶ 15 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.

M.V. , ¶ 26 ; see also 25 C.F.R. § 23.111 (2021). The notice must also include:

• the child's name, birthdate, and birthplace;

• all names known (including maiden, married, and former names or aliases) of the parents, the parents’ birthdates and birthplaces, and tribal enrollment numbers, if known;

• the names, birthdates, birthplaces, and tribal enrollment information of other direct lineal ancestors of the child, such as grandparents, if known; and

• the name of each Indian tribe of which the child is a member (or may be eligible for membership if a biological parent is a member).

25 C.F.R. § 23.111(d)(1)-(4). Copies of these notices must then be sent to the appropriate regional director of the BIA. 25 C.F.R. § 23.11(a) (2021) ; see also M.V. , ¶ 28.

D. Determining When ICWA Applies

¶ 16 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) ; L.L. , ¶ 19. And it must instruct the parties to inform it if they later receive information that provides reason to know that the child is an Indian child. 25 C.F.R. § 23.107(a).

¶ 17 For purposes of ICWA, an Indian child is an unmarried person under age 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.

¶ 18 But ICWA does not define tribal membership. Id. at ¶ 28. Rather, membership and membership eligibility are 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) ; see also Santa Clara Pueblo v. Martinez , 436 U.S. 49, 72 n.32, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) ("A tribe's right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community."). And the court may not substitute its own determination regarding a child's membership in a tribe, a child's eligibility for membership in a tribe, or a parent's membership in a tribe. 25 C.F.R. § 23.108(b) (2021).

¶ 19 Against this backdrop, the federal regulations implementing ICWA provide that a 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

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