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

• Decision Date: 10 March 2022
• Docket Number: Court of Appeals No. 21CA0764
• Citation: 511 P.3d 750,2022 COA 31
• Parties: The PEOPLE of the State of Colorado, Appellee, IN the INTEREST OF A-J.A.B., a Child, and Concerning H.J.B., Appellant.
• Court: Colorado Court of Appeals

511 P.3d 750

2022 COA 31

The PEOPLE of the State of Colorado, Appellee,

IN the INTEREST OF A-J.A.B., a Child,

and

Concerning H.J.B., Appellant.

Court of Appeals No. 21CA0764

Colorado Court of Appeals, Division III.

Announced March 10, 2022

Heidi M. Miller, County Attorney, Rebecca Wiggins-Tinsley, Deputy County Attorney, Westminster, Colorado, for Appellee

Laura Dunbar, Guardian Ad Litem

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

Opinion by JUDGE FURMAN

¶ 1 The mother of the child in this dependency and neglect proceeding repeatedly asserted that the child may have Native American — possibly "Cherokee" or "Lakota Sioux" — heritage. But the Adams County Human Services Department (Department) did not gather additional information to determine whether there was a reason to know the child was an Indian child. And, at the termination of parental rights hearing, the juvenile court found that this case was not governed by the Indian Child Welfare Act of 1978 (Federal ICWA statute), 25 U.S.C. §§ 1901 - 1963. (The father of the child had declared that he did not have Indian heritage; no other family member or extended family member disputed father's declaration.)

¶ 2 H.J.B. (mother) appeals the juvenile court's judgment terminating her parental rights to A-J.A.B. (the child). She contends that the juvenile court committed reversible error in not ensuring the Department complied with the inquiry and notice requirements of the Federal ICWA statute and Colorado's ICWA statute, section 19-1-126, C.R.S. 2021. We agree that the court erred, but we disagree that the error is reversible. We therefore remand the case for the juvenile court to ensure compliance with the Federal and Colorado ICWA statutes.

I. Mother's Indian Heritage Assertion

¶ 3 In March 2020, the Department filed a petition in dependency and neglect concerning the child. In the petition, the Department stated that it had received no information indicating that the child was a member of an Indian tribe or eligible for membership in an Indian tribe. But it did not state in the petition what efforts were made to determine whether the child was an Indian child.

¶ 4 At the shelter hearing, mother's counsel told the court that mother "indicated she has some Cherokee and Lakota Sioux through her grandmother." Mother added that, although she had the "heritage," she was not "sure anyone [in her family] ever registered" as a member of a tribe and that she "probably won't qualify" for membership. The court acknowledged that "every tribe has different qualifications in terms of whether eligibility is available" and ordered mother to "fill out the ICWA paperwork" so the Department could investigate the child's eligibility.

¶ 5 Although mother did not provide an ICWA assessment form or other "ICWA paperwork" at the next hearing, she persisted in asserting that she had "Native American heritage." The court found that the case "may" be an ICWA case, but it did not instruct the Department to take any action to investigate mother's claim of Indian heritage.

In June 2020, the court entered a dispositional order without addressing the ICWA issue.

¶ 6 In October 2020, the Department's attorney asked the court to make another ICWA inquiry because the Department had "not resolved that issue" yet. Mother again maintained that she had "Cherokee and Lakota Sioux" heritage; the court again said the case "may be an ICWA case"; and the court again ordered mother to submit an ICWA assessment form. But, at the next hearing, the Department reported that it still had received no ICWA information from mother.

¶ 7 In December 2020, the Department moved to terminate mother's parental rights. Mother did not appear at the pretrial hearing, but her attorney reported that she had spoken with the child's maternal grandmother, who said she "thought that the heritage may be Lakota." Even so, counsel stated that "[b]ased on what the maternal grandmother [t]old me[,] it doesn't sound like there's a reason to believe that ICWA would apply or that [mother or the child are] enrolled" members of a tribe. Relying on counsel's statement, the court found that "there [was] no reason to believe that this case [was] governed by [ICWA]."

¶ 8 At the termination hearing, the court again found that ICWA did not apply because "no information ha[d] been provided to the [c]ourt regarding the respondent mother's enrollment [or] eligibility for enrollment in a federally recognized tribe." The court terminated mother's parental rights.

II. Mother's Appeal on Indian Heritage

¶ 9 On appeal, mother contends that, because the juvenile court had "reason to know" that the child was an Indian child based on her assertions that she may have Cherokee and Lakota Sioux heritage, the Department had to send notice of the proceeding to the Cherokee and Sioux tribes under section 19-1-126(1)(b). In contrast, the Department and the guardian ad litem (GAL) contend that, because the information mother provided did not give the court "reason to know" that the child was an Indian child under section 19-1-126(1)(a)(II), the Department had no obligation to send notice to any Indian tribe.

¶ 10 While we agree with the Department and GAL that the juvenile court did not have "reason to know" that the child is an Indian child, we disagree that the Department had no further obligations. Rather, we conclude that section 19-1-126(3) required the court to direct the Department to "exercise due diligence" to assist the court in determining whether there is "reason to know" that the child is an Indian child.

¶ 11 (Although mother asserted that she had "Lakota Sioux" heritage, the list of federally recognized tribes includes no Lakota tribes. See People in Interest of M.V. , 2018 COA 163, ¶ 44, 432 P.3d 628. The Bureau of Indian Affairs previously maintained a list of federally recognized tribes based on historical tribal affiliation, which lists sixteen Sioux tribes. List of Designated Tribal Agents by Tribal Affiliation, 84 Fed. Reg. 20,387, 20,424 (May 9, 2019), https://perma.cc/K3DD-KQR5. Consequently, we will use the title "Sioux," rather than "Lakota Sioux.")

¶ 12 To exercise due diligence, the Department had to identify every federally recognized tribe associated with the Cherokee and Sioux ancestry groups, explore the basis of mother's Indian heritage claim to determine what additional information it needed to obtain, and provide that information to assist the court in determining whether there is "reason to know" the child is an Indian child.

¶ 13 We therefore remand the case for the juvenile court to direct the Department to exercise due diligence under section 19-1-126(3) to assist the court in determining whether there is "reason to know" that the child is an Indian child.

A. Standard of Review

¶ 14 Whether the juvenile court and Department complied with the Federal and Colorado ICWA statutes 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). We also review questions of statutory construction de novo. People in Interest of C.S. , 2017 COA 96, ¶ 17, 405 P.3d 467.

¶ 15 But we will not disturb a juvenile court's factual findings when they are supported by the record. People in Interest of A.J.L. , 243 P.3d 244, 249-50 (Colo. 2010). And the decision of what weight to give evidence is within the court's discretion. Id. at 250.

B. Legal Framework

¶ 16 In 1978, Congress enacted the Federal ICWA statute to protect and preserve Indian tribes and their resources and to protect Indian children by establishing minimum federal standards for child custody proceedings involving Indian children. 25 U.S.C. §§ 1901 - 1902.

¶ 17 Congress authorized the Secretary of the Department of the Interior to develop rules to implement the statute. 25 U.S.C. § 1952. In 1979, the Bureau of Indian Affairs (BIA) promulgated a set of nonbinding guidelines. Guidelines for State Courts: Indian Child Custody Proceedings, 44 Fed. Reg. 67,584 (Nov. 26, 1979) (1979 Guidelines). The BIA did not promulgate rules implementing the Federal ICWA statute until 2016. Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778, 38,803 (June 14, 2016) (2016 Final Rule). In 2016, it also promulgated a new set of guidelines. Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act (Dec. 2016), https://perma.cc/3TCH-8HQM (2016 Guidelines); see also People in Interest of L.L. , 2017 COA 38, ¶ 16, 395 P.3d 1209 (noting that, although the BIA's guidelines are not binding, we consider them persuasive).

¶ 18 The 2016 Guidelines explain the purpose of the Federal ICWA statute.

Congress found ‘‘that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions ...." Although the crisis flowed from multiple causes, Congress found that non-Tribal public and private agencies had played a significant role, and that State agencies and courts had often failed to recognize the essential Tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families. To address this failure, ICWA establishes minimum Federal standards for the removal of Indian children from their families and the placement of these children in foster or adoptive homes, and confirms Tribal jurisdiction over child-custody proceedings involving Indian children.

2016 Guidelines at 5 (footnotes omitted).

¶ 19 Our legislature enacted Colorado's ICWA statute in 2002. Ch. 217, secs. 1, 3, § 19-1-126, 2002 Colo. Sess. Laws 783-85; see also 25 U.S.C. § 1921 (allowing states to enact statutes to clarify or add protections to the federal statute but prohibiting state statutes from lowering ICWA protections). In 2019, our legislature amended Colorado's ICWA statute to align it with...