People ex rel. L.R.B.

• Decision Date: 30 May 2019
• Docket Number: Court of Appeals No. 18CA1478
• Citation: 487 P.3d 1058
• Parties: The PEOPLE of the State of Colorado, Petitioner-Appellee, IN the INTEREST OF L.R.B., S.B.B., and K.B.B., Children, and Concerning Navajo Nation, Intervenor-Appellant, and E.S. and R.S., Intervenors-Appellees.
• Court: Colorado Court of Appeals

487 P.3d 1058

The PEOPLE of the State of Colorado, Petitioner-Appellee,

IN the INTEREST OF L.R.B., S.B.B., and K.B.B., Children,

and

Concerning Navajo Nation, Intervenor-Appellant,

and

E.S. and R.S., Intervenors-Appellees.

Court of Appeals No. 18CA1478

Colorado Court of Appeals, Division A.

Announced May 30, 2019

John Baxter, County Attorney, Ian MacLaren, Special Assistant County Attorney, Cortez, Colorado, for Petitioner-Appellee

Beth Padilla, Guardian Ad Litem

James Shaner, Cortez, Colorado; Keith Andrew Fitzgerald, Moab, Utah, for Intervenor-Appellant

The Law Office of Jill M. Carlson, LLC, Jill M. Carlson, Cortez, Colorado, for Intervenors-Appellees

Opinion by JUDGE FURMAN

¶ 1 In this post-termination of parental rights proceeding, the Montezuma County Department of Social Services (Department) and the guardian ad litem (GAL) of L.R.B., S.B.B., and K.B.B. (the children) stipulated to the Navajo Nation's request to transfer jurisdiction to the tribal court for preadoptive and adoptive placement proceedings. But the children's former foster parents, E.S. and R.S., who filed petitions to adopt the children, opposed the transfer.

¶ 2 After a contested hearing, the juvenile court denied the Navajo Nation's request to transfer jurisdiction. The court recognized that the transfer section of the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. § 1911(b) (2018), generally permits a tribe to request a transfer of jurisdiction. But the court concluded that the plain language of this section does not apply to preadoptive and adoptive placement proceedings and, even if it did apply, the former foster parents presented evidence of good cause to deny the request.

¶ 3 We disagree based on the plain language of the Children's Code. Section 19-1-126(1), (4)(a), and (4)(b), C.R.S. 2018—our state's ICWA-implementing legislation as it existed at the time of this hearing—applies transfer of jurisdiction requests to preadoptive and adoptive placement proceedings. It also places the burden of proof on the party opposing the transfer. Because the former foster parents lacked standing to oppose the Navajo Nation's request, the juvenile court erred in entertaining their opposition.

¶ 4 Accordingly, we reverse the juvenile court's order and remand for the juvenile court to (1) transfer jurisdiction to the Navajo Nation's tribal court and (2) vacate and dismiss the former foster parents' petitions to adopt.

I. Post-Termination Proceedings

¶ 5 It is undisputed that the children are registered members of the Navajo Nation and, therefore, Indian children under ICWA. See 25 U.S.C. §§ 1901 to 1963 (2018).

¶ 6 The juvenile court entered judgment terminating the parent-child legal relationship between the children and their parents, and a division of this court affirmed the judgment. People in Interest of L.R.B. , 2018 WL 655108 (Colo. App. No. 17CA0607, Feb. 1, 2018) (not published pursuant to C.A.R. 35(e) ). Following termination, the Department filed a motion to remove the children from the home of the former foster parents and place them in an ICWA preferred placement. The court granted the motion.

¶ 7 The Navajo Nation then moved to intervene; the juvenile court granted the motion. While the parents appealed the termination of their parental rights, the Navajo Nation moved to transfer jurisdiction from the state court to the tribal court under section 25 U.S.C. § 1911(b). The Department and the GAL did not oppose this motion. But the juvenile court denied the Navajo Nation's motion because the court lacked jurisdiction to act while the case was on appeal. Yet, it noted that if it had jurisdiction, it would have concluded that good cause existed to deny transfer based on the age of the case.

¶ 8 Later, the former foster parents filed petitions to adopt the children; the Navajo Nation and the Department opposed the petitions. The juvenile court also "re-joined" the former foster parents to the dependency and neglect case under C.R.C.P. 20. The court did so based on the former foster parents' petitions to adopt the children.

¶ 9 After our court issued the mandate on the denial of the parents' appeal, the Navajo Nation again moved to transfer jurisdiction in the dependency and neglect case. The Navajo Nation asserted that the tribal court was the proper venue for preadoptive and adoptive placement proceedings regarding the children. The Department and the GAL stipulated to the Navajo Nation's motion, but the former foster parents opposed it.

¶ 10 After a hearing, in which the Navajo Nation, the Department, the GAL, and the former foster parents participated, the juvenile court denied the Navajo Nation's motion to transfer jurisdiction. The court also ordered the Department to place the children with the former foster parents pending the final hearing on their petitions to adopt.

¶ 11 The Navajo Nation and the Department moved to stay the juvenile court's order denying the motion to transfer jurisdiction and placing the children with the former foster parents. But the court denied the motion to stay.

¶ 12 The Navajo Nation then filed in this court a notice of appeal and an emergency motion for a stay and requested that the children be kept in their current foster home rather than be placed with the former foster parents. A division of this court granted the stay and issued a show cause order asking the parties to address the finality of the court's order denying the motion to transfer jurisdiction. To address the order's finality, the division asked the parties to respond to several questions, including whether the order was immediately appealable and whether there was any other basis for the court to exercise jurisdiction over this appeal.

¶ 13 We first address finality.

II. Finality

¶ 14 We conclude that a juvenile court's order denying a tribe's request to transfer jurisdiction to a tribal court is a final, appealable order based on the collateral order doctrine.

¶ 15 "Because we must always satisfy ourselves that we have jurisdiction to hear an appeal, we may raise jurisdictional defects sua sponte, regardless of whether the parties have raised the issue." People v. S.X.G. , 2012 CO 5, ¶ 9, 269 P.3d 735. This court has "no authority to expand [our] appellate jurisdiction [as] specified by" the General Assembly, Holdridge v. Bd. of Educ. , 881 P.2d 448, 450-51 (Colo. App. 1994), and we cannot "modify the jurisdiction granted [us] by statute." People v. Meyers , 43 Colo. App. 63, 64, 598 P.2d 526, 527 (1979).

¶ 16 Once the General Assembly establishes a statutory right of judicial review, "such review must be sought in strict compliance with the mandatory provisions of the statute"; otherwise, the court does not have jurisdiction "to act." Mile High United Way, Inc. v. Bd. of Assessment Appeals , 801 P.2d 3, 5 (Colo. App. 1990) ; accord Barber v. People , 127 Colo. 90, 95, 254 P.2d 431, 434 (1953) ("[I]n an action which is entirely statutory, the procedure therein prescribed is the measure of the power of the tribunal to which jurisdiction of causes arising under the statute is given.").

¶ 17 Section 19-1-109, C.R.S. 2018, of the Children's Code governs our review of dependency and neglect proceedings. People in Interest of R.S. v. G.S. , 2018 CO 31, ¶ 16, 416 P.3d 905. Regarding our review of these proceedings,

[s]ubsection (1) [of section 19-1-109 ] states that an appeal may be taken from "any order, decree, or judgment," "as provided in the introductory portion to section 13-4-102(1), C.R.S." § 19-1-109(1). In turn, section 13-4-102(1) provides that the court of appeals shall have initial jurisdiction over appeals from "final judgments" of district courts, including juvenile courts that preside over dependency or neglect proceedings.

Id. (footnote omitted).

¶ 18 "A final judgment is one which ends the particular action in which it is entered, leaving nothing further for the court pronouncing it to do in order to completely determine the rights of the parties involved in the proceeding." People in Interest of S.M.O. , 931 P.2d 572, 573 (Colo. App. 1996) (citing Harding Glass Co. v. Jones , 640 P.2d 1123 (Colo. 1982) ); see G.S. , ¶ 37.

¶ 19 Generally, a court's order denying a motion to transfer jurisdiction does not "end[ ] the particular action in which it is entered, leaving nothing further for the court pronouncing it to do." S.M.O. , 931 P.2d at 573. This is so because the denial, by its very nature, means that continued proceedings are to occur in the current forum. G.S. , ¶ 37. And here, continued proceedings are to occur because the juvenile court has retained jurisdiction to consider the preadoptive and adoptive placements of the children.

¶ 20 But special considerations are in play when a court addresses a request by an Indian tribe to transfer jurisdiction to the tribal court because tribes are domestic dependent nations that exercise inherent sovereign authority over their members and territories. Okla. Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma , 498 U.S. 505, 507, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991) ; see Cash Advance & Preferred Cash Loans v. State , 242 P.3d 1099, 1106 (Colo. 2010). Tribal sovereignty is an inherent, retained sovereignty that pre-dates European contact, the formation of the United States, the United States Constitution, and individual statehood. Cash Advance , 242 P.3d at 1107. And, under ICWA, "there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and ... the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe." 25 U.S.C. § 1901(3). Delaying appellate review of the juvenile court's order would also imperil the Navajo Nation's interest in protecting children who are members of or eligible for membership in the tribe, particularly at the preadoptive and adoptive stages of the case.

¶ 21 Thus, we apply the collateral order doctrine. See Cohen...