People ex rel. L.L.

• Decision Date: 23 March 2017
• Docket Number: Court of Appeals No. 16CA1222
• Citation: 395 P.3d 1209
• Parties: The PEOPLE of the State of Colorado, Petitioner-Appellee, IN the INTEREST OF L.L., a Child, and Concerning A.T., Respondent-Appellant.
• Court: Colorado Court of Appeals

395 P.3d 1209

The PEOPLE of the State of Colorado, Petitioner-Appellee, IN the INTEREST OF L.L., a Child, and Concerning A.T., Respondent-Appellant.

Court of Appeals No. 16CA1222

Colorado Court of Appeals, Div. VI.

Announced March 23, 2017

Cristal D. Torres, City Attorney, Laura Grzetic Eibsen, Assistant City Attorney, Denver, Colorado, for Petitioner-Appellee

Debra W. Dodd, Greeley, Colorado, for Respondent-Appellant

Opinion by JUDGE FURMAN

¶ 1 In this dependency and neglect case, mother, A.T., told the juvenile court at a shelter hearing that she had possible Apache Native American ancestry. But, for reasons not disclosed in the record, the parties and the juvenile court did not follow certain procedures mandated by the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901 -1963 (2012) ; see § 19-1-126, C.R.S. 2016. Following a jury verdict, the court adjudicated the child, L.L., dependent and neglected. The court then held a dispositional hearing.

¶ 2 On appeal, mother contends that we should reverse the adjudicatory judgment for two reasons: (1) the Denver Department of Human Services (Department) did not comply with the ICWA notice requirements; and (2) the juvenile court violated ICWA by not requiring the jury to base its findings on a heightened clear and convincing evidentiary standard. We agree with mother that the Department did not comply with the ICWA notice requirements. But, we disagree that ICWA imposes a heightened evidentiary standard at the adjudicatory hearing. Thus, we reverse the judgment and remand the case with directions that notice be given in accordance with ICWA.

I. Mother's Alleged Apache Heritage

¶ 3 A truancy court magistrate ordered the Department to investigate this case based on mother refusing to take her son, L.L., to school. A recording from a cell phone showed L.L. cowering in a corner of a bedroom, while mother yelled and threatened to beat him with a belt. The Department subsequently filed a petition in dependency and neglect, which alleged mother had refused to cooperate with a Denver Police welfare check. She told the authorities that L.L. was staying with family in Rifle, Colorado, but would not provide an address, and that she had bipolar disorder, but had not been taking her medications.

¶ 4 At a shelter hearing, mother denied the allegations in the petition and requested a jury trial. She also stated that she had Apache heritage, although she did not subsequently fill out an ICWA assessment form. The Bureau of Indian Affairs (BIA) lists eight Apache Tribes on its website, https://perma.cc/MHN5-B3F7: Jicarilla Apache Nation, Mescalero Apache Tribe, San Carlos Apache Tribe, Tonto Apache Tribe of Arizona, White Mountain Apache Tribe of the Fort Apache Reservation, Yavapai-Apache Nation of the Camp Verde Indian Reservation, Fort Sill Apache Tribe of Oklahoma, and Apache Tribe of Oklahoma. Two months later, mother filed written information that included tribal card numbers and roll numbers.

¶ 5 Even so, the Department did not send notice of the proceedings to any of the Apache Tribes.

¶ 6 At a pretrial hearing, mother again stated that she had Indian heritage. But, at that hearing, the juvenile court did not address whether the Department used due diligence to identify and work with an Apache Tribe to verify whether L.L. is a member or is eligible for membership. And, the court did not treat L.L. as an Indian child pending the Tribes' verification.

¶ 7 On the first day of the adjudicatory hearing, the juvenile court instructed the jury that the Department had the burden of proving the allegations set forth in the petition by a preponderance of the evidence. The court did not address whether ICWA applied. Mother did not object to the court's preponderance instruction.

¶ 8 Based on the jury's verdict, the juvenile court adjudicated L.L. dependent and neglected.

II. The Application of ICWA

¶ 9 The positions of the parties before the juvenile court demonstrate significant confusion about the application of ICWA and the practices to be followed in implementing it. For example:

• At the shelter hearing, the Department acknowledged that it would send notices. But, at a pretrial hearing, the Department did not indicate whether notices to any Apache Tribes had been sent. In the end, the Department did not send notice to any Apache Tribe, and concedes so on appeal.

• L.L.'s guardian ad litem (GAL) voiced no position regarding ICWA's applicability to this case, and does not assert any position on appeal.

• Mother did not state that she was enrolled in an Apache Tribe or that L.L. was eligible for membership. Rather, she asserted that her great grandmother was "an Apache out of Nebraska"; she had "the bloodline"; and she "was able to continue with the enrollment process."

¶ 10 To address the application of ICWA to this case, we first discuss Congress's purpose in enacting ICWA. We then discuss the roles of the juvenile court and the parties in determining whether a child is an "Indian child" under ICWA. We conclude by addressing mother's two arguments on appeal that: (1) the Department did not comply with ICWA's notice requirements; and (2) ICWA imposes a heightened evidentiary standard at the adjudicatory hearing.

A. Congress's Purpose in Enacting ICWA

¶ 11 Congress enacted ICWA "for the protection and preservation of Indian tribes and their resources." 25 U.S.C. § 1901(2) (2012). 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." 25 U.S.C. § 1901(4). Congress also found that States have often "failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families." 25 U.S.C. § 1901(5).

¶ 12 To address this failure, ICWA establishes "minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture." 25 U.S.C. § 1902 (2012). In other words, ICWA establishes minimum federal standards for an "Indian child" involved in a "child custody proceeding." 25 U.S.C. § 1903(1), (4) (2012).

¶ 13 Of course, ICWA does not apply to every child-custody proceeding. Hence, in any such proceeding, the parties and juvenile court must ask two fundamental questions to determine whether ICWA applies to a case: (1) Does ICWA apply to this child? (2) Does ICWA apply to the proceeding? See Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act 9 (Dec. 2016), https://perma.cc/3TCH-8HQM (2016 Guidelines).

B. The Juvenile Court and the Parties' Role

¶ 14 The juvenile court and the parties each play an important role in determining whether ICWA applies to a child who is subject to a custody proceeding.

¶ 15 On appeal, the Department cites the 2015 Guidelines for State Courts and Agencies in Indian Child Custody Proceedings (2015 Guidelines) and 2016 Department of the Interior Final Rule (2016 Final Rule) as guidance to State courts related to inquiry and verification issues in Indian Child Welfare Act proceedings. See Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778 (June 14, 2016) (to be codified at 25 C.F.R. pt. 23); Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed. Reg. 10,146 (Feb. 25, 2015). In 2016, the BIA published new guidelines intended "to assist those involved in child custody proceedings in understanding and uniformly applying" ICWA. 2016 Guidelines at 4, 6. The 2016 Guidelines repeal the 2015 Guidelines and incorporate the 2016 Final Rule. Id. The 2016 Guidelines thus clarify the practices of courts and parties involved in child custody proceedings to ensure compliance with ICWA, and the Department appears to concede their value in doing so.

¶ 16 Although the 2016 Guidelines are not binding, we consider them persuasive. See B.H. v. People in Interest of X.H. , 138 P.3d 299, 302 n.2 (Colo.2006) (referring to the 1979 guidelines). Therefore, we look to the 2016 Guidelines for guidance to ensure compliance with ICWA.

¶ 17 In determining whether ICWA applies to a child who is subject to a dependency and neglect proceeding, the juvenile court, the Department, the GAL, and the respondent parent each have various duties. We address them here.

1. The Juvenile Court's Duties

¶ 18 The juvenile court's duty is to ask whether the child is an "Indian child," follow certain procedures if it has reason to know a child is an Indian child, and, if the child is not an Indian child, instruct the parties to inform the court if they later receive information that provides reason to know the child is an Indian child. 25 C.F.R. § 23.107 (2016).

a. Initial Inquiry

¶ 19 The juvenile court must first 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) ; see § 19-1-126(2) (When the petition "does not disclose whether the child" is an Indian child, "the court shall inquire of the parties at the first hearing whether the child is an Indian child and, if so, whether the parties have complied with the procedural requirements" of ICWA.).

¶ 20 An "Indian child" means "any unmarried person who is under the age of eighteen and is either: (a) a member of an Indian tribe or (b) is 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) ; see 19-1-103(65.3), C.R.S. 2016. Tribal membership for purposes of ICWA is left up to the individual Tribes. B.H. , 138 P.3d at 303.

b. Reason to Know

¶ 21 The juvenile court also has certain duties if it has "reason to know" that a...