People ex rel. E.M.
Decision Date | 16 December 2021 |
Docket Number | Court of Appeals No. 21CA0381 |
Citation | 507 P.3d 113,2021 COA 152 |
Parties | The PEOPLE of the State of Colorado, Appellee, IN the INTEREST OF E.M., a Child, and Concerning D.R.M., Appellant. |
Court | Colorado Court of Appeals |
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.
¶ 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.
¶ 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.
¶ 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).
¶ 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).
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).
¶ 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) () (citation omitted). So the latter provision — pertaining to information indicating that the child is an Indian child — can apply...
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