People ex rel. S.R.M., No. 06CA0665.

• Decision Date: 30 November 2006
• Docket Number: No. 06CA0665.
• Citation: 153 P.3d 438
• Parties: The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of S.R.M., a Child, and Concerning G.G., T.G., and Citizen Potawatomi Nation, Appellants, and N.P. and S.P., Intervenors.
• Court: Colorado Court of Appeals

153 P.3d 438

The PEOPLE of the State of Colorado, Petitioner-Appellee In the Interest of S.R.M., a Child, and Concerning G.G., T.G., and Citizen Potawatomi Nation, Appellants, and N.P. and S.P., Intervenors.

No. 06CA0665.

Colorado Court of Appeals, Div. IV.

November 30, 2006.

Frank J. Hutfless, County Attorney, Roy Wallis, Assistant County Attorney, Golden, Colorado, for Petitioner—Appellee.

Gail Patricia Moloney, Guardian Ad Litem.

Stiner, Beck, Jonson & Nolan, LLP, Kelly R. Southerland, Golden, Colorado, for Appellants G.G. and T.G.

Citizen Potawatomi Nation, Gregory Mark Quinlan, Shawnee, Oklahoma, for Appellant Citizen Potawatomi Nation.

Jenna Reulbach, P.C., Jenna Reulbach, Golden, Colorado, for Intervenors.

Opinion by Judge ROMÁN.

The Citizen Potawatomi Nation (the CPN) appeals from the judgment terminating parental rights as to S.R.M. (the child). Pursuant to 25 U.S.C. § 1914 (2000), the CPN seeks to invalidate the judgment because notice was inadequately given under the Indian Child Welfare Act of 1978, 25 U.S.C. § 1901, et seq. (2000)(ICWA). G.G. and T.G., S.R.M.'s step-aunt and uncle (the relatives) also appeal from the separate order denying their motion to intervene. We vacate the judgment terminating parental rights, affirm the order denying the relatives' motion without prejudice to renew that motion following remand, and remand for further proceedings.

I.

In February 2005, the Jefferson County Department of Human Services, Division of Children, Youth, and Families (the department) petitioned for temporary legal custody of the child. The following month, the department provided notice to the CPN that a dependency and neglect proceeding had been filed on the child's behalf.

The court adjudicated the child to be dependent and neglected and, in the subsequent dispositional hearing, adopted a treatment plan. Less than three months after the court adopted the treatment plan, the department moved to terminate parental rights. The department did not send notice to the CPN of its intent to terminate parental rights.

The termination hearing took place in August 2005, but the court's written order was not signed until January 2006. The day before the court signed the order terminating parental rights, the CPN wrote a letter to the department indicating that it was in receipt of mother's enrollment application and that the child was "now said to be a direct descendent" of the CPN, was eligible for tribal services, and would be eligible for enrollment once mother was enrolled. The CPN further indicated that if the child had been removed from the home, it would file an entry of appearance so that it could become involved with the case.

The relatives, who were the guardians for mother's three older children, sought permission to intervene under C.R.C.P. 24(b) because they wanted to provide a placement for the child. The CPN then entered its formal entry of appearance and sought to intervene.

The court denied the motions of the CPN and the relatives to intervene. These appeals followed.

II.

We first address the arguments raised by N.P. and S.P. (the intervenors), the foster parents of the child, that this court should dismiss this appeal because the notices of appeal filed by the CPN and by the relatives were deficient. We are not persuaded.

The intervenors assert the notices of appeal were deficient because (1) they were not timely served with the notices, and (2) all the documents filed in the matter by the appellants were not in compliance with C.A.R. 3.4 or § 19-1-109(1), C.R.S.2006, because they identify the child by name instead of by her initials.

The intervenors are correct that each appellant had to serve them with a copy of the notice of appeal. See C.A.R. 3(d)(8). They are similarly correct that § 19-1-109(1) requires all parties to use initials.

However, the purposes of the notice of appeal are to put the other party on notice that an appeal will be taken and to identify the order or judgment at issue. If the other party could not be misled as to the intention to appeal or as to the order or judgment from which the appeal is to be taken, any technical defect in the notice of appeal is harmless. Widener v. Dist. Court, 200 Colo. 398, 615 P.2d 33 (1980). The intervenors have not asserted they were unclear about the intent to appeal or the judgment and orders from which the appeals were taken. They also have stated they received the petitions on appeal, see C.A.R. 3.4(g), and therefore they cannot assert they were unaware of the arguments made. Thus, the errors asserted are harmless.

The intervenors also argue the CPN's petition should be dismissed because it was not timely filed with this court. However, the intervenors filed a separate motion on this point, and a motions division of this court has already determined the petition was timely filed.

We thus decline to dismiss either notice of appeal.

III.

We disagree with the CPN's contention that the judgment of termination must be vacated because of deficiencies in the notice given of the dependency and neglect proceedings. However, we agree with the CPN that the judgment must be vacated because the tribe was not given notice of the subsequent motion for termination.

A.

The CPN asserts the judgment terminating parental rights should be invalidated under 25 U.S.C. § 1914 because the notice provided by the department before the dispositional hearing that a dependency and neglect proceeding had been commenced on behalf of S.R.M. did not contain sufficient information for it to conduct a meaningful search of its records. Although we agree the notice was deficient, we conclude this particular deficiency does not require reversal.

Congress enacted the ICWA because of concerns over the involuntary separation of Indian children from their families for placement in non-Indian homes. B.H. v. People in Interest of X.H., 138 P.3d 299 (Colo.2006). The purpose of the ICWA is to protect Indian children who are members of or are eligible for membership in an Indian tribe. 25 U.S.C. § 1901(3) (2000). The Colorado General Assembly has expressly provided for compliance with, and consistent application of, the ICWA. See § 19-1-126, C.R.S.2006.

The ICWA promotes the best interests of Indian children and protects the stability of Indian tribes. The ICWA is based on the presumption that the protection of an Indian child's relationship with the tribe is in the child's best interests. People in Interest of A.T.W.S., 899 P.2d 223 (Colo.App.1994).

The ICWA applies when the state seeks to place an Indian child in foster care and when the state seeks to terminate parental rights. See 25 U.S.C. §§ 1911, 1912 (2000). Under those circumstances, whenever the court knows or has reason to know that an Indian child is involved, the party seeking placement or termination must provide notice to the child's tribe or his or her parent's tribe, or to the Bureau of Indian Affairs (the BIA) if the tribe cannot be identified or located. 25 U.S.C. § 1912(a) (2000); see also People in Interest of A.N.W., 976 P.2d 365 (Colo.App. 1999).

If notice is not given in compliance with the provisions of 25 U.S.C. § 1912, the tribe may petition to invalidate the order terminating parental rights. 25 U.S.C. § 1914. The tribe may raise the issue of inadequate notice in the first instance in this court, as the ICWA specifically provides that the issue of inadequate notice may be raised in "any court of competent jurisdiction." 25 U.S.C. § 1914; see In re L.A.M., 727 P.2d 1057 (Alaska 1986); In re Antoinette S., 104 Cal. App.4th 1401, 129 Cal.Rptr.2d 15 (2002).

The Department of the Interior has promulgated Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67,584 (Nov. 26, 1979) (Guidelines), to aid in the interpretation and application of the ICWA. B.H. v. People in Interest of X.H., supra; In re Adoption of Riffle, 273 Mont. 237, 902 P.2d 542 (1995).

The Guidelines were authored by the BIA and represent the Department of Interior's interpretation of the ICWA. Although they are not binding, they have been considered persuasive by state courts. B.H. v. People in Interest of X.H., supra; People in Interest of J.L.P., 870 P.2d 1252 (Colo.App.1994); see also In re Karla C., 113 Cal.App.4th 166, 6 Cal.Rptr.3d 205 (2003); In re N.A.H., 418 N.W.2d 310, 311 (S.D.1988).

The Guidelines set forth specific categories of information an agency should include in its notice to a tribe under the ICWA. 25 C.F.R. § 23.11(a), (d), (e) (2001). Notice must include the name, birth date, and birthplace of the Indian child; his or her tribal affiliation; a copy of the dependency petition; the petitioner's name; a statement of the right of the tribe to intervene in the proceeding; and information about the Indian child's biological mother, biological father, maternal and paternal grandparents and great-grandparents or Indian custodians, including maiden, married, and former names or aliases, birth dates, places of birth and death, current and former addresses, tribal enrollment numbers, and other identifying information. Guidelines, 44 Fed.Reg. at 67,588; 25 C.F.R. § 23.11(a), (d); In re Karla C., supra.

Notice under the ICWA must contain enough information to be meaningful. In re Karla C., supra. The primary purpose of giving notice to the tribe is to enable it to determine whether the child is an Indian child. Therefore, notice is meaningless if insufficient information is presented to the tribe. In re S.M., 118 Cal.App.4th 1108, 13 Cal.Rptr.3d 606 (2004).

Citing In re Louis S., 117 Cal.App.4th 622, 12 Cal.Rptr.3d 110 (2004), the CPN asserts the judgment terminating parental rights must be invalidated because the notice provided before the dispositional hearing at which time the child might formally be placed in foster care, see § 19-3-508(1)(c), C.R.S.2006, did not contain any information about the biological mother's ancestors or the father of the child. In Louis S., ...