People ex rel. S.B.
Citation | 459 P.3d 745 |
Decision Date | 02 January 2020 |
Docket Number | Court of Appeals No. 19CA0198 |
Parties | The PEOPLE of the State of Colorado, Appellee, IN the INTEREST OF S.B., a Child, and Concerning R.B., Appellant. |
Court | Court of Appeals of Colorado |
Julie R. Andress, Assistant County Attorney, Montrose, Colorado, for Appellee
Barbra J. Remmenga, Guardian Ad Litem
Michael Kovaka, Littleton, Colorado, for Appellant
Opinion by JUDGE HAWTHORNE
¶1 In this dependency and neglect proceeding, R.B. (father) appeals the judgment terminating his parental rights to S.B. (the child). We affirm.
¶2 In August 2017, law enforcement officials placed the child in protective custody because during a drug raid they found the child alone in unsafe conditions where he and father lived. The Montrose County Department of Health and Human Services (Department) initiated a dependency and neglect proceeding, and the juvenile court granted custody of the child to the Department. The Department placed the child in the care of his paternal great aunt and uncle, whom the court appointed as special respondents in the case. The child’s mother had died earlier that year.
¶3 In September 2017, father admitted that the child was dependent and neglected and the court adopted a treatment plan for father.
¶4 Father was later arrested on several offenses, and under a plea agreement was sentenced to six years in the custody of the Department of Corrections in March 2018.
¶5 In August 2018, the Department moved to terminate father’s parent-child legal relationship with the child. The court held a termination hearing and terminated father’s parental rights.
¶6 Father contends that the juvenile court failed to comply with the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901 - 1963 (2018), in two ways: (1) it failed to make proper ICWA inquiries during the termination proceeding and (2) it and the Department failed to send proper notice of the termination proceeding to the Jena Band of the Choctaw Tribe. We conclude the errors in the court’s inquiry and notice procedures under ICWA were harmless.
¶7 We review de novo whether ICWA’s requirements applied to the proceeding and were satisfied. People in Interest of M.V. , 2018 COA 163, ¶ 32, 432 P.3d 628 ; People in Interest of T.M.W. , 208 P.3d 272, 274 (Colo. App. 2009).
¶8 Colorado’s ICWA-implementing legislation provides that in dependency and neglect proceedings, the petitioning party must make continuing inquiries to determine whether the child is an Indian child. § 19-1-126(1)(a), C.R.S. 2018;1 see also B.H. v. People in Interest of X.H. , 138 P.3d 299, 302 (Colo. 2006).
¶9 The federal guidelines implementing ICWA impose a duty of inquiry and notice on trial courts. 25 C.F.R. § 23.107(a) (2019) ; Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act (Dec. 2016), https://perma.cc/3TCH-8HQM; see also Notice of Guidelines, 81 Fed. Reg. 96,476 (Dec. 30, 2016). The court must ask each participant on the record at the beginning 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 People in Interest of L.L. , 2017 COA 38, ¶ 19, 395 P.3d 1209. A proceeding to terminate parental rights is a separate child custody proceeding under ICWA. See 25 U.S.C. § 1903(1) (2018) ; see also § 19-1-126(1) ; People in Interest of C.A. , 2017 COA 135, ¶ 10, 417 P.3d 909.
¶10 When there is reason to know or believe that a child involved in a custody proceeding is an Indian child, the petitioning party must send notice of the proceeding to the potentially concerned tribe or tribes. B.H. , 138 P.3d at 302 ; see 25 U.S.C. § 1912(a) (2018) ; § 19-1-126(1)(b). A court "has reason to know" a child is an Indian child if, in relevant part, "[a]ny participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that the child is an Indian child ... [or] informs the court that it has discovered information indicating that the child is an Indian child[.]" 25 C.F.R. § 23.107(c). State courts and agencies are encouraged to interpret these factors expansively. M.V. , ¶ 43. If the tribe’s identity or location can’t be determined, notice must be given to the Bureau of Indian Affairs.
B.H. , 138 P.3d at 302 ; see 25 U.S.C. § 1912(a).
¶11 Prior to the dependency and neglect adjudication, the court asked father on two occasions whether the child had Indian heritage. Father said that the child didn’t and that he was unaware of any Indian heritage from the child’s mother.
¶12 At the adjudication hearing, the Department notified the court that it was inquiring into the child’s possible Indian heritage from his mother.
¶13 Months later at a review hearing, the Department updated the court on its efforts to determine the child’s possible Indian heritage. Its counsel said that the Department had communicated with the child’s maternal grandfather, who said that he was a registered member of a Choctaw tribe. Counsel said that the Department had sent notices to the three federally recognized Choctaw tribes, and that two had responded that the grandfather wasn’t a member or eligible to be one. The Department hadn’t heard back from the third tribe, the Jena Band, and hadn’t been able to contact the tribe by telephone.
¶14 In July 2018, the court held a "permanency planning hearing." It adopted the Department’s primary termination and adoption plan. The court found that "ICWA continues not to be an issue," and that it "does not know or have reason to know that [the child] is [an] Indian child."
¶16 On August 15, 2018, in a "pre-hearing" order, the court stated that it Father didn’t respond.
¶17 Eight days before the termination hearing on November 6, 2018, the Department filed a "Notice Regarding [ICWA]." In the notice the Department detailed its efforts to inquire into the child’s possible Indian heritage, including what counsel had already provided at the review hearing. The Department also sent information to the Bureau of Indian Affairs, but the Bureau had responded that it couldn’t identify a tribe. The Jena Band of the Choctaw Tribe still hadn’t responded to the notice or to the Department’s follow-up efforts.
¶18 The notice also said that the Department had called grandfather in July 2018 prior to the termination motion, and he had "confirmed that the tribe he is enrolled in is the ‘Metis’ tribe," a federally unrecognized tribe. Thus, the Department concluded that it didn’t believe or have reason to know that the child was an Indian child for ICWA purposes.
¶19 We agree that the court’s inquiry and notice procedures under ICWA were insufficient.
¶20 "The trial court must ask each participant on the record at the beginning of each emergency, voluntary, or involuntary child custody proceeding ‘whether the participant knows or has reason to know that the child is an Indian child.’ " People in Interest of K.G. , 2017 COA 153, ¶ 21, ––– P.3d –––– (quoting 25 C.F.R. § 23.107(a) ). Yet the court inquired only of father. See K.G. , ¶ 25 (); see also People in Interest of J.L. , 2018 COA 11, ¶ 20, 428 P.3d 612 ().
¶21 And at the time the Department sought termination, based on the existing record, the court had "reason to know" the child may have Indian heritage and should have required the Department to send notice to the Jena Band. See M.V. , ¶ 44 ( ); L.L. , ¶ 39 ().
¶22 But these errors were harmless. Grandfather’s claim to be a registered member of a Choctaw tribe was the sole basis for believing or having reason to know that the child possibly had Indian heritage. So when grandfather later clarified that he was enrolled in a federally unrecognized tribe, further notice wasn’t required and the previous errors were harmless. See People in Interest of Z.C. , 2019 COA 71M, ¶ 22, ––– P.3d –––– (); People in Interest of S.R.M. , 153 P.3d 438, 441 (Colo. App. 2006).
¶23 Father contends that his trial counsel rendered ineffective assistance by (1) failing to communicate with him; (2) failing to secure his testimony for the...
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