Stockwell v. Dees

Decision Date27 June 2019
Docket NumberCourt of Appeals No. 17CA1482
Citation446 P.3d 957
Parties IN RE the MARRIAGE OF Joseph Cody STOCKWELL, Appellee, and Jennifer Lynn DEES, Appellant.
CourtColorado Court of Appeals

Joseph Cody Stockwell, Pro Se

Jennifer Lynn Dees, Pro Se

Opinion by JUDGE NAVARRO

¶ 1 In this proceeding concerning the allocation of parental responsibilities (APR) for L.D-S., Jennifer Lynn Dees, the child’s mother, appeals the district court’s order denying her motion to vacate a 2013 order giving majority parenting time to Joseph Cody Stockwell, the child’s legal but not biological father. Dees contends that the court erred because it issued the APR order without first inquiring into the child’s possible Indian heritage as required by the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901 to 1963 (2018). Dees is right. In agreeing with her, we clarify that (1) a legal father under Colorado law is not necessarily a "parent" for purposes of ICWA and (2) an APR to a legal father who does not qualify as a "parent" under ICWA is a "child custody proceeding" under ICWA.

¶ 2 Because the APR to Stockwell here constituted a child custody proceeding and the court did not comply with ICWA, we reverse the order denying Dees’s motion and remand for further proceedings.

I. Factual and Procedural History

¶ 3 L.D-S. was born during the marriage between Dees and Stockwell. That marriage has since been dissolved. Although Stockwell is not L.D-S.’s biological father, he was declared his legal father under the paternity presumption in section 19-4-105(1)(a), C.R.S. 2018. On October 2013, the district court entered an APR order that named Stockwell the primary residential parent for L.D-S. and limited Dees’s parenting time to weekends. Over the next few years, the court expanded Dees’s parenting time to include holidays, school breaks, and two weeks of summer vacation.

¶ 4 In 2015, Dees asked the court to set aside the October 2013 APR order. She alleged that she had obtained a DNA test result from L.D-S.’s biological father that would rebut Stockwell’s paternity presumption. A magistrate denied her motion, and the district court adopted the magistrate’s order.

¶ 5 In 2017, Dees filed a pro se motion titled "Motion for 25 U.S.C. 1914 ‘ICWA’ Violations," arguing that federal law required L.D-S. to be returned to her care (hereinafter, ICWA motion). She attached to the ICWA motion various orders (including the October 2013 APR order) and a letter asking the district court to invalidate all parenting orders, return L.D-S. to her custody, and comply with ICWA. She asserted in her letter that L.D-S. was "Choctaw and Wailaki on my side only" and that the APR to Stockwell was a "foster care placement." The court denied the motion as untimely.

II. ICWA Compliance
A. Basic Principles

¶ 6 ICWA is intended to protect and preserve Indian tribes and their resources, and to protect Indian children who are members of or are eligible for membership in an Indian tribe. 25 U.S.C. § 1901(2), (3) (2018) ; People in Interest of M.V. , 2018 COA 163, ¶ 10, 432 P.3d 628. ICWA recognizes that Indian tribes have a separate interest in Indian children that is equivalent to, but distinct from, parental interests. M.V. , ¶ 10. Thus, in a proceeding in which ICWA may apply, tribes must have a meaningful opportunity to participate in determining whether a child who is a subject of the proceeding is an Indian child and to be heard on the issue of the applicability of ICWA. B.H. v. People in Interest of X.H. , 138 P.3d 299, 303 (Colo. 2006).

¶ 7 ICWA applies when an Indian child is the subject of a "child custody proceeding," which includes any action that could culminate in "foster care placement." 25 U.S.C. § 1903(1) (2018) ; 25 C.F.R. § 23.2 (2018) ; People in Interest of K.G. , 2017 COA 153, ¶ 14, ––– P.3d ––––. An "Indian child" is any unmarried person who is under age eighteen and is either (1) a member of an Indian tribe or (2) 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). Under ICWA, a tribe is entitled to intervene in child custody proceedings involving its children, and a tribal court is the preferred jurisdiction for such proceedings. K.G. , ¶ 6.

¶ 8 At the start of every emergency, voluntary, or involuntary child custody proceeding, the district court must ask each participant whether he or she knows or has reason to know that the child is an Indian child. 25 C.F.R. § 23.107(a) (2018); K.G. , ¶ 21. All responses should be on the record. 25 C.F.R. § 23.107(a).

¶ 9 It is "critically important" that the court inquire into whether a child is an Indian child because, if an inquiry is not made, "a child-custody proceeding may not comply with ICWA and thus may deny ICWA protections to Indian children and their families." Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act 11 (Dec. 2016), https://perma.cc/3TCH-8HQM; see also People in Interest of C.A. , 2017 COA 135, ¶ 17, 417 P.3d 909.

¶ 10 If the court has reason to know that the child is an Indian child but has insufficient evidence to make a determination, the court must treat the child as an Indian child unless and until the court determines on the record that the child does not meet the definition of an Indian child. 25 C.F.R. § 23.107(b)(2). A court has reason to know a child is an Indian child if, among other reasons not relevant here, any participant in the proceeding informs the court that (1) the child is an Indian child or (2) the participant has discovered information indicating that the child is an Indian child. 25 C.F.R. § 23.107(c)(1)-(2); People in Interest of L.L. , 2017 COA 38, ¶ 21, 395 P.3d 1209.

¶ 11 Whether ICWA’s provisions were satisfied is a question of law that we review de novo. L.L. , ¶ 46.

B. Timeliness of Dees’s ICWA Motion

¶ 12 We first address the district court’s reason for denial. The court noted that Dees’s ICWA motion sought to reconsider a September 3, 2013, order. (In fact, the motion also sought reconsideration of the October 2013 APR order.) The court cited C.R.C.P. 121, section 1-15(11), which provides that motions to reconsider interlocutory orders shall be filed within fourteen days of the order unless the moving party shows good cause for not filing within that time. Finding that Dees had filed the ICWA motion 1382 days after the September 2013 order and had not shown good cause for the delay, the court denied the motion as untimely.

¶ 13 According to ICWA, however, an Indian child who is the subject of an action for foster care placement or termination of parental rights, any parent or Indian custodian from whose custody such child was removed , and the Indian child’s tribe may petition a court of competent jurisdiction to invalidate such action upon a showing that the action violated ICWA provisions. 25 U.S.C. § 1914 (2018). ICWA places no time limit on such a petition. Moreover, barring a parent’s ICWA claim as untimely or waived under state law would contradict our supreme court’s recognition that ICWA is also intended to protect the tribe, which was not at fault for the timing of the ICWA claim and whose interest may have been harmed. See B.H. , 138 P.3d at 304 ("Because the protection of a separate tribal interest is at the core of the ICWA, otherwise sufficiently reliable information cannot be overcome by the statements, actions, or waiver of a parent, or disregarded as untimely.") (citations omitted); see also Mississippi Band of Choctaw Indians v. Holyfield , 490 U.S. 30, 49, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989) ("Tribal jurisdiction under § 1911(a) was not meant to be defeated by the actions of individual members of the tribe, for Congress was concerned not solely about the interests of Indian children and families, but also about the impact on the tribes themselves of the large numbers of Indian children adopted by non-Indians."); cf. People in Interest of D.B. , 2017 COA 139, ¶ 8, 414 P.3d 46 (ICWA compliance claims may be raised for the first time on appeal).

¶ 14 Finally, as we will explain, the APR order here constituted a foster care placement. Therefore, the district court erred in denying Dees’s ICWA motion as untimely. In addition, because the record does not show that the court complied with ICWA, we reverse the order denying the ICWA motion and remand for further proceedings as discussed below.

C. Was the APR a Child Custody Proceeding?

¶ 15 Dees argues that the district court failed to comply with ICWA before issuing the October 2013 APR order. Stockwell responds that ICWA is inapplicable because he and Dees are parents of L.D-S. Stockwell is correct that ICWA does not apply to an award of custody to one of the parents, including in a divorce proceeding. 25 C.F.R. § 23.103(b)(3) (2018) ; see also In re J.B. , 178 Cal.App.4th 751, 100 Cal. Rptr. 3d 679, 682 (2009) (a child custody proceeding does not include a proceeding in which a child is removed from one parent and placed with the other because placement with a parent is not foster care). But whether Stockwell qualifies as a parent for purposes of ICWA requires a closer look.

¶ 16 As relevant here, a "parent" under ICWA is defined as "any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom." 25 U.S.C. § 1903(9). By defining this critical term, Congress has expressed its intention that the word is not subject to definition by state courts. Cf. Holyfield , 490 U.S. at 45, 109 S.Ct. 1597 ("Under these circumstances it is most improbable that Congress would have intended to leave the scope of the statute’s key jurisdictional provision subject to definition by state courts as a matter of state law.").

¶ 17 As noted, Stockwell is L.D-S.’s legal father. Based on this status, he enjoys all the rights and responsibilities of legal fatherhood under state law. See N.A.H. v. S.L.S. , 9 P.3d...

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2 cases
  • People ex rel. O.S-H.
    • United States
    • Colorado Court of Appeals
    • 28 Octubre 2021
    ... ... 1903(9) ; In re Marriage of Stockwell , 2019 COA 96, 18-21, 446 P.3d 957 ("A foster care placement, which here takes the form of an [allocation of parental responsibilities] to a person ... ...
  • People ex rel. E.M.
    • United States
    • Colorado Court of Appeals
    • 16 Diciembre 2021
    ... ... 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 ... ...
2 books & journal articles
  • ARTICLE 1 GENERAL PROVISIONS
    • United States
    • Colorado Bar Association C.R.S. on Family and Juvenile Law (CBA) Title 19 Children's Code
    • Invalid date
    ...federal ICWA, Congress expressed its intention that the term is not subject to definition by state courts. In re Stockwell, 2019 COA 96, 446 P.3d 957. Therefore, even though father was the minor's "legal father" under state law, he was not the minor's "parent" for purposes of the federal IC......
  • ARTICLE 1
    • United States
    • Colorado Bar Association C.R.S. on Family and Juvenile Law (2022 ed.) (CBA) Title 19 Children's Code
    • Invalid date
    ...federal ICWA, Congress expressed its intention that the term is not subject to definition by state courts. In re Stockwell, 2019 COA 96, 446 P.3d 957. Therefore, even though father was the minor's "legal father" under state law, he was not the minor's "parent" for purposes of the federal IC......

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