Colorado Court of Appeals

Colorado’s Recent Struggles with Notice Standard [ICWA]

Kate Fort

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Colorado has long had a very low bar to trigger the reason to know provision of ICWA. The B.H. case from 2006 has long been a model for other states that involve the question of what information does a court need to trigger the “reason to know” requirement of 25 U.S.C. 1912(a). And here, in a recent CO Court of Appeals case, is what the current debate over how the regulations have changed the standards boils down to:

But an assertion of possible Indian heritage alone does not fall within a “reason to know” factor that would permit a participant or the court to assume the child is an “Indian child” under section 19-1-126(1)(a)(II). Thus, this type of an assertion does not require formal notice to a tribe or tribes to determine whether the child is an “Indian child.”

In re A-J.A.B., 2022 COA 31, P58

The state law referenced is the Colorado adoption of 25 C.F.R. 23.107(c), the regulations that are supposed to guide courts regarding the “reason to know” standard. However, this is a fundamentally different standard than that articulated by B.H.:

Because membership is peculiarly within the province of each Indian tribe, sufficiently reliable information of virtually any criteria upon which membership might be based must be considered adequate to trigger the notice provisions of the Act.

138 P.3d 299, 304

The court of appeals states that state law has changed enough that B.H.’s reasoning was done under a different standard than the one in effect today (ICWA, of course, has not changed).

Much like the discussion in the In re Z.J.G. case, we are again debating the points of the six factors the regulations articulate as giving a court reason to know, and how they (according to the CO Courts of Appeals) narrow the reason to know standard, rather than guide it.

We agree with the E.M. division that information about the child’s heritage does not constitute “reason to know” that the child is an Indian child under section 19-1-126(1)(a)(II)(A). Information about a possible affiliation with two tribal ancestral groups does not satisfy one of the six reason to know factors

2022 COA 31 at P71

It is honestly stunning to me (though it should not be), that the passage of federal regulations means we are all now re-litigating notice issues that had long been settled. Last week, the Colorado Court of Appeals held

We conclude that a parent’s assertion of Indian heritage, standing alone, is insufficient to trigger ICWA’s notice requirements but, rather, it invokes the petitioning party’s obligation to exercise
due diligence under section 19-1-126(3). We further conclude that the exercise of due diligence under this provision is flexible and depends on the circumstances of, and the information presented to the court in, each case. Nonetheless, the record needs to show that the petitioning party earnestly endeavored to gather additional information that would assist the court in determining whether there is reason to know that the child is an Indian child.

People in re J.L., 2022 COA 43, P3

And now, “due diligence” is an “earnest endeavor” on the part of the state when a parent tells the Court they have tribal relations. However, in both cases the court of appeals sent the case back due to the lack of “due diligence” to follow up on these statements by the parents. The Court in A-J.A.B. gives a very detailed remand instruction regarding due diligence, and what the Court will need by date certain.

To lower my blood pressure and end this post, I will remember what the Washington Supreme Court held, when faced with very similar facts and laws:

We hold that a court has a “reason to know” that a child is an Indian child when any participant in the proceeding indicates that the child has tribal heritage. We adopt this interpretation of the “reason to know” standard because it respects a tribe’s exclusive role in determining membership, comports with the canon of construction for interpreting statutes that deal with issues affecting Native people and tribes, is supported by the statutory language and implementing regulations, and serves the underlying purposes of ICWA and WICWA. Further, tribal membership eligibility varies widely from tribe to tribe, and tribes can, and do, change those requirements frequently. State courts cannot and should not attempt to determine tribal membership or eligibility. This is the province of each tribe, and we respect it.

In re Z.J.G., 471 P.3d 853, 865.

Reason to Know Decision out of Colorado Court of Appeals [ICWA]

Kate Fort
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The Colorado Court of Appeals analyzed the regs on the reason to know issue, a similar argument to the In re Z.J.G. case from Washington. And as in Z.J.G., the Department is arguing for a narrower interpretation. However, the Court of Appeals reasoned:

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.

***

As a result, divisions of this court have repeatedly recognized that, where a district court receives information that the child’s family may have connections to specific tribes or ancestral groups, the court has “reason to know” that the child is an Indian child — even where the information itself does not establish that the child fully satisfies the definition of an Indian child

Paternity and ICWA Decision out of Colorado Court of Appeals

Kate Fort
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This is part of a small collection of state court decisions (In re B.B., Utah, Bruce L., AK) interpreting ICWA’s paternity definition, and also applying ICWA to paternity proceedings. It also addresses the issue of biological father (required by ICWA) and presumed father (defined by the Uniform Parentage Act).

Colorado Court of Appeals Case re. Membership v. Enrollment [ICWA]

Kate Fort

I get this question a lot and have had many discussions about it recently, so I know there are some specific attorneys out there who will be interested in this case:

“As a matter of first impression in Colorado, a division of the court of appeals holds that a child’s membership in a tribe, even absent eligibility for enrollment, is sufficient for a child to be an Indian child under the Indian Child Welfare Act.”


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Notice and Enrollment Case from Colorado Court of Appeals [ICWA]

Kate Fort

Here

This is a really interesting opinion, and balances a lot of interests. The issue of how to get a child who is both eligible for tribal membership and in foster care leads to a lot of questions about who gets to make the decision of enrollment. The agency has technical decision making authority for the children, but may choose to not enroll the children–as they did in this case–thus denying the application of ICWA (and a whole host of other citizenship related benefits and responsibilities). It may even mean the child can never be members, since some tribes don’t allow adults over the age of 18 to enroll. The Colorado Court of Appeals has just decided that the Court must make the final decision in those cases about whether a child should be enrolled or not.

In this case, mom told the agency the dad had Chickasaw heritage. This was enough for the agency to send notice to the Tribe. The Tribe responded that both the dad and the children were eligible for membership in the tribe, send membership applications, and asked the agency to assist the parents in enrolling the children.

The agency did NOT enroll the children, and did NOT tell the court of the Tribe’s response. The court only became aware of the response in the petition for termination. The court found ICWA did not apply, and terminated mom’s rights. The Court of Appeals determined that was not appropriate, and has created the process of an “enrollment hearing,” where the agency must deposit the Tribe’s request for enrollment with the court, and then the court must have a hearing–

Thus, once the response from the tribe has been deposited
with the juvenile court as set forth in Part II.B, we conclude that the
court must set the matter for a hearing to determine whether it is in
the best interests of the children to enroll them in the tribe. See
People in Interest of L.B., 254 P.3d 1203, 1208 (Colo. App. 2004) (A
juvenile court “must conduct a hearing to determine the proper
disposition best serving the interests of the child.”).

¶ 23 Of course, at an enrollment hearing, as at any other hearing in
a dependency and neglect proceeding, the court must give primary
consideration to the children’s best interests. See K.D., 139 P.3d at
698; C.S., 83 P.3d at 640.

¶ 24 And, in determining the children’s best interests, the juvenile
court must hear and consider the positions of the parents, as well
as the department and the guardian ad litem (GAL), all of whom
have standing, as relevant here, to speak to the merits of the tribe’s
enrollment request.

Though everyone can be heard, the court goes on to say,

Thus, at an enrollment hearing, the juvenile court should not
treat an objection, even from a parent, as a veto. On the contrary,
any reason for objection must be compelling considering ICWA’s
intent to maintain or foster the children’s connection with their
tribal culture.

Of course, the Tribe sent that letter requesting assistance enrolling the children in October of … 2018. Which means, of course, the twins who were a month old in May, 2018 are now two years old, never had any ICWA protections, and will now have their case go back to the trial court for a membership determination and a re-do of their child welfare case.

Indian Child Case out of the Colorado Court of Appeals [ICWA]

Kate Fort

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An example of what a mess happens when an agency proceeds on termination of parental rights before establishing tribal membership. And an answer to the question what happens to all those cases remanded for notice.

QEW Case out of the Colorado Court of Appeals [ICWA]

Kate Fort

Here.

The question is whether the parent should have had attorney representation during the interview with the qualified expert witness. This is a really interesting question, especially given that in this case the mother was assigned her own Guardian ad Litem. The Court ultimately held that she did not have the right to representation during the interview and upheld the termination of parental rights.

Transfer to Tribal Court Case from Colorado [ICWA]

Kate Fort

Here is a case that continues to demonstrate the importance of ensuring a state ICWA law allows transfer of cases post-termination. Navajo Nation intervened and appealed the decision to deny transfer (and to move the children back to the former, non-ICWA compliant foster home, who opposed the transfer to tribal court).

Additional important issues in this case including the appealability of a final order, standing of former foster parents (they had none), and post-termination transfer to tribal court.

We acknowledge that ICWA only addresses a request to
transfer jurisdiction during foster care placement and termination of parental rights proceedings. 25 U.S.C. § 1911(b). It does not mention such a request during preadoptive or adoptive placement proceedings. See id. Even so, the Children’s Code, as it existed at the time the juvenile court denied transfer, permits a juvenile court to consider transfer of jurisdiction to a tribal court “[i]n any of the cases identified in subsection (1) of this section involving an Indian child.” § 19-1-126(1), (4)(a). The cases identified in subsection (1) include “pre-adoptive and adoption proceedings.” § 19-1-126(1).

Colorado Court of Appeals ICWA Case on Burden of Proof and Application

ilpc

Opinion here.

ICWA requires two things to apply–an “Indian child” and a “child custody proceeding”. Once both of those things are met, then the court has to apply the heightened standards required by the law. This decision out of Colorado wrestles with when to apply the heightened burdens. There are four “child custody proceedings” under ICWA: a foster care proceeding, a termination of parental rights proceeding, a pre-adoptive placement, and an adoptive placement. In a standard state child custody case, there is an emergency/shelter care/preliminary/24-72 hour hearing, then an adjudicatory/jurisdictional hearing, followed by dispositional/review hearings, and finally permanency hearings. They don’t neatly map on to the ICWA defined proceedings, so the question of when to apply the heightened burden of proof can be up for debate. Because the adjudicatory hearing is the time when the court decides whether the state has met its burden to intrude on the family’s life and whether the court therefore has jurisdiction to do so, ICWA advocates often argue that the court should apply heightened standards at that very important hearing. However, it’s also often true that state has already removed a child, so it is technically not a “foster care proceeding” because the child is already in foster care. The Colorado Court of Appeals here decided the heightened burden has to apply to the dispositional hearing, where the Court determines the placement of a child (any proceeding that may result in a foster care placement, even if the child is placed back with a parent is subject to ICWA standards).

The Court also holds that a lack of notice does not deprive the state court of subject matter jurisdiction, and that ICWA applies until it is determined the child is not an Indian child.

ICWA Notice Decision in the Colorado Court of Appeals

Kate Fort

Opinion here

This is a fairly standard notice decision, but the instructions on remand are the kind that more courts of appeals need to provide in ICWA cases. As they are nearly four full pages long, I’m not quoting them here, but I am posting the opinion because of them.

Also, by “fairly standard notice decision”, I mean the Department was aware of possible American Indian/Cherokee heritage in May, and no one did any notice till December, a month after the Department filed the TPR. The Court of Appeals sent it back down to fix that.