People v. Concerning L.H , 431 P.3d 663 ( 2018 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
February 22, 2018
2018COA27
No. 17CA0608, People In the Interest of L.H. — Juvenile Court
— Dependency and Neglect — ICWA — Notice
In this dependency and neglect case, a division of the court of
appeals addresses the sufficiency of notice under the Indian Child
Welfare Act of 1978 (ICWA) when a parent identifies a potential
affiliation with an ancestral group but does not identify a specific
tribe. The division concludes that if only a tribal ancestral group is
indicated, then the Department must notify each of the tribes in
that ancestral group to identify whether the parent or child is a
member of any such tribe.
In this case, mother identified potential “Navajo” ancestry, but
she did not indicate a specific tribal affiliation. Based upon this,
the Jefferson County Department of Human Services (Department)
sent notice to the Navajo Nation, but did not send notice to the
Colorado River Indian Tribes, which are designated by the Bureau
of Indian Affairs as having a historical affiliation with the Navajo.
The division holds that under the circumstances presented here,
the Department was required to send notice to all tribes historically
affiliated with the Navajo, including the Colorado River Indian
Tribes. Because the division concludes that the trial court did not
comply with ICWA’s notice requirements, it remands the case to the
trial court for the limited purpose of complying with ICWA and,
upon doing so, making further findings regarding the applicability
of ICWA.
COLORADO COURT OF APPEALS 2018COA27
Court of Appeals No. 17CA0608
Jefferson County District Court No. 15JV650
Honorable Ann Gail Meinster, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of L.H., a Child,
and Concerning L.H.,
Respondent-Appellant.
ORDER OF LIMITED REMAND
Division A
Loeb, C.J., Román, and Welling, JJ.
PER CURIAM
Announced February 22, 2018
Ellen G. Wakeman, County Attorney, Sarah Oviatt, Assistant County Attorney,
Golden, Colorado, for Petitioner-Appellee
Laura L. Locke, Guardian Ad Litem
Levi Guthrie, Colorado Springs, Colorado, for Respondent-Appellant
¶1 In this dependency and neglect proceeding, L.H. (mother)
appeals the judgment terminating the parent-child legal
relationship with her child, L.H. Based on our review of the record,
we are unable to determine whether the Jefferson County
Department of Human Services, Division of Children, Youth and
Families (Department) complied with the Indian Child Welfare Act of
1978 (ICWA), 25 U.S.C. §§ 1901-1963 (2012); see also § 19-1-126,
C.R.S. 2017. Because the record does not show that the
Department sent notice to tribes historically affiliated with the tribe
mother asserted her biological brother belonged to, we remand the
case to the trial court for the limited purpose of ensuring that
ICWA’s notice requirements are satisfied.
I. Background
¶2 Congress enacted ICWA to address “rising concern” over the
consequences of “child welfare practices that resulted in the
separation of large numbers of Indian children from their families
and tribes through adoption or foster care placement, usually in
non-Indian homes.” Mississippi Band of Choctaw Indians v.
Holyfield, 490 U.S. 30, 32 (1989). ICWA’s provisions protect and
preserve Indian tribes and their resources and protect Indian
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children who are members of or are eligible for membership in an
Indian tribe. 25 U.S.C. § 1901(2), (3).
¶3 ICWA recognizes that Indian tribes have a separate interest in
Indian children that is equivalent to, but distinct from, parental
interests. B.H. v. People in Interest of X.H., 138 P.3d 299, 303 (Colo.
2006); see also Holyfield, 490 U.S. at 52. Accordingly, in a
proceeding in which ICWA may apply, tribes must have a
meaningful opportunity to participate in determining whether the
child is an Indian child and to be heard on the issue of ICWA’s
applicability. B.H., 138 P.3d at 303. Therefore, if there is a reason
to know or believe that a child is an Indian child, the Department
must provide notice to any identified Indian tribes. See 25 U.S.C.
§ 1912(a) (2012); § 19-1-126(1)(b); People in Interest of N.D.C., 210
P.3d 494, 497 (Colo. App. 2009).
¶4 In doing so, the Department must directly notify the tribe by
registered or certified mail with return receipt requested of the
pending child custody proceedings and its right to intervene. 25
C.F.R. § 23.111(a) (2017); see People in Interest of L.L., 2017 COA
38, ¶¶ 34-35. The notice must include:
(1) The child’s name, birthdate, and birthplace;
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(2) All names known (including maiden,
married, and former names or aliases) of the
parents, the parents’ birthdates and
birthplaces, and Tribal enrollment numbers if
known;
(3) If known, the names, birthdates,
birthplaces, and Tribal enrollment information
of other direct lineal ancestors of the child . . .;
[and]
(4) The name of each Indian Tribe in which the
child is a member (or may be eligible for
membership if a biological parent is a
member).
25 C.F.R. § 23.111(d)(1)-(4).
¶5 The notice must also include a copy of the petition, complaint,
or other document by which the child custody proceeding was
initiated and, if a hearing has been scheduled, information on the
date, time, and location of the hearing, and various statements
related to the tribe’s right to intervene and petition for a transfer.
25 C.F.R. § 23.111(d)(5)-(6).
¶6 In 2016, the Bureau of Indian Affairs (BIA) issued regulations
and guidelines that clarify ICWA’s inquiry and notice requirements.
See 25 C.F.R. §§ 23.107-.109, .111 (2017); Bureau of Indian Affairs,
Guidelines for Implementing the Indian Child Welfare Act 11, 30-38
(Dec. 2016), https://perma.cc/3TCH-8HQM (2016 Guidelines).
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Federal guidelines on ICWA are not binding, but they provide useful
guidance in interpreting the statute. See Interest of L.L., ¶ 16.
¶7 Where the identity and location of the tribe is not known with
particularity, the challenge is identifying what tribe must be
notified. This is so because sometimes the child or parent may not
be certain of their membership status in an Indian tribe, but may
indicate they are somehow affiliated with a tribe or group of tribes.
2016 Guidelines at 18. 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 by historical tribal affiliation. See Designated Tribal Agents for
Service of Notice, 82 Fed. Reg. 12,986-01, 12,986-13,009 (Mar. 8,
2017); List of Designated Tribal Agents by Tribal Affiliation, 82 Fed.
Reg. 12,986-01, 13,009 (Mar. 8, 2017), https://perma.cc/K3DD-
KQR5 (Tribal Agents by Affiliation).
¶8 The 2016 Guidelines recommend that if only the tribal
ancestral group is indicated, then the Department should notify
each of the tribes in that ancestral group to identify whether the
parent or child is a member of any such tribe. 2016 Guidelines at
18. Thus, because ICWA’s intent is to provide notice to tribes so
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that the tribes themselves can decide whether children are tribal
members, see B.H., 138 P.3d at 303-04, when a parent is unable to
provide detailed information on potential tribal affiliations, the
Department should provide notice to all identified tribes and the
tribes that have been historically affiliated with those identified
tribes, see Tribal Agents by Affiliation, https://perma.cc/K3DD-
KQR5.
II. Analysis
¶9 Whether the notice requirements of ICWA were 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).
¶ 10 The record indicates that, after initially denying Native
American heritage, mother informed the Department that her
biological brother is registered with “Navajo-Deni [sic].”1 Mother,
however, was unable to provide a census number or any additional
information regarding how, or with whom, her brother was enrolled.
1 “Diné” is a Navajo word meaning “Navajo” or “the people.” See
Leon Wall & William Morgan, Navajo-English Dictionary 29 (Bureau
of Indian Affairs 1958), https://perma.cc/XF6Y-6LWH; see also
United States v. Wheeler, 435 U.S. 313, 331 n.33 (1978) (“‘Navaho’
is not their own word for themselves. In their own language, they
are diné, ‘The People.’” (quoting C. Kluckhohn & D. Leighton, The
Navaho 23 (rev. ed. 1974))).
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¶ 11 Upon learning that mother might have possible Native
American heritage, the Division sent six separate notices to the
Navajo Nation at six different addresses. The Navajo Nation
responded that, based on the enrollment verification performed by
the Navajo Office of Vital Records, there was no record of the family
with the Navajo Nation, and, therefore, the child was not enrolled or
eligible for enrollment with the Navajo Nation. Based on that
response, the trial court found, at the termination hearing, that
ICWA did not apply to this case.
¶ 12 However, a review of the BIA’s list of Tribal Agents by
Affiliation shows that the Colorado River Indian Tribes are also
tribes historically affiliated with the Navajo. See Tribal Agents by
Affiliation, https://perma.cc/K3DD-KQR5 (search for “Colorado
River Indian Tribes” in the document). Therefore, because mother’s
statements regarding her possible Native American ancestry
included a general reference to Navajo, and not just the Navajo
Nation, we conclude that the Department was required to also
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notify the Colorado River Indian Tribes because it is recognized by
the BIA as being historically affiliated with the Navajo.2
¶ 13 Since it appears from the record that the Department only
provided notice to the Navajo Nation, we conclude that the notice
given in this case was insufficient to satisfy ICWA’s requirement.
Accordingly, we remand the case to the trial court for the limited
purpose of directing the Department to send appropriate notice to
the Colorado River Indian Tribes.
III. Procedure on Remand
¶ 14 After receiving responses from the Colorado River Indian
Tribes or the expiration of the timeframe under 25 U.S.C. § 1912(a)
or a reasonable additional time determined by the trial court, the
court shall again enter factual findings and legal conclusions
regarding the application of ICWA.
2 The Colorado River Indian Tribes include four distinct Tribes —
the Chemehuevi, Hopi, Mojave, and Navajo. But for ICWA notice
purposes, the Colorado River Indian Tribes have a single designated
point of contact (i.e., agent for service of ICWA notice). See List of
Designated Tribal Agents by Tribal Affiliation, 82 Fed. Reg. 12,986-
01, 13,009 (Mar. 8, 2017), https://perma.cc/K3DD-KQR5 (search
for “Colorado River Indian Tribes” in the document). And the
Colorado River Indian Tribes’ agent for service of ICWA notice is
distinct from the agent for service of ICWA notice for the Navajo
Nation. Id. (search for “Colorado River Indian Tribes” and “Navajo”
in the document).
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¶ 15 If the trial court determines that the child is an Indian child,
within seven days of the issuance of the trial court’s order making
such determination, the Department must file notice with this court
along with a copy of the trial court’s order, and the appeal shall be
recertified to permit a division of this court to issue an opinion
vacating the termination judgment and remanding the case to the
trial court with directions to proceed in accordance with ICWA.
¶ 16 If the trial court determines that the child is not an Indian
child, within seven days of issuance of the trial court’s order
making such determination, the Department must file notice with
this court along with a copy of the trial court’s order, and the
appeal shall be recertified. Within seven days of recertification, the
Department must file either (1) a supplemental record consisting of
the trial court’s order on remand, a transcript of the proceedings on
remand, and any notices sent and responses received; or (2) a
supplemental designation of record of the same.
¶ 17 Additionally, within fourteen days of recertification, mother
may file a supplemental brief, not to exceed ten pages or 3500
words, limited to addressing the trial court’s ICWA determination.
If father, who is not currently a party to this appeal, wishes to file a
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brief addressing the ICWA determination, he may do so, but his
brief must be accompanied by a notice of appeal indicating his
intent to appeal from the ICWA determination. If either parent files
a supplemental brief, the other parties may file, within fourteen
days, supplemental briefs in response, not to exceed ten pages or
3500 words.
¶ 18 This court further orders that the Department notify this court
in writing of the status of the trial court proceedings in the event
that this matter is not concluded within twenty-eight days from the
date of this order, and that the Department shall do so every
twenty-eight days thereafter until the trial court issues its order on
remand.
BY THE COURT:
Loeb, C.J.
Román, J.
Welling, J.
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