In re L.L , 2017 COA 38 ( 2017 )

COLORADO COURT OF APPEALS 2017COA38
Court of Appeals No. 16CA1222
City and County of Denver Juvenile Court No. 16JV510
Honorable D. Brett Woods, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of L.L., a Child,
and Concerning A.T.,
Respondent-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division VI
Opinion by JUDGE FURMAN
Terry and Plank*, JJ., concur
Announced March 23, 2017
Cristal D. Torres, City Attorney, Laura Grzetic Eibsen, Assistant City Attorney,
Denver, Colorado, for Petitioner-Appellee
Debra W. Dodd, Greeley, Colorado, for Respondent-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1 In this dependency and neglect case, mother, A.T., told the
juvenile court at a shelter hearing that she had possible Apache
Native American ancestry. But, for reasons not disclosed in the
record, the parties and the juvenile court did not follow certain
procedures mandated by the Indian Child Welfare Act of 1978
(ICWA), 25 U.S.C. §§ 1901-1963 (2012); see § 19-1-126, C.R.S.
2016. Following a jury verdict, the court adjudicated the child, L.L.,
dependent and neglected. The court then held a dispositional
hearing.
¶2 On appeal, mother contends that we should reverse the
adjudicatory judgment for two reasons: (1) the Denver Department
of Human Services (Department) did not comply with the ICWA
notice requirements; and (2) the juvenile court violated ICWA by not
requiring the jury to base its findings on a heightened clear and
convincing evidentiary standard. We agree with mother that the
Department did not comply with the ICWA notice requirements.
But, we disagree that ICWA imposes a heightened evidentiary
standard at the adjudicatory hearing. Thus, we reverse the
judgment and remand the case with directions that notice be given
in accordance with ICWA.
1
I. Mother’s Alleged Apache Heritage
¶3 A truancy court magistrate ordered the Department to
investigate this case based on mother refusing to take her son, L.L.,
to school. A recording from a cell phone showed L.L. cowering in a
corner of a bedroom, while mother yelled and threatened to beat
him with a belt. The Department subsequently filed a petition in
dependency and neglect, which alleged mother had refused to
cooperate with a Denver Police welfare check. She told the
authorities that L.L. was staying with family in Rifle, Colorado, but
would not provide an address, and that she had bipolar disorder,
but had not been taking her medications.
¶4 At a shelter hearing, mother denied the allegations in the
petition and requested a jury trial. She also stated that she had
Apache heritage, although she did not subsequently fill out an
ICWA assessment form. The Bureau of Indian Affairs (BIA) lists
eight Apache Tribes on its website, https://perma.cc/MHN5-B3F7:
Jicarilla Apache Nation, Mescalero Apache Tribe, San Carlos
Apache Tribe, Tonto Apache Tribe of Arizona, White Mountain
Apache Tribe of the Fort Apache Reservation, Yavapai-Apache
Nation of the Camp Verde Indian Reservation, Fort Sill Apache Tribe
2
of Oklahoma, and Apache Tribe of Oklahoma. Two months later,
mother filed written information that included tribal card numbers
and roll numbers.
¶5 Even so, the Department did not send notice of the
proceedings to any of the Apache Tribes.
¶6 At a pretrial hearing, mother again stated that she had Indian
heritage. But, at that hearing, the juvenile court did not address
whether the Department used due diligence to identify and work
with an Apache Tribe to verify whether L.L. is a member or is
eligible for membership. And, the court did not treat L.L. as an
Indian child pending the Tribes’ verification.
¶7 On the first day of the adjudicatory hearing, the juvenile court
instructed the jury that the Department had the burden of proving
the allegations set forth in the petition by a preponderance of the
evidence. The court did not address whether ICWA applied. Mother
did not object to the court’s preponderance instruction.
¶8 Based on the jury’s verdict, the juvenile court adjudicated L.L.
dependent and neglected.
3
II. The Application of ICWA
¶9 The positions of the parties before the juvenile court
demonstrate significant confusion about the application of ICWA
and the practices to be followed in implementing it. For example:
 At the shelter hearing, the Department acknowledged
that it would send notices. But, at a pretrial hearing, the
Department did not indicate whether notices to any
Apache Tribes had been sent. In the end, the
Department did not send notice to any Apache Tribe, and
concedes so on appeal.
 L.L.’s guardian ad litem (GAL) voiced no position
regarding ICWA’s applicability to this case, and does not
assert any position on appeal.
 Mother did not state that she was enrolled in an Apache
Tribe or that L.L. was eligible for membership. Rather,
she asserted that her great grandmother was “an Apache
out of Nebraska”; she had “the bloodline”; and she “was
able to continue with the enrollment process.”
¶ 10 To address the application of ICWA to this case, we first
discuss Congress’s purpose in enacting ICWA. We then discuss the
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roles of the juvenile court and the parties in determining whether a
child is an “Indian child” under ICWA. We conclude by addressing
mother’s two arguments on appeal that: (1) the Department did not
comply with ICWA’s notice requirements; and (2) ICWA imposes a
heightened evidentiary standard at the adjudicatory hearing.
A. Congress’s Purpose in Enacting ICWA
¶ 11 Congress enacted ICWA “for the protection and preservation of
Indian tribes and their resources.” 25 U.S.C. § 1901(2) (2012).
Congress found “that an alarmingly high percentage of Indian
families are broken up by the removal, often unwarranted, of their
children from them by nontribal public and private agencies and
that an alarmingly high percentage of such children are placed in
non-Indian foster and adoptive homes and institutions.” 25 U.S.C.
§ 1901(4). Congress also found that States have often “failed to
recognize the essential tribal relations of Indian people and the
cultural and social standards prevailing in Indian communities and
families.” 25 U.S.C. § 1901(5).
¶ 12 To address this failure, ICWA establishes “minimum Federal
standards for the removal of Indian children from their families and
the placement of such children in foster or adoptive homes which
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will reflect the unique values of Indian culture.” 25 U.S.C. § 1902(2012). In other words, ICWA establishes minimum federal
standards for an “Indian child” involved in a “child custody
proceeding.” 25 U.S.C. § 1903(1),(4) (2012).
¶ 13 Of course, ICWA does not apply to every child-custody
proceeding. Hence, in any such proceeding, the parties and
juvenile court must ask two fundamental questions to determine
whether ICWA applies to a case: (1) Does ICWA apply to this child?
(2) Does ICWA apply to the proceeding? See Bureau of Indian
Affairs, Guidelines for Implementing the Indian Child Welfare Act 9
(Dec. 2016), https://perma.cc/3TCH-8HQM (2016 Guidelines).
B. The Juvenile Court and the Parties’ Role
¶ 14 The juvenile court and the parties each play an important role
in determining whether ICWA applies to a child who is subject to a
custody proceeding.
¶ 15 On appeal, the Department cites the 2015 Guidelines for State
Courts and Agencies in Indian Child Custody Proceedings (2015
Guidelines) and 2016 Department of the Interior Final Rule (2016
Final Rule) as guidance to State courts related to inquiry and
verification issues in Indian Child Welfare Act proceedings. See
6
Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778 (June
14, 2016) (to be codified at 25 C.F.R. pt. 23); Guidelines for State
Courts and Agencies in Indian Child Custody Proceedings, 80 Fed.
Reg. 10,146 (Feb. 25, 2015). In 2016, the BIA published new
guidelines intended “to assist those involved in child custody
proceedings in understanding and uniformly applying” ICWA. 2016
Guidelines at 4, 6. The 2016 Guidelines repeal the 2015 Guidelines
and incorporate the 2016 Final Rule. Id. The 2016 Guidelines thus
clarify the practices of courts and parties involved in child custody
proceedings to ensure compliance with ICWA, and the Department
appears to concede their value in doing so.
¶ 16 Although the 2016 Guidelines are not binding, we consider
them persuasive. See B.H. v. People in Interest of X.H., 138 P.3d
299, 302 n.2 (Colo. 2006) (referring to the 1979 guidelines).
Therefore, we look to the 2016 Guidelines for guidance to ensure
compliance with ICWA.
¶ 17 In determining whether ICWA applies to a child who is subject
to a dependency and neglect proceeding, the juvenile court, the
Department, the GAL, and the respondent parent each have various
duties. We address them here.
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1. The Juvenile Court’s Duties
¶ 18 The juvenile court’s duty is to ask whether the child is an
“Indian child,” follow certain procedures if it has reason to know a
child is an Indian child, and, if the child is not an Indian child,
instruct the parties to inform the court if they later receive
information that provides reason to know the child is an Indian
child. 25 C.F.R. § 23.107 (2016).
a. Initial Inquiry
¶ 19 The juvenile court must first ask each participant on the
record at the commencement 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 § 19-1-126(2) (When the petition “does not
disclose whether the child” is an Indian child, “the court shall
inquire of the parties at the first hearing whether the child is an
Indian child and, if so, whether the parties have complied with the
procedural requirements” of ICWA.).
¶ 20 An “Indian child” means “any unmarried person who is under
the age of eighteen and is either: (a) a member of an Indian tribe or
(b) is eligible for membership in an Indian tribe and is the biological
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child of a member of an Indian tribe[.]” 25 U.S.C. § 1903(4); see 19-
1-103(65.3), C.R.S. 2016. Tribal membership for purposes of ICWA
is left up to the individual Tribes. B.H., 138 P.3d at 303.
b. Reason to Know
¶ 21 The juvenile court also has certain duties if it has “reason to
know” that a child is an Indian child. 25 C.F.R. § 23.107. The
juvenile court has “reason to know” that a child is an Indian child
based on any of the following:
(1) Any 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;
(2) Any participant in the proceeding, officer of
the court involved in the proceeding, Indian
Tribe, Indian organization, or agency informs
the court that it has discovered information
indicating that the child is an Indian child;
(3) The child who is the subject of the proceeding
gives the court reason to know he or she is an
Indian child;
(4) The court is informed that the domicile or
residence of the child, the child’s parent, or the
child’s Indian custodian is on a reservation or
in an Alaska Native village;
(5) The court is informed that the child is or has
been a ward of a Tribal court; or
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(6) The court is informed that either parent or the
child possesses an identification card
indicating membership in an Indian Tribe.
25 C.F.R. § 23.107(c).
¶ 22 The supreme court has determined that the information
indicating that a child is an Indian child is based on the “totality of
the circumstances” and includes “consideration of not only the
nature and specificity of available information but also the
credibility of the source of that information and the basis of the
source’s knowledge.” B.H., 138 P.3d at 303. But, the supreme
court cautioned that “the threshold requirement for notice was
clearly not intended to be high.” Id.; see 25 C.F.R. § 23.106(b)
(2016) (“[W]here applicable State . . . law provides a higher standard
of protection to the rights of the parent or Indian custodian than
the protection accorded under the Act, ICWA requires the State . . .
to apply the higher State . . . standard.”).
¶ 23 Thus, based on a totality of the circumstances, if there is
“reason to know” the child is an Indian child, but the juvenile court
does not have sufficient evidence to determine whether the child is
or is not an “Indian child,” the court must do several things. 25
C.F.R. § 23.107.
10
¶ 24 First, the juvenile court must ensure that the Department
sends notice to any identified Indian Tribe. That is, when the
juvenile court knows or has reason to know that the subject of an
involuntary foster-care-placement or termination-of-parental-rights
proceeding is an Indian child, the court must ensure that the
following occurs:
(1) The party seeking placement promptly
sends notice of each such child-custody
proceeding (including, but not limited to, any
foster-care placement or any termination of
parental or custodial rights) . . . ; and
(2) An original or a copy of each notice sent . . .
is filed with the court together with any return
receipts or other proof of service.
25 C.F.R. § 23.111(a) (2016).
¶ 25 The court must then “[c]onfirm, by way of a report,
declaration, or testimony included in the record” that the
department used due diligence to
identify and work with all of the Tribes of
which there is reason to know the child may be
a member (or eligible for membership) [and] to
verify whether the child is in fact a member (or
a biological parent is a member and the child
is eligible for membership)[.]
25 C.F.R. § 23.107(b)(1); see § 19-1-126(2).
11
¶ 26 Second, the court must “[t]reat the child as an Indian child,
unless and until it is determined on the record that the child does
not meet the definition of an ‘Indian child.’” 25 C.F.R.
§ 23.107(b)(2).
c. Subsequent Information if Not an Indian Child
¶ 27 If the child is not an Indian child, the juvenile court must
“instruct the parties to inform the court if they subsequently receive
information that provides reason to know the child is an Indian
child.” 25 C.F.R. § 23.107(a).
The rule does not require an inquiry at each
hearing within a proceeding; but, if a new
child-custody proceeding (such as a
proceeding to terminate parental rights or for
adoption) is initiated for the same child, the
court must make a finding as to whether there
is “reason to know” that the child is an Indian
child. In situations in which the child was not
identified as an Indian child in the prior
proceeding, the court has a continuing duty to
inquire whether the child is an Indian child.
2016 Guidelines at 11.
¶ 28 Accordingly, the juvenile court plays an important role in
determining whether ICWA applies to a child subject to a custody
proceeding by inquiring as to whether the participants know or
have reason to know that the child is an “Indian child” and
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ensuring that notice is sent to those Tribes of which there is reason
to know the child is a member or eligible for membership.
2. The Department’s Duties
¶ 29 The Department’s duties are to investigate whether the child is
an “Indian child,” provide notice to any identified Indian Tribes, and
confirm that it used due diligence to identify and work with any
Tribes of which there is reason to know that the child may be a
member or eligible for membership.
a. Initial Inquiry
¶ 30 The Department’s first duty is to determine whether the child
is an Indian child “as soon as possible” and investigate “into a
child’s status early in the case.” 2016 Guidelines at 11; see 25
C.F.R. § 23.107(b)(1). This inquiry should occur before any court
hearing.
¶ 31 If the Department learns of a possible tribal affiliation, the
Department should “ask the child, parents, and potentially
extended family which Tribe(s) they have an affiliation with and
obtain genealogical information from the family, and contact the
Tribe(s) with that information.” See 2016 Guidelines at 11; see 25
C.F.R. § 23.107(b)(1). If a child or parent is not certain of his or her
13
membership status in a Tribe but indicates that he or she is
somehow affiliated with a Tribe or group of Tribes, the Department
should “ask the parent and, potentially, extended family what Tribe
or Tribal ancestral group the parent may be affiliated with.” 2016
Guidelines at 18.
¶ 32 Likewise, Colorado’s ICWA statute provides that the
Department should make continuing inquiries to determine
whether the child is an Indian child, and, if so, take certain steps to
determine the identity of the Indian child’s Tribe. § 19-1-126(1)(a).
To fulfill this duty, the Department in this case sought to have
mother fill out an ICWA assessment form.
b. Providing Notice
¶ 33 The Department’s next duty is to send notice to any identified
Indian Tribes. The ICWA notice requirements are one of ICWA’s
core procedural requirements in a child-custody proceeding
because they give the parent, Indian custodian, and Tribe the
opportunity to respond to any allegations in the case, to intervene,
or to seek transfer of jurisdiction to the Tribe. 25 C.F.R. § 23.111;
see 2016 Guidelines at 30-35.
14
¶ 34 Where there is reason to know that an Indian child is involved,
and where the identity and location of the Tribe is known, federal
regulations require the Department to 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).
Notice must be sent to:
(1) Each Tribe where the child may be a
member (or eligible for membership if a
biological parent is a member) . . .;
(2) The child’s parents; and
(3) If applicable, the child’s Indian custodian.
25 C.F.R. § 23.111(b).
¶ 35 Section 19-1-126(1)(b), which differs slightly from the federal
regulations with regard to permitted methods of notice, requires the
Department to send notice as follows:
by registered mail, return receipt requested, to
the parent or Indian custodian of such child,
to the tribal agent of the Indian child’s tribe as
designated in title 25 of the code of federal
regulations, part 23, or, if such agent has not
been designated, to the highest-elected or
highest-appointed official of the Indian child’s
tribe, to the highest-elected or highest-
appointed tribal judge of the Indian child’s
tribe, and to the social service department of
the Indian child’s tribe.
15
Colorado’s regulations also require the Department to provide
notice in involuntary placements by telephone within forty-eight
hours. Dep’t of Human Servs. Reg. 7.309.32(A), 12 Code Colo.
Regs. § 2509-4.
¶ 36 Because ICWA applies only if the Tribe is a federally
recognized Indian Tribe, the Department can so confirm on the
BIA’s annual list. 2016 Guidelines at 18. If only the tribal
ancestral group is indicated, it is recommended that the
Department contact each of the Tribes in the group to identify
whether the parent or child is a member. Id.
¶ 37 The Department should try to provide sufficient information to
the Tribe for the Tribe to make the determination as to whether the
child is a member or eligible for membership. Id. at 21. To this
end, the notice should include the following:
(1) The child’s name, birthdate, and birthplace;
(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,
such as grandparents; [and]
16
(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).
¶ 38 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); § 19-1-126(1)(c).
¶ 39 If a Tribe does not respond to the notice, or responds that it is
not interested in participating in the proceeding, the Department
must continue to send the Tribe notices of subsequent proceedings
for which notice is required, such as a termination of parental
rights proceeding. 2016 Guidelines at 38; see 25 C.F.R. § 23.111.
The Department is also encouraged to follow up telephonically.
2016 Guidelines at 38.
c. Confirmation
¶ 40 The Department’s third duty is to confirm that it used due
diligence to identify and work with any Tribes of which there is
17
reason to know that the child may be a member or eligible for
membership. 25 C.F.R. § 23.107(b)(1); see also 2016 Guidelines at
9. This due diligence requirement applies to all cases filed on or
after December 12, 2016. 2016 Guidelines at 4.
¶ 41 To do so, the Department must file with the juvenile court an
original or copy of each notice sent together with any return
receipts or other proof of service. 25 C.F.R. § 23.111(a)(2); § 19-1-
126(1)(c). The Department should document its verbal and written
requests to a Tribe to obtain information or verification of a child or
parent’s tribal membership or eligibility for membership and
provide this information to the court. 2016 Guidelines at 22. The
Department must also inform the court if it subsequently discovers
that the child is an Indian child “so that the proceeding can move
forward in compliance with the requirements of ICWA.” Id. at 11;
see 25 C.F.R. § 23.107(a).
3. The GAL’s Duties
¶ 42 The GAL’s duty is to represent the best interests of a child.
§ 19-3-203(3), C.R.S. 2016.
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¶ 43 The 2016 Guidelines point out that ICWA is not in tension
with what is in the “best interests of the child.” 2016 Guidelines at
89. Indeed, ICWA protects the best interests of Indian children by:
• ensuring that, if possible, children remain with their parents;
• supporting reunification;
• favoring placements within a child’s extended family and tribal
community;
• providing sufficient notice about child-custody proceedings to
a Tribe; and
• enabling a Tribe to fully participate in the proceeding.
See id.
¶ 44 Accordingly, the GAL plays an important role in ensuring
ICWA’s application to an Indian child subject to a child-custody
proceeding by supporting the relationship between a child and his
or her parents, extended family, and Tribe. See id. Ensuring
compliance with ICWA also helps to prevent unnecessary delay
occasioned by appellate reversals and remands for noncompliance.
4. Respondent Parent Duties
¶ 45 The respondent parent’s duty is to disclose any information
indicating that the child may be an Indian child or to provide an
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identification card indicating membership in a Tribe to the
Department or juvenile court in a timely manner. Id. at 10-11.
Lack of timely information may generate unnecessary delays, create
instability in placements for the Indian child, and deny ICWA
protections to Indian children and their families. Id. at 11.
C. Mother’s Argument on Appeal
¶ 46 Whether the ICWA notice provisions 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).
¶ 47 Although mother did not state that L.L. was a member of a
Tribe, or that she was a member of a Tribe and L.L. was eligible for
membership in a Tribe, the Department nonetheless concedes that,
based on mother’s assertion of Native American heritage and
existing case law, notice should have been sent to the eight federally
recognized Apache Tribes. See B.H., 138 P.3d at 303.
¶ 48 Because protection of tribal interests is at the core of ICWA,
the failure of mother to provide complete and accurate information
about her Native American heritage (e.g., the precise location of the
Tribe, a completed ICWA assessment form, or written information
with tribal card numbers and roll numbers that included the name
20
of the Tribe) did not absolve the Department of its obligation to
provide notice to the Apache Tribes. See People in the Interest of
J.O., 170 P.3d 840, 843 (Colo. App. 2007).
¶ 49 And, despite L.L. being placed in foster care, the juvenile court
did not address ICWA until a later pretrial hearing, when it noted
that ICWA was an issue in the case. Even then, the court did not
address whether the Department had sought to identify and work
with the Apache Tribes to verify whether L.L. is a member or eligible
for membership. See B.H., 138 P.3d at 303. This was error that
must be corrected so that notice can be given in accordance with
ICWA.
III. Burden of Proof
¶ 50 At the adjudicatory hearing, the State must prove the
allegations in the petition by a preponderance of the evidence.
§§ 19-3-505(1), (6), (7)(a), C.R.S. 2016; People in Interest of A.M.D.,
648 P.2d 625, 640 (Colo. 1982).
¶ 51 ICWA concerns the placement of Indian children in
child-custody proceedings. See J.O., 170 P.3d at 842. But an
adjudicatory hearing is not a child-custody proceeding. See People
in Interest of S.G.L., 214 P.3d 580, 583 (Colo. App. 2009) (“The
21
purpose of an adjudicatory hearing is to determine whether . . . the
status of the subject child or children warrants intrusive protective
or corrective state intervention into the familial relationship.”)
(citation omitted). It follows then that the language in Colorado’s
ICWA statute does not specifically set forth any different standard
of proof for an adjudicatory hearing. See § 19-1-126.
¶ 52 Likewise, the federal ICWA statute is silent as to the particular
standard of proof required for an adjudicatory hearing. See, e.g., 25
U.S.C. § 1912(e), (f) (2012) (the State must submit proof by clear
and convincing evidence when seeking foster care placement, and
proof beyond a reasonable doubt when seeking termination of
parental rights); 25 C.F.R. § 23.121 (2016).
¶ 53 Because there is no language in ICWA or in its associated
rules or guidelines that indicates a heightened burden of proof for
the adjudicatory hearing in a dependency and neglect proceeding,
the State is only required to prove the allegations set forth in the
petition by a preponderance of the evidence in all adjudications,
whether Indian or non-Indian children. See In re Interest of Emma
J., 782 N.W.2d 330, 336-37 (Neb. Ct. App. 2010).
22
¶ 54 Therefore, we disagree with mother’s contention that ICWA
imposes a heightened evidentiary standard, and we conclude that
the juvenile court did not err when it instructed the jury regarding
the Department’s burden of proof.
IV. Conclusion
¶ 55 The adjudicatory judgment is reversed, and the case is
remanded with directions to the juvenile court to ensure that the
Department provides notice to the federally recognized Apache
Tribes in accordance with ICWA.
¶ 56 On remand, if each of the Apache Tribes determines L.L. is not
a member or eligible for membership, and thus there is not a reason
to know the child is an Indian child, the juvenile court must make
this finding on the record. See 2016 Guidelines at 12. If that
finding is made, the juvenile court must instruct the parties to
promptly inform it if they subsequently receive information that
provides reason to know the child is an Indian child. Id. at 11. In
that case, because mother does not appeal on any other grounds,
the adjudicatory judgment shall be reinstated and will stand
affirmed subject to mother’s right to appeal this finding. See J.O.,
170 P.3d at 844.
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¶ 57 But, if a Tribe determines that L.L. is a member of or eligible
for membership in the Tribe, the judgment is reversed and the
juvenile court must proceed in accordance with ICWA. See 25
U.S.C. § 1912(d); J.O., 170 P.3d at 844.
JUDGE TERRY and JUDGE PLANK concur.
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