2020 COA 35
Colo. Ct. App.2020Background
- Juvenile court terminated T.K.D.’s parental rights to two children (K.R. and S.R.) in a dependency and neglect proceeding; mother appealed.
- Mother argued the record did not show compliance with the Indian Child Welfare Act (ICWA).
- On initial appeal the court remanded for ICWA-related factfinding because children appeared to have Sioux lineage but there was no record whether either parent was a tribal member and two Sioux tribes had not responded to notice.
- After additional notice on remand, the Oglala Sioux Tribe sent a letter stating the children were eligible for enrollment and intervened; the juvenile court concluded ICWA was triggered.
- The Court of Appeals, after recertifying the appeal and reviewing supplemental materials, found the record still silent as to whether either parent is a tribal member—a necessary condition for ICWA to apply.
- The court vacated the termination judgment and remanded, directing the juvenile court to determine parental membership (and timing of any membership) with the Tribe; if children are Indian children, ICWA procedures must be followed, otherwise the termination may be reinstated.
Issues
| Issue | People (State) Argument | Mother (T.K.D.) Argument | Held |
|---|---|---|---|
| Whether ICWA applies because the children may have tribal lineage | ICWA applies if the children are Indian children; Tribe’s eligibility letter supports ICWA involvement | Record does not show either parent is a tribal member, so ICWA should not be presumed to apply | Remanded: record does not establish children are Indian children because parental membership is unknown; further factfinding required |
| Whether the Tribe’s letter of enrollment eligibility alone is sufficient to trigger ICWA protections | Tribe’s eligibility statement indicates ICWA relevance and warrants intervention/notice | Tribal eligibility without evidence a parent is a tribal member is insufficient to make the children “Indian children” under ICWA | Tribe’s eligibility letter is not dispositive; court must determine if either biological parent is a tribal member and whether membership predated the termination judgment |
Key Cases Cited
- People in Interest of J.A.S., 160 P.3d 257 (Colo. App. 2007) (tribal determinations of membership are conclusive)
- State in Interest of P.F., 405 P.3d 755 (Utah Ct. App. 2017) (child eligibility alone is insufficient when neither biological parent is a tribal member)
- People in Interest of J.C.R., 259 P.3d 1279 (Colo. App. 2011) (ICWA not triggered when parent first raises possible Indian heritage after termination proceeding)