2017 COA 38
Colo. Ct. App.2017Background
- Child L.L. was subject to a Denver dependency-and-neglect petition after a cellphone video and other facts suggested abuse and mother’s refusal to cooperate; mother requested a jury trial.
- At a shelter hearing mother asserted possible Apache Native American ancestry and later provided tribal card/roll numbers, but she did not complete an ICWA assessment form.
- The Department conceded on appeal it never sent ICWA notice to any of the eight federally recognized Apache Tribes despite mother’s statements of heritage.
- The juvenile court instructed the jury that the Department bore the burden by a preponderance of the evidence and adjudicated L.L. dependent and neglected; mother did not object to the burden instruction below.
- On appeal mother argued (1) the Department failed to comply with ICWA notice requirements and (2) ICWA required a heightened (clear-and-convincing) evidentiary standard at adjudication.
- The Court of Appeals reversed the adjudication for failure to give ICWA notice and remanded for proper notice; it rejected the heightened-burden argument and held preponderance applies at adjudication.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the Department satisfy ICWA notice duties when mother asserted Apache ancestry? | Mother: her statements created "reason to know" and the Department had to notify the Apache Tribes; failure requires reversal. | Dept.: (conceded on appeal) it did not send notice; argued confusion about procedures. | Held: Department failed to comply; reversal and remand with directions to give notice to the eight Apache Tribes per ICWA. |
| Does ICWA impose a heightened evidentiary standard at adjudicatory hearings in dependency proceedings? | Mother: ICWA’s protections require clear-and-convincing proof at adjudication for Indian children. | State: Adjudicatory hearings are not child-custody placements under ICWA; statutory silence means usual preponderance standard applies. | Held: No heightened standard; preponderance of the evidence governs adjudication. |
Key Cases Cited
- B.H. v. People in Interest of X.H., 138 P.3d 299 (Colo. 2006) (discusses "reason to know" standard and totality-of-the-circumstances inquiry under ICWA)
- People in Interest of J.O., 170 P.3d 840 (Colo. App. 2007) (failure to provide tribal notice under ICWA requires correction despite incomplete parental information)
- People in Interest of T.M.W., 208 P.3d 272 (Colo. App. 2009) (standard of review for ICWA notice questions)
- People in Interest of S.G.L., 214 P.3d 580 (Colo. App. 2009) (distinguishes adjudicatory hearings from child-custody placement proceedings)
- People in Interest of A.M.D., 648 P.2d 625 (Colo. 1982) (preponderance standard for proving allegations in dependency adjudications)
- In re Interest of Emma J., 782 N.W.2d 330 (Neb. Ct. App. 2010) (supports that ICWA does not impose a heightened burden at adjudication)