2019 COA 85
Colo. Ct. App.2019Background
- Three Navajo children had parental rights terminated; the juvenile court ordered their removal from former foster parents and placement in an ICWA-preferred placement.
- The Navajo Nation moved to intervene and sought transfer of jurisdiction to tribal court under ICWA § 1911(b); the Department and guardian ad litem (GAL) stipulated to transfer.
- The former foster parents filed petitions to adopt and opposed the Navajo Nation’s transfer motion; the juvenile court denied transfer and ordered the children placed with the former foster parents.
- The Navajo Nation appealed; the Court of Appeals stayed placement and questioned whether the denial of transfer was immediately appealable.
- The Court of Appeals held the juvenile court’s denial was immediately appealable under the collateral order doctrine, concluded the former foster parents lacked standing to oppose transfer in the dependency and neglect case, and found the juvenile court erred by denying transfer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of a tribe’s request to transfer jurisdiction is immediately appealable | Navajo Nation: denial harms tribal sovereignty and child welfare; requires immediate review | State/others: order is interlocutory because proceedings continue in state court | Court: Denial is appealable under the collateral order doctrine (meets three-prong test) |
| Whether former foster parents had standing to oppose transfer in dependency/neglect case | Foster parents: as intervenors and prospective adoptive parents, they can oppose transfer | Navajo Nation/State: foster parents lost intervenor status after children were removed and lack legally protected interest | Court: Foster parents lacked standing to oppose transfer in the dependency/neglect case |
| Whether Colorado law (Children’s Code) permits transfer for preadoptive/adoptive proceedings | Navajo Nation/Dept/GAL: § 19-1-126(1) includes pre-adoptive/adoptive proceedings; statute places burden on opposing party | Foster parents: ICWA § 1911(b) mentions only foster-care/termination contexts so transfer doesn't apply to adoption stage | Court: Under Colorado law as enacted at that time, § 19-1-126 applies to preadoptive/adoptive proceedings and places burden on the opposing party |
| Whether juvenile court properly denied transfer based on good-cause evidence | Foster parents: presented evidence (case age, permanency) showing good cause to deny transfer | Navajo Nation/Dept/GAL: no party with standing met burden to show good cause | Court: Juvenile court erred—no standing opponent met burden, so transfer must be granted |
Key Cases Cited
- Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505 (recognizing inherent tribal sovereignty)
- Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (establishing collateral order doctrine)
- Will v. Hallock, 546 U.S. 345 (collateral order and interlocutory review principles)
- Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (when delaying review would imperil substantial public interest)
- Coopers & Lybrand v. Livesay, 437 U.S. 463 (three-part collateral-order test discussion)
- People in Interest of J.L.P., 870 P.2d 1252 (Colo. App. 1994) (tribal jurisdiction and ICWA transfer preference)
- People in Interest of S.M.O., 931 P.2d 572 (Colo. App. 1996) (definition of final judgment in juvenile context)
- Cash Advance & Preferred Cash Loans v. State, 242 P.3d 1099 (Colo. 2010) (discussion of tribal sovereignty)
- Paul v. People, 105 P.3d 628 (Colo. 2005) (interlocutory review/collateral order discussion)