2019 COA 71
Colo. Ct. App.2019Background
- Juvenile dependency and neglect case: mother (S.C.) appeals termination of parental rights for son Z.C.; issue whether ICWA notice requirements were satisfied to identified tribes.
- On initial appeal court found eight tribes had not received proper ICWA notice and ordered limited remand for compliance.
- On remand the El Paso County Department sent notices to eight tribes; signed/dated return receipts were filed for four tribes; two tribes returned signed but undated receipts (processed by Department date stamp); one tribe’s return receipt was unsigned and undated; one tribe (Eastern Band of Cherokee Indians) provided no return receipt in the record.
- Juvenile court found all eight tribes had received adequate notice and concluded the child was not an Indian child.
- Court of Appeals reviewed adequacy of notice de novo and determined notice was sufficient for six tribes, harmless error as to Eastern Band of Cherokee Indians, but insufficient as to White Mountain Apache Tribe; remanded for limited further proceedings to comply with ICWA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ICWA notice to tribes satisfied statutory/regulatory requirements | Mother: Department failed to provide adequate notice to certain tribes (defective/missing return receipts), so ICWA notice requirement not met | Department/Juvenile Ct: Notices were sent and processed; date stamps and signatures show tribes received timely notice | Notice satisfied for six tribes; Eastern Band error harmless; notice insufficient for White Mountain Apache Tribe — remand ordered for compliance |
| Whether unsigned/undated return receipts can establish timely receipt | Mother: Undated/unsigned receipts are inadequate to prove receipt/date required by 25 U.S.C. §1912(a) | Department: Department date stamp and processing records show receipt before hearing, satisfying timeliness | Signed but undated receipts coupled with Department processing stamp were enough for two tribes; unsigned/undated receipt was insufficient |
| Whether tribe’s non-response permits court to assume notice was received | Mother: Non-response cannot substitute for proof of receipt or tribe’s determination about membership | Department: Sending certified mail and elapsed time sufficed to infer receipt | Non-response alone insufficient; but subsequent letter from Eastern Band (in supplemental record) meant error was harmless for that tribe |
| Appropriate remedy when ICWA notice is insufficient on remand | Mother: Vacate termination and require full ICWA compliance before proceeding | Department: Limited remand and additional inquiries suffice | Limited remand: Department must use due diligence to contact White Mountain Apache Tribe, make continuing inquiries, possibly resend notice; juvenile court to make new ICWA findings and report back to appellate court |
Key Cases Cited
- People in Interest of S.R.M., 153 P.3d 438 (Colo. App. 2006) (ICWA’s purpose and tribe’s interest; tribes must have opportunity to determine membership)
- B.H. v. People in Interest of X.H., 138 P.3d 299 (Colo. 2006) (continuing inquiry obligation and notification duties under ICWA)
- People in Interest of N.D.C., 210 P.3d 494 (Colo. App. 2009) (filing notices and return receipts with the court satisfies proof of notice)
- People in Interest of C.Z., 262 P.3d 895 (Colo. App. 2010) (department must provide registered-mail notice to tribe of pending proceedings and right to intervene)
- In re Morris, 815 N.W.2d 62 (Mich. 2012) (return receipt date required to determine §1912(a) waiting period)
- In re Karla C., 6 Cal. Rptr. 3d 205 (Cal. Ct. App. 2003) (tribe’s non-response cannot be treated as a determination that child is not an Indian child)