2017 COA 38
Colo. Ct. App.2017Background
- Mother (A.T.) told the juvenile court she had possible Apache ancestry at a shelter hearing; later provided tribal card and roll numbers but did not complete an ICWA assessment form.
- Department of Human Services (Department) did not send notice to any federally recognized Apache Tribes and conceded this on appeal.
- Child L.L. was removed and the juvenile court held an adjudicatory jury trial; jury was instructed that the Department must prove the petition by a preponderance of the evidence.
- Mother did not object to the preponderance instruction at trial but later appealed alleging ICWA violations.
- Trial court never treated L.L. as an Indian child pending tribal verification nor did it confirm the Department used due diligence to identify and notify Apache Tribes.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Department) | Held |
|---|---|---|---|
| Whether Department complied with ICWA notice requirements | Mother: Department failed to send statutorily/ICWA-required notice to Apache Tribes despite her statements of Apache ancestry | Department conceded notice was not sent but argued procedures were unclear or not required given incomplete information | Court: Reversed—Department failed to comply; remanded for ICWA-compliant notice and verification |
| Whether ICWA imposes a heightened evidentiary standard at adjudicatory hearing | Mother: ICWA requires heightened (clear and convincing) proof at adjudication | Department: Adjudicatory hearings require ordinary preponderance; ICWA specifies higher standards only for foster placement/termination | Court: Rejected Mother; adjudicatory hearing requires preponderance, not a heightened ICWA standard |
Key Cases Cited
- B.H. v. People in Interest of X.H., 138 P.3d 299 (Colo. 2006) (defines "reason to know" and applies totality-of-circumstances test)
- People in the Interest of J.O., 170 P.3d 840 (Colo. App. 2007) (ICWA notice obligations not excused by 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 A.M.D., 648 P.2d 625 (Colo. 1982) (preponderance standard for adjudicatory hearings)
- People in Interest of S.G.L., 214 P.3d 580 (Colo. App. 2009) (distinguishing adjudicatory hearing from child-custody proceedings)
- In re Interest of Emma J., 782 N.W.2d 330 (Neb. App. 2010) (no heightened burden at adjudication under ICWA)