2018 COA 75
Colo. Ct. App.2018Background
- Dependency & neglect petition filed April 2016; Department later moved to terminate parental rights (Nov 2016).
- Father J.S.R. reported Cherokee heritage and separately said his father descended from a tribe in Arkansas but could not identify the tribe.
- Department notified the three federally recognized Cherokee tribes and the BIA of the termination proceeding; BIA notice omitted J.S.R.’s reported connection to Arkansas.
- The trial court held multiple hearings and entered termination judgments in July 2017 but did not make the on-the-record ICWA inquiry at the start of the termination proceeding nor further inquire about Indian status afterwards.
- The BIA responded that it does not determine enrollment and indicated the notice reflected Cherokee affiliation; omission of the Arkansas reference hindered the BIA’s ability to identify relevant tribes.
- Court of Appeals concluded ICWA notice was inadequate and remanded for limited proceedings to secure proper inquiry and notice (including notifying BIA of the Arkansas connection if no specific tribe is identified).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ICWA required notice to BIA/tribes given father’s vague claim of Cherokee ancestry and an unidentified Arkansas tribe | J.S.R.: Department should have investigated and notified tribes (including those connected to Arkansas) because father reported tribal links | Department: Not required to locate tribes from vague information; notifying BIA and Cherokee tribes was sufficient | Court: Department must notify BIA and include the state (Arkansas) the parent reported; courts/agencies need not research tribal genealogy but BIA must be given the reported information so it can identify tribes |
| Whether trial court met ICWA duty to inquire on the record at the start of the termination proceeding | J.S.R.: Court failed to make required on-the-record inquiries about Indian status for all children | Department/Court: Multiple hearings occurred but no further inquiries were made | Court: Trial court erred by not conducting required on-the-record inquiry at commencement of the termination proceeding; remand for inquiry and findings |
| Whether omission of the reported Arkansas connection from BIA notice prejudiced ability to identify tribes | J.S.R.: Omission prevented BIA from identifying potentially relevant tribes (e.g., tribes with ancestral ties to Arkansas) | Department: Not required to trace tribal connections beyond notifying BIA and named tribes | Court: Omission frustrated BIA’s role; remand required to notify BIA of the Arkansas connection and allow tribe response period |
| Appropriate remedy when ICWA notice/inquiry deficiencies are found post-termination | J.S.R.: Termination should be vacated and remanded for ICWA compliance | Department: Remand for limited purposes; proceed if no Indian status found | Court: Limited remand for ICWA-compliant inquiry and notice; if children are Indian, trial court’s termination must be vacated and case remanded for full ICWA-compliant proceedings |
Key Cases Cited
- B.H. v. People in Interest of X.H., 138 P.3d 299 (Colo. 2006) (ICWA gives tribes meaningful opportunity to participate and courts must ensure inquiry/notice)
- Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989) (recognition of tribal interests in Indian children distinct from parental interests)
- In re J.T., 693 A.2d 283 (Vt. 1997) (when parent gives only vague tribal ancestry, duty is to notify BIA rather than resolve genealogy)
- In re Trever I., 973 A.2d 752 (Me. 2009) (agency properly investigated vague claim by notifying BIA)
- In re Desiree F., 99 Cal. Rptr. 2d 688 (Cal. Ct. App. 2000) (ICWA does not require agencies to research tribal connections from vague state-level information)