2022 COA 43
Colo. Ct. App.2022Background
- Denver Department of Human Services filed a dependency-and-neglect petition in Nov. 2019 concerning a two-year-old; mother reported Cherokee or Navajo heritage but was uncertain and said neither she nor the child was enrolled in a tribe.
- At initial hearing the court directed mother to complete an ICWA ancestry chart and directed the department to "exercise due diligence" to investigate mother’s reported heritage.
- Mother submitted an ICWA form indicating possible Cherokee heritage but no enrollment; the department later sought termination (Dec. 2020) and filed a declaration of its investigatory efforts (contacts with maternal relatives, review of prior court records and agency files).
- The juvenile court found no "reason to know" the child was an Indian child and entered a termination judgment for both parents.
- On appeal the court addressed (1) whether a parent’s bare assertion of tribal ancestry constitutes "reason to know" that ICWA notice is required, and (2) the scope of the Colorado statutory due-diligence duty (§ 19-1-126(3)) imposed on the petitioning party.
- The Court of Appeals held that an assertion of Indian heritage alone does not trigger ICWA notice but does trigger the department’s duty to exercise due diligence (which at minimum requires following up with the parent about the basis for the claim); because the record did not show such follow-up, the case was remanded for compliance or for ICWA notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a parent’s assertion of Indian heritage alone is a "reason to know" requiring ICWA notice | Mother: her reported Cherokee/Navajo ancestry required tribal notice | Dept/State: ancestral assertion without enrollment or other indicia is insufficient | Assertion alone is not a "reason to know" that triggers ICWA notice; it instead triggers the due-diligence duty under § 19-1-126(3) |
| Scope and sufficiency of the § 19-1-126(3) due-diligence duty; whether the department met it | Mother: department failed to meaningfully investigate and thus should have given ICWA notice | Dept: its contacts with relatives and record checks satisfied its investigatory duty | Due diligence is flexible but requires at minimum following up with a parent who reports heritage to determine the basis of the belief; the department did not show it performed that follow-up and remand is required |
Key Cases Cited
- B.H. v. People in Interest of X.H., 138 P.3d 299 (Colo. 2006) (discusses ICWA notice threshold under prior Colorado standard and that notice threshold was not intended to be high)
- People in Interest of J.O., 170 P.3d 840 (Colo. App. 2007) (tribes have a statutorily protected interest in ICWA notice and participation)
- People in Interest of J.A.S., 160 P.3d 257 (Colo. App. 2007) (tribal determinations of membership/eligibility are conclusive for ICWA purposes)
- Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (U.S. 1989) (recognizes tribes’ distinct interest in Indian children)
- Montana v. Blackfeet Tribe of Indians, 471 U.S. 759 (U.S. 1985) (statutes affecting Indian interests to be construed in favor of tribes)