2018 COA 11
Colo. Ct. App.2018Background
- Dependency and neglect proceedings in Alamosa County resulted in termination of parental rights to children J.L. and S.M.; mother J.C. appealed.
- Mother disclosed Native American heritage (identified possible affiliation as Sangre de Cristo/Pueblo of Taos, Aztec, or Kiowa) and said her biological family had tribal connections; she was an adoptee and lacked tribal registration information.
- The trial court and Alamosa County Department of Human Services (Department) did not make a contemporaneous on-the-record ICWA inquiry at the proper stages; an advisement form was given but no oral inquiry was made for all children.
- The Department did not send ICWA notice to potentially concerned tribes (Kiowa Tribe of Oklahoma and Pueblo of Taos) after mother provided information sufficient to constitute "reason to believe."
- The Court of Appeals held the inquiry and notice requirements under ICWA and Colorado law were not satisfied and ordered a limited remand for the Department to provide proper notice and for the trial court to make findings on ICWA applicability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a written advisement form satisfied ICWA/25 C.F.R. § 23.107 inquiry requirements | Written advisement given to mother fulfilled the court's duty to inquire | Advisement sufficed as initial inquiry and relieved further on-the-record questioning | Rejected: a written form given to one participant does not satisfy the on-the-record inquiry required of courts and parties |
| Whether Department had "reason to believe" children were Indian children triggering notice | Mother’s equivocal tribal statements did not create sufficient reason to believe | Mother’s disclosures produced reason to believe; tribes must decide membership | Held that mother’s statements provided sufficient information to trigger notice obligations |
| Whether Department complied with ICWA notice requirements to tribes (Kiowa and Pueblo of Taos) | Department argued lack of complete lineage info excused not sending notice | Department should have sent notice with the information it had; lack of complete info is not a defense | Held Department failed to send required notice; remand to send notice and allow tribes time to respond |
| Remedy and procedure on remand | N/A (court determines remedy) | N/A | Limited remand ordering the Department to send 25 U.S.C. § 1912(a)-compliant notices; trial court to await responses, make ICWA findings, and report results to appellate court for recertification if needed |
Key Cases Cited
- B.H. v. People in Interest of X.H., 138 P.3d 299 (Colo. 2006) (tribes have separate interest in Indian children and threshold for triggering notice is low)
- Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989) (recognizes tribes’ sovereign interest in Indian child custody determinations)