     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                 May 30, 2019

                                2019COA85

No. 18CA1478, People in the Interest of L.R.B. — American
Indian Law — ICWA — Indian Tribe Jurisdiction Over Indian
Child Custody Proceedings — Transfer of Proceedings; Appeals
— Final Appealable Order — Collateral Order Doctrine

     A division of the court of appeals concludes that a juvenile

court’s order denying a tribe’s request to transfer jurisdiction to a

tribal court is a final, appealable order based on the collateral order

doctrine.
COLORADO COURT OF APPEALS                                         2019COA85


Court of Appeals No. 18CA1478
Montezuma County District Court No. 15JV9
Honorable Douglas S. Walker, Judge


The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of L.R.B., S.B.B., and K.B.B., Children,

and Concerning Navajo Nation,

Intervenor-Appellant,

and

E.S. and R.S.,

Intervenors-Appellees.


                         ORDER REVERSED AND CASE
                         REMANDED WITH DIRECTIONS

                                   Division A
                          Opinion by JUDGE FURMAN
                         Dunn and Welling, JJ., concur

                           Announced May 30, 2019


John Baxter, County Attorney, Ian MacLaren, Special Assistant County
Attorney, Cortez, Colorado, for Petitioner-Appellee

Beth Padilla, Guardian Ad Litem

James Shaner, Cortez, Colorado; Keith Andrew Fitzgerald, Moab, Utah, for
Intervenor-Appellant

The Law Office of Jill M. Carlson, LLC, Jill M. Carlson, Cortez, Colorado, for
Intervenors-Appellees
¶1    In this post-termination of parental rights proceeding, the

 Montezuma County Department of Social Services (Department)

 and the guardian ad litem (GAL) of L.R.B., S.B.B., and K.B.B. (the

 children) stipulated to the Navajo Nation’s request to transfer

 jurisdiction to the tribal court for preadoptive and adoptive

 placement proceedings. But the children’s former foster parents,

 E.S. and R.S., who filed petitions to adopt the children, opposed the

 transfer.

¶2    After a contested hearing, the juvenile court denied the Navajo

 Nation’s request to transfer jurisdiction. The court recognized that

 the transfer section of the Indian Child Welfare Act of 1978 (ICWA),

 25 U.S.C. § 1911(b) (2018), generally permits a tribe to request a

 transfer of jurisdiction. But the court concluded that the plain

 language of this section does not apply to preadoptive and adoptive

 placement proceedings and, even if it did apply, the former foster

 parents presented evidence of good cause to deny the request.

¶3    We disagree based on the plain language of the Children’s

 Code. Section 19-1-126(1), (4)(a), and (4)(b), C.R.S. 2018 — our

 state’s ICWA-implementing legislation as it existed at the time of

 this hearing — applies transfer of jurisdiction requests to

                                   1
 preadoptive and adoptive placement proceedings. It also places the

 burden of proof on the party opposing the transfer. Because the

 former foster parents lacked standing to oppose the Navajo Nation’s

 request, the juvenile court erred in entertaining their opposition.

¶4    Accordingly, we reverse the juvenile court’s order and remand

 for the juvenile court to (1) transfer jurisdiction to the Navajo

 Nation’s tribal court and (2) vacate and dismiss the former foster

 parents’ petitions to adopt.

                    I. Post-Termination Proceedings

¶5    It is undisputed that the children are registered members of

 the Navajo Nation and, therefore, Indian children under ICWA. See

 25 U.S.C. §§ 1901 to 1963 (2018).

¶6    The juvenile court entered judgment terminating the parent-

 child legal relationship between the children and their parents, and

 a division of this court affirmed the judgment. People in Interest of

 L.R.B., (Colo. App. No. 17CA0607, Feb. 1, 2018) (not published

 pursuant to C.A.R. 35(e)). Following termination, the Department

 filed a motion to remove the children from the home of the former

 foster parents and place them in an ICWA preferred placement. The

 court granted the motion.

                                    2
¶7    The Navajo Nation then moved to intervene; the juvenile court

 granted the motion. While the parents appealed the termination of

 their parental rights, the Navajo Nation moved to transfer

 jurisdiction from the state court to the tribal court under section 25

 U.S.C. § 1911(b). The Department and the GAL did not oppose this

 motion. But the juvenile court denied the Navajo Nation’s motion

 because the court lacked jurisdiction to act while the case was on

 appeal. Yet, it noted that if it had jurisdiction, it would have

 concluded that good cause existed to deny transfer based on the

 age of the case.

¶8    Later, the former foster parents filed petitions to adopt the

 children; the Navajo Nation and the Department opposed the

 petitions. The juvenile court also “re-joined” the former foster

 parents to the dependency and neglect case under C.R.C.P. 20. The

 court did so based on the former foster parents’ petitions to adopt

 the children.

¶9    After our court issued the mandate on the denial of the

 parents’ appeal, the Navajo Nation again moved to transfer

 jurisdiction in the dependency and neglect case. The Navajo Nation

 asserted that the tribal court was the proper venue for preadoptive

                                    3
  and adoptive placement proceedings regarding the children. The

  Department and the GAL stipulated to the Navajo Nation’s motion,

  but the former foster parents opposed it.

¶ 10   After a hearing, in which the Navajo Nation, the Department,

  the GAL, and the former foster parents participated, the juvenile

  court denied the Navajo Nation’s motion to transfer jurisdiction.

  The court also ordered the Department to place the children with

  the former foster parents pending the final hearing on their

  petitions to adopt.

¶ 11   The Navajo Nation and the Department moved to stay the

  juvenile court’s order denying the motion to transfer jurisdiction

  and placing the children with the former foster parents. But the

  court denied the motion to stay.

¶ 12   The Navajo Nation then filed in this court a notice of appeal

  and an emergency motion for a stay and requested that the children

  be kept in their current foster home rather than be placed with the

  former foster parents. A division of this court granted the stay and

  issued a show cause order asking the parties to address the finality

  of the court’s order denying the motion to transfer jurisdiction. To

  address the order’s finality, the division asked the parties to

                                     4
  respond to several questions, including whether the order was

  immediately appealable and whether there was any other basis for

  the court to exercise jurisdiction over this appeal.

¶ 13   We first address finality.

                                II. Finality

¶ 14   We conclude that a juvenile court’s order denying a tribe’s

  request to transfer jurisdiction to a tribal court is a final, appealable

  order based on the collateral order doctrine.

¶ 15   “Because we must always satisfy ourselves that we have

  jurisdiction to hear an appeal, we may raise jurisdictional defects

  sua sponte, regardless of whether the parties have raised the issue.”

  People v. S.X.G., 2012 CO 5, ¶ 9. This court has “no authority to

  expand [our] appellate jurisdiction [as] specified by” the General

  Assembly, Holdridge v. Bd. of Educ., 881 P.2d 448, 450-51 (Colo.

  App. 1994), and we cannot “modify the jurisdiction granted [us] by

  statute.” People v. Meyers, 43 Colo. App. 63, 64, 598 P.2d 526, 527

  (1979).

¶ 16   Once the General Assembly establishes a statutory right of

  judicial review, “such review must be sought in strict compliance

  with the mandatory provisions of the statute”; otherwise, the court

                                     5
  does not have jurisdiction “to act.” Mile High United Way, Inc. v. Bd.

  of Assessment Appeals, 801 P.2d 3, 5 (Colo. App. 1990); accord

  Barber v. People, 127 Colo. 90, 95, 254 P.2d 431, 434 (1953) (“[I]n

  an action which is entirely statutory, the procedure therein

  prescribed is the measure of the power of the tribunal to which

  jurisdiction of causes arising under the statute is given.”).

¶ 17   Section 19-1-109, C.R.S. 2018, of the Children’s Code governs

  our review of dependency and neglect proceedings. People in

  Interest of R.S. v. G.S., 2018 CO 31, ¶ 16. Regarding our review of

  these proceedings,

             [s]ubsection (1) [of section 19-1-109] states
             that an appeal may be taken from “any order,
             decree, or judgment,” “as provided in the
             introductory portion to section 13-4-102(1),
             C.R.S.” § 19-1-109(1). In turn, section 13-4-
             102(1) provides that the court of appeals shall
             have initial jurisdiction over appeals from
             “final judgments” of district courts, including
             juvenile courts that preside over dependency
             or neglect proceedings.

  Id. (footnote omitted).

¶ 18   “A final judgment is one which ends the particular action in

  which it is entered, leaving nothing further for the court

  pronouncing it to do in order to completely determine the rights of


                                     6
  the parties involved in the proceeding.” People in Interest of S.M.O.,

  931 P.2d 572, 573 (Colo. App. 1996) (citing Harding Glass Co. v.

  Jones, 640 P.2d 1123 (Colo. 1982)); see G.S., ¶ 37.

¶ 19   Generally, a court’s order denying a motion to transfer

  jurisdiction does not “end[] the particular action in which it is

  entered, leaving nothing further for the court pronouncing it to do.”

  S.M.O., 931 P.2d at 573. This is so because the denial, by its very

  nature, means that continued proceedings are to occur in the

  current forum. G.S., ¶ 37. And here, continued proceedings are to

  occur because the juvenile court has retained jurisdiction to

  consider the preadoptive and adoptive placements of the children.

¶ 20   But special considerations are in play when a court addresses

  a request by an Indian tribe to transfer jurisdiction to the tribal

  court because tribes are domestic dependent nations that exercise

  inherent sovereign authority over their members and territories.

  Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of

  Oklahoma, 498 U.S. 505, 507 (1991); see Cash Advance & Preferred

  Cash Loans v. State, 242 P.3d 1099, 1106 (Colo. 2010). Tribal

  sovereignty is an inherent, retained sovereignty that pre-dates

  European contact, the formation of the United States, the United

                                     7
  States Constitution, and individual statehood. Cash Advance, 242

  P.3d at 1107. And, under ICWA, “there is no resource that is more

  vital to the continued existence and integrity of Indian tribes than

  their children and . . . the United States has a direct interest, as

  trustee, in protecting Indian children who are members of or are

  eligible for membership in an Indian tribe.” 25 U.S.C. § 1901(3).

  Delaying appellate review of the juvenile court’s order would also

  imperil the Navajo Nation’s interest in protecting children who are

  members of or eligible for membership in the tribe, particularly at

  the preadoptive and adoptive stages of the case.

¶ 21   Thus, we apply the collateral order doctrine. See Cohen v.

  Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949) (There are

  some decisions that “finally determine claims of right separable

  from, and collateral to, rights asserted in the action, too important

  to be denied review and too independent of the cause itself to

  require that appellate consideration be deferred until the whole case

  is adjudicated.”).

¶ 22   The collateral order doctrine permits — in limited

  circumstances — appellate review of an interlocutory order despite

  its non-final nature. U.S. Taekwondo Comm. v. Kukkiwon, 2013

                                     8
  COA 105, ¶ 12. This doctrine takes “a ‘practical construction’ of the

  finality require[ment] . . . and permits, under highly circumscribed

  situations, interlocutory review of a trial court ruling even if the

  ruling is not the last decision issued in the case.” Id. (quoting Will

  v. Hallock, 546 U.S. 345, 349 (2006)); see also Paul v. People, 105

  P.3d 628, 631-32 (Colo. 2005) (noting that the Colorado supreme

  court has not decided whether the collateral order doctrine applies

  to final judgments under C.A.R. 1(a)).

¶ 23   Several cases support our application of the collateral order

  doctrine to a denial of a tribe’s request to transfer jurisdiction. See,

  e.g., In re Children of Shirley T., 199 A.3d 221, 224 n.6 (Me. 2019)

  (considering denial of a motion to transfer jurisdiction under ICWA

  “pursuant to the collateral order exception to the final judgment

  rule”); see also In re Interest of Brittany C., 693 N.W.2d 592, 602

  (Neb. Ct. App. 2005) (“We conclude that the trial court’s orders

  denying the requests to transfer jurisdiction affected a substantial

  right in a special proceeding and were, therefore, final, appealable

  orders.”); In re Adoption of A.B., 245 P.3d 711, 722 (Utah 2010)

  (stating the Navajo Nation could have appealed “the order denying

  the Nation’s motion for transfer of jurisdiction over the children”).

                                     9
¶ 24   “Pursuant to the collateral order doctrine, to be immediately

  appealable a decision must ‘[1] conclusively determine the disputed

  question, [2] resolve an important issue completely separate from

  the merits of the action, and [3] be effectively unreviewable on

  appeal from a final judgment.’” U.S. Taekwondo Comm., ¶ 13

  (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)).

  Regarding the third condition, “the decisive consideration is

  whether delaying review until the entry of final judgment ‘would

  imperil a substantial public interest’ or ‘some particular value of a

  high order.’” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 107

  (2009) (quoting Will, 546 U.S. at 352-53).

¶ 25   We conclude that the juvenile court’s order denying the Navajo

  Nation’s motion to transfer jurisdiction satisfies all three

  requirements of the collateral order doctrine.

¶ 26   First, the order “conclusively determine[d]” the disputed issue

  of whether the Navajo Nation has jurisdiction over preadoptive and

  adoptive placement proceedings concerning the children. U.S.

  Taekwondo Comm., ¶ 13.

¶ 27   Second, the order resolved an “important issue completely

  separate from the merits.” Id. We remain cognizant that the

                                     10
  underlying merits of this case involve the children’s adoption — a

  matter of great public importance. See, e.g., § 19-1-102(1)(d),

  C.R.S. 2018 (The Children’s Code is meant to ultimately “secure for

  any child removed from the custody of his parents the necessary

  care, guidance, and discipline to assist him in becoming a

  responsible and productive member of society.”). But the question

  at issue, whether the juvenile court erred by denying transfer of

  jurisdiction to the Navajo Nation, is separate from the ultimate

  resolution of the former foster parents’ adoption proceeding. And

  resolution of this proceeding will not address the validity of the

  juvenile court’s order denying transfer.

¶ 28   Third, the order is “effectively unreviewable on appeal,” U.S.

  Taekwondo Comm., ¶ 13, because delaying review would “imperil a

  substantial public interest,” Mohawk, 558 U.S. at 107 (quoting Will,

  546 U.S. at 352-53). Congress has told us that protecting Indian

  children is vital to the continued existence and integrity of Indian

  tribes and that “it is the policy of this Nation to protect the best

  interests of Indian children and to promote the stability and

  security of Indian tribes and families . . . .” 25 U.S.C. § 1902

  (2018); see Mohawk, 588 U.S. at 107. While a tribe may challenge

                                     11
  the denial of a motion to transfer jurisdiction following a final

  adoption decree, the children will have been placed in permanent

  homes. And if it is determined at that time that the court

  erroneously denied the motion to transfer jurisdiction, the

  children’s permanency would be seriously disrupted.

¶ 29   Accordingly, a juvenile court’s order denying a tribe’s motion

  to transfer jurisdiction in a proceeding involving an Indian child is

  an interlocutory order that may be immediately appealed under the

  collateral order doctrine. We therefore conclude that we have

  jurisdiction over the order on appeal and that the appeal may

  proceed.

¶ 30   We next address the question of standing.

                               III. Standing

¶ 31   We conclude that the former foster parents lack standing in

  the dependency and neglect case to oppose the Navajo Nation’s

  motion to transfer jurisdiction.

¶ 32   Whether a party has standing is a question of law that we

  review de novo. Boudette v. State, 2018 COA 109, ¶ 15.

¶ 33   “Standing is a threshold issue that must be satisfied in order

  to decide a case on the merits.” Ainscough v. Owens, 90 P.3d 851,

                                     12
  855 (Colo. 2004). To have standing, a party must have (1) suffered

  an injury in fact (2) to a legally protected interest. C.W.B. v. A.S.,

  2018 CO 8, ¶ 18. The legally protected interest requirement

  recognizes that “parties actually protected by a statute or

  constitutional provision are generally best situated to vindicate their

  own rights.” Id. (quoting City of Greenwood Village v. Petitioners for

  Proposed City of Centennial, 3 P.3d 427, 437 (Colo. 2000)).

¶ 34   We need not decide whether the former foster parents have

  standing to oppose the motion to transfer jurisdiction in the

  adoption cases because resolution of the jurisdiction question in

  this dependency and neglect case could result in vacating and

  dismissing the former foster parents’ petitions to adopt. See § 19-3-

  205(1), C.R.S. 2018; People in Interest of L.M., 2018 CO 34, ¶ 38

  (noting a “preference for addressing issues relating to a child’s

  status under the provisions of Article 3” when a dependency and

  neglect proceeding is pending). We thus consider whether the

  former foster parents have standing to oppose the motion in the

  dependency and neglect case.

¶ 35   We conclude that the former foster parents lack standing to

  oppose the transfer of jurisdiction for three reasons. First, the

                                     13
  former foster parents no longer have intervenor status. Foster

  parents may intervene as a matter of right and fully participate in

  dependency and neglect proceedings if “the child [is] in their care

  for more than three months” and they “have information or

  knowledge concerning the care and protection of the child.” § 19-3-

  507(5)(a), C.R.S. 2018; see People in Interest of O.C., 2013 CO 56,

  ¶¶ 16, 19-20; A.M. v. A.C., 2013 CO 16, ¶ 20 (“Foster parents who

  meet the required statutory criteria to intervene may participate

  fully in the termination hearing without limitation.”). But the

  former foster parents here do not meet these criteria. True, they

  properly intervened under section 19-3-507(5)(a), following

  adjudication and while the children were in their care. Yet, once

  the children were removed from their home following termination of

  parental rights, they no longer had intervenor status.

¶ 36   Second, the former foster parents do not have a

  constitutionally protected liberty interest in the continuation of

  their relationships with the children. See C.W.B., ¶ 26 (stating that

  section 19-3-507(5)(a) does not automatically confer standing to

  foster parents to appeal a judgment denying the termination



                                    14
  motion); M.S. v. People, 2013 CO 35, ¶ 21; People in Interest of

  A.W.R., 17 P.3d 192, 197 (Colo. App. 2000).

¶ 37   Third, civil joinder rules cannot confer standing in this case.

  This is so because the Colorado Rules of Civil Procedure only apply

  to dependency and neglect proceedings when the proceedings are

  not governed by the Colorado Rules of Juvenile Procedure or the

  procedures set forth in the Children’s Code. C.R.J.P. 1; see People

  in Interest of K.J.B., 2014 COA 168, ¶ 9; § 19-1-106(1), C.R.S. 2018.

  Because the Children’s Code, here section 19-3-507(5)(a), addresses

  persons who may intervene in a dependency and neglect

  proceeding, the Colorado Rules of Civil Procedure, and more

  specifically, C.R.C.P. 20, do not apply to allow intervention. See,

  e.g., L.O.W. v. Dist. Court, 623 P.2d 1253, 1257 n.15 (Colo. 1981)

  (Crim. P. 46 did not apply to the extent that it was inconsistent with

  the Children’s Code and the juvenile procedure rule regarding bail);

  see also Dash v. FirstPlus Home Loan Owner Tr. 1996-2, 248 F.

  Supp. 2d 489, 503 (M.D.N.C. 2003) (parties “cannot use joinder

  rules to cure their lack of standing”).




                                     15
¶ 38   For these reasons, the former foster parents lack standing in

  the dependency and neglect case to oppose the Navajo Nation’s

  motion to transfer jurisdiction.

                   IV. Motion to Transfer Jurisdiction

¶ 39   We last conclude that the juvenile court erroneously denied

  the Navajo Nation’s motion to transfer jurisdiction.

¶ 40   Initially, we acknowledge recent legislation that amends the

  Children’s Code’s ICWA-implementing provisions. H.B. 1232, 72nd

  Gen. Assemb., 1st Reg. Sess. (Colo. 2019). It conforms these

  provisions to the updated federal ICWA regulations. See id. Even

  so, we apply the law that existed at the time the juvenile court

  denied transfer of jurisdiction to the Navajo Nation. § 2-4-202,

  C.R.S. 2018 (“A statute is presumed to be prospective in its

  operation.”); AviComm, Inc. v. Colo. Pub. Utils. Comm’n, 955 P.2d

  1023, 1029 (Colo. 1998) (“Absent clear legislative intent to the

  contrary, statutes are given prospective application only.”).

¶ 41   Under ICWA, “the state and the tribe have concurrent

  jurisdiction over Indian children who live off the reservation.”

  People in Interest of T.E.R., 2013 COA 73, ¶ 7. The tribal court,

  however, is the preferred jurisdiction. People in Interest of J.L.P.,

                                     16
  870 P.2d 1252, 1256 (Colo. App. 1994). Thus, in the absence of

  good cause and upon request by “either parent or the Indian

  custodian or the Indian child’s tribe,” the state court must transfer

  jurisdiction to the tribal court. 25 U.S.C. § 1911(b); People in

  Interest of A.T.W.S., 899 P.2d 223, 224 (Colo. App. 1994); J.L.P.,

  870 P.2d at 1256.

¶ 42   Although ICWA does not define good cause to deny transfer,

  the Bureau of Indian Affairs has issued guidelines for determining

  whether good cause exists. Bureau of Indian Affairs, Guidelines for

  Implementing the Indian Child Welfare Act (Dec. 2016),

  https://perma.cc/3TCH-8HQM (2016 Guidelines); see Notice of

  Guidelines, 81 Fed. Reg. 96, 476 (Dec. 30, 2016). The 2016

  Guidelines provide that the good cause provision “is intended to

  permit a State court to apply a modified doctrine of forum non

  conveniens, in appropriate cases, to insure that the rights of the

  child as an Indian, the Indian parents or custodian, and the Tribe

  are fully protected.” 2016 Guidelines at 48-49.

¶ 43   Under the Children’s Code, the party opposing transfer of

  jurisdiction bears the burden of proof for establishing good cause to

  deny the transfer. § 19-1-126(4)(b), C.R.S. 2018; T.E.R., ¶ 9.

                                    17
  And in reviewing a juvenile court’s denial of a motion to transfer

  jurisdiction, we examine the record to determine whether

  substantial evidence supports the court’s findings. T.E.R., ¶ 9;

  J.L.P., 870 P.2d at 1256.

¶ 44   We initially note that even though the juvenile court found

  that ICWA does not apply to the Navajo Nation’s motion to transfer

  jurisdiction, it nonetheless exercised its discretion and considered

  the request.

¶ 45   We acknowledge that ICWA only addresses a request to

  transfer jurisdiction during foster care placement and termination

  of parental rights proceedings. 25 U.S.C. § 1911(b). It does not

  mention such a request during preadoptive or adoptive placement

  proceedings. See id. Even so, the Children’s Code, as it existed at

  the time the juvenile court denied transfer, permits a juvenile court

  to consider transfer of jurisdiction to a tribal court “[i]n any of the

  cases identified in subsection (1) of this section involving an Indian

  child.” § 19-1-126(1), (4)(a). The cases identified in subsection (1)

  include “pre-adoptive and adoption proceedings.” § 19-1-126(1).

¶ 46   As noted, the Navajo Nation, the Department, and the GAL

  stipulated to the motion. And because the former foster parents

                                     18
  lack standing to oppose the motion, they should have been

  precluded from participating in the matter and presenting evidence

  of good cause to deny the transfer. Thus, because no party with

  standing opposed the transfer, no party met the burden of opposing

  transfer of jurisdiction. See § 19-1-126(4)(b).

¶ 47   Accordingly, we conclude that the juvenile court erred by

  denying the Navajo Nation’s motion to transfer jurisdiction.

                              V. Conclusion

¶ 48   We reverse the juvenile court’s order denying the Navajo

  Nation’s motion to transfer jurisdiction.

¶ 49   We remand this case to the juvenile court with directions to (1)

  transfer jurisdiction to the Navajo Nation’s tribal court and (2)

  vacate and dismiss the former foster parents’ petitions to adopt.

       JUDGE DUNN and JUDGE WELLING concur.




                                    19
