     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
                                                                June 27, 2019

                                2019COA96

No. 17CA1482, In re the Marriage of Stockwell — Family Law
— Parental Responsibilities; American Indian Law — ICWA —
Placement of Indian Children — Foster Care or Preadoptive
Placements

     In a case concerning the allocation of parental responsibilities

for a child (APR), a division of the court of appeals considers

whether the APR triggered the requirements of the federal Indian

Child Welfare Act of 1978 (ICWA). The division clarifies that (1) a

legal father under Colorado law is not necessarily a “parent” for

purposes of ICWA and (2) an APR to a legal father who does not

qualify as a “parent” under ICWA is a “child custody proceeding”

subject to ICWA.

     Because the APR to the legal father here constituted a child

custody proceeding and the district court did not comply with
ICWA, we reverse the order denying the mother’s motion to vacate

the APR order, and we remand for further proceedings.
COLORADO COURT OF APPEALS                                  2019COA96


Court of Appeals No. 17CA1482
City and County of Denver District Court No. 12DR1367
Honorable Catherine A. Lemon, Judge


In re the Marriage of

Joseph Cody Stockwell,

Appellee,

and

Jennifer Lynn Dees,

Appellant.


                        ORDER REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                   Division VI
                          Opinion by JUDGE NAVARRO
                        Richman and Welling, JJ., concur

                           Announced June 27, 2019


Joseph Cody Stockwell, Pro Se

Jennifer Lynn Dees, Pro Se
¶1    In this proceeding concerning the allocation of parental

 responsibilities (APR) for L.D-S., Jennifer Lynn Dees, the child’s

 mother, appeals the district court’s order denying her motion to

 vacate a 2013 order giving majority parenting time to Joseph Cody

 Stockwell, the child’s legal but not biological father. Dees contends

 that the court erred because it issued the APR order without first

 inquiring into the child’s possible Indian heritage as required by the

 Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901 to 1963

 (2018). Dees is right. In agreeing with her, we clarify that (1) a

 legal father under Colorado law is not necessarily a “parent” for

 purposes of ICWA and (2) an APR to a legal father who does not

 qualify as a “parent” under ICWA is a “child custody proceeding”

 under ICWA.

¶2    Because the APR to Stockwell here constituted a child custody

 proceeding and the court did not comply with ICWA, we reverse the

 order denying Dees’s motion and remand for further proceedings.

                  I. Factual and Procedural History

¶3    L.D-S. was born during the marriage between Dees and

 Stockwell. That marriage has since been dissolved. Although

 Stockwell is not L.D-S.’s biological father, he was declared his legal


                                    1
 father under the paternity presumption in section 19-4-105(1)(a),

 C.R.S. 2018. On October 2013, the district court entered an APR

 order that named Stockwell the primary residential parent for L.D-

 S. and limited Dees’s parenting time to weekends. Over the next

 few years, the court expanded Dees’s parenting time to include

 holidays, school breaks, and two weeks of summer vacation.

¶4    In 2015, Dees asked the court to set aside the October 2013

 APR order. She alleged that she had obtained a DNA test result

 from L.D-S.’s biological father that would rebut Stockwell’s

 paternity presumption. A magistrate denied her motion, and the

 district court adopted the magistrate’s order.

¶5    In 2017, Dees filed a pro se motion titled “Motion for 25 U.S.C.

 1914 ‘ICWA’ Violations,” arguing that federal law required L.D-S. to

 be returned to her care (hereinafter, ICWA motion). She attached to

 the ICWA motion various orders (including the October 2013 APR

 order) and a letter asking the district court to invalidate all

 parenting orders, return L.D-S. to her custody, and comply with

 ICWA. She asserted in her letter that L.D-S. was “Choctaw and

 Wailaki on my side only” and that the APR to Stockwell was a

 “foster care placement.” The court denied the motion as untimely.


                                     2
                         II. ICWA Compliance

                          A. Basic Principles

¶6    ICWA is intended to protect and preserve Indian tribes and

 their resources, and to protect Indian children who are members of

 or are eligible for membership in an Indian tribe. 25 U.S.C.

 § 1901(2), (3) (2018); People in Interest of M.V., 2018 COA 163, ¶ 10.

 ICWA recognizes that Indian tribes have a separate interest in

 Indian children that is equivalent to, but distinct from, parental

 interests. M.V., ¶ 10. Thus, in a proceeding in which ICWA may

 apply, tribes must have a meaningful opportunity to participate in

 determining whether a child who is a subject of the proceeding is an

 Indian child and to be heard on the issue of the applicability of

 ICWA. B.H. v. People in Interest of X.H., 138 P.3d 299, 303 (Colo.

 2006).

¶7    ICWA applies when an Indian child is the subject of a “child

 custody proceeding,” which includes any action that could

 culminate in “foster care placement.” 25 U.S.C. § 1903(1) (2018);

 25 C.F.R. § 23.2 (2018); People in Interest of K.G., 2017 COA 153,

 ¶ 14. An “Indian child” is any unmarried person who is under age

 eighteen and is either (1) a member of an Indian tribe or (2) eligible


                                    3
  for membership in an Indian tribe and is the biological child of a

  member of an Indian tribe. 25 U.S.C. § 1903(4). Under ICWA, a

  tribe is entitled to intervene in child custody proceedings involving

  its children, and a tribal court is the preferred jurisdiction for such

  proceedings. K.G., ¶ 6.

¶8     At the start of every emergency, voluntary, or involuntary child

  custody proceeding, the district court must ask each participant

  whether he or she knows or has reason to know that the child is an

  Indian child. 25 C.F.R. § 23.107(a) (2018); K.G., ¶ 21. All

  responses should be on the record. 25 C.F.R. § 23.107(a).

¶9     It is “critically important” that the court inquire into whether a

  child is an Indian child because, if an inquiry is not made, “a

  child-custody proceeding may not comply with ICWA and thus may

  deny ICWA protections to Indian children and their families.”

  Bureau of Indian Affairs, Guidelines for Implementing the Indian

  Child Welfare Act 11 (Dec. 2016), https://perma.cc/3TCH-8HQM;

  see also People in Interest of C.A., 2017 COA 135, ¶ 17.

¶ 10   If the court has reason to know that the child is an Indian

  child but has insufficient evidence to make a determination, the

  court must treat the child as an Indian child unless and until the


                                     4
  court determines on the record that the child does not meet the

  definition of an Indian child. 25 C.F.R. § 23.107(b)(2). A court has

  reason to know a child is an Indian child if, among other reasons

  not relevant here, any participant in the proceeding informs the

  court that (1) the child is an Indian child or (2) the participant has

  discovered information indicating that the child is an Indian child.

  25 C.F.R. § 23.107(c)(1)-(2); People in Interest of L.L., 2017 COA 38,

  ¶ 21.

¶ 11      Whether ICWA’s provisions were satisfied is a question of law

  that we review de novo. L.L., ¶ 46.

                    B. Timeliness of Dees’s ICWA Motion

¶ 12      We first address the district court’s reason for denial. The

  court noted that Dees’s ICWA motion sought to reconsider a

  September 3, 2013, order. (In fact, the motion also sought

  reconsideration of the October 2013 APR order.) The court cited

  C.R.C.P. 121, section 1-15(11), which provides that motions to

  reconsider interlocutory orders shall be filed within fourteen days of

  the order unless the moving party shows good cause for not filing

  within that time. Finding that Dees had filed the ICWA motion




                                       5
  1382 days after the September 2013 order and had not shown good

  cause for the delay, the court denied the motion as untimely.

¶ 13   According to ICWA, however, an Indian child who is the

  subject of an action for foster care placement or termination of

  parental rights, any parent or Indian custodian from whose custody

  such child was removed, and the Indian child’s tribe may petition a

  court of competent jurisdiction to invalidate such action upon a

  showing that the action violated ICWA provisions. 25 U.S.C. § 1914

  (2018). ICWA places no time limit on such a petition. Moreover,

  barring a parent’s ICWA claim as untimely or waived under state

  law would contradict our supreme court’s recognition that ICWA is

  also intended to protect the tribe, which was not at fault for the

  timing of the ICWA claim and whose interest may have been

  harmed. See B.H., 138 P.3d at 304 (“Because the protection of a

  separate tribal interest is at the core of the ICWA, otherwise

  sufficiently reliable information cannot be overcome by the

  statements, actions, or waiver of a parent, or disregarded as

  untimely.”) (citations omitted); see also Mississippi Band of Choctaw

  Indians v. Holyfield, 490 U.S. 30, 49 (1989) (“Tribal jurisdiction

  under § 1911(a) was not meant to be defeated by the actions of


                                     6
  individual members of the tribe, for Congress was concerned not

  solely about the interests of Indian children and families, but also

  about the impact on the tribes themselves of the large numbers of

  Indian children adopted by non-Indians.”); cf. People in Interest of

  D.B., 2017 COA 139, ¶ 8 (ICWA compliance claims may be raised

  for the first time on appeal).

¶ 14   Finally, as we will explain, the APR order here constituted a

  foster care placement. Therefore, the district court erred in denying

  Dees’s ICWA motion as untimely. In addition, because the record

  does not show that the court complied with ICWA, we reverse the

  order denying the ICWA motion and remand for further proceedings

  as discussed below.

              C. Was the APR a Child Custody Proceeding?

¶ 15   Dees argues that the district court failed to comply with ICWA

  before issuing the October 2013 APR order. Stockwell responds

  that ICWA is inapplicable because he and Dees are parents of

  L.D-S. Stockwell is correct that ICWA does not apply to an award of

  custody to one of the parents, including in a divorce proceeding. 25

  C.F.R. § 23.103(b)(3) (2018); see also In re J.B., 100 Cal. Rptr. 3d

  679, 682 (Cal. Ct. App. 2009) (a child custody proceeding does not


                                     7
  include a proceeding in which a child is removed from one parent

  and placed with the other because placement with a parent is not

  foster care). But whether Stockwell qualifies as a parent for

  purposes of ICWA requires a closer look.

¶ 16   As relevant here, a “parent” under ICWA is defined as “any

  biological parent or parents of an Indian child or any Indian person

  who has lawfully adopted an Indian child, including adoptions

  under tribal law or custom.” 25 U.S.C. § 1903(9). By defining this

  critical term, Congress has expressed its intention that the word is

  not subject to definition by state courts. Cf. Holyfield, 490 U.S. at

  45 (“Under these circumstances it is most improbable that

  Congress would have intended to leave the scope of the statute’s

  key jurisdictional provision subject to definition by state courts as a

  matter of state law.”).

¶ 17   As noted, Stockwell is L.D-S.’s legal father. Based on this

  status, he enjoys all the rights and responsibilities of legal

  fatherhood under state law. See N.A.H. v. S.L.S., 9 P.3d 354, 359

  (Colo. 2000); In re Parental Responsibilities Concerning A.D., 240

  P.3d 488, 492 (Colo. App. 2010). But Stockwell is neither L.D-S.’s




                                     8
  biological parent nor an Indian person who has adopted the child.

  So, Stockwell is not a parent as defined by ICWA.

¶ 18   Because Stockwell is not L.D-S.’s parent under ICWA, we

  consider whether the APR to Stockwell was a “foster care

  placement,” which is defined as

            any action removing an Indian child from its
            parent or Indian custodian for temporary
            placement in a foster home or institution or
            the home of a guardian or conservator where
            the parent or Indian custodian cannot have
            the child returned upon demand, but where
            parental rights have not been terminated[.]

  25 U.S.C. § 1903(1)(i). Unlike “parent,” the terms “foster home,”

  “institution,” “guardian,” or “conservator” are not defined by ICWA.

  We therefore look to state law and the well-accepted meanings of

  the terms. See Holyfield, 490 U.S. at 47.

¶ 19   A “guardian” has the duties and powers of a parent regarding

  a minor ward’s support, care, education, health, and welfare. See

  §§ 15-14-207(1), -208(1), -314(1), C.R.S. 2018. Stockwell has

  primary parenting time with L.D-S., sole decision-making for the

  child’s educational needs, and joint decision-making for other

  child-related issues. These responsibilities place Stockwell squarely

  within the role of L.D-S.’s “guardian”; hence, the APR to Stockwell


                                    9
  was a foster care placement under ICWA. See K.G., ¶ 16

  (recognizing that involuntary APR to aunt and uncle constituted

  placement with guardians).1

¶ 20   A foster care placement, which here takes the form of an APR

  to a person who is not a parent under ICWA, is a child custody

  proceeding under ICWA because the parent cannot have the child

  returned upon demand but must instead overcome procedural and

  substantive barriers to regain custody and control of the child. See

  id. at ¶¶ 14, 17-18; see also 25 C.F.R. § 23.2 (“Upon demand means

  that the parent or Indian custodian can regain custody simply upon

  verbal request, without any formalities or contingencies.”).

¶ 21   In sum, the APR to Stockwell was a child custody proceeding

  for purposes of ICWA. The district court, however, did not inquire

  into whether L.D-S. was an Indian child. That was error requiring a

  remand for further proceedings. See 25 U.S.C. § 1914.




  1Because we conclude that Stockwell is a guardian, we need not
  consider whether he qualifies as a “foster home,” an “institution,” or
  a “conservator.”

                                    10
                         III. Remand Directions

¶ 22   On remand, the district court should procure the appearance,

  if possible, of Dees and Stockwell so that it may make inquiries on

  the record. See 25 C.F.R. § 23.107. If those inquiries reveal that

  the court knows or has reason to know that L.D-S. is an Indian

  child, the court must comply with ICWA’s notice provisions. See

  § 25 U.S.C. § 1912(a) (2018).

¶ 23   We recognize that a county department of human services or

  the petitioning party typically bears the burden to send notice to a

  tribe. See 25 C.F.R. 23.111(a)(1) (2018); § 19-1-126(1)(b), C.R.S.

  2018; L.L., ¶¶ 24, 33-35. But, because no department is involved

  here and both parties are pro se, the district court shall bear the

  burden to send any required notices. See People in Interest of

  I.B.-R., 2018 COA 75, ¶ 6 (federal regulations and guidelines

  implementing ICWA impose a duty of inquiry and notice on trial

  courts); cf. 25 C.F.R. § 23.111(a)(1) (court must ensure that proper

  notices are sent).

¶ 24   In particular, the court must notify any relevant tribe, by

  registered mail with return receipt, of the pending child custody

  proceeding and its right to intervene. L.L., ¶¶ 34-35. The court


                                    11
  should provide sufficient information for the tribe to determine

  whether L.D-S. is a member or eligible for membership. Id. at ¶ 37.

  The notice must include:

             (1) The child’s name, birthdate, and birthplace;

             (2) All names known (including maiden,
             married, and former names or aliases) of the
             parents, the parents’ birthdates and
             birthplaces, and Tribal enrollment numbers if
             known;

             (3) If known, the names, birthdates,
             birthplaces, and Tribal enrollment information
             of other direct lineal ancestors of the child,
             such as grandparents; [and]

             (4) The name of each Indian Tribe in which the
             child is a member (or may be eligible for
             membership if a biological parent is a
             member)[.]

  25 C.F.R. § 23.111(d); L.L., ¶ 37.

¶ 25   The notice must also include a copy of the petition, complaint,

  or other document by which the child custody proceeding was

  initiated and, if a hearing has been scheduled, information on the

  date, time, and location of the hearing, and various statements

  related to the tribe’s right to intervene and petition for a transfer.

  25 C.F.R. § 23.111(d)(5)-(6); L.L., ¶ 38. The court must afford the

  tribe a reasonable amount of time to respond to notices sent. See


                                       12
  25 U.S.C. § 1912(a). Section 1912(a) provides that no foster care

  placement hearing shall be held until at least ten days after the

  tribe’s receipt of notice. This section further provides that a tribe

  shall be granted an additional twenty days to prepare for such

  proceeding if the tribe so requests. Id.

¶ 26   After receiving responses from the tribe, or after the expiration

  of the time permitted for response by section 1912(a) or a

  reasonable additional time as permitted by the court, the court

  shall enter factual findings and legal conclusions regarding the

  application of ICWA. If the court determines that L.D-S. is an

  Indian child, then the court must vacate the October 2013 APR

  order (and its later modifications) and proceed in accordance with

  ICWA. See L.L., ¶ 56.

¶ 27   But if neither party claims that he or she is affiliated with a

  tribe, that L.D-S. is an Indian child, or that he or she has

  discovered information indicating that L.D-S. is an Indian child, the

  court may find on the record that it has no reason to know that

  L.D-S. is an Indian child. Or, if, after notices to tribes are sent, no

  tribe determines that L.D-S. is a member or that L.D-S. is eligible

  for membership and Dees is a member, the court may find on the


                                     13
  record that L.D-S. is not an Indian child. In either scenario, the

  October 2013 APR order (and its modifications) shall stand, subject

  to the parties’ right to appeal the court’s ICWA findings. See id.

                             IV. Conclusion

¶ 28   We reverse the order denying Dees’s ICWA motion and remand

  for the district court to comply with ICWA’s provisions as discussed

  herein.

¶ 29   The current parenting time order will remain in place pending

  the district court’s compliance with this opinion and ICWA.

       JUDGE RICHMAN and JUDGE WELLING concur.




                                    14
