COLORADO COURT OF APPEALS                                           2017COA38


Court of Appeals No. 16CA1222
City and County of Denver Juvenile Court No. 16JV510
Honorable D. Brett Woods, Judge


The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of L.L., a Child,

and Concerning A.T.,

Respondent-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                    Division VI
                           Opinion by JUDGE FURMAN
                           Terry and Plank*, JJ., concur

                            Announced March 23, 2017


Cristal D. Torres, City Attorney, Laura Grzetic Eibsen, Assistant City Attorney,
Denver, Colorado, for Petitioner-Appellee

Debra W. Dodd, Greeley, Colorado, for Respondent-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1    In this dependency and neglect case, mother, A.T., told the

 juvenile court at a shelter hearing that she had possible Apache

 Native American ancestry. But, for reasons not disclosed in the

 record, the parties and the juvenile court did not follow certain

 procedures mandated by the Indian Child Welfare Act of 1978

 (ICWA), 25 U.S.C. §§ 1901-1963 (2012); see § 19-1-126, C.R.S.

 2016. Following a jury verdict, the court adjudicated the child, L.L.,

 dependent and neglected. The court then held a dispositional

 hearing.

¶2    On appeal, mother contends that we should reverse the

 adjudicatory judgment for two reasons: (1) the Denver Department

 of Human Services (Department) did not comply with the ICWA

 notice requirements; and (2) the juvenile court violated ICWA by not

 requiring the jury to base its findings on a heightened clear and

 convincing evidentiary standard. We agree with mother that the

 Department did not comply with the ICWA notice requirements.

 But, we disagree that ICWA imposes a heightened evidentiary

 standard at the adjudicatory hearing. Thus, we reverse the

 judgment and remand the case with directions that notice be given

 in accordance with ICWA.


                                   1
                 I. Mother’s Alleged Apache Heritage

¶3    A truancy court magistrate ordered the Department to

 investigate this case based on mother refusing to take her son, L.L.,

 to school. A recording from a cell phone showed L.L. cowering in a

 corner of a bedroom, while mother yelled and threatened to beat

 him with a belt. The Department subsequently filed a petition in

 dependency and neglect, which alleged mother had refused to

 cooperate with a Denver Police welfare check. She told the

 authorities that L.L. was staying with family in Rifle, Colorado, but

 would not provide an address, and that she had bipolar disorder,

 but had not been taking her medications.

¶4    At a shelter hearing, mother denied the allegations in the

 petition and requested a jury trial. She also stated that she had

 Apache heritage, although she did not subsequently fill out an

 ICWA assessment form. The Bureau of Indian Affairs (BIA) lists

 eight Apache Tribes on its website, https://perma.cc/MHN5-B3F7:

 Jicarilla Apache Nation, Mescalero Apache Tribe, San Carlos

 Apache Tribe, Tonto Apache Tribe of Arizona, White Mountain

 Apache Tribe of the Fort Apache Reservation, Yavapai-Apache

 Nation of the Camp Verde Indian Reservation, Fort Sill Apache Tribe


                                   2
 of Oklahoma, and Apache Tribe of Oklahoma. Two months later,

 mother filed written information that included tribal card numbers

 and roll numbers.

¶5    Even so, the Department did not send notice of the

 proceedings to any of the Apache Tribes.

¶6    At a pretrial hearing, mother again stated that she had Indian

 heritage. But, at that hearing, the juvenile court did not address

 whether the Department used due diligence to identify and work

 with an Apache Tribe to verify whether L.L. is a member or is

 eligible for membership. And, the court did not treat L.L. as an

 Indian child pending the Tribes’ verification.

¶7    On the first day of the adjudicatory hearing, the juvenile court

 instructed the jury that the Department had the burden of proving

 the allegations set forth in the petition by a preponderance of the

 evidence. The court did not address whether ICWA applied. Mother

 did not object to the court’s preponderance instruction.

¶8    Based on the jury’s verdict, the juvenile court adjudicated L.L.

 dependent and neglected.




                                    3
                      II. The Application of ICWA

¶9     The positions of the parties before the juvenile court

  demonstrate significant confusion about the application of ICWA

  and the practices to be followed in implementing it. For example:

          At the shelter hearing, the Department acknowledged

            that it would send notices. But, at a pretrial hearing, the

            Department did not indicate whether notices to any

            Apache Tribes had been sent. In the end, the

            Department did not send notice to any Apache Tribe, and

            concedes so on appeal.

          L.L.’s guardian ad litem (GAL) voiced no position

            regarding ICWA’s applicability to this case, and does not

            assert any position on appeal.

          Mother did not state that she was enrolled in an Apache

            Tribe or that L.L. was eligible for membership. Rather,

            she asserted that her great grandmother was “an Apache

            out of Nebraska”; she had “the bloodline”; and she “was

            able to continue with the enrollment process.”

¶ 10   To address the application of ICWA to this case, we first

  discuss Congress’s purpose in enacting ICWA. We then discuss the

                                     4
  roles of the juvenile court and the parties in determining whether a

  child is an “Indian child” under ICWA. We conclude by addressing

  mother’s two arguments on appeal that: (1) the Department did not

  comply with ICWA’s notice requirements; and (2) ICWA imposes a

  heightened evidentiary standard at the adjudicatory hearing.

                A. Congress’s Purpose in Enacting ICWA

¶ 11   Congress enacted ICWA “for the protection and preservation of

  Indian tribes and their resources.” 25 U.S.C. § 1901(2) (2012).

  Congress found “that an alarmingly high percentage of Indian

  families are broken up by the removal, often unwarranted, of their

  children from them by nontribal public and private agencies and

  that an alarmingly high percentage of such children are placed in

  non-Indian foster and adoptive homes and institutions.” 25 U.S.C.

  § 1901(4). Congress also found that States have often “failed to

  recognize the essential tribal relations of Indian people and the

  cultural and social standards prevailing in Indian communities and

  families.” 25 U.S.C. § 1901(5).

¶ 12   To address this failure, ICWA establishes “minimum Federal

  standards for the removal of Indian children from their families and

  the placement of such children in foster or adoptive homes which


                                    5
  will reflect the unique values of Indian culture.” 25 U.S.C. § 1902

  (2012). In other words, ICWA establishes minimum federal

  standards for an “Indian child” involved in a “child custody

  proceeding.” 25 U.S.C. § 1903(1),(4) (2012).

¶ 13   Of course, ICWA does not apply to every child-custody

  proceeding. Hence, in any such proceeding, the parties and

  juvenile court must ask two fundamental questions to determine

  whether ICWA applies to a case: (1) Does ICWA apply to this child?

  (2) Does ICWA apply to the proceeding? See Bureau of Indian

  Affairs, Guidelines for Implementing the Indian Child Welfare Act 9

  (Dec. 2016), https://perma.cc/3TCH-8HQM (2016 Guidelines).

              B. The Juvenile Court and the Parties’ Role

¶ 14   The juvenile court and the parties each play an important role

  in determining whether ICWA applies to a child who is subject to a

  custody proceeding.

¶ 15   On appeal, the Department cites the 2015 Guidelines for State

  Courts and Agencies in Indian Child Custody Proceedings (2015

  Guidelines) and 2016 Department of the Interior Final Rule (2016

  Final Rule) as guidance to State courts related to inquiry and

  verification issues in Indian Child Welfare Act proceedings. See


                                    6
  Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778 (June

  14, 2016) (to be codified at 25 C.F.R. pt. 23); Guidelines for State

  Courts and Agencies in Indian Child Custody Proceedings, 80 Fed.

  Reg. 10,146 (Feb. 25, 2015). In 2016, the BIA published new

  guidelines intended “to assist those involved in child custody

  proceedings in understanding and uniformly applying” ICWA. 2016

  Guidelines at 4, 6. The 2016 Guidelines repeal the 2015 Guidelines

  and incorporate the 2016 Final Rule. Id. The 2016 Guidelines thus

  clarify the practices of courts and parties involved in child custody

  proceedings to ensure compliance with ICWA, and the Department

  appears to concede their value in doing so.

¶ 16   Although the 2016 Guidelines are not binding, we consider

  them persuasive. See B.H. v. People in Interest of X.H., 138 P.3d

  299, 302 n.2 (Colo. 2006) (referring to the 1979 guidelines).

  Therefore, we look to the 2016 Guidelines for guidance to ensure

  compliance with ICWA.

¶ 17   In determining whether ICWA applies to a child who is subject

  to a dependency and neglect proceeding, the juvenile court, the

  Department, the GAL, and the respondent parent each have various

  duties. We address them here.


                                     7
                     1. The Juvenile Court’s Duties

¶ 18   The juvenile court’s duty is to ask whether the child is an

  “Indian child,” follow certain procedures if it has reason to know a

  child is an Indian child, and, if the child is not an Indian child,

  instruct the parties to inform the court if they later receive

  information that provides reason to know the child is an Indian

  child. 25 C.F.R. § 23.107 (2016).

                             a. Initial Inquiry

¶ 19   The juvenile court must first ask each participant on the

  record at the commencement of every emergency, voluntary, or

  involuntary child-custody proceeding “whether the participant

  knows or has reason to know that the child is an Indian child.” 25

  C.F.R. § 23.107(a); see § 19-1-126(2) (When the petition “does not

  disclose whether the child” is an Indian child, “the court shall

  inquire of the parties at the first hearing whether the child is an

  Indian child and, if so, whether the parties have complied with the

  procedural requirements” of ICWA.).

¶ 20   An “Indian child” means “any unmarried person who is under

  the age of eighteen and is either: (a) a member of an Indian tribe or

  (b) is eligible for membership in an Indian tribe and is the biological


                                      8
  child of a member of an Indian tribe[.]” 25 U.S.C. § 1903(4); see 19-

  1-103(65.3), C.R.S. 2016. Tribal membership for purposes of ICWA

  is left up to the individual Tribes. B.H., 138 P.3d at 303.

                           b. Reason to Know

¶ 21   The juvenile court also has certain duties if it has “reason to

  know” that a child is an Indian child. 25 C.F.R. § 23.107. The

  juvenile court has “reason to know” that a child is an Indian child

  based on any of the following:

          (1) Any participant in the proceeding, officer of
             the court involved in the proceeding, Indian
             Tribe, Indian organization, or agency informs
             the court that the child is an Indian child;

          (2) Any participant in the proceeding, officer of
             the court involved in the proceeding, Indian
             Tribe, Indian organization, or agency informs
             the court that it has discovered information
             indicating that the child is an Indian child;

          (3) The child who is the subject of the proceeding
             gives the court reason to know he or she is an
             Indian child;

          (4) The court is informed that the domicile or
             residence of the child, the child’s parent, or the
             child’s Indian custodian is on a reservation or
             in an Alaska Native village;

          (5) The court is informed that the child is or has
             been a ward of a Tribal court; or



                                     9
          (6) The court is informed that either parent or the
             child possesses an identification card
             indicating membership in an Indian Tribe.

  25 C.F.R. § 23.107(c).

¶ 22   The supreme court has determined that the information

  indicating that a child is an Indian child is based on the “totality of

  the circumstances” and includes “consideration of not only the

  nature and specificity of available information but also the

  credibility of the source of that information and the basis of the

  source’s knowledge.” B.H., 138 P.3d at 303. But, the supreme

  court cautioned that “the threshold requirement for notice was

  clearly not intended to be high.” Id.; see 25 C.F.R. § 23.106(b)

  (2016) (“[W]here applicable State . . . law provides a higher standard

  of protection to the rights of the parent or Indian custodian than

  the protection accorded under the Act, ICWA requires the State . . .

  to apply the higher State . . . standard.”).

¶ 23   Thus, based on a totality of the circumstances, if there is

  “reason to know” the child is an Indian child, but the juvenile court

  does not have sufficient evidence to determine whether the child is

  or is not an “Indian child,” the court must do several things. 25

  C.F.R. § 23.107.


                                     10
¶ 24   First, the juvenile court must ensure that the Department

  sends notice to any identified Indian Tribe. That is, when the

  juvenile court knows or has reason to know that the subject of an

  involuntary foster-care-placement or termination-of-parental-rights

  proceeding is an Indian child, the court must ensure that the

  following occurs:

            (1) The party seeking placement promptly
            sends notice of each such child-custody
            proceeding (including, but not limited to, any
            foster-care placement or any termination of
            parental or custodial rights) . . . ; and

            (2) An original or a copy of each notice sent . . .
            is filed with the court together with any return
            receipts or other proof of service.

  25 C.F.R. § 23.111(a) (2016).

¶ 25   The court must then “[c]onfirm, by way of a report,

  declaration, or testimony included in the record” that the

  department used due diligence to

            identify and work with all of the Tribes of
            which there is reason to know the child may be
            a member (or eligible for membership) [and] to
            verify whether the child is in fact a member (or
            a biological parent is a member and the child
            is eligible for membership)[.]

  25 C.F.R. § 23.107(b)(1); see § 19-1-126(2).



                                    11
¶ 26   Second, the court must “[t]reat the child as an Indian child,

  unless and until it is determined on the record that the child does

  not meet the definition of an ‘Indian child.’” 25 C.F.R.

  § 23.107(b)(2).

           c. Subsequent Information if Not an Indian Child

¶ 27   If the child is not an Indian child, the juvenile court must

  “instruct the parties to inform the court if they subsequently receive

  information that provides reason to know the child is an Indian

  child.” 25 C.F.R. § 23.107(a).

            The rule does not require an inquiry at each
            hearing within a proceeding; but, if a new
            child-custody proceeding (such as a
            proceeding to terminate parental rights or for
            adoption) is initiated for the same child, the
            court must make a finding as to whether there
            is “reason to know” that the child is an Indian
            child. In situations in which the child was not
            identified as an Indian child in the prior
            proceeding, the court has a continuing duty to
            inquire whether the child is an Indian child.

  2016 Guidelines at 11.

¶ 28   Accordingly, the juvenile court plays an important role in

  determining whether ICWA applies to a child subject to a custody

  proceeding by inquiring as to whether the participants know or

  have reason to know that the child is an “Indian child” and


                                    12
  ensuring that notice is sent to those Tribes of which there is reason

  to know the child is a member or eligible for membership.

                       2. The Department’s Duties

¶ 29   The Department’s duties are to investigate whether the child is

  an “Indian child,” provide notice to any identified Indian Tribes, and

  confirm that it used due diligence to identify and work with any

  Tribes of which there is reason to know that the child may be a

  member or eligible for membership.

                             a. Initial Inquiry

¶ 30   The Department’s first duty is to determine whether the child

  is an Indian child “as soon as possible” and investigate “into a

  child’s status early in the case.” 2016 Guidelines at 11; see 25

  C.F.R. § 23.107(b)(1). This inquiry should occur before any court

  hearing.

¶ 31   If the Department learns of a possible tribal affiliation, the

  Department should “ask the child, parents, and potentially

  extended family which Tribe(s) they have an affiliation with and

  obtain genealogical information from the family, and contact the

  Tribe(s) with that information.” See 2016 Guidelines at 11; see 25

  C.F.R. § 23.107(b)(1). If a child or parent is not certain of his or her


                                     13
  membership status in a Tribe but indicates that he or she is

  somehow affiliated with a Tribe or group of Tribes, the Department

  should “ask the parent and, potentially, extended family what Tribe

  or Tribal ancestral group the parent may be affiliated with.” 2016

  Guidelines at 18.

¶ 32   Likewise, Colorado’s ICWA statute provides that the

  Department should make continuing inquiries to determine

  whether the child is an Indian child, and, if so, take certain steps to

  determine the identity of the Indian child’s Tribe. § 19-1-126(1)(a).

  To fulfill this duty, the Department in this case sought to have

  mother fill out an ICWA assessment form.

                           b. Providing Notice

¶ 33   The Department’s next duty is to send notice to any identified

  Indian Tribes. The ICWA notice requirements are one of ICWA’s

  core procedural requirements in a child-custody proceeding

  because they give the parent, Indian custodian, and Tribe the

  opportunity to respond to any allegations in the case, to intervene,

  or to seek transfer of jurisdiction to the Tribe. 25 C.F.R. § 23.111;

  see 2016 Guidelines at 30-35.




                                    14
¶ 34   Where there is reason to know that an Indian child is involved,

  and where the identity and location of the Tribe is known, federal

  regulations require the Department to directly notify the Tribe by

  registered or certified mail with return receipt requested of the

  pending child-custody proceedings and its right to intervene. 25

  C.F.R. § 23.111(a).

       Notice must be sent to:
            (1) Each Tribe where the child may be a
            member (or eligible for membership if a
            biological parent is a member) . . .;
            (2) The child’s parents; and
            (3) If applicable, the child’s Indian custodian.

  25 C.F.R. § 23.111(b).

¶ 35   Section 19-1-126(1)(b), which differs slightly from the federal

  regulations with regard to permitted methods of notice, requires the

  Department to send notice as follows:

            by registered mail, return receipt requested, to
            the parent or Indian custodian of such child,
            to the tribal agent of the Indian child’s tribe as
            designated in title 25 of the code of federal
            regulations, part 23, or, if such agent has not
            been designated, to the highest-elected or
            highest-appointed official of the Indian child’s
            tribe, to the highest-elected or highest-
            appointed tribal judge of the Indian child’s
            tribe, and to the social service department of
            the Indian child’s tribe.



                                    15
  Colorado’s regulations also require the Department to provide

  notice in involuntary placements by telephone within forty-eight

  hours. Dep’t of Human Servs. Reg. 7.309.32(A), 12 Code Colo.

  Regs. § 2509-4.

¶ 36   Because ICWA applies only if the Tribe is a federally

  recognized Indian Tribe, the Department can so confirm on the

  BIA’s annual list. 2016 Guidelines at 18. If only the tribal

  ancestral group is indicated, it is recommended that the

  Department contact each of the Tribes in the group to identify

  whether the parent or child is a member. Id.

¶ 37   The Department should try to provide sufficient information to

  the Tribe for the Tribe to make the determination as to whether the

  child is a member or eligible for membership. Id. at 21. To this

  end, the notice should include the following:

            (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]



                                   16
             (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).

¶ 38   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); § 19-1-126(1)(c).

¶ 39   If a Tribe does not respond to the notice, or responds that it is

  not interested in participating in the proceeding, the Department

  must continue to send the Tribe notices of subsequent proceedings

  for which notice is required, such as a termination of parental

  rights proceeding. 2016 Guidelines at 38; see 25 C.F.R. § 23.111.

  The Department is also encouraged to follow up telephonically.

  2016 Guidelines at 38.

                             c. Confirmation

¶ 40   The Department’s third duty is to confirm that it used due

  diligence to identify and work with any Tribes of which there is



                                     17
  reason to know that the child may be a member or eligible for

  membership. 25 C.F.R. § 23.107(b)(1); see also 2016 Guidelines at

  9. This due diligence requirement applies to all cases filed on or

  after December 12, 2016. 2016 Guidelines at 4.

¶ 41   To do so, the Department must file with the juvenile court an

  original or copy of each notice sent together with any return

  receipts or other proof of service. 25 C.F.R. § 23.111(a)(2); § 19-1-

  126(1)(c). The Department should document its verbal and written

  requests to a Tribe to obtain information or verification of a child or

  parent’s tribal membership or eligibility for membership and

  provide this information to the court. 2016 Guidelines at 22. The

  Department must also inform the court if it subsequently discovers

  that the child is an Indian child “so that the proceeding can move

  forward in compliance with the requirements of ICWA.” Id. at 11;

  see 25 C.F.R. § 23.107(a).

                           3. The GAL’s Duties

¶ 42   The GAL’s duty is to represent the best interests of a child.

  § 19-3-203(3), C.R.S. 2016.




                                    18
¶ 43       The 2016 Guidelines point out that ICWA is not in tension

  with what is in the “best interests of the child.” 2016 Guidelines at

  89. Indeed, ICWA protects the best interests of Indian children by:

       •   ensuring that, if possible, children remain with their parents;

       •   supporting reunification;

       •   favoring placements within a child’s extended family and tribal

           community;

       •   providing sufficient notice about child-custody proceedings to

           a Tribe; and

       •   enabling a Tribe to fully participate in the proceeding.

  See id.

¶ 44       Accordingly, the GAL plays an important role in ensuring

  ICWA’s application to an Indian child subject to a child-custody

  proceeding by supporting the relationship between a child and his

  or her parents, extended family, and Tribe. See id. Ensuring

  compliance with ICWA also helps to prevent unnecessary delay

  occasioned by appellate reversals and remands for noncompliance.

                          4. Respondent Parent Duties

¶ 45       The respondent parent’s duty is to disclose any information

  indicating that the child may be an Indian child or to provide an


                                        19
  identification card indicating membership in a Tribe to the

  Department or juvenile court in a timely manner. Id. at 10-11.

  Lack of timely information may generate unnecessary delays, create

  instability in placements for the Indian child, and deny ICWA

  protections to Indian children and their families. Id. at 11.

                    C. Mother’s Argument on Appeal

¶ 46   Whether the ICWA notice provisions were satisfied is a

  question of law that we review de novo. People in Interest of T.M.W.,

  208 P.3d 272, 274 (Colo. App. 2009).

¶ 47   Although mother did not state that L.L. was a member of a

  Tribe, or that she was a member of a Tribe and L.L. was eligible for

  membership in a Tribe, the Department nonetheless concedes that,

  based on mother’s assertion of Native American heritage and

  existing case law, notice should have been sent to the eight federally

  recognized Apache Tribes. See B.H., 138 P.3d at 303.

¶ 48   Because protection of tribal interests is at the core of ICWA,

  the failure of mother to provide complete and accurate information

  about her Native American heritage (e.g., the precise location of the

  Tribe, a completed ICWA assessment form, or written information

  with tribal card numbers and roll numbers that included the name


                                    20
  of the Tribe) did not absolve the Department of its obligation to

  provide notice to the Apache Tribes. See People in the Interest of

  J.O., 170 P.3d 840, 843 (Colo. App. 2007).

¶ 49   And, despite L.L. being placed in foster care, the juvenile court

  did not address ICWA until a later pretrial hearing, when it noted

  that ICWA was an issue in the case. Even then, the court did not

  address whether the Department had sought to identify and work

  with the Apache Tribes to verify whether L.L. is a member or eligible

  for membership. See B.H., 138 P.3d at 303. This was error that

  must be corrected so that notice can be given in accordance with

  ICWA.

                            III. Burden of Proof

¶ 50   At the adjudicatory hearing, the State must prove the

  allegations in the petition by a preponderance of the evidence.

  §§ 19-3-505(1), (6), (7)(a), C.R.S. 2016; People in Interest of A.M.D.,

  648 P.2d 625, 640 (Colo. 1982).

¶ 51   ICWA concerns the placement of Indian children in

  child-custody proceedings. See J.O., 170 P.3d at 842. But an

  adjudicatory hearing is not a child-custody proceeding. See People

  in Interest of S.G.L., 214 P.3d 580, 583 (Colo. App. 2009) (“The


                                     21
  purpose of an adjudicatory hearing is to determine whether . . . the

  status of the subject child or children warrants intrusive protective

  or corrective state intervention into the familial relationship.”)

  (citation omitted). It follows then that the language in Colorado’s

  ICWA statute does not specifically set forth any different standard

  of proof for an adjudicatory hearing. See § 19-1-126.

¶ 52   Likewise, the federal ICWA statute is silent as to the particular

  standard of proof required for an adjudicatory hearing. See, e.g., 25

  U.S.C. § 1912(e), (f) (2012) (the State must submit proof by clear

  and convincing evidence when seeking foster care placement, and

  proof beyond a reasonable doubt when seeking termination of

  parental rights); 25 C.F.R. § 23.121 (2016).

¶ 53   Because there is no language in ICWA or in its associated

  rules or guidelines that indicates a heightened burden of proof for

  the adjudicatory hearing in a dependency and neglect proceeding,

  the State is only required to prove the allegations set forth in the

  petition by a preponderance of the evidence in all adjudications,

  whether Indian or non-Indian children. See In re Interest of Emma

  J., 782 N.W.2d 330, 336-37 (Neb. Ct. App. 2010).




                                     22
¶ 54   Therefore, we disagree with mother’s contention that ICWA

  imposes a heightened evidentiary standard, and we conclude that

  the juvenile court did not err when it instructed the jury regarding

  the Department’s burden of proof.

                             IV. Conclusion

¶ 55   The adjudicatory judgment is reversed, and the case is

  remanded with directions to the juvenile court to ensure that the

  Department provides notice to the federally recognized Apache

  Tribes in accordance with ICWA.

¶ 56   On remand, if each of the Apache Tribes determines L.L. is not

  a member or eligible for membership, and thus there is not a reason

  to know the child is an Indian child, the juvenile court must make

  this finding on the record. See 2016 Guidelines at 12. If that

  finding is made, the juvenile court must instruct the parties to

  promptly inform it if they subsequently receive information that

  provides reason to know the child is an Indian child. Id. at 11. In

  that case, because mother does not appeal on any other grounds,

  the adjudicatory judgment shall be reinstated and will stand

  affirmed subject to mother’s right to appeal this finding. See J.O.,

  170 P.3d at 844.


                                    23
¶ 57   But, if a Tribe determines that L.L. is a member of or eligible

  for membership in the Tribe, the judgment is reversed and the

  juvenile court must proceed in accordance with ICWA. See 25

  U.S.C. § 1912(d); J.O., 170 P.3d at 844.

       JUDGE TERRY and JUDGE PLANK concur.




                                   24
