     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 9, 2019

                                2019COA71

No. 18CA0560, People in the Interest of Z.C. — Juvenile Court
— Dependency and Neglect; American Indian Law — ICWA —
Notice

     In this dependency and neglect case, a division of the court of

appeals addresses the sufficiency of notice under the Indian Child

Welfare Act of 1978 (ICWA) when the return receipts deposited with

the trial court are in some way incomplete or absent. In response

to an order from this court, the El Paso County Department of

Human Services (Department) sent ICWA notice to eight tribes. The

Department received return receipts from seven of the eight tribes.

But the return receipts from three tribes were to some degree

incomplete and the Department never received a return receipt from

one of the tribes.
     Notwithstanding the deficiencies, the juvenile court concluded

that all eight tribes received adequate notice. The division

concludes that notice was sufficient for six of the eight tribes and

the defect with respect to one of the two remaining tribes was

harmless. But because the division concludes that notice was

insufficient and the deficiency was not harmless with respect to one

of the tribes, the division remands the case to the juvenile court for

the limited purpose of complying with ICWA and, upon doing so,

making further findings.




                                   2
COLORADO COURT OF APPEALS                                      2019COA71


Court of Appeals No. 18CA0560
El Paso County District Court No. 16JV895
Honorable Timothy Schutz, Judge


The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of Z.C., a Child,

and Concerning S.C.,

Respondent-Appellant.


                          ORDER OF LIMITED REMAND

                                   Division A
                         Furman, Ashby, and Welling, JJ.
                                 PER CURIAM

                             Announced May 9, 2019


Amy R. Folsom, County Attorney, Jessica T. Driver, Assistant County Attorney,
Colorado Springs, Colorado, for Petitioner-Appellee

Anna N.H. Ulrich, Guardian Ad Litem

Ingelhart Law Office, LLC, Kimberly A. Ingelhart, Glenwood Springs, Colorado,
for Respondent-Appellant
¶1    In this dependency and neglect action, S.C. (mother) appeals

 the juvenile court’s judgment terminating her parent-child

 relationship with her son, Z.C. Among the issues raised in her

 appeal, mother contends that the juvenile court and the El Paso

 County Department of Human Services (Department) did not

 comply with the notice requirements of the Indian Child Welfare Act

 of 1978 (ICWA), 25 U.S.C. §§ 1901-1963 (2018).

¶2    This is the second time this case has come before the ICWA

 division of this court to consider the adequacy of ICWA notice. The

 Department initially conceded that some tribes had not received

 proper notice of the termination proceeding. Based on our review of

 the record, we agreed that the Department did not meet its notice

 obligations with regard to eight tribes — namely, the three federally

 recognized Cherokee tribes, the Navajo Nation, and four of the

 federally recognized Apache tribes. See People in Interest of Z.C.,

 (Colo. App. No. 18CA0560, Oct. 10, 2018) (unpublished order).

 Thus, we issued a limited remand order directing the juvenile court

 to ensure compliance with ICWA. Id.

¶3    The supplemental record on remand, however, does not

 demonstrate that the juvenile court fully complied with the remand


                                   1
 order. In particular, the juvenile court erred when it found that all

 of the tribes received notice of the proceeding despite inadequate or

 missing return mail receipts from two tribes. As a result, we again

 remand the case to the juvenile court for the limited purpose of

 ensuring compliance with ICWA.

                 I.    ICWA’s Purpose and Provisions

¶4    ICWA aims 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). ICWA “recognizes that Indian tribes have a separate

 interest in Indian children that is equivalent to, but distinct from,

 parental interests.” People in Interest of I.B-R., 2018 COA 75, ¶ 4.

 The statute reflects the presumption that the protection of an

 Indian child’s relationship with the tribe serves the child’s best

 interests. People in Interest of S.R.M., 153 P.3d 438, 440 (Colo. App.

 2006). And it is up to each tribe to make the determination as to

 whether a child is eligible for membership. People in Interest of

 T.M.W., 208 P.3d 272, 274 (Colo. App. 2009) (“[E]ach Indian tribe

 has the authority to determine its membership criteria and to




                                    2
 decide who meets those criteria.” (citing People in Interest of J.A.S.,

 160 P.3d 257, 260 (Colo. App. 2007))).

¶5    “Accordingly, in a proceeding in which ICWA may apply, tribes

 must have a meaningful opportunity to participate in determining

 whether the child is an Indian child and to be heard on the issue of

 ICWA’s applicability.” I.B-R., ¶ 4. To ensure tribes have an

 opportunity to be heard, the federal regulations and guidelines

 implementing ICWA require juvenile courts and human services

 departments to notify any identified Indian tribes when there is

 reason to know or believe an Indian child is involved in a child

 custody proceeding. People in Interest of L.L., 2017 COA 38, ¶ 29;

 see also 25 C.F.R. 23.11 (2018); 25 C.F.R. 23.111 (2018); see also

 Bureau of Indian Affairs, Guidelines for Implementing the Indian

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

 see also Notice of Guidelines, 81 Fed. Reg. 96,476 (Dec. 30, 2016).

 In doing so, the department must directly notify the tribe by

 registered mail with return receipt requested of the pending

 proceeding and its right to intervene. L.L., ¶¶ 34-35; see

 also § 19-1-126, C.R.S. 2018.




                                    3
¶6    If the court has reason to know or believe that a child is an

 Indian child, but lacks sufficient evidence to make a determination,

 the court must confirm that the department involved in the case

 used due diligence to identify and work with all relevant tribes to

 verify the child’s membership status. 25 C.F.R. § 23.107(b)(1)

 (2018). The department must also make continuing inquiries to

 determine whether a child is an Indian child. § 19-1-126(1)(a); see

 also B.H. v. People in Interest of X.H., 138 P.3d 299, 302 (Colo.

 2006); S.R.M., 153 P.3d at 442-43 (unless tribe expressly states that

 it will not intervene, it retains the right to receive notice and

 intervene in subsequent proceedings).

¶7    Juvenile courts may not hold a termination of parental rights

 proceeding until at least ten days after receipt of notice by the tribe.

 25 U.S.C. § 1912(a) (2018).

                 II.    Relevant Procedural Background

               A.      Notice to Tribes on Limited Remand

¶8    On remand, the Department sent notices to the eight tribes

 identified in the limited remand order. The supplemental record

 shows that the Department sent notices to all eight tribes and that

 all eight notices contained the information required by ICWA and


                                     4
  the state’s implementing statute. Signed and dated return receipts

  show that four of the tribes — the Fort Sill Apache Tribe, the

  Mescalero Apache Tribe, the Cherokee Nation of Oklahoma, and the

  United Keetoowah Band of Cherokee Indians — received the notices

  on November 19, 2018.

¶9     For two tribes — the Navajo Nation and the Tonto Apache

  Tribe of Arizona — the Department received and filed with the

  juvenile court return receipts that were signed but not dated. The

  Department’s date stamp, however, shows that the Department

  processed the return receipts on November 27, 2018.

¶ 10   The evidence of receipt for the final two tribes is more

  problematic. The return receipt from the notice addressed to the

  White Mountain Apache Tribe is neither signed by the receiving

  party nor dated. The Department’s date stamp shows that the

  Department processed the undated and unsigned return receipt on

  November 27, 2018.

¶ 11   And the supplemental record does not include a return receipt

  from the Eastern Band of Cherokee Indians.




                                    5
            B.   Juvenile Court’s Findings on Limited Remand

¶ 12   At a hearing on December 11, 2018, the juvenile court found

  that the child was not an Indian child. The juvenile court made the

  following findings with respect to the receipt of notice by the eight

  tribes:

             The [c]ourt concludes, based upon what has
             been filed with the [c]ourt, that appropriate
             notices were sent to all of the tribes, even
             though one of the tribes has not yet provided a
             return receipt and one of the other tribes
             provided a return receipt without a signature
             and a couple of the other tribes provided
             return receipts without dating their signatures
             — based on the fact that the four tribes that
             acknowledged the return receipt, dated their
             return receipts November 19th, and based on
             the fact that the ICWA [n]otices were sent on
             November 19th and this hearing was held on
             December 11th, the [c]ourt finds and
             concludes that each of the tribes has received
             notice in conformity with what the Court of
             Appeals has directed and what is required by
             the Indian Child Welfare Act.

             ....

             The [c]ourt recognizes that the Eastern Band of
             Cherokee Indians has not responded, but the
             [c]ourt concludes as a matter of fact and law
             that the notice was sent on or about . . .
             November 14th, some [twenty-seven] days in
             advance of this hearing, and that that was
             appropriate notice under the Indian Child
             Welfare Act, though because of the tribe’s


                                     6
             non-response to the certified mail, we don’t
             know the precise date on which it was
             received. The [c]ourt nevertheless concludes
             that it was received more than ten days prior
             to the scheduled hearing today.

                                 III.   Analysis

¶ 13   We now turn to the question whether ICWA’s notice

  requirements were satisfied with respect to all eight tribes.

  “Whether the notice requirement of the ICWA was satisfied is a

  question of law, which this court reviews de novo.” T.M.W., 208

  P.3d at 274 (citing In re TM, 628 N.W.2d 570, 572 (Mich. Ct. App.

  2001)); see also L.L., ¶ 46.

¶ 14   The juvenile court found that all eight tribes received adequate

  notice. We agree that the juvenile court’s findings with respect to

  six of the tribes are supported by the record that was before the

  juvenile court at the time of the hearing. But we conclude that the

  record that was before the juvenile court at the time of the hearing

  does not support its findings with respect to the White Mountain

  Apache Tribe and the Eastern Band of Cherokee Indians. We

  discuss the adequacy of notice with respect to each of the tribes, in

  turn, below.




                                        7
  A.    The Record Supports the Juvenile Court’s Determination that
              Six of the Eight Tribes Received Adequate Notice

¶ 15   Pursuant to 25 U.S.C. § 1912(a) and section 19-1-126(1)(a)-(b),

  if there is reason to know or believe that an Indian child is involved

  in a dependency and neglect action, the petitioning party “must

  provide notice to the Indian child’s tribe . . . by registered mail, with

  return receipt requested, of the pending proceedings and of the

  tribe’s right to intervene.” People in Interest of C.Z., 262 P.3d 895,

  904 (Colo. App. 2010). This notice must be received by the tribe at

  least ten days before the hearing described in the notice. See 25

  U.S.C. § 1912(a). And in order to demonstrate compliance, “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.” L.L., ¶ 41 (citing 25 C.F.R. § 23.111(a)(2); § 19-1-

  126(1)(c)).

¶ 16   With respect to the Fort Sill Apache Tribe, the Mescalero

  Apache Tribe, the Cherokee Nation of Oklahoma, and the United

  Keetoowah Band of Cherokee Indians, the signed and dated return

  receipts contained in the supplemental record reflect that each tribe

  received notice on November 19, 2018, which was twenty-two days



                                      8
  before the December 11 hearing. Thus, the juvenile court properly

  concluded that ICWA’s notice requirement was satisfied with

  respect to these four tribes. See 25 U.S.C. § 1912(a); People in

  Interest of N.D.C., 210 P.3d 494, 497 (Colo. App. 2009) (“Following

  the Guidelines’ filing requirements is the most efficient way of

  meeting the department’s burden of proof of notice to the tribes.”).

¶ 17   With respect to the Navajo Nation and the Tonto Apache Tribe

  of Arizona, the Department received and filed with the juvenile

  court return receipts that were signed but not dated. At first blush,

  it would seem that the absence of a date of receipt on the return

  receipts would fatally undermine the juvenile court’s determination

  that these tribes received timely notice. See, e.g., In re Morris, 815

  N.W.2d 62, 78 (Mich. 2012) (“[T]he trial court cannot determine the

  date on which the 25 U.S.C.A. § 1912(a) waiting period begins to

  run without knowing the date on which the tribe . . . received the

  notice, as shown by the registered-mail return receipt.”). But the

  Department’s date stamp shows that the Department processed the

  return receipts on November 27, 2018. So even though the signed

  return receipts are not dated, we know that these tribes received

  notice sometime before November 27, meaning that notice was


                                     9
  received by the tribes at least fourteen days before the hearing.

  Accordingly, the juvenile court properly concluded that ICWA’s

  notice requirement was satisfied with respect to these two tribes.

       B.    The Record Before the Juvenile Court Does Not Support Its
            Determination that the White Mountain Apache Tribe and the
                 Eastern Band of Cherokee Indians Received Notice

¶ 18        As noted above, the only evidence in the record regarding

  notice to the White Mountain Apache Tribe is the unsigned and

  undated return receipt. That receipt does not support the juvenile

  court’s finding that the tribe received the notice. True, the

  Department’s date stamp suggests that someone may have received

  the notice at least ten days before the hearing. But it is unclear

  who. And, because the outgoing mail receipts in the supplemental

  record contain no postmarks, it is unclear whether the Department

  even sent the notice at all.

¶ 19        And because there was no return receipt at all in the

  supplemental record from the notice sent to the Eastern Band of

  Cherokee, the juvenile court had no evidence before it that the

  Eastern Band of Cherokee received any notice of the hearing.

¶ 20        This absence of evidence does not necessarily end our (or the

  juvenile court’s) inquiry into whether timely notice was in fact


                                       10
  timely received. Bureau of Indian Affairs regulations required the

  juvenile court to “[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 . . . to verify” the

  child’s membership status. 25 C.F.R. 23.107(b)(1). And Colorado’s

  ICWA-implementing legislation required the Department to make

  continuing inquiries after it sent the notices to determine the child’s

  status. § 19-1-126(1)(a). But there is no evidence in the

  supplemental record that the Department attempted to contact

  either the White Mountain Apache Tribe or the Eastern Band of

  Cherokee Indians by telephone, email, fax, or any other means to

  confirm receipt of the notices or otherwise work with the tribes to

  verify the child’s membership status.

¶ 21   Thus, we conclude that the juvenile court erred when it found

  that the White Mountain Apache and Eastern Band of Cherokee

  Tribes had received notice of the hearing. And “absent evidence the

  notice was sufficient, a tribe’s non-response can not be deemed a

  determination that the child is not an Indian child within the

  meaning of the ICWA.” N.D.C., 210 P.3d at 497 (citing In re Karla

  C., 6 Cal. Rptr. 3d 205, 212 (Cal. Ct. App. 2003)).


                                      11
       C.     Information in the Supplemental Record Received After the
               Hearing Shows that the Erroneous Finding Regarding the
              Notice to Eastern Band of Cherokee Indians Was Harmless

¶ 22        After the juvenile court entered its findings, the Department

  filed a letter from the Eastern Band of Cherokee Indians stating

  that the child was not a member or eligible for membership. That

  letter is part of the supplemental record on appeal. “The primary

  purpose of giving notice to the tribe is to enable it to determine

  whether the child is an Indian child.” S.R.M., 153 P.3d at 441. And

  because the Eastern Band of Cherokee Indians was able to

  determine that the child was not a member of or eligible for

  membership in the tribe (albeit in a letter that was not before the

  juvenile court at the time of the hearing), the error in the juvenile

  court’s finding that the Eastern Band of Cherokee Indians received

  proper notice is harmless. Id. at 441-42 (an error in providing

  notice may be considered harmless if the tribe has actual

  knowledge of the child’s eligibility to enroll).

¶ 23        Thus, only the White Mountain Apache Tribe remains to be

  notified of the termination proceeding.




                                        12
                       IV.   Procedure on Remand

¶ 24   We remand the case to the juvenile court for the limited

  purpose of directing the Department to (1) make continuing

  inquiries to determine whether the child is an Indian child; and (2)

  use due diligence to work with the White Mountain Apache Tribe to

  verify the child’s membership status. The juvenile court may, in its

  discretion, order the Department to again send appropriate notice of

  the termination proceeding to the White Mountain Apache Tribe in

  accordance with ICWA and section 19-1-126(1)(b).

¶ 25   After receiving a response from the Tribe, or the expiration of

  the timeframe under 25 U.S.C. § 1912(a) or a reasonable additional

  time determined by the juvenile court, the court shall again enter

  factual findings and legal conclusions regarding the application of

  ICWA.

¶ 26   If the juvenile court determines that the child is an Indian

  child, within seven days of the issuance of the juvenile court’s order

  making such determination, the Department must file notice with

  this court along with a copy of the juvenile court’s order. The

  appeal shall be recertified to permit a division of this court to issue

  an opinion vacating the termination judgment and remanding the


                                     13
  case to the juvenile court with directions to proceed in accordance

  with ICWA.

¶ 27   If the juvenile court determines that the child is not an Indian

  child, within seven days of issuance of the juvenile court’s order

  making such determination, the Department must file notice with

  this court along with a copy of the juvenile court’s order, and the

  appeal shall be recertified. A supplemental record, consisting of the

  court record created on remand including the juvenile court’s order

  as well as any notices sent and responses received is due fourteen

  days after recertification. Within seven days of the matter being

  recertified, if any party wishes to supplement the record with

  transcripts of hearings that occurred on remand, that party shall

  file a supplemental designation of transcripts with the juvenile

  court and this court and, if supplemental transcripts are

  designated, the complete supplemental record including the court

  record will be due twenty-one days after the filing of the

  supplemental designation of transcripts.

¶ 28   Additionally, within fourteen days of recertification, mother

  may file a supplemental brief, not to exceed ten pages or 3500

  words, limited to addressing the juvenile court’s ICWA


                                    14
  determination. If father, who is not currently a party to this appeal,

  wishes to file a brief addressing the ICWA determination, he may do

  so, but his brief must be accompanied by a notice of appeal

  indicating his intent to appeal the ICWA determination. If either

  parent files a supplemental brief, the other parties may file, within

  fourteen days, supplemental briefs in response, not to exceed ten

  pages or 3500 words.

¶ 29   This court further orders that the Department notify this court

  in writing of the status of the juvenile court proceedings in the

  event that this matter is not concluded within twenty-eight days

  from the date of this order, and that the Department shall do so

  every twenty-eight days thereafter until the juvenile court issues its

  order on remand.

                                         BY THE COURT:
                                         Furman, J.
                                         Ashby, J.
                                         Welling, J.




                                    15
