     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
                                                            January 25, 2018

                                2018COA11

No. 17CA0339, People In the Interest of J.L. – Juvenile Court —
Dependency and Neglect — American Indian Law — ICWA —
Notice

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

appeals concludes that a written advisement form directing parents

to inform the court whether a child is an Indian child does not meet

the inquiry requirements of the Indian Child Welfare Act of 1978

(ICWA). The division also concludes that the trial court did not

comply with ICWA’s notice requirements with regard to three

potentially concerned tribes. For these reasons, the division

remands the case to the trial court for the limited purpose of

complying with ICWA and, upon doing so, to make further findings

regarding the applicability of ICWA.
COLORADO COURT OF APPEALS                                         2018COA11


Court of Appeals No. 17CA0339
Alamosa County District Court No. 15JV114
Honorable Martin A. Gonzalez, Judge


The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of J.L. and S.M., Children,

and Concerning J.C.,

Respondent-Appellant.


                         ORDER OF LIMITED REMAND

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

                         Announced January 25, 2018


Jason T. Kelly, County Attorney, Alamosa, Colorado, for Petitioner-Appellee

Mérida I. Zerbi, Guardian Ad Litem

Catherine A. Madsen, P.C., Catherine A. Madsen, Westminster, Colorado, for
Respondent-Appellant
¶1    In this dependency and neglect proceeding, J.C. (mother)

 appeals the judgment terminating the parent-child legal

 relationship with her children, S.M. and J.L. Mother’s third child,

 J.A., was named in the original proceeding but is not a subject of

 this appeal.

¶2    The record indicates that the trial court and the Alamosa

 County Department of Human Services (Department) did not

 comply with the inquiry requirements of the Indian Child Welfare

 Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963 (2012), and section 19-

 1-126, C.R.S. 2017. And, although the court’s belated inquiry

 revealed sufficient information to trigger ICWA’s notice

 requirements, the Department did not fulfill its duty in this regard.

 Therefore, we remand the case to the trial court for the limited

 purpose of ensuring that the Department provides notice in

 accordance with ICWA.

            I.   ICWA’s Inquiry and Notice Requirements

¶3    ICWA’s provisions protect and preserve Indian tribes and their

 resources and protect Indian children who are members of or are

 eligible for membership in an Indian tribe. 25 U.S.C. § 1901(2), (3)

 (2012). ICWA recognizes that Indian tribes have a separate interest

                                   1
 in Indian children that is equivalent to, but distinct from, parental

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

 2006); see also Mississippi Band of Choctaw Indians v. Holyfield,

 490 U.S. 30, 52 (1989). Accordingly, in a proceeding in which ICWA

 may apply, tribes must have a meaningful opportunity to

 participate in determining whether a child is an Indian child and to

 be heard on the issue of ICWA’s applicability. B.H., 138 P.3d at

 303.

¶4      To ensure that tribes have an opportunity to be heard,

 Colorado’s ICWA implementing legislation provides that in

 dependency and neglect proceedings, the petitioning party must

 “[m]ake continuing inquiries to determine whether the child who is

 the subject of the proceeding is an Indian child.” § 19-1-126(1)(a).

 The petitioning party must make one of two disclosures in the

 petition or other commencing pleading: (1) “that the child who is the

 subject of the proceeding is an Indian child and the identity of the

 Indian child’s tribe” or (2) “what efforts the petitioning or filing party

 has made in determining whether the child is an Indian child.”

 § 19-1-126(1)(c).



                                     2
¶5    Thus, to fulfill its duties under ICWA, the Department must

 investigate the child’s status early in the case. People in Interest of

 L.L., 2017 COA 38, ¶ 30. And, because only the tribe itself may

 determine its membership, id. at ¶ 20, the Department must

 promptly notify each tribe in which the child may be a member or

 eligible for membership, id. at ¶ 34; see also B.H., 138 P.3d at 302.

¶6    The Bureau of Indian Affairs (BIA) regulations and guidelines

 implementing ICWA contain similar inquiry and notice provisions

 for trial courts. For example, the guidelines issued in 2015 — in

 effect during the initial proceedings in this case — directed agencies

 and courts, in every child-custody proceeding, to ask whether the

 child is or could be an Indian child and to conduct an investigation

 into whether the child is an Indian child. Guidelines for State

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

 Reg. 10,146, 10,152 (Feb. 25, 2015) (2015 Guidelines).

¶7    In 2016, the BIA repealed the 2015 Guidelines and replaced

 them with regulations and guidelines that impose similar duties of

 inquiry and notice on trial courts. L.L., ¶ 15; Indian Child Welfare

 Act Proceedings, 81 Fed. Reg. 38,778 (June 14, 2016); Bureau of

 Indian Affairs, Guidelines for Implementing the Indian Child

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

 Guidelines); see also 25 C.F.R. § 23.107-.109, .111 (2017). These

 regulations and guidelines were in effect during the termination

 hearing in this case.

¶8    25 C.F.R. § 23.107(a) requires trial courts to “ask each

 participant in an emergency or voluntary or involuntary

 child-custody proceeding whether the participant knows or has

 reason to know that the child is an Indian child. The inquiry is

 made at the commencement of the proceeding and all responses

 should be on the record.” Likewise, the 2016 Guidelines, which

 were adopted as examples of best practices for the implementation

 of ICWA, see L.L., ¶¶ 15-16, reiterate that inquiry is required at

 each new child-custody proceeding. They explain this inquiry duty

 as follows:

               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.

                                      4
  2016 Guidelines at 11.

¶9     If, upon conducting the required inquiry, the petitioning party

  knows or has reason to believe that an Indian child is involved in a

  termination proceeding, the party must provide notice of the

  proceeding to the potentially concerned tribe or tribes.

  § 19-1-126(1)(b); B.H., 138 P.3d at 302; see also 25 U.S.C. § 1912(a)

  (2012).

¶ 10   What constitutes “reason to believe” in any particular set of

  circumstances is not precisely defined. See B.H., 138 P.3d at 303.

  But the threshold for notice was not intended to be high. Id.

  Because ICWA intends for tribes themselves to decide whether

  children are tribal members, sufficiently reliable information of

  virtually any criteria is sufficient to trigger ICWA’s notice

  requirements. Id. at 304. “When in doubt, it is better to conduct

  further investigation into a child’s status early in the case; this

  establishes which laws will apply to the case and minimizes the

  potential for delays or disrupted placements in the future.” 2016

  Guidelines at 11.

¶ 11   Departments must directly notify each concerned tribe by

  registered mail with return receipt requested of the pending

                                      5
  child-custody proceedings and its right to intervene. L.L., ¶¶ 34-35.

  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 . . .;
             [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)(1)-(4).

¶ 12   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).




                                      6
       II.     The Trial Court and the Department Did Not Comply with
                                        ICWA

¶ 13         In this case, the trial court first inquired about the

  applicability of ICWA at a termination hearing regarding J.A. after

  orally ordering termination of parental rights. For purposes of

  ICWA, this was the second child-custody proceeding involving J.A.

  Under 25 C.F.R. § 23.107(a), the trial court should have made that

  inquiry at the first hearing after the petition in dependency and

  neglect was filed and again at the start of the termination

  proceeding.

¶ 14         Mother responded that (1) both she and the father of J.A. and

  J.L. had Native American blood and (2) she and her family had been

  “kicked off the tribe.” The trial court ordered her to file a relative

  affidavit identifying her tribal connections. The court did not ask

  her about J.A. and J.L.’s father’s Indian heritage. And, although

  the court asked the boys’ father about his heritage at the

  termination hearing involving J.L. and S.M., it never inquired

  whether any participant knew or had reason to know S.M. was an

  Indian child. (S.M. has a different father than her brothers; S.M.’s




                                           7
  father was not identified, and his parental rights were terminated

  after service by publication.)

¶ 15   At a subsequent hearing, mother indicated that she had

  Indian heritage through her biological family. She indicated her

  tribe was either “Sangre de Cristo de Pueblo in Taos,” Aztec, or

  Kiowa. Mother, an adoptee, did not know about registered tribal

  affiliation, but she asserted that her biological mother would have

  that information. Mother’s counsel indicated that he would provide

  information on mother’s biological parents to the Department as

  soon as he received it from mother. The Department stated that it

  believed ICWA did not apply, but did not describe what efforts it

  had made to determine whether any of the children was an Indian

  child.

¶ 16   The federally recognized tribes include the Kiowa Indian Tribe

  of Oklahoma and the Pueblo of Taos, New Mexico, which is located

  in the Sangre de Cristo mountains. See Indian Entities Recognized

  and Eligible to Receive Services From the United States Bureau of

  Indian Affairs, 82 Fed. Reg. 4915 (Jan. 17, 2017). So mother’s

  disclosures gave the court reason to believe the children were



                                    8
  Indian children. But the record contains no evidence that the

  Department sent notice to either of these tribes.

¶ 17   The Department asserts that mother did not provide a relative

  affidavit identifying her biological parents. It is true that the

  Department should try to provide sufficient information for the tribe

  to make the determination as to whether the child is a member or

  eligible for membership. L.L., ¶ 37. But the lack of complete

  information does not relieve the Department of its duty to send

  notice with the information it has. Accord 25 C.F.R. § 23.111(d)(3)

  (notice shall include direct lineal ancestors if known). Thus, we

  must remand the case to the trial court so the Department may

  comply with the notice requirements of ICWA.

¶ 18   At the termination hearing, mother’s counsel stated that he

  had spoken with mother’s adoptive family and determined that “the

  ICWA relationship that [mother] had brought to the [c]ourt’s

  attention was not viable.” But he did not elaborate, so we don’t

  know the basis for his representation. Moreover, it was for the

  Kiowa and Pueblo of Taos tribes, not mother’s adoptive family, to

  determine whether the children were members or eligible for

  membership. See L.L., ¶ 20; accord B.H., 138 P.3d at 304

                                      9
  (statements, actions, or waiver of a parent cannot overcome

  otherwise sufficiently reliable information). So counsel’s statement

  did not relieve the Department of its duty to notify the tribes of the

  child-custody proceeding, and, absent further information from the

  tribes, did not support a finding by the trial court that the children

  were not Indian children.

¶ 19   The Department contends that the written advisement of

  rights mother signed shortly after the shelter hearing served as the

  court’s initial inquiry. The advisement form stated the following:

             If you, your child or children are a registered
             member [sic] of a [N]ative American Indian
             tribe or are eligible to become a member of a
             [N]ative American Indian tribe, you may be
             entitled to additional rights and protections
             under the Indian Child Welfare Act. You must
             advise the court of this in order to receive
             these additional rights and protections.

¶ 20   But the 2015 Guidelines directed courts to “ask[] each party to

  the case, including the guardian ad litem and the agency

  representative, to certify on the record whether they have

  discovered or know of any information that suggests or indicates

  the child is an Indian child.” 80 Fed. Reg. at 10,152. A written

  advisement form provided to one participant falls far short of


                                    10
  meeting this requirement. See also 25 C.F.R. § 23.107(a) (codifying

  the duty of inquiry). So we reject the Department’s contention.

¶ 21   We recognize that the 2015 Guidelines, unlike the regulations

  promulgated in 2016, were not binding on the trial court. But, as

  recognized by both the 2015 Guidelines and the 2016 Guidelines,

  early identification of ICWA applicability promotes proper

  implementation of ICWA at an early stage, protects the rights of

  Indian children and their families, prevents delays, and avoids

  sometimes tragic consequences. See 2016 Guidelines at 11; 80

  Fed. Reg. at 10,148.

¶ 22   Regardless, as discussed above, the termination proceeding

  was subject to the 2016 Guidelines and regulations. And, more

  importantly, the Department failed to send notice to the appropriate

  tribes when mother identified a reason to believe the children were

  Indian children. Under these circumstances, the record does not

  support the trial court’s finding that ICWA does not apply.

                     III.   Instructions on Remand

¶ 23   We remand the case to the trial court for the limited purpose

  of directing the Department to send appropriate notice to the Kiowa

  Indian Tribe of Oklahoma and the Pueblo of Taos.

                                   11
¶ 24   The trial court must afford the tribes a reasonable amount of

  time to respond to notices sent and must proceed in accordance

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

  care placement hearing or termination of parental rights proceeding

  shall be held until at least ten days after receipt of notice by the

  tribe. This section further provides that a tribe shall be granted

  twenty additional days to prepare for such proceeding if the tribe so

  requests.

¶ 25   After receiving responses from the tribes or, if no response is

  received from one or more of the noticed tribes, after the expiration

  of the time frame under section 1912(a) or a reasonable additional

  time deemed appropriate by the trial court, the court shall enter

  factual findings and legal conclusions regarding the application of

  ICWA.

¶ 26   If the trial court determines that either of the children is an

  Indian child, within seven days of the issuance of the trial court’s

  order making such determination, the Department must file notice

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

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

  an opinion vacating the termination judgment and remanding the

                                     12
  case to the trial court with directions to proceed in accordance with

  ICWA.

¶ 27   If the trial court determines that the children are not Indian

  children, within seven days of issuance of the trial court’s order

  making such determination, the Department must file notice with

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

  appeal shall be recertified. Within seven days of recertification, the

  Department must file either (1) a supplemental record consisting of

  the trial court’s order on remand, a transcript of the proceedings on

  remand, and any notices sent and responses received; or (2) a

  supplemental designation of record of the same.

¶ 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 trial court’s ICWA determination.

  If mother files a supplemental brief, the other parties may file,

  within fourteen days of the filing of mother’s brief, 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 trial court proceedings in the event

  that this matter is not concluded within twenty-eight days from the

                                    13
date of this order, and that the Department shall do so every

twenty-eight days thereafter until the trial court issues its order on

remand.

                                           BY THE COURT:

                                           Furman, J.
                                           Ashby, J.
                                           Welling, J.




                                  14
