         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
                                                           February 27, 2020

                                2020COA35

No. 18CA2258, People in Interest of K.R. — Juvenile Court —

Dependency and Neglect — Termination of the Parent-Child

Legal Relationship; American Indian Law — ICWA

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

court of appeals remands for the juvenile court to determine if the

children are Indian children under the Indian Child Welfare Act

(ICWA). The division remands because the children appear to have

lineage that makes them eligible for tribal membership, but the

record is silent on whether either of the children’s parents is a tribal

member, which is a necessary condition for ICWA to apply.
COLORADO COURT OF APPEALS                                      2020COA35


Court of Appeals No. 18CA2258
Costilla County District Court No. 17JV4
Honorable Pattie P. Swift, Judge


The People of the State of Colorado,

Appellee,

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

and Concerning T.K.D.,

Appellant.


                       JUDGMENT VACATED AND CASE
                        REMANDED WITH DIRECTIONS

                                   Division A
                         Opinion by JUDGE FURMAN
                     Bernard, C.J., and Welling, J., concur

                         Announced February 27, 2020


Thompson Law LLC, David A. Thompson, Creede, Colorado, for Appellee

Rebecca N. Rian, Anna N.H. Ulrich, Guardians Ad Litem

Law Office of Jennifer B. Bryan, LLC, Jennifer B. Bryan, Oak View, California,
for Appellant
¶1    In this dependency and neglect proceeding, T.K.D. (mother)

 appeals the juvenile court judgment terminating her parent-child

 legal relationships with S.R. and K.R. (the children) and asserts that

 the record does not demonstrate compliance with the Indian Child

 Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963 (2018). A division of

 this court agreed that the record did not demonstrate compliance

 with ICWA and remanded the case to the juvenile court to, among

 other things, ensure that appropriate notice of the termination

 proceeding was given to the two Sioux tribes who did not respond to

 the earlier notice.

¶2    After receiving additional notice on remand, the Oglala Sioux

 Tribe (the Tribe) sent a letter indicating that the children were

 eligible for enrollment. Based on the Tribe’s response, the juvenile

 court determined that ICWA’s protections were triggered. We then

 recertified the appeal and directed the parties to submit

 supplemental briefs.

¶3    After receiving the parties’ briefs and the juvenile court record,

 we conclude that the record does not establish whether the children

 are Indian children under ICWA. We reach this conclusion because

 the record is silent on whether either parent is a tribal member. As


                                    1
 a result, we must vacate the termination judgment and remand the

 case to the juvenile court. On remand, the court must again

 determine whether the children are Indian children under ICWA. If

 the court determines the children are not Indian children, it may

 reinstate its judgment terminating mother’s parental rights. But if

 the court determines the children are Indian children, it must then

 comply with ICWA’s mandates.

                         I. ICWA’s Applicability

¶4     ICWA applies to any child custody proceeding, including the

 termination of parental rights, involving an Indian child. People in

 Interest of A.R., 2012 COA 195M, ¶ 16. Thus, in any such

 proceeding, the juvenile court must consider 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 People in Interest of L.L., 2017 COA 38, ¶ 13.

¶5     An Indian child under ICWA is an unmarried person under the

 age of eighteen who is either

     • a member of an Indian tribe or

     • eligible for membership in a tribe and the biological child of a

       tribal member.

                                    2
 25 U.S.C. § 1903(4) (2018); see also L.L., ¶ 20. Consequently,

 eligibility for membership, in and of itself, is not enough to meet the

 definition of an Indian child. See State in Interest of P.F., 405 P.3d

 755, 762 (Utah Ct. App. 2017) (recognizing that ICWA does not

 apply when a child is eligible for membership in a tribe but neither

 of the child’s biological parents is a member of the tribe).

¶6    But ICWA does not define tribal membership. People in

 Interest of M.V., 2018 COA 163, ¶ 24. Rather, membership is left to

 the province of each individual tribe. Id. A tribe’s determination of

 membership or membership eligibility is conclusive and final.

 People in Interest of J.A.S., 160 P.3d 257, 260 (Colo. App. 2007).

¶7    Whether ICWA applies to a proceeding is a question of law that

 we review de novo. M.V., ¶ 32.

                     II. The Supplemental Record

¶8    The Tribe’s response appears to indicate that the children have

 lineage that makes them eligible for tribal membership and that the

 Tribe is intervening in the proceeding. But, as the Department

 points out, the Tribe’s response does not indicate whether either

 parent is also a tribal member. And while the maternal




                                    3
  grandmother indicated that the children have Sioux heritage,

  neither mother nor the children’s father identified a tribal affiliation.

¶9     As a result, we are unable to determine from the supplemental

  record whether the children are Indian children under ICWA.

                              III. Conclusion

¶ 10   We vacate the judgment and remand the case to the juvenile

  court so that it may conduct further proceedings to determine if the

  children are Indian children. On remand, the court shall direct the

  children’s guardian ad litem and the Department to work with the

  Tribe to determine, as soon as possible (1) whether either parent is

  a tribal member; and (2) if so, whether the parent became a member

  before the juvenile court entered the judgment terminating mother’s

  parental rights. See People in Interest of J.C.R., 259 P.3d 1279,

  1283 (Colo. App. 2011) (concluding that ICWA’s provisions were not

  triggered when the parent asserted the children’s possible Indian

  heritage after the termination proceeding).

¶ 11   After receiving this information from the Tribe, the court must

  again determine whether the children meet the definition of Indian

  children under 25 U.S.C. § 1903(4).




                                     4
¶ 12   If the court determines that the children are not Indian

  children, the court may reinstate the termination judgment.

  Mother may appeal from the judgment.

¶ 13   If, on the other hand, the court determines that the children

  are Indian children, the court must follow ICWA’s procedural and

  substantive standards that apply when a termination proceeding

  concerning Indian children occurs in state court.

       CHIEF JUDGE BERNARD and JUDGE WELLING concur.




                                   5
