People in the Interest of A-J.A.B.
2022 COA 31. No. 21CA0764. Dependency and Neglect—Termination of Parent-Child Legal Relationship—Indian Child Welfare Act—“Reason to Know”—Notice—Due Diligence.
March 10, 2022
The Adams County Human Services Department (Department) filed a dependency and neglect petition concerning the child. The petition did not indicate that the child was a member of an Indian tribe or eligible for membership in an Indian tribe and did not state what efforts the Department made to determine whether the child was an Indian child. Mother repeatedly asserted during the proceeding that the child could possibly have Cherokee or Lakota Sioux heritage, but she did not provide an Indian Child Welfare Act (ICWA) assessment form or any further information about the child’s ICWA status. The Department did not gather additional information during the proceeding to determine the child’s ICWA status. Ultimately, the juvenile court found that the case was not governed by the ICWA and it terminated mother’s parental rights.
On appeal, mother argued that, because the juvenile court had “reason to know” that the child was an Indian child based on her assertions, the Department should have sent notice of the proceeding to the Cherokee and Sioux tribes under CRS § 19-1-126(1)(b). Here, while the juvenile court had information that the child might have Cherokee or Sioux heritage, mother told the court she was not a member of any tribes and had no information indicating that the child was a member of or eligible for membership in any tribes. Therefore, the juvenile court did not have reason to know that the child was an Indian child. However, CRS § 19-1-126(3) required the juvenile court to direct the Department to “exercise due diligence” to assist the court in determining whether there was reason to know that the child was an Indian child and to make a record of those efforts. This due diligence required the Department to identify every federally recognized tribe associated with the Cherokee and Sioux ancestry groups, to explore the basis of mother’s Indian heritage claim to decide what additional information it needed to obtain, and to provide that information to the court to help it determine whether there was “reason to know” the child was an Indian child. Because the court did not direct the Department to take these steps, the court erred.
The case was remanded for the juvenile court to expeditiously determine whether there is “reason to know” that the child is an Indian child before recertifying the case for a decision.