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People in the Interest of E.M.

2021 COA 152. No. 21CA0381.  Indian Child Welfare Act—Termination of Parental Rights.

December 16, 2021

The Denver Department of Human Services (department) filed a dependency and neglect petition concerning the child. Mother indicated that she has Apache and Sioux heritage. The juvenile court decided it did not have reason to know the child was an Indian child but directed the department to exercise due diligence to gather additional information. The Department filed several affidavits of diligent efforts related to the Indian Child Welfare Act (ICWA) but did not send a notice to any tribe or to the Bureau of Indian Affairs as part of its investigation.

The Department moved to terminate the legal relationship between mother and child. Following a hearing, the court again decided it had no reason to know that the child was an Indian child, and therefore the case was not governed by ICWA. The court entered a judgment terminating mother’s parental rights.

On appeal, mother argued that the juvenile court failed to comply with ICWA because it did not ensure that appropriate notice was given to the tribes identified by her and other maternal relatives. A court has reason to know that a child is an Indian child when it receives information that the child’s family may have connections to specific tribes or ancestral groups. Here, the information known to the juvenile court indicated that the child’s maternal family has tribal connections to the Apache, Sioux, and Cherokee. Therefore, the record does not demonstrate ICWA compliance.

The judgment was vacated and the case was remanded, with instructions, for further proceedings.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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