People in the Interest of Jay.J.L.
2022 COA 43. No. 21CA0659. Dependency and Neglect—Indian Child Welfare Act—“Reason to Know”—Due Diligence.
April 14, 2022
The Denver Department of Human Services (Department) filed a dependency and neglect petition concerning the child. The petition indicated that mother reported having Cherokee or Navajo heritage but was uncertain about which and did not know if anyone in her family was an enrolled tribal member. Mother also told the juvenile court at the initial temporary custody hearing that she had Cherokee or Navajo heritage. The court determined that this assertion was not reason to know that the child was an Indian child, but it directed the Department to exercise due diligence to gather additional information and for mother to complete an Indian Child Welfare Act (ICWA) ancestry chart. Mother submitted an ICWA inquiry form and an ICWA ancestry chart.
The court adjudicated the child dependent and neglected and entered dispositional orders as to both parents. The Department later moved to terminate the legal relationships between the child and his parents, asserting that there was no reason to know that the child was an Indian child. The Department subsequently listed additional diligent efforts it had made to determine whether there was reason to know that the child was an Indian child. The court determined that the ICWA was inapplicable and entered judgment terminating the parental rights of mother and father.
On appeal, mother argued that the ICWA required the Department to give notice of the proceedings to the Cherokee and Navajo tribes. If the court knows or has reason to know that an Indian child is involved in a child custody proceeding, the petitioning party must provide notice to the identified tribes of the pending proceeding and the tribe’s right to intervene. Further, the juvenile court must ask each participant on the record at the start of every child custody proceeding whether the participant knows or has reason to know that the child is an Indian child. The Colorado Children’s Code sets forth six factors for determining if there is reason to know that a child is an Indian child. The record in this case established that only one of the six factors was at issue—whether a participant in the proceedings informed the court that he or she discovered information indicating that the child is an Indian child. Here, the only basis for such reason to know was mother’s statement to the court of her heritage, which in and of itself did not demonstrate a substantial chance that the child is a tribal member or eligible for membership and did not meet the ICWA’s “reason to know” standard.
However, the Department failed to exercise due diligence in gathering additional information to assist the court in determining whether there is reason to know that the child is an Indian child because its declaration of diligent efforts does not show that it followed up with mother to ascertain the basis for her belief that she and the child had Cherokee or Navajo heritage.
The case was remanded, with instructions, 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.