People in the Interest of M.M.

2022 COA 61. No. 21CA0760. Dependency and Neglect—Indian Child Welfare Act—Reason to Know—Assertion of Lineage—Proper Notice.

June 2, 2022

The Arapahoe County Department of Human Services (Department) initiated a dependency and neglect proceeding concerning the children. At the initial temporary custody hearing, father reported that his grandmother is a registered tribal member in Delaware, though he was unsure of which tribe. The juvenile court directed father to complete an Indian Child Welfare Act (ICWA) assessment, but father did not submit the form. The Department later moved to terminate the legal relationship between the parents and the children. The juvenile court determined that the ICWA was inapplicable and entered judgment terminating both parents’ parental rights.

On appeal, mother argued that the record does not demonstrate compliance with ICWA’s requirements because there was no further inquiry or notice provided based on father’s report of a lineal affiliation with a Delaware tribe. When the court knows or has reason to know that an Indian child is involved in a termination proceeding, it must ensure that notice of the proceeding is given to applicable Indian tribes or, in some circumstances, the Bureau of Indian Affairs (BIA). The federal regulations implementing ICWA provide that a court has reason to know that a child is an Indian child if certain factors are present, including when a case participant informs the court that he or she has discovered information indicating that the child is an Indian child. Here, father’s assertion of a lineal tribal affiliation gave the juvenile court reason to know that the children are Indian children, thus triggering ICWA’s notice requirements. However, the record does not show that proper notice was given to the appropriate tribes or the BIA.

The case was remanded, with instructions, for the juvenile court to expeditiously determine whether the children are Indian children before recertifying the case for a decision.