2020 WL 939240
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. A PETITION FOR REHEARING IN THE COURT OF APPEALS OR A PETITION FOR CERTIORARI IN THE SUPREME COURT MAY BE PENDING.
Colorado Court of Appeals, Division A.
The PEOPLE of the State of Colorado, Appellee,
IN the INTEREST OF K.R. and S.R., Children,
Concerning T.K.D., Appellant.
Court of Appeals No. 18CA2258
Announced February 27, 2020
Costilla County District Court No. 17JV4, Honorable Pattie P. Swift, Judge
Opinion by JUDGE FURMAN
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.
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.
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 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 ApplicabilityICWA 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, 310 P.3d 1007. 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, 395 P.3d 1209.
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.
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).
But ICWA does not define tribal membership. People in Interest of M.V., 2018 COA 163, ¶ 24, 432 P.3d 628. 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).
Whether ICWA applies to a proceeding is a question of law that we review de novo. M.V., ¶ 32.
II. The Supplemental RecordThe 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 grandmother indicated that the children have Sioux heritage, neither mother nor the children’s father identified a tribal affiliation.
As a result, we are unable to determine from the supplemental record whether the children are Indian children under ICWA.
III. ConclusionWe 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).
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).
If the court determines that the children are not Indian children, the court may reinstate the termination judgment. Mother may appeal from the judgment.
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.
--- P.3d ----, 2020 WL 939240, 2020 COA 35