|
(Cite
as: 230 P.3d 1259) |
Colorado
Court of Appeals,
Div.
V.
The
PEOPLE of the State of Colorado, Petitioner-Appellee,
In
the Interest of A.R.Y.-M., a Child,
and
Concerning
R.Y., Respondent-Appellant.
No.
09CA2295.
March
18, 2010.
*1260
David R. Fine, City Attorney, Laura Grzetic Eibsen, Assistant City Attorney,
Denver, Colorado, for Petitioner-Appellee.
Kelli
Narans, Guardian Ad Litem.
Terry
Ross, Denver, Colorado, for Respondent-Appellant.
Opinion
by Judge NIETO.FN*
FN*
Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, ? 5(3), and ? 24-51-1105, C.R.S.2009.
R.Y.
(mother) appeals from the judgment terminating the parent-child legal
relationship with her son, A.R.Y.-M. She asserts reversal is required for
failure to comply with various provisions of the Indian Child Welfare Act of
1978, 25 U.S.C. ?? 1901 to 1963 (2006) (ICWA). We conclude that although there
were errors in compliance with the ICWA's notice provisions, those errors were
harmless, and consequently, we affirm the judgment.
I.
Factual and Procedural Background
The
Denver Department of Human Services (the department) filed a dependency and
neglect petition on A.R.Y.-M.'s behalf shortly after his birth. Mother, who was
a minor, was also in the department's legal custody.
The
caseworker reported that mother had Native American ancestry through her
biological father. Accordingly, notice was sent to the Navajo Nation and the
Eastern Shawnee Tribe of Oklahoma. The Navajo Nation responded it had ?been
unable to verify? that A.R.Y.-M. was eligible for enrollment and asked the
department to notify the tribe if the department received additional information
that would assist in that determination. The Eastern Shawnee responded that the
child was not a member of the tribe and was not eligible for
enrollment.
Mother
received services for almost three years until, after a contested hearing, the
court terminated her parental rights.
II.
ICWA
Mother
asserts several violations of the ICWA's notice provisions which she claims
warrant reversal of the judgment. She contends the notice sent
?
was ?hopelessly vague,? because it stated only that the department was
?involved? with A.R.Y.-M.;
?
did not include a copy of the original or amended dependency and neglect
petition;
?
did not contain any information about A.R.Y.-M.'s birthplace;
?
contained only ?minimal? information about A.R.Y.-M.'s
grandparents;
?
did not inform the tribe that it was entitled to a twenty-day extension to file
a response;
?
did not inform the tribe that it had a right to transfer the matter to tribal
court; and
?
did not state the information in the notice should be kept
confidential.
We
agree the notices sent did not comply with all the provisions in the ICWA.
However, because the Navajo Nation responded that it could not verify enrollment
or eligibility for enrollment for A.R.Y.-M. and mother provided the department
with no further information to assist in that determination and the Eastern
Shawnee Tribe responded that A.R.Y.-M. was not an Indian child, we conclude any
errors in the notice are harmless.
A.
Law
Congress
enacted the ICWA because of concerns over the involuntary separation of Indian
children from their families for placement*1261
in non-Indian homes. B.H.
v. People in Interest of X.H.,
138 P.3d 299, 301 (Colo.2006). The purpose of the ICWA is to protect Indian
children who are members of or are eligible for membership in an Indian tribe.
25 U.S.C. ? 1901(3) (2006). The Colorado General Assembly has expressly provided
for compliance with, and consistent application of, the ICWA. See
? 19-1-126, C.R.S.2009.
The
ICWA applies when the state seeks to place an Indian child in foster care or
when the state seeks to terminate parental rights. See
25 U.S.C. ?? 1911, 1912 (2006). Under those circumstances, whenever the court
knows or has reason to know that an Indian child is involved, the party seeking
placement or termination must provide notice to the child's tribe or his or her
parent's tribe, or to the Bureau of Indian Affairs (the BIA) if the tribe cannot
be identified or located. 25 U.S.C. ? 1912(a) (2006); People
in Interest of S.R.M.,
153 P.3d 438, 440 (Colo.App.2006).
The
Department of the Interior has promulgated Guidelines for State Courts; Indian
Child Custody Proceedings, 44 Fed.Reg. 67,584 (Nov. 26, 1979) (Guidelines), to
aid in the interpretation and application of the ICWA. S.R.M.,
153 P.3d at 441. The Guidelines were authored by the BIA and represent that
department's interpretation of the ICWA. Although they are not binding, they
have been considered persuasive by state courts. B.H.,
138 P.3d at 302 n. 2; S.R.M.,
153 P.3d at 441.
The
Guidelines set forth specific categories of information a social services
department should include in its notice to a tribe under the ICWA. 25 C.F.R. ?
23.11(a), (d), (e). Notice must include the name, birth date, and birthplace of
the Indian child; his or her tribal affiliation; a copy of the dependency
petition; the petitioner's name; a statement of the right of the tribe to
intervene in the proceeding; and information about the Indian child's biological
mother, biological father, maternal and paternal grandparents and
great-grandparents, or Indian custodians, including maiden, married, and former
names or aliases, birth dates, places of birth and death, current and former
addresses, tribal enrollment numbers, and other identifying information.
Guidelines, 44 Fed.Reg. at 67,588; 25 C.F.R. ? 23.11(a), (d); S.R.M.,
153 P.3d at 441.
Although
?[t]he party asserting the applicability of ICWA has the burden to produce the
necessary evidence for the trial court to determine if the child is an ?Indian
child,? ? People
in Interest. of A.G.-G.,
899 P.2d 319, 322 (Colo.App.1995), the threshold information necessary to
provide notice ?was clearly not intended to be high.? B.H.,
138 P.3d at 303.
Moreover,
a social services department need only include in the notice the information
known to it. People
in Interest of N.D.C.,
210 P.3d 494, 497 (Colo.App.2009); In
re Louis S.,
117 Cal.App.4th 622, 12 Cal.Rptr.3d 110, 115 (2004) (the social services
department must provide all known information to the tribe).
[1][2]
This court reviews any errors in the notice given to see if they are harmless.
N.D.C.,
210 P.3d at 498; S.R.M.,
153 P.3d at 441-42. If, after receiving all known information, a tribe responds
that a child is not an Indian child, any errors in the notice are deemed to be
harmless. In
re E.W.,
170 Cal.App.4th 396, 88 Cal.Rptr.3d 338, 344 (2009) (errors in improperly
addressing notice not prejudicial when tribe responds that children at issue are
not Indian children); In
re J.T.,
154 Cal.App.4th 986, 65 Cal.Rptr.3d 320, 325 (2007) (error in serving person
other than designated agent is harmless when the tribes responded to the notice
that the children were not members or eligible for membership in the
tribes).
B.
Analysis
Mother
correctly asserts that the notice here did not clearly tell the tribes the
nature of the department's involvement with A.R.Y.-M.; did not include a copy of
the original or amended dependency and neglect petition; did not contain any
information about A.R.Y.-M.'s birthplace; contained only minimal information
about A.R.Y.-M.'s grandparents; did not state the tribe was entitled to a
twenty-day extension to file a response; did not state the tribe had a right to
transfer the matter to tribal court; and did not state the information in the
notice should be kept confidential. However, we conclude the errors here were
harmless.
*1262
1. The Eastern Shawnee Tribe
[3]
The Eastern Shawnee responded that A.R.Y.-M. was not enrolled and was not
eligible to enroll. The only information mother asserts that was not included in
the notice that might have enabled that tribe to conclude A.R.Y.-M. was enrolled
or was eligible for enrollment was information about his birthplace and his
grandparents. However, mother does not assert that (1) she ever provided this
information to the department or it knew the information and omitted it from the
notices; (2) she later provided this information to the department and it did
not send new notices; or (3) including this information would have resulted in
the conclusion that A.R.Y.-M. was enrolled or was eligible to enroll in either
notified tribe. Therefore, because all known information was provided to the
tribes, and mother has not shown that any new information would have resulted in
a different tribal determination, she has not asserted reversible error.
Cf.
In
re Cheyanne F.,
164 Cal.App.4th 571, 79 Cal.Rptr.3d 189, 193 (2008) (omission of information
known to a social services department may be harmless error when there is ?no
basis to believe? that providing that information ?would have produced different
results concerning the [children's] Indian heritage?). The other information
omitted from the notice did not affect the tribe's ability to determine whether
A.R.Y.-M. was an Indian child within the meaning of the ICWA.
2.
The Navajo Nation
[4]
The Navajo Nation responded that it was unable to verify enrollment and asked
the department to forward additional information, if such information were
obtained. Although this response was more equivocal than that of the Eastern
Shawnee, the same analysis applies. Mother never provided the department with
additional information, and the department forwarded to the Navajo Nation the
information mother did provide. Therefore, we conclude any error was harmless.
Id.
III.
Notice of the Termination Hearing
[5]
Mother also asserts reversal is required because notice of the termination
hearing was not sent to the tribes. We disagree.
Mother
relies on S.R.M.,
153 P.3d at 442-43, for the proposition that unless a tribe explicitly states it
will not intervene in a dependency and neglect proceeding, the social services
department must provide notice of the termination hearing. Here, neither tribe
expressly stated that it would not intervene. However, the Eastern Shawnee Tribe
stated A.R.Y.-M. was not enrolled and was ineligible to enroll. This statement
is the equivalent of an express statement that the tribe will not intervene,
because if the child is not eligible to enroll or is not enrolled, the ICWA does
not empower the tribe to intervene. 25 U.S.C. ? 1903(5) (2006) (definition of
Indian child's tribe); 25 U.S.C. ? 1911(c) (2006) (ability of child's tribe to
intervene); see
also In
re B.R.,
176 Cal.App.4th 773, 97 Cal.Rptr.3d 890, 894 (2009) (Indian tribes may take
jurisdiction over or intervene in state court proceedings involving Indian
children).
[6]
Similarly, the statement of the Navajo Nation that it could not determine the
child's eligibility to enroll is sufficient to eliminate the requirement of
notice of the termination hearing. When the tribe is provided with all known
information, but cannot determine enrollment or eligibility for enrollment based
on that information, that tribe would also not be empowered to intervene.
See
25 U.S.C. ?? 1903(5), 1911(c); see
also In
re B.R.,
97 Cal.Rptr.3d at 894.
Simply
stated, once the tribes responded as they did here, additional notice would only
have been required if the department acquired new information about A.R.Y.-M.'s
heritage that would have assisted a tribe in making eligibility determinations.
Because mother did not provide such information, we conclude no additional
notice was required.
The
judgment is affirmed.
Chief
Judge DAVIDSON and Judge ROTHENBERG, concur.