Colorado Supreme Court to Hear Case Involving Native American Heritage and Family Law March 7

A large building made of concrete has multiple windows and has large columns at the front. Near the front entrance a sign reads “Colorado Supreme Court” and “Colorado Court of Appeals.”
The Colorado Supreme Court will hear oral arguments in three cases in March, including one connected to whether a child has Native American heritage. / Law Week file.

The Colorado Supreme Court will hear oral arguments in three cases March 7 including one connected to a parent’s assertion of Native American heritage for a child in a parental rights case.

The case involves the Indian Child Welfare Act, which was created as a federal law to govern the removal of American Indian children from homes, and established standards for the termination of parental rights to keep children connected to their families and tribes. 

According to a Colorado Court of Appeals Opinion for the case, the Denver Department of Human Services filed a dependency and neglect petition concerning a two-year-old child, J.J.L. The department indicated the mother, J.M.G., reported having Cherokee or Navajo heritage but wasn’t certain which and didn’t know if anyone in her family was an enrolled member. 

At a temporary custody hearing, J.M.G. told the juvenile court she had Cherokee or Navajo heritage. The court found that wasn’t a reason to know J.J.L. was an Indian child. The court told J.M.G. to complete an ICWA ancestry chart and directed DDHS to exercise due diligence to gather more information to determine whether there was a reason to know J.J.L. was an Indian child.

J.M.G. completed and submitted an ICWA inquiry form and ancestry chart. On the form, J.M.G. indicated either she or someone in her family had Indian heritage, but checked boxes that indicated she wasn’t enrolled in an Indian tribe and the child wasn’t enrolled or eligible to be enrolled. On the ICWA ancestry chart, J.M.G. identified her tribe as Cherokee, but she didn’t fill in the sections seeking tribal affiliations for maternal grandparents or great-grandparents.

DDHS eventually moved to terminate the legal relationships between J.J.L. and their parents. As part of the termination motion, the department asserted there wasn’t a reason to know J.J.L. was an Indian child. 

Around a month later, DDHS filed a declaration listing efforts it made to determine whether J.J.L. was an Indian child, including contacting family about a possible connection to Native American tribes.

The juvenile court determined ICWA was inapplicable because the DDHS investigation hadn’t shown reason to know J.J.L. was an Indian child. The court entered a judgment terminating both J.M.G.’s and the father’s parental rights.

The parents appealed the decision. One contention brought before the Court of Appeals was the assertion that ICWA required the DDHS to give notice of the proceeding to the Cherokee and Navajo tribes. The opinion added the notice provisions give a tribe the right to intervene.

The appeals court looked at conditions to determine when ICWA applies. Under federal regulations, there are multiple ways a court has reason to know a child has Native American heritage. The record showed five of the six factors are not at issue. The remaining factor brought forward in this case is that a participant told the court they have discovered information the child is Native American.

The court then turned to the previous Colorado Court of Appeals case of People in the Interest of E.M. In that case, a division of the court found a juvenile court had a reason to know a child is Native American under the remaining factor in the current case based on information concerning the child’s Indian heritage. That division reasoned because the factor had a different meaning than being informed the child is Native American, it applied when the court had information the child could have ancestors affiliated with a specific tribe but that information doesn’t satisfy all criteria of the Indian child definition.

Another division of the appeals court in People in the Interest of A-J.A.B. later determined an assertion of tribal heritage, that was similar to J.M.G.’s, doesn’t give the court a reason to know a child is Native American. That division held the definition of an Indian child doesn’t apply simply based on a child’s or parent’s Indian ancestry, but on a political relationship to the tribe. 

That appeals court division in that case also concluded the difference between reason-to-know factors based on a participant telling the court the child is Native American and that participant informing the court it has discovered information the child is an Indian child is temporal the latter reason-to-know factor applied when a participant discovered information during the proceedings indicating a child is Native American.

The Court of Appeals in the current case was persuaded by the reasoning in A-J.A.B., finding that determining whether a court has a reason to know a child in an Indian child turned on whether the child is a tribal member or eligible for membership, while being the biological child of a tribal member. The appeals court noted an assertion of Native American heritage connected to tribal ancestral groups doesn’t demonstrate a strong chance the child is a tribal member or eligible for membership. 

The Court of Appeals also determined DDHS didn’t meet its obligation to exercise due diligence under Colorado Revised Statute 19-1-126(3). Under that statute, the court directs the petitioning or filing party to make a record of effort taken to determine whether there is reason to know the child is Native American.

The appeals court wrote the legislature didn’t define due diligence under the statute so contending what constitutes due diligence is flexible and dependent on the circumstances. The appeals court added the record doesn’t show DDHS followed up with J.M.G. to ascertain the basis for her belief she and J.J.L. had Native American heritage.

The appeals court found the record doesn’t show 19-1-126(3)’s due diligence obligation was met and remanded the case with instructions for the juvenile court to direct DDHS to exercise due diligence and assist the juvenile court to determine whether there’s reason to know J.J.L. is an Indian child.

Now the case has made its way to the Colorado Supreme Court. One question before it is whether the Court of Appeals erred by concluding DDHS hadn’t exercised due diligence.

Another question before the high court is whether the appeals court erred in declining to follow the analysis in People in the Interest of E.M.

The court will hear two other cases March 7. One is a deceptive trade practice case and deals with whether the appeals court erred in ordering a new trial. The other is connected to a statute of limitations period and bankruptcy.

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