State Supreme Court to Hear Arguments in Indian Child Welfare Act Case, 6 Others

Issues include tribal enrollment requirements under the Indian Child Welfare Act and a minor’s right to recover childhood medical expenses

The Colorado Supreme Court will hear oral arguments in seven cases next week, including cases that raise questions about a trial court’s obligations under the Indian Child Welfare Act and whether a minor can bring his own claim to recover medical expenses incurred during childhood.


People in the Interest of Minor Children K.C. and L.C.

The Colorado Supreme Court on March 9 will hear arguments about whether the Indian Child Welfare Act requires a trial court to hold a tribal enrollment hearing to determine whether it is in a child’s best interests to be deemed an “Indian Child” as a pre-requisite to termination of parental rights. The court will also take up the question of whether a trial court can order a county human services department to enroll a child in an American Indian tribe over a parent’s objections.

The ICWA governs jurisdiction over the removal of Native American children from their families and was enacted to address concerns about the forced removal of Native American children from their homes and cultures. Under the ICWA, a tribe has exclusive jurisdiction over children who are tribal members and live on tribal land. For children who are tribal members but don’t live on tribal land, tribal courts and state courts share jurisdiction.

The case stems from a May 2018 dependency and neglect petition filed against the mother of then-infant twins K.C. and L.C. by the Logan County Department of Human Services. The mother is not of Native American heritage, but the twins’ father said he had Chickasaw heritage, and the department sent notice to the Chickasaw Nation. The nation responded that the children were eligible for citizenship through their paternal grandfather, and the children could qualify as “Indian Children” once they or their father were enrolled as citizens. 

The Chickasaw Nation requested the children be enrolled as members and sent tribal enrollment and citizenship forms to the department, noting that although “the ICWA does not yet apply in this case, we have a vested interest in the welfare of children who are eligible for citizenship.”

The department didn’t enroll the children, and the juvenile court was not made aware of the nation’s request until April 2019 when the department filed its motion to terminate the parents’ rights. The juvenile court terminated the mother’s parental rights, finding that the ICWA didn’t apply.

The mother appealed, arguing the judgment should be vacated because the department failed to take steps to enroll the children in the Chickasaw nation. The Court of Appeals concluded the judgment should be vacated and remanded, but for different reasons. The court found that when a tribe communicates the desire to obtain membership for eligible children, the department must file the tribe’s response with the juvenile court, which must then hold an enrollment hearing to determine whether enrollment is in the best interests of the child.

Rudnicki v. Bianco

In another case before the Colorado Supreme Court this week, the justices will consider whether it should abandon the common law rule that tort damages for medical expenses incurred by a child may only be recovered through a claim brought by the parents. 

Alexander Rudnicki suffered brain injuries and permanent disability as a result of the negligence of Dr. Peter Bianco, the doctor who delivered him. Rudnicki sued Bianco through his parents for medical malpractice and a jury awarded him $4 million.

Bianco filed a post-trial motion to reduce the award by the $391,000 awarded for Rudnicki’s pre-majority medical expenses, arguing that only Rudnicki’s parents, who did not assert claims in their individual capacities at trial, could recover the pre-majority medical expenses. 

Rudnicki, who is still a minor, countered that both he and his parents are entitled to recover his pre-majority medical expenses, and the 2017 Court of Appeals decision in Pressey v. Children’s Hospital Colorado, which held that children are barred from recovering such expenses, was wrongly decided. Rudnicki also asserted he is a real party in interest because he is personally on the hook for reimbursing Anthem Blue Cross Blue Shield and the Colorado Department of Health Care Policy and Financing for the amounts they paid toward his medical expenses. According to Rudnicki, Anthem and CDHPF have indicated they have filed or will file liens against him if he doesn’t reimburse them. 

The district court sided with Bianco, noting it was bound by Pressey, and reduced Rudnicki’s award by $391,000. On appeal, the Court of Appeals declined to hold that Pressey was wrongly decided, as that opinion cited Colorado Supreme Court precedent holding that parents own the claims for the expenses of a minor, with certain exceptions. 

One of those exceptions is for expenses the minor is legally obligated to pay, which Rudnicki says is the case for the expenses Anthem and CDHPF paid and want reimbursed. The Court of Appeals was unable to determine whether the exception applies for Anthem’s portion because the record did not contain enough information to show whether the insurer was asserting a lien. The court also found that the CDHPF didn’t have a valid lien against damages awarded for Rudnicki’s past expenses. 

The Colorado Supreme Court will consider whether it should abandon the common law rule that damages for medical expenses incurred by a child may only be recovered by the parents. Rudnicki argues the rule is an obsolete holdover from medieval common law that gave a man property interests in the services of his wife and children, making him the real party of interest for their injuries. The rule serves no purpose in the modern world, Rudnicki asserts, where health insurance contracts give insurers reimbursement rights to money recovered by their insureds. The Supreme Court will also consider whether the Court of Appeals erred in finding the CDHPF does not have a valid lien against Rudnicki’s recovery. 

Oral arguments will be held March 9. More than a half dozen groups have filed amicus briefs in the case, including organizations representing defense and plaintiffs’ attorneys and insurance, health care and hospital industry interests.

Criminal Matters

The high court will also hear arguments in a number of criminal cases next week. 

On March 9, arguments will be held in People v. Kerry Lee Cooper and People v. Dylan Thomas Coons, which raise questions about the admissibility of blind expert testimony.

The court will hear arguments in People v. Elmo Jesse Johnson on March 10. At issue in that case is whether the exclusionary rule precludes the prosecution from offering constitutionally suppressed evidence in response to “truthful, yet incomplete evidence” from the defense that “may mislead the jury.” 

Also on March 10, the Supreme Court will hear arguments in a pair of cases that raise the question of whether a defendant may be sentenced to consecutive terms of prison and the Sex Offender Intensive Supervision Program for the same crime. The cases are In re People v. Michael Anthony Manaois and In re People v. Patrick S. Keen. 

— Jessica Folker

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