In re L.L

COLORADO COURT OF APPEALS 2017COA38

Court of Appeals No. 16CA1222
City and County of Denver Juvenile Court No. 16JV510
Honorable D. Brett Woods, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of L.L., a Child,

and Concerning A.T.,

Respondent-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE FURMAN
Terry and Plank*, JJ., concur

Announced March 23, 2017

Cristal D. Torres, City Attorney, Laura Grzetic Eibsen, Assistant City Attorney,
Denver, Colorado, for Petitioner-Appellee

Debra W. Dodd, Greeley, Colorado, for Respondent-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1 In this dependency and neglect case, mother, A.T., told the

juvenile court at a shelter hearing that she had possible Apache

Native American ancestry. But, for reasons not disclosed in the

record, the parties and the juvenile court did not follow certain

procedures mandated by the Indian Child Welfare Act of 1978

(ICWA), 25 U.S.C. §§ 1901-1963 (2012); see § 19-1-126, C.R.S.

2016. Following a jury verdict, the court adjudicated the child, L.L.,

dependent and neglected. The court then held a dispositional

hearing.

¶2 On appeal, mother contends that we should reverse the

adjudicatory judgment for two reasons: (1) the Denver Department

of Human Services (Department) did not comply with the ICWA

notice requirements; and (2) the juvenile court violated ICWA by not

requiring the jury to base its findings on a heightened clear and

convincing evidentiary standard. We agree with mother that the

Department did not comply with the ICWA notice requirements.

But, we disagree that ICWA imposes a heightened evidentiary

standard at the adjudicatory hearing. Thus, we reverse the

judgment and remand the case with directions that notice be given

in accordance with ICWA.

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 I. Mother’s Alleged Apache Heritage

¶3 A truancy court magistrate ordered the Department to

investigate this case based on mother refusing to take her son, L.L.,

to school. A recording from a cell phone showed L.L. cowering in a

corner of a bedroom, while mother yelled and threatened to beat

him with a belt. The Department subsequently filed a petition in

dependency and neglect, which alleged mother had refused to

cooperate with a Denver Police welfare check. She told the

authorities that L.L. was staying with family in Rifle, Colorado, but

would not provide an address, and that she had bipolar disorder,

but had not been taking her medications.

¶4 At a shelter hearing, mother denied the allegations in the

petition and requested a jury trial. She also stated that she had

Apache heritage, although she did not subsequently fill out an

ICWA assessment form. The Bureau of Indian Affairs (BIA) lists

eight Apache Tribes on its website, https://perma.cc/MHN5-B3F7:

Jicarilla Apache Nation, Mescalero Apache Tribe, San Carlos

Apache Tribe, Tonto Apache Tribe of Arizona, White Mountain

Apache Tribe of the Fort Apache Reservation, Yavapai-Apache

Nation of the Camp Verde Indian Reservation, Fort Sill Apache Tribe

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 of Oklahoma, and Apache Tribe of Oklahoma. Two months later,

mother filed written information that included tribal card numbers

and roll numbers.

¶5 Even so, the Department did not send notice of the

proceedings to any of the Apache Tribes.

¶6 At a pretrial hearing, mother again stated that she had Indian

heritage. But, at that hearing, the juvenile court did not address

whether the Department used due diligence to identify and work

with an Apache Tribe to verify whether L.L. is a member or is

eligible for membership. And, the court did not treat L.L. as an

Indian child pending the Tribes’ verification.

¶7 On the first day of the adjudicatory hearing, the juvenile court

instructed the jury that the Department had the burden of proving

the allegations set forth in the petition by a preponderance of the

evidence. The court did not address whether ICWA applied. Mother

did not object to the court’s preponderance instruction.

¶8 Based on the jury’s verdict, the juvenile court adjudicated L.L.

dependent and neglected.

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 II. The Application of ICWA

¶9 The positions of the parties before the juvenile court

demonstrate significant confusion about the application of ICWA

and the practices to be followed in implementing it. For example:

 At the shelter hearing, the Department acknowledged

that it would send notices. But, at a pretrial hearing, the

Department did not indicate whether notices to any

Apache Tribes had been sent. In the end, the

Department did not send notice to any Apache Tribe, and

concedes so on appeal.

 L.L.’s guardian ad litem (GAL) voiced no position

regarding ICWA’s applicability to this case, and does not

assert any position on appeal.

 Mother did not state that she was enrolled in an Apache

Tribe or that L.L. was eligible for membership. Rather,

she asserted that her great grandmother was “an Apache

out of Nebraska”; she had “the bloodline”; and she “was

able to continue with the enrollment process.”

¶ 10 To address the application of ICWA to this case, we first

discuss Congress’s purpose in enacting ICWA. We then discuss the

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 roles of the juvenile court and the parties in determining whether a

child is an “Indian child” under ICWA. We conclude by addressing

mother’s two arguments on appeal that: (1) the Department did not

comply with ICWA’s notice requirements; and (2) ICWA imposes a

heightened evidentiary standard at the adjudicatory hearing.

A. Congress’s Purpose in Enacting ICWA

¶ 11 Congress enacted ICWA “for the protection and preservation of

Indian tribes and their resources.” 25 U.S.C. § 1901(2) (2012).

Congress found “that an alarmingly high percentage of Indian

families are broken up by the removal, often unwarranted, of their

children from them by nontribal public and private agencies and

that an alarmingly high percentage of such children are placed in

non-Indian foster and adoptive homes and institutions.” 25 U.S.C.

§ 1901(4). Congress also found that States have often “failed to

recognize the essential tribal relations of Indian people and the

cultural and social standards prevailing in Indian communities and

families.” 25 U.S.C. § 1901(5).

¶ 12 To address this failure, ICWA establishes “minimum Federal

standards for the removal of Indian children from their families and

the placement of such children in foster or adoptive homes which

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 will reflect the unique values of Indian culture.” 25 U.S.C. § 1902

(2012). In other words, ICWA establishes minimum federal

standards for an “Indian child” involved in a “child custody

proceeding.” 25 U.S.C. § 1903(1),(4) (2012).

¶ 13 Of course, ICWA does not apply to every child-custody

proceeding. Hence, in any such proceeding, the parties and

juvenile court must ask 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 Bureau of Indian

Affairs, Guidelines for Implementing the Indian Child Welfare Act 9

(Dec. 2016), https://perma.cc/3TCH-8HQM (2016 Guidelines).

B. The Juvenile Court and the Parties’ Role

¶ 14 The juvenile court and the parties each play an important role

in determining whether ICWA applies to a child who is subject to a

custody proceeding.

¶ 15 On appeal, the Department cites the 2015 Guidelines for State

Courts and Agencies in Indian Child Custody Proceedings (2015

Guidelines) and 2016 Department of the Interior Final Rule (2016

Final Rule) as guidance to State courts related to inquiry and

verification issues in Indian Child Welfare Act proceedings. See

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 Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778 (June

14, 2016) (to be codified at 25 C.F.R. pt. 23); Guidelines for State

Courts and Agencies in Indian Child Custody Proceedings, 80 Fed.

Reg. 10,146 (Feb. 25, 2015). In 2016, the BIA published new

guidelines intended “to assist those involved in child custody

proceedings in understanding and uniformly applying” ICWA. 2016

Guidelines at 4, 6. The 2016 Guidelines repeal the 2015 Guidelines

and incorporate the 2016 Final Rule. Id. The 2016 Guidelines thus

clarify the practices of courts and parties involved in child custody

proceedings to ensure compliance with ICWA, and the Department

appears to concede their value in doing so.

¶ 16 Although the 2016 Guidelines are not binding, we consider

them persuasive. See B.H. v. People in Interest of X.H., 138 P.3d

299, 302 n.2 (Colo. 2006) (referring to the 1979 guidelines).

Therefore, we look to the 2016 Guidelines for guidance to ensure

compliance with ICWA.

¶ 17 In determining whether ICWA applies to a child who is subject

to a dependency and neglect proceeding, the juvenile court, the

Department, the GAL, and the respondent parent each have various

duties. We address them here.

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 1. The Juvenile Court’s Duties

¶ 18 The juvenile court’s duty is to ask whether the child is an

“Indian child,” follow certain procedures if it has reason to know a

child is an Indian child, and, if the child is not an Indian child,

instruct the parties to inform the court if they later receive

information that provides reason to know the child is an Indian

child. 25 C.F.R. § 23.107 (2016).

a. Initial Inquiry

¶ 19 The juvenile court must first ask each participant on the

record at the commencement of every emergency, voluntary, or

involuntary child-custody proceeding “whether the participant

knows or has reason to know that the child is an Indian child.” 25

C.F.R. § 23.107(a); see § 19-1-126(2) (When the petition “does not

disclose whether the child” is an Indian child, “the court shall

inquire of the parties at the first hearing whether the child is an

Indian child and, if so, whether the parties have complied with the

procedural requirements” of ICWA.).

¶ 20 An “Indian child” means “any unmarried person who is under

the age of eighteen and is either: (a) a member of an Indian tribe or

(b) is eligible for membership in an Indian tribe and is the biological

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 child of a member of an Indian tribe[.]” 25 U.S.C. § 1903(4); see 19-

1-103(65.3), C.R.S. 2016. Tribal membership for purposes of ICWA

is left up to the individual Tribes. B.H., 138 P.3d at 303.

b. Reason to Know

¶ 21 The juvenile court also has certain duties if it has “reason to

know” that a child is an Indian child. 25 C.F.R. § 23.107. The

juvenile court has “reason to know” that a child is an Indian child

based on any of the following:

(1) Any participant in the proceeding, officer of
the court involved in the proceeding, Indian
Tribe, Indian organization, or agency informs
the court that the child is an Indian child;

(2) Any participant in the proceeding, officer of
the court involved in the proceeding, Indian
Tribe, Indian organization, or agency informs
the court that it has discovered information
indicating that the child is an Indian child;

(3) The child who is the subject of the proceeding
gives the court reason to know he or she is an
Indian child;

(4) The court is informed that the domicile or
residence of the child, the child’s parent, or the
child’s Indian custodian is on a reservation or
in an Alaska Native village;

(5) The court is informed that the child is or has
been a ward of a Tribal court; or

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 (6) The court is informed that either parent or the
child possesses an identification card
indicating membership in an Indian Tribe.

25 C.F.R. § 23.107(c).

¶ 22 The supreme court has determined that the information

indicating that a child is an Indian child is based on the “totality of

the circumstances” and includes “consideration of not only the

nature and specificity of available information but also the

credibility of the source of that information and the basis of the

source’s knowledge.” B.H., 138 P.3d at 303. But, the supreme

court cautioned that “the threshold requirement for notice was

clearly not intended to be high.” Id.; see 25 C.F.R. § 23.106(b)

(2016) (“[W]here applicable State . . . law provides a higher standard

of protection to the rights of the parent or Indian custodian than

the protection accorded under the Act, ICWA requires the State . . .

to apply the higher State . . . standard.”).

¶ 23 Thus, based on a totality of the circumstances, if there is

“reason to know” the child is an Indian child, but the juvenile court

does not have sufficient evidence to determine whether the child is

or is not an “Indian child,” the court must do several things. 25

C.F.R. § 23.107.

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¶ 24 First, the juvenile court must ensure that the Department

sends notice to any identified Indian Tribe. That is, when the

juvenile court knows or has reason to know that the subject of an

involuntary foster-care-placement or termination-of-parental-rights

proceeding is an Indian child, the court must ensure that the

following occurs:

(1) The party seeking placement promptly
sends notice of each such child-custody
proceeding (including, but not limited to, any
foster-care placement or any termination of
parental or custodial rights) . . . ; and

(2) An original or a copy of each notice sent . . .
is filed with the court together with any return
receipts or other proof of service.

25 C.F.R. § 23.111(a) (2016).

¶ 25 The court must then “[c]onfirm, by way of a report,

declaration, or testimony included in the record” that the

department used due diligence to

identify and work with all of the Tribes of
which there is reason to know the child may be
a member (or eligible for membership) [and] to
verify whether the child is in fact a member (or
a biological parent is a member and the child
is eligible for membership)[.]

25 C.F.R. § 23.107(b)(1); see § 19-1-126(2).

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¶ 26 Second, the court must “[t]reat the child as an Indian child,

unless and until it is determined on the record that the child does

not meet the definition of an ‘Indian child.’” 25 C.F.R.

§ 23.107(b)(2).

c. Subsequent Information if Not an Indian Child

¶ 27 If the child is not an Indian child, the juvenile court must

“instruct the parties to inform the court if they subsequently receive

information that provides reason to know the child is an Indian

child.” 25 C.F.R. § 23.107(a).

The rule does not require an inquiry at each
hearing within a proceeding; but, if a new
child-custody proceeding (such as a
proceeding to terminate parental rights or for
adoption) is initiated for the same child, the
court must make a finding as to whether there
is “reason to know” that the child is an Indian
child. In situations in which the child was not
identified as an Indian child in the prior
proceeding, the court has a continuing duty to
inquire whether the child is an Indian child.

2016 Guidelines at 11.

¶ 28 Accordingly, the juvenile court plays an important role in

determining whether ICWA applies to a child subject to a custody

proceeding by inquiring as to whether the participants know or

have reason to know that the child is an “Indian child” and

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 ensuring that notice is sent to those Tribes of which there is reason

to know the child is a member or eligible for membership.

2. The Department’s Duties

¶ 29 The Department’s duties are to investigate whether the child is

an “Indian child,” provide notice to any identified Indian Tribes, and

confirm that it used due diligence to identify and work with any

Tribes of which there is reason to know that the child may be a

member or eligible for membership.

a. Initial Inquiry

¶ 30 The Department’s first duty is to determine whether the child

is an Indian child “as soon as possible” and investigate “into a

child’s status early in the case.” 2016 Guidelines at 11; see 25

C.F.R. § 23.107(b)(1). This inquiry should occur before any court

hearing.

¶ 31 If the Department learns of a possible tribal affiliation, the

Department should “ask the child, parents, and potentially

extended family which Tribe(s) they have an affiliation with and

obtain genealogical information from the family, and contact the

Tribe(s) with that information.” See 2016 Guidelines at 11; see 25

C.F.R. § 23.107(b)(1). If a child or parent is not certain of his or her

13
 membership status in a Tribe but indicates that he or she is

somehow affiliated with a Tribe or group of Tribes, the Department

should “ask the parent and, potentially, extended family what Tribe

or Tribal ancestral group the parent may be affiliated with.” 2016

Guidelines at 18.

¶ 32 Likewise, Colorado’s ICWA statute provides that the

Department should make continuing inquiries to determine

whether the child is an Indian child, and, if so, take certain steps to

determine the identity of the Indian child’s Tribe. § 19-1-126(1)(a).

To fulfill this duty, the Department in this case sought to have

mother fill out an ICWA assessment form.

b. Providing Notice

¶ 33 The Department’s next duty is to send notice to any identified

Indian Tribes. The ICWA notice requirements are one of ICWA’s

core procedural requirements in a child-custody proceeding

because they give the parent, Indian custodian, and Tribe the

opportunity to respond to any allegations in the case, to intervene,

or to seek transfer of jurisdiction to the Tribe. 25 C.F.R. § 23.111;

see 2016 Guidelines at 30-35.

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¶ 34 Where there is reason to know that an Indian child is involved,

and where the identity and location of the Tribe is known, federal

regulations require the Department to directly notify the Tribe by

registered or certified mail with return receipt requested of the

pending child-custody proceedings and its right to intervene. 25

C.F.R. § 23.111(a).

Notice must be sent to:
(1) Each Tribe where the child may be a
member (or eligible for membership if a
biological parent is a member) . . .;
(2) The child’s parents; and
(3) If applicable, the child’s Indian custodian.

25 C.F.R. § 23.111(b).

¶ 35 Section 19-1-126(1)(b), which differs slightly from the federal

regulations with regard to permitted methods of notice, requires the

Department to send notice as follows:

by registered mail, return receipt requested, to
the parent or Indian custodian of such child,
to the tribal agent of the Indian child’s tribe as
designated in title 25 of the code of federal
regulations, part 23, or, if such agent has not
been designated, to the highest-elected or
highest-appointed official of the Indian child’s
tribe, to the highest-elected or highest-
appointed tribal judge of the Indian child’s
tribe, and to the social service department of
the Indian child’s tribe.

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 Colorado’s regulations also require the Department to provide

notice in involuntary placements by telephone within forty-eight

hours. Dep’t of Human Servs. Reg. 7.309.32(A), 12 Code Colo.

Regs. § 2509-4.

¶ 36 Because ICWA applies only if the Tribe is a federally

recognized Indian Tribe, the Department can so confirm on the

BIA’s annual list. 2016 Guidelines at 18. If only the tribal

ancestral group is indicated, it is recommended that the

Department contact each of the Tribes in the group to identify

whether the parent or child is a member. Id.

¶ 37 The Department should try to provide sufficient information to

the Tribe for the Tribe to make the determination as to whether the

child is a member or eligible for membership. Id. at 21. To this

end, the notice should include the following:

(1) The child’s name, birthdate, and birthplace;
(2) All names known (including maiden,
married, and former names or aliases) of the
parents, the parents’ birthdates and
birthplaces, and Tribal enrollment numbers if
known;
(3) If known, the names, birthdates,
birthplaces, and Tribal enrollment information
of other direct lineal ancestors of the child,
such as grandparents; [and]

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 (4) The name of each Indian Tribe in which the
child is a member (or may be eligible for
membership if a biological parent is a
member)[.]

25 C.F.R. § 23.111(d).

¶ 38 The notice must also include a copy of the petition, complaint,

or other document by which the child-custody proceeding was

initiated and, if a hearing has been scheduled, information on the

date, time, and location of the hearing, and various statements

related to the Tribe’s right to intervene and petition for a transfer.

25 C.F.R. § 23.111(d)(5)-(6); § 19-1-126(1)(c).

¶ 39 If a Tribe does not respond to the notice, or responds that it is

not interested in participating in the proceeding, the Department

must continue to send the Tribe notices of subsequent proceedings

for which notice is required, such as a termination of parental

rights proceeding. 2016 Guidelines at 38; see 25 C.F.R. § 23.111.

The Department is also encouraged to follow up telephonically.

2016 Guidelines at 38.

c. Confirmation

¶ 40 The Department’s third duty is to confirm that it used due

diligence to identify and work with any Tribes of which there is

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 reason to know that the child may be a member or eligible for

membership. 25 C.F.R. § 23.107(b)(1); see also 2016 Guidelines at

9. This due diligence requirement applies to all cases filed on or

after December 12, 2016. 2016 Guidelines at 4.

¶ 41 To do so, the Department must file with the juvenile court an

original or copy of each notice sent together with any return

receipts or other proof of service. 25 C.F.R. § 23.111(a)(2); § 19-1-

126(1)(c). The Department should document its verbal and written

requests to a Tribe to obtain information or verification of a child or

parent’s tribal membership or eligibility for membership and

provide this information to the court. 2016 Guidelines at 22. The

Department must also inform the court if it subsequently discovers

that the child is an Indian child “so that the proceeding can move

forward in compliance with the requirements of ICWA.” Id. at 11;

see 25 C.F.R. § 23.107(a).

3. The GAL’s Duties

¶ 42 The GAL’s duty is to represent the best interests of a child.

§ 19-3-203(3), C.R.S. 2016.

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¶ 43 The 2016 Guidelines point out that ICWA is not in tension

with what is in the “best interests of the child.” 2016 Guidelines at

89. Indeed, ICWA protects the best interests of Indian children by:

• ensuring that, if possible, children remain with their parents;

• supporting reunification;

• favoring placements within a child’s extended family and tribal

community;

• providing sufficient notice about child-custody proceedings to

a Tribe; and

• enabling a Tribe to fully participate in the proceeding.

See id.

¶ 44 Accordingly, the GAL plays an important role in ensuring

ICWA’s application to an Indian child subject to a child-custody

proceeding by supporting the relationship between a child and his

or her parents, extended family, and Tribe. See id. Ensuring

compliance with ICWA also helps to prevent unnecessary delay

occasioned by appellate reversals and remands for noncompliance.

4. Respondent Parent Duties

¶ 45 The respondent parent’s duty is to disclose any information

indicating that the child may be an Indian child or to provide an

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 identification card indicating membership in a Tribe to the

Department or juvenile court in a timely manner. Id. at 10-11.

Lack of timely information may generate unnecessary delays, create

instability in placements for the Indian child, and deny ICWA

protections to Indian children and their families. Id. at 11.

C. Mother’s Argument on Appeal

¶ 46 Whether the ICWA notice provisions were satisfied is a

question of law that we review de novo. People in Interest of T.M.W.,

208 P.3d 272, 274 (Colo. App. 2009).

¶ 47 Although mother did not state that L.L. was a member of a

Tribe, or that she was a member of a Tribe and L.L. was eligible for

membership in a Tribe, the Department nonetheless concedes that,

based on mother’s assertion of Native American heritage and

existing case law, notice should have been sent to the eight federally

recognized Apache Tribes. See B.H., 138 P.3d at 303.

¶ 48 Because protection of tribal interests is at the core of ICWA,

the failure of mother to provide complete and accurate information

about her Native American heritage (e.g., the precise location of the

Tribe, a completed ICWA assessment form, or written information

with tribal card numbers and roll numbers that included the name

20
 of the Tribe) did not absolve the Department of its obligation to

provide notice to the Apache Tribes. See People in the Interest of

J.O., 170 P.3d 840, 843 (Colo. App. 2007).

¶ 49 And, despite L.L. being placed in foster care, the juvenile court

did not address ICWA until a later pretrial hearing, when it noted

that ICWA was an issue in the case. Even then, the court did not

address whether the Department had sought to identify and work

with the Apache Tribes to verify whether L.L. is a member or eligible

for membership. See B.H., 138 P.3d at 303. This was error that

must be corrected so that notice can be given in accordance with

ICWA.

III. Burden of Proof

¶ 50 At the adjudicatory hearing, the State must prove the

allegations in the petition by a preponderance of the evidence.

§§ 19-3-505(1), (6), (7)(a), C.R.S. 2016; People in Interest of A.M.D.,

648 P.2d 625, 640 (Colo. 1982).

¶ 51 ICWA concerns the placement of Indian children in

child-custody proceedings. See J.O., 170 P.3d at 842. But an

adjudicatory hearing is not a child-custody proceeding. See People

in Interest of S.G.L., 214 P.3d 580, 583 (Colo. App. 2009) (“The

21
 purpose of an adjudicatory hearing is to determine whether . . . the

status of the subject child or children warrants intrusive protective

or corrective state intervention into the familial relationship.”)

(citation omitted). It follows then that the language in Colorado’s

ICWA statute does not specifically set forth any different standard

of proof for an adjudicatory hearing. See § 19-1-126.

¶ 52 Likewise, the federal ICWA statute is silent as to the particular

standard of proof required for an adjudicatory hearing. See, e.g., 25

U.S.C. § 1912(e), (f) (2012) (the State must submit proof by clear

and convincing evidence when seeking foster care placement, and

proof beyond a reasonable doubt when seeking termination of

parental rights); 25 C.F.R. § 23.121 (2016).

¶ 53 Because there is no language in ICWA or in its associated

rules or guidelines that indicates a heightened burden of proof for

the adjudicatory hearing in a dependency and neglect proceeding,

the State is only required to prove the allegations set forth in the

petition by a preponderance of the evidence in all adjudications,

whether Indian or non-Indian children. See In re Interest of Emma

J., 782 N.W.2d 330, 336-37 (Neb. Ct. App. 2010).

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¶ 54 Therefore, we disagree with mother’s contention that ICWA

imposes a heightened evidentiary standard, and we conclude that

the juvenile court did not err when it instructed the jury regarding

the Department’s burden of proof.

IV. Conclusion

¶ 55 The adjudicatory judgment is reversed, and the case is

remanded with directions to the juvenile court to ensure that the

Department provides notice to the federally recognized Apache

Tribes in accordance with ICWA.

¶ 56 On remand, if each of the Apache Tribes determines L.L. is not

a member or eligible for membership, and thus there is not a reason

to know the child is an Indian child, the juvenile court must make

this finding on the record. See 2016 Guidelines at 12. If that

finding is made, the juvenile court must instruct the parties to

promptly inform it if they subsequently receive information that

provides reason to know the child is an Indian child. Id. at 11. In

that case, because mother does not appeal on any other grounds,

the adjudicatory judgment shall be reinstated and will stand

affirmed subject to mother’s right to appeal this finding. See J.O.,

170 P.3d at 844.

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¶ 57 But, if a Tribe determines that L.L. is a member of or eligible

for membership in the Tribe, the judgment is reversed and the

juvenile court must proceed in accordance with ICWA. See 25

U.S.C. § 1912(d); J.O., 170 P.3d at 844.

JUDGE TERRY and JUDGE PLANK concur.

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