The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
February 27, 2020
2020COA35
No. 18CA2258, People in Interest of K.R. — Juvenile Court —
Dependency and Neglect — Termination of the Parent-Child
Legal Relationship; American Indian Law — ICWA
In this dependency and neglect case, a special division of the
court of appeals remands for the juvenile court to determine if the
children are Indian children under the Indian Child Welfare Act
(ICWA). The division remands because the children appear to have
lineage that makes them eligible for tribal membership, but the
record is silent on whether either of the children’s parents is a tribal
member, which is a necessary condition for ICWA to apply.
COLORADO COURT OF APPEALS 2020COA35
Court of Appeals No. 18CA2258
Costilla County District Court No. 17JV4
Honorable Pattie P. Swift, Judge
The People of the State of Colorado,
Appellee,
In the Interest of K.R. and S.R., Children,
and Concerning T.K.D.,
Appellant.
JUDGMENT VACATED AND CASE
REMANDED WITH DIRECTIONS
Division A
Opinion by JUDGE FURMAN
Bernard, C.J., and Welling, J., concur
Announced February 27, 2020
Thompson Law LLC, David A. Thompson, Creede, Colorado, for Appellee
Rebecca N. Rian, Anna N.H. Ulrich, Guardians Ad Litem
Law Office of Jennifer B. Bryan, LLC, Jennifer B. Bryan, Oak View, California,
for Appellant
¶1 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.
¶2 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.
¶3 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
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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 Applicability
¶4 ICWA 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. 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.
¶5 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.
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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).
¶6 But ICWA does not define tribal membership. People in
Interest of M.V., 2018 COA 163, ¶ 24. 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).
¶7 Whether ICWA applies to a proceeding is a question of law that
we review de novo. M.V., ¶ 32.
II. The Supplemental Record
¶8 The 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
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grandmother indicated that the children have Sioux heritage,
neither mother nor the children’s father identified a tribal affiliation.
¶9 As a result, we are unable to determine from the supplemental
record whether the children are Indian children under ICWA.
III. Conclusion
¶ 10 We 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).
¶ 11 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).
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¶ 12 If the court determines that the children are not Indian
children, the court may reinstate the termination judgment.
Mother may appeal from the judgment.
¶ 13 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.
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