People In Interest of M.M. and E.M., Children

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
June 2, 2022

2022COA61

No. 21CA0760, Peo in Interest of MM — American Indian Law —
ICWA — Notice; Juvenile Court — Dependency and Neglect —
Termination of the Parent-Child Legal Relationship —
Compliance with the Federal “Indian Child Welfare Act” —
Knows — Reason to Know — Due Diligence

In this dependency and neglect proceeding, a division of the

court of appeals determines that a parent’s assertion of a lineal

tribal affiliation is sufficient to give the court reason to know that

the children are Indian children and, thus, trigger the notice

requirements of the Indian Child Welfare Act of 1978 (ICWA), 25

U.S.C. §§ 1901-1963. Consistent with People in Interest of E.M.,

2021 COA 152, ¶¶ 16-18 (cert. granted in part Mar. 7, 2022), the

division concludes that such information falls under one of the

reason to know factors — a participant in the case informs the
court that he or she has discovered information indicating that the

child is an Indian child.

In reaching this conclusion, the division rejects the reasoning

of two other divisions of this court that have determined that an

assertion of tribal affiliation (or heritage) does not give the court

reason to know that a child is an Indian child under this factor.

See People in Interest of Jay.J.L., 2022 COA 43, ¶¶ 28-35; People in

Interest of A-J.A.B., 2022 COA 31, ¶¶ 72-77. The division reasons

that our supreme court has previously determined that lineage was

sufficient to trigger ICWA’s notice requirements after considering

similar definitions of what constituted “reason to know” or “reason

to believe” that a child is an Indian child and that such an

approach is consistent with the federal guidelines implementing

ICWA.

The division further determines that the addition of section

19-1-126(3), C.R.S. 2021, to Colorado’s ICWA-implementing statute

has not changed the standard for triggering ICWA’s notice

requirements under 25 U.S.C. § 1912(a).

Because the record in this case does not show that proper

notice was given to the appropriate tribes or the Bureau of Indian
Affairs, the division remands the case to the juvenile court to

ensure compliance with ICWA’s notice requirements.
COLORADO COURT OF APPEALS 2022COA61

Court of Appeals No. 21CA0760
Arapahoe County District Court No. 20JV191
Honorable Bonnie H. McLean, Judge

The People of the State of Colorado,

Appellee,

In the Interest of M.M. and E.M., Children,

and Concerning M.M. and T.M.,

Appellants.

ORDER OF LIMITED REMAND

Division I
Opinion by JUDGE DAILEY
Fox and Schutz, JJ., concur

Announced June 2, 2022

Ron Carl, Arapahoe County Attorney, Jordan Lewis, Assistant County Attorney,
Aurora, Colorado, for Appellee

Alison A. Bettenberg, Sheena Knight, Guardians Ad Litem

Gregory Lansky, Office of Respondent Parents’ Counsel, Aurora, Colorado, for
Appellant M.M.

Pamela K. Streng, Office of Respondent Parents’ Counsel, Georgetown,
Colorado, for Appellant T.M.
¶1 In this dependency and neglect proceeding, M.M. (mother) and

T.M. (father) appeal the juvenile court’s judgment terminating their

parent-child legal relationships with their children, M.M. and E.M.

Among other issues mother raises, she contends that the record

does not demonstrate compliance with the Indian Child Welfare Act

of 1978 (ICWA), 25 U.S.C. §§ 1901-1963.

¶2 When the court knows or has reason to know that an Indian

child is involved in a termination proceeding, it must ensure that

notice of the proceeding is given to applicable Indian tribes or, in

some circumstances, the Bureau of Indian Affairs (BIA). However,

we must decide whether father’s assertion of a lineal tribal

affiliation constituted a reason to know that the children are Indian

children or, in the alternative, whether it required the petitioning

party to exercise due diligence to gather additional information

under section 19-1-126(3), C.R.S. 2021.

¶3 We conclude that father’s assertion of a lineal tribal affiliation

gave the juvenile court reason to know that the children are Indian

children, thus triggering ICWA’s notice requirements. Because the

record does not show that proper notice was given to the

1
 appropriate tribes or the BIA, we remand the case to the juvenile

court to ensure compliance with ICWA’s notice requirements.

I. The Juvenile Court Proceeding

¶4 In April 2020, the Arapahoe County Department of Human

Services initiated a dependency and neglect proceeding concerning

nine-year-old M.M. and ten-month-old E.M. At the initial

temporary custody hearing, father, through counsel, reported that

“his grandmother [is a] registered tribal member in Delaware,” but

that he was not sure of which tribe. Father further expounded that

“[i]t’s a Delaware tribe, and I think she was 100 percent.” However,

father was unsure of which tribe and “what their registration looks

like, potentially, for him and the [children].”

¶5 In response to father’s report, the juvenile court directed

father to complete an ICWA assessment form. The court reiterated

the same requirement at the next hearing but did not otherwise

address ICWA’s applicability at that time. Father did not submit an

ICWA assessment form.

¶6 Later, the Department moved to terminate the legal

relationships between the children and the parents. At the

termination hearing in May 2021, the juvenile court determined

2
 that ICWA was inapplicable because inquiries made by it and the

Department had shown that there was “no potential Native

American heritage on either parent’s side.” The court entered

judgment terminating both parents’ parental rights.

II. ICWA

¶7 Mother contends that the record does not demonstrate

compliance with ICWA’s requirements because there was no further

inquiry or notice provided based on father’s report of a lineal

affiliation with a Delaware tribe. The Department and the children’s

guardian ad litem assert that ICWA is inapplicable because, while

the appeal was pending, they provided notice to the BIA and the BIA

responded that no further action would be taken because the

children’s tribal affiliation was unknown.

¶8 We conclude that father’s report of lineage with a Delaware

tribe was sufficient to give the court reason to know that the

children are Indian children and the notice that the Department

provided to the BIA was inadequate.

A. Preservation

¶9 To start, we recognize that, as part of a joint trial management

certificate filed in anticipation of the termination hearing, the

3
 parties agreed that “[t]hroughout the case, additional ICWA

inquiries were made, and all parties maintained that the child[ren]

did not have Native American heritage such that ICWA was

applicable.”

¶ 10 Nonetheless, ICWA’s notice requirements serve the interests of

Indian tribes. People in Interest of J.O., 170 P.3d 840, 842 (Colo.

App. 2007). Thus, they cannot be waived by a parent and may be

raised for the first time on appeal. Id.

B. Standard of Review and Statutory Interpretation

¶ 11 Whether ICWA applies to a proceeding is a question of law that

we review de novo. People in Interest of M.V., 2018 COA 163, ¶ 32.

We also review de novo questions of statutory interpretation. People

in Interest of K.C. v. K.C., 2021 CO 33, ¶ 21.

¶ 12 In construing a statute, we consider the entire statutory

scheme in order to give consistent, harmonious, and sensible effect

to all of its parts, and we interpret words and phrases in

accordance with their plain and ordinary meanings. Id. In

addition, statutes enacted for the benefit of Indians, as well as

regulations, guidelines, and state statutes promulgated for their

implementation, must be liberally construed in favor of Indian

4
 interests. People in Interest of A.R., 2012 COA 195M, ¶ 18; see also

Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985).

C. The Legal Framework

¶ 13 ICWA aims to protect and to preserve Indian tribes and their

resources and to protect Indian children who are members of or are

eligible for membership in an Indian tribe. 25 U.S.C. § 1901(2), (3);

M.V., ¶ 10. ICWA recognizes that Indian tribes have a separate

interest in Indian children that is equivalent to, but distinct from,

parental interests. B.H. v. People in Interest of X.H., 138 P.3d 299,

303 (Colo. 2006); see also Mississippi Band of Choctaw Indians v.

Holyfield, 490 U.S. 30, 52 (1989). Accordingly, in a proceeding in

which ICWA may apply, tribes must have a meaningful opportunity

to participate in determining whether a child is an Indian child and

to be heard on ICWA’s applicability. B.H., 138 P.3d at 303.

¶ 14 If the court knows or has reason to know that an Indian child

is involved in a child custody proceeding, including termination of

parental rights, the petitioning party — here the Department —

must provide notice to any identified Indian tribes. 25 U.S.C.

§ 1912(a); § 19-1-126(1)(b); see also B.H., 138 P.3d at 302. To

comply with ICWA’s notice provisions, the court must confirm that

5
 the Department uses due diligence to identify and work with all

tribes of which there is reason to know the child may be a member

or eligible for membership and the child of a parent who is a

member. 25 C.F.R. § 23.107(1)(b)(1) (2021); see also People in

Interest of L.L., 2017 COA 38, ¶ 25.

¶ 15 The Department must directly notify each tribe by registered

mail with return receipt requested of the pending child custody

proceeding and its right to intervene. M.V., ¶ 26; see also 25 C.F.R.

§ 23.111 (2021). The notice must also include:

 the child’s name, birthdate, and birthplace;

 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;

 the names, birthdates, birthplaces, and tribal enrollment

information of other direct lineal ancestors of the child, such

as grandparents, if known; and

 the name of each Indian tribe of which the child is a member

(or may be eligible for membership if a biological parent is a

member).

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 25 C.F.R. § 23.111(d)(1)-(4). Copies of these notices must then be

sent to the appropriate regional director of the BIA. 25 C.F.R.

§ 23.11(a) (2021); see also M.V., ¶ 28.

D. Determining When ICWA Applies

¶ 16 The juvenile court must ask each participant on the record at

the start of every 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); L.L., ¶ 19. And it must instruct the parties to

inform it if they later receive information that provides reason to

know that the child is an Indian child. 25 C.F.R. § 23.107(a).

¶ 17 For purposes of ICWA, an Indian child is an unmarried person

under age eighteen who is either (1) a member of an Indian tribe or

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

child of a member of an Indian tribe. 25 U.S.C. § 1903(4). Thus, a

child’s eligibility for membership in a tribe does not, in and of itself,

render the child an Indian child under ICWA. K.C., ¶ 24.

¶ 18 But ICWA does not define tribal membership. Id. at ¶ 28.

Rather, membership and membership eligibility are left exclusively

to the control of each individual tribe. Id. This means that a tribe’s

determination of membership or membership eligibility is

7
 conclusive and final. People in Interest of J.A.S., 160 P.3d 257, 260

(Colo. App. 2007); see also Santa Clara Pueblo v. Martinez, 436 U.S.

49, 72 n.32 (1978) (“A tribe’s right to define its own membership for

tribal purposes has long been recognized as central to its existence

as an independent political community.”). And the court may not

substitute its own determination regarding a child’s membership in

a tribe, a child’s eligibility for membership in a tribe, or a parent’s

membership in a tribe. 25 C.F.R. § 23.108(b) (2021).

¶ 19 Against this backdrop, the federal regulations implementing

ICWA provide that a court has reason to know that a child is an

Indian child if

(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

8
 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

(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). These factors for determining reason to know

— incorporated into the Children’s Code under section 19-1-

126(1)(a)(II) — should be interpreted expansively. See People in

Interest of S.B., 2020 COA 5, ¶ 10; M.V., ¶ 43.

E. Analysis

1. Reason to Know

¶ 20 The record establishes that many of the factors governing

when a court has reason to know that a child is an Indian child

were inapplicable. No participant informed the court that the

children are Indian children. Nor did the children give the court

reason to know that they are Indian children. And there is no

indication that the children had lived on a reservation, had been

wards of a tribal court, or had tribal identification cards.

¶ 21 As a result, we turn to the one remaining reason to know

factor — a participant in the case informs the court that he or she

9
 has discovered information indicating that the child is an Indian

child. See 25 C.F.R. § 23.107(c)(2); § 19-1-126(1)(a)(II)(B). This

factor does not necessarily require a parent (or another participant)

to provide information definitively establishing that the child is

either a member of a federally recognized Indian tribe or eligible for

membership in a tribe and the biological child of a tribal member.

¶ 22 As a division of this court recently explained, information

indicating that the child is an Indian child cannot have the same

meaning as being informed that the child is an Indian child because

holding otherwise would render one of the factors superfluous.

People in Interest of E.M., 2021 COA 152, ¶ 16 (cert. granted in part

Mar. 7, 2022). Indeed, by its very terms, discovering information

indicating that the child is an Indian child conveys less certainty

than when a participant informs the court that the child is an

Indian child. Given this distinction, the division determined that a

court had reason to know under this less certain factor when it

receives information showing that the child has Indian heritage

connected to specific tribal groups even though the information

does not establish that the child meets the definition of an Indian

child. Id. at ¶¶ 16-18.

10
¶ 23 Likewise, our supreme court has determined that the

threshold requirement for notice was clearly not intended to be

high, and sufficiently reliable information of virtually any criteria

upon which tribal membership might be based must be considered

adequate to trigger ICWA’s notice provisions. B.H., 138 P.3d at

303-04. These criteria include, but are not limited to, lineage. Id.

at 304.

¶ 24 In reaching this holding, the supreme court reasoned that the

ability of a court to ascertain membership in a particular tribe

without a tribal determination may vary greatly depending upon an

individual tribe’s criteria for membership, or its process for

acquiring or establishing membership. Id. at 303. For example,

while many tribes may have some form of formal enrollment or

registration, others automatically include descendants of members.

Id.; see also In re Termination of Parental Rts. to Arianna R.G., 2003

WI 11, ¶ 17.

¶ 25 True, our supreme court decided B.H. before the current

factors defining reason to know — including a participant informing

the court that he or she has discovered information indicating that

the child is an Indian child — were incorporated into 25 C.F.R.

11
 § 23.107(c) and section 19-1-126(1)(a)(II). Additionally, two other

divisions of this court have subsequently determined that an

assertion of tribal heritage does not give the court reason to know

that a child is an Indian child under this factor. People in Interest

of Jay.J.L., 2022 COA 43, ¶¶ 28-35; People in Interest of A-J.A.B.,

2022 COA 31, ¶¶ 72-77. They emphasized that an assertion of

Indian heritage connected to specific tribal ancestral groups does

not, in and of itself, demonstrate a substantial chance that the

child is a tribal member or eligible for membership. Jay.J.L., ¶ 28;

A-J.A.B., ¶¶ 36, 40

¶ 26 However, we are not persuaded by their reasoning. In

determining that lineage was sufficient to trigger ICWA’s notice

requirements, our supreme court considered similar definitions of

what constituted “reason to know” or “reason to believe” that a child

is an Indian child. See B.H., 138 P.3d at 303. At that time, the BIA

Guidelines implementing ICWA set forth examples of circumstances

that created “reason to believe,” which included that

 any party to the case, or public or private agency informs the

court that the child is an Indian child;

12
  any public or state-licensed agency involved in child protection

services or family support has discovered information which

suggests that the child is an Indian child; or

 an officer of the court involved in the proceeding has

knowledge that the child may be an Indian child.

Id.; see also Guidelines for State Courts; Indian Child Custody

Proceedings, 44 Fed. Reg. 67,584, 67,586 (Nov. 29, 1979).

¶ 27 While not the same, this second factor — any agency has

discovered information which suggests that the child is an Indian

child — is similar to the current reason to know factor of any

participant having discovered information indicating that the child

is an Indian child. Webster’s defines “suggest” as “to mention or

imply as a possibility.” Webster’s Third New International

Dictionary 2286 (2002). And “indicate” means “to be a sign,

symptom, or index of” or “to demonstrate or suggest the necessity

or advisability of.” Id. at 1150. Applying these definitions,

information that a parent has tribal lineage both implies and is a

sign that a child is an Indian child. Thus, a report of lineage would

meet the definition of reason to know under 25 C.F.R.

§ 23.107(c)(2).

13
¶ 28 This approach is also consistent with the federal guidelines

implementing ICWA. They recognize that, in some instances,

parents may not be certain of their membership status in an Indian

tribe but may indicate that they are somehow affiliated with a tribe

or group of tribes. BIA, Guidelines for Implementing the Indian

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

(2016 Guidelines); see also Notice of Guidelines for Implementing

the Indian Child Welfare Act, 81 Fed. Reg. 96,476 (Dec. 30, 2016).

The 2016 Guidelines further recommend that when a parent is only

able to indicate a tribal ancestry group, state agencies or courts

should contact each of the tribes in that ancestral group to identify

whether the parent or child is a member of any such tribe. 2016

Guidelines at 18. Although the 2016 Guidelines are not binding,

they provide useful guidance in interpreting ICWA. M.V., ¶ 27. And

the principles of statutory construction governing ICWA require us

to liberally construe both the reason to know factors under 25

C.F.R. § 23.107(c) and the 2016 Guidelines in favor of Indians, with

ambiguous provisions interpreted to their benefit. See People in

Interest of O.S-H., 2021 COA 130, ¶ 30.

14
¶ 29 Moreover, other divisions of this court have determined that

the court has reason to know that the child is an Indian child when

it receives information that the child’s family may have connections

to specific tribes or ancestral groups. See S.B., ¶¶ 13, 21; M.V.,

¶¶ 43-45; People in Interest of L.H., 2018 COA 27, ¶¶ 1, 11-12; L.L.,

¶¶ 21, 47-48. The division in L.H. emphasized the point that while

parents may be uncertain of their membership status in an Indian

tribe, they may indicate they are somehow affiliated with an

ancestral group of tribes. L.H., ¶ 7. And the L.H. division

determined that, in these circumstances, the Department must

notify each tribe in that ancestral group. Id. at ¶ 8. Another

division held that a parent’s identification of a tribal connection to a

specific state or region may be sufficient to give a court a reason to

know that a child is an Indian child. See People in Interest of I.B-R.,

2018 COA 75, ¶¶ 13-16.

¶ 30 Finally, we recognize that in 2019, our legislature modified

Colorado’s ICWA-implementing statute. E.M., ¶ 19. As pertinent

here, it added section 19-1-126(3), which provides that

[i]f the court receives information that the child
may have Indian heritage but does not have
sufficient information to determine that there

15
 is reason to know that the child is an Indian
child pursuant to subsection (1)(a)(II) of this
section, the court shall direct the petitioning or
filing party to exercise due diligence in
gathering additional information that would
assist the court in determining whether there
is reason to know that the child is an Indian
child. The court shall direct the petitioning or
filing party to make a record of the effort taken
to determine whether or not there is reason to
know that the child is an Indian child.

¶ 31 To be sure, this language can be read to mean that, at least in

some instances, information relating to a child’s Indian heritage

may not rise to the level of giving a court reason to know that a

child is an Indian child. Even so, the addition of section 19-1-

126(3) has not changed the standard for triggering ICWA’s notice

requirements under 25 U.S.C. § 1912(a).

¶ 32 Recall once again that our supreme court has previously

concluded that sufficiently reliable information of virtually any

criteria upon which tribal membership might be based, including

lineage, was adequate to trigger ICWA’s notice requirements. B.H.,

138 P.3d at 304. We must presume that the legislature was aware

of B.H. and its interpretation of what constituted reason to know or

believe that a child is an Indian child when enacting this legislation.

See Vaughan v. McMinn, 945 P.2d 404, 409 (Colo. 1997)

16
 (recognizing that the legislature is presumed to be aware of the

judicial precedent in an area of law when it legislates in that area).

And our legislature did not expressly indicate that it was intending

to change this analysis when adopting subsection (3) and other

changes to section 19-1-126.

¶ 33 Further, the legislature signaled its intent to “align Colorado’s

statute with the updated ICWA regulations to ensure continuing

compliance with federal law.” Ch. 305, sec. 1, 2019 Colo. Sess.

Laws 2791; see also E.M., ¶ 19. Indeed, the statute directs “the

court and each party to the proceeding” to “comply with the federal

implementing regulations” of ICWA. § 19-1-126(1). This is

significant because Congress exercises plenary power over Indian

affairs. See Cash Advance & Preferred Cash Loans v. State, 242

P.3d 1099, 1107 (Colo. 2010).

¶ 34 In enacting ICWA, Congress authorized states, including

Colorado, to extend additional protection to the rights of a parent of

an Indian child. See 25 U.S.C. § 1921 (providing that in any case

where state or federal law applicable to a child custody proceeding

provides a higher standard of protection to the rights of the parent

17
 of an Indian child than the rights provided under ICWA, the state

court shall apply the state or federal standard).

¶ 35 But a state may not reduce the protections offered by ICWA so

easily. Under the preemption doctrine, the Supremacy Clause

invalidates state laws that interfere with, or are contrary to, federal

laws. People in Interest of C.Z., 2015 COA 87, ¶ 24. Thus, while

state statutes may clarify ICWA or add protections to child custody

proceedings involving Indian children, they may not reduce the

protection offered by ICWA. In re Dependency of Z.J.G., 471 P.3d

853, 863 (Wash. 2020). And, here, interpreting section 19-1-126(3)

to mean that a parent’s report of tribal lineage (or ancestry) is not

reason to know that a child is an Indian child for purposes of

triggering ICWA’s notice requirements under 25 U.S.C. § 1912(a)

would impermissibly reduce the protections offered by ICWA.

¶ 36 For these reasons, we conclude that father’s report of a lineal

Delaware tribal affiliation was sufficient to give the court reason to

know that the children are Indian children and, thus, to trigger

ICWA’s notice requirements.

18
 2. Adequacy of Notice to BIA

¶ 37 Having determined that the court had reason to know that the

children are Indian children, we next turn to the adequacy of the

notice that the Department provided following the termination

proceeding. Although the record does not clearly establish whether

father reported a lineal affiliation with a Delaware tribe or a tribe in

the State of Delaware, we conclude that the notice was insufficient

in either circumstance.

¶ 38 To assist in identifying federally recognized tribes and their

agents for service, the BIA has created lists of recognized tribes and

their agents by region and by historical tribal affiliation. See

Designated Tribal Agents for Service of Notice, 86 Fed. Reg. 54,709

(Oct. 4, 2021); List of Designated Tribal Agents by Tribal Affiliation,

https://perma.cc/K3DD-KQR5. These lists show two federally

recognized Delaware tribes that are located within the State of

Oklahoma — the Delaware Tribe of Indians and the Delaware

Nation. But there are no federally recognized tribes within the State

of Delaware.

¶ 39 If, on the one hand, father was indicating a lineal affiliation

with a Delaware tribe, the record does not demonstrate compliance

19
 with ICWA because no notice of the proceeding was given to the

Delaware Tribe of Indians and the Delaware Nation. On the other

hand, even if father was reporting a lineal affiliation with a tribe in

the State of Delaware, the notice was inadequate because it did not

alert the BIA that father had reported a tribal connection to that

state. See I.B-R., ¶¶ 13-16.

III. Procedure on Remand

¶ 40 We therefore remand the case for the juvenile court to

expeditiously determine whether the children are Indian children

before recertifying the case to our court for a decision. See § 19-1-

109(1), C.R.S. 2021 (providing that appeals “shall be decided at the

earliest practical time”).

¶ 41 On remand, the juvenile court shall conduct a further inquiry

of father or otherwise confirm that the Department has used due

diligence to determine whether father has a lineal affiliation to a

Delaware tribe or to a tribe in the State of Delaware. See 25 C.F.R.

§ 23.107(b)(1). Based on the information received through this

inquiry or otherwise through the Department’s due diligence, the

court shall direct the Department to provide notice of the

20
 proceeding to the appropriate federally recognized Delaware tribes

or the BIA.

¶ 42 After receiving responses from the tribes or the BIA, or the

expiration of the timeframe under 25 U.S.C. § 1912(a) or a

reasonable additional time determined by the juvenile court, the

court shall again enter factual findings and legal conclusions

regarding the application of ICWA.

¶ 43 If the juvenile court determines that the children are Indian

children, within seven days of issuance of the juvenile court’s order

making such determination, the Department must file notice with

this court along with a copy of the juvenile court’s order. The

appeal shall be recertified to permit a division of this court to issue

an opinion vacating the termination judgment and remanding the

case to the juvenile court with directions to proceed in accordance

with ICWA.

¶ 44 If the juvenile court determines that the children are not

Indian children, within seven days of issuance of the juvenile

court’s order making such determination, the Department must file

notice with this court along with a copy of the juvenile court’s order,

and the appeal shall be recertified.

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¶ 45 A supplemental record, consisting of the court record created

on remand, is due fourteen days after recertification. Within seven

days of the matter being recertified, if any party wishes to

supplement the record with transcripts of hearings that occurred on

remand, that party shall file a supplemental designation of

transcripts with the juvenile court and this court. If supplemental

transcripts are designated, the complete supplemental record,

including the court record, will be due twenty-one days after the

supplemental designation of transcripts was filed. And within

fourteen days of recertification, mother may file a supplemental

brief, not to exceed 3,500 words, limited to addressing the juvenile

court’s determination. If mother files a supplemental brief, then the

other parties may file supplemental briefs in response, within

fourteen days of the filing of the supplemental brief, not to exceed

3,500 words.

¶ 46 We further order the Department to notify this court in writing

of the status of the juvenile court proceedings if this matter is not

concluded within twenty-eight days from the date of this order, and

to do so every twenty-eight days thereafter until the juvenile court

issues its order on remand.

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JUDGE FOX and JUDGE SCHUTZ concur.

23