SUMMARY April 9 , 20 20
**2020COA6 6** 
**No. 19CA0806,**  **Adoption of J.D.**
**— Juvenile Court** 
**— Dep**  **endency and Neglect**
**— Termination of the Parent** 
**- Child**  **Legal Relationship**
**— Stepparent Adoption; Indian Law** 
**— ICWA** 
**— Definitions** 
**— Indian Child**  In this stepparent adoption proceeding, biological m other contends that the juvenile court erred by not applying the Indian Child Welfare Act ( ICWA ) after finding that the child and father were eligible for enrollment. A division of the court of appeals disagrees. An “Indian child” means “any unmarried person who is under age 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 child of a member of an Indian tribe[.]” 25 U.S.C. § 1903(4) (2018)

. Thus, although the child is eligible for enrollment, because the child
is not a biol ogical child of a member of an Indian tribe, the child
does not meet ICWA’s definition of Indian child. 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.COLORADO COURT OF APPEALS **2020COA6 6** 

Court of Appeals No. 19CA 0806 Weld County District Court No. 1 8 J A 3 1 Honorable Ryan L. Kamada , Judge

In re the Petition of M.G. , Appellee,
f or the Adoption of J.D. , a Child, and Concerning C.D. , Appellant.

JUDGMENT AFFIRMED
Division IV Opinion by JUDGE FURMAN Welling and Pawar , J J., concur Announced April 9 , 2020

Melanie Jordan, Office of Respondent Parents’ Counsel, Golden , Colorado, for Appellee Cynthia Jones Fletcher , Centennial , Colorado, fo r Appellant1 ¶ 1 In this stepparent adoption proceeding, biological mother contends that the juvenile court erred by not applying the Indian Child Welfare Act (ICWA) after finding that the child and father were eligible for enrollment in an Indian tribe

. We disagree

. A lthough the child is eligible for enrollment, because the child is not a biological child of a member of an Indian tri be, the child does not
meet ICWA’s definition of Indian child. 25 U.S.C. § 1903(4) (2018)

. I. The Petition for Adoption ¶ 2 The child was born in 2006 to mother and J.G. (father). ¶ 3 S tepmother filed a petition for stepparent adoption and a
motion to terminate mother’s parental rights . S tepmother alleged
that the child may be eligible to enroll in a tribe under ICWA, 25 U.S.C. §§ 1901 to 1963 (2018)

. Stepmother sent notice to various tribes, and the Comanche Nation responded that the child was eligible for enrollment

. ¶ 4 After a hearing, the juvenile court terminated mother’s parental rights and entered an adoption decree. The court found
that mother had abandoned the child

. Regarding ICWA, the court
found that it did not appl y because , although the child was eligible2 for membership, s he was not residing with a parent who was an
enrolled member.
II. ICWA ¶ 5 We review the juvenile court’s interpretation of ICWA de novo. People in Interest of A.R. , 2012 COA 195M, ¶ 17

. ¶ 6 ICWA appli es to stepparent adoptions even where a child remains with one biological parent. People in Interest of N.B. , 199 P.3d 16, 19

- 20 (Colo. App

. 2007). ¶ 7 For ICWA’s substantive provisions to apply, the child must be
an Indian child. People in Interest of N.D.C. , 210 P.3d 494, 499 (Colo. App. 2009)

. An “Indian child” means “any unmarried person who is under age 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 child of a member of an I ndian tribe[.]” 25 U.S.C. § 1903(4)

. Thus, eligibility for membership, in and of itself, is not enough to meet the definition of an Indian child. People in Interest of K.R. , 2020 COA 35, ¶ 5 ( citing State in Interest of P.F. , 405 P.3d 755, 762 (Utah Ct. App. 2017) ). ¶ 8 If the party asserting the applicability of ICWA does not establish, on the record, that the child meets one or both of these3 criteria , ICWA does not apply. See People in Interest of A.G

- G. , 899 P.2d 319, 321 (Colo. App. 1995)

. ¶ 9 Based on the record, w e conclude that t he child did not meet
ICWA’s definition of “Indian child” under 25 U.S.C. section 1903(4)

. The child was not a member of the Coman che Nation. And even though the child was eligible to enroll, her father was not a mem ber of t he Tribe. Rather, he was only eligible for enrollment. ¶ 10 And mother d oes not assert that she is affiliated with any
Tribe.
¶ 11 Because the child was not an “Indian child” under ICWA, we further conclude that the juvenile court did not have to use the higher b urden of proof (beyond a reasonable doubt). ¶ 12 We note that mother does not challenge the evidence or the juvenile court’s findings regarding the termination of her parental rights. ¶ 13 Accordingly, w e discern no basis for reversal.
III. Conclusion ¶ 14 T he judgment is affirmed

. JUDGE WELLING and JUDGE PAWAR concur.