SUMMARY April 14 , 2022 2 022COA43 No. 21CA0659, People in Interest of J.J.L.
— 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 holds that a parent’s assertion of Indian heritage, standing alone, is not a “reason to know” the child is an Indian child that triggers the notice requirements of the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901

- 1963, and section 19

- 1

- 126, C.R.S. 2021. But such an assertion does trigger the petitioning party’s obligation under section 19

- 1

- 126(3) to “exercise due diligence” to assist the juvenile court in determining whether there is “reason to know” that the child is an 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.The division clarifies section 19

- 1

- 126(3)’s due diligence

obligation. Like the division in People in Interest of A

- J .A.B. , 2022 COA 31, this division concludes that the exercise of due diligence requires the petitioning party

— usually a department of human services

— to follow up with any parent who discloses Indian heritage to determine the basis of the parent’s belie f or understanding. Unlike A

- J.A.B. , however, this division concludes that there is no prescribed set of steps that the department must follow to satisfy section 19

- 1

- 126(3)’s due diligence obligation. Instead, what constitutes due diligence is flexible and will necessarily depend on the circumstances of, and the information presented to the court in, each case. Because the record in this case does not show that section 19

- 1

- 126(3)’s obligation was met, the division remands the case with instruction s for the juvenile court to direct the department to “exercise due diligence” and assist the juvenile court to properly determine whether, with more adequate information, there is “reason to know” that the child is an Indian child under section 19

- 1

- 126(3)

.COLORADO COURT OF APPEALS 2 022COA43

Court of Appeals No. 21CA0659 City and County of Denver Juvenile Court No. 19JV1672 Honorable Pax Moultrie , Judge
The People of the State of Colorado, Appellee, In the Interest of J ay .J.L. and Jac.J.L. , Child ren , and Concerning B.J.L. and J.M.G. , Appellant s .

ORDER OF LIMITED REMAND Division V Opinion by JUDGE YUN Dunn and Welling , JJ., concur Announced April 14 , 2022

Kristin M. Bronson , C ity Attorney, Amy J. Packer , Assistant C ity Attorney, Denver , Colorado, for Appellee Jeffrey C. Koy, Jordan Oates, Lauren Dingboom, Claire Collins, Guardians Ad Litem Lindsey Parlin, Office of Respondent Parents’ Counsel, Kaneohe , Hawaii, for Appellant B.J.L. The Morgan Law Office, Kris P. Morgan , Colorado Springs , Colorado, for Appellant J.M.G.1

¶ 1 In this dependency and neglect proceeding, J.M.G . (mother) and B.J.L. (father) appeal the juvenile court ’ s judgment terminating
t he i r parent

- child legal relationship s with J.J.L . (the child). To decide this appeal, we must dive into the requirements of the Indian Child Welfare Act of 1978 (ICWA) , 25 U.S.C. § § 1901

- 1963 , and section 19

- 1

- 126, C.R.S. 2021

. ¶ 2 It is well established that when the court knows or has reason to know that an Indian child is involved in a termination proceeding, the court must ensure that the party seeking termination provides notice of the proceeding to the potentially concerned tribe or tribes. But, in this case, we must determine whether mother’s assertion of Indian herita ge , which she connected to specific tribal ancestral groups , constituted a reason to know that the child was an Indian child or, in the alternative, whether it required the petitioning party to exercise due diligence to gather additional information under section 19

- 1

- 126(3). ¶ 3 We conclude that a parent’s assertion of Indian heritage, standing alone , is insufficient to trigger ICWA’s notice requirements but, rather, it invokes the petitioning party’s obligation to exercise due diligence unde r section 19

- 1

- 126(3). We further conclude that2

the exercise of due diligence under this provision is flexible and depends on the circumstances of, and the information presented to the court in, each case. Nonetheless, the record needs to show that the p etitioning party earnestly endeavored to gather additional information that would assist the court in determining whether there is reason to know that the child is an Indian child. ¶ 4 Because the record does not demonstrate that the petition ing party met this obligation , we remand the case to the juvenile court for further proceeding s .

I. The Juvenile Court Proceeding ¶ 5 In November 2019, the Denver Department of Human Services filed a dependency and neglect petition concerning the two

- year - old child and a young er sibling who is not subject to this appeal. In the petition, the d epartment indicat ed that mother reported having Cherokee or Navajo heritage but was “uncertain which and does not know if anyone in her family was an enrolled member.” ¶ 6 A t t he initial tempor ary custody hearing , mother also told the juvenile court that she had Cherokee or Navajo heritage. The court determined that this was not reason to know that the child i s an Indian child. Still , it told mother to complete an ICWA ancestry3

chart and direc ted the d epartment to exercise due diligence to gather additional information that would assist it in determining whether t here was reason to know that the child is an Indian child

. ¶ 7 Mother promptly completed and submitted a n ICWA inquiry form , as well as a n ICWA ancestry chart

. On the form, mother again indicated that either she or someone in her family had Indian heritage , but she also checked boxes indicat ing that she was not enrolled in an Indian tribe and that the child was neither enrolled in a tribe n or eligible for enrollment. In t he ICWA ancestry chart , mother identified her tribe as Cherokee, but she d id not fill in additional section s that sought tribal affiliations for the maternal grandparents and great

- grandparents. ¶ 8 T he court adjudicated the child dependent and neglected and entered dispositional orders concerning both parents

. Although the court did not expressly address ICWA’s applicability as part of the dispos itional orders, it later reiterated tha t the d epartment should investigate mother’s claim of Cherokee or Navajo heritage. ¶ 9 In December 2020, the d epartment moved to terminate the legal relationships between the child and his parents. As part of its termination motion, the d epartment asserted that there was no4

reason to know , based on inquiries of both parents , that the child i s an Indian child. ¶ 10 About a month later, the d epartment filed a declaration listing additional diligent efforts it had made to determine whether there

w as reason to know that the child i s an Indian child. T hese included the following :

• c ontacting the maternal gran dmother , who indicated that she “was not aware of any Native American heritage for her family”;

• contacting a maternal aunt , who “reported not kn owing if there was any Native American heritage for her family”;

• reviewing the “Colorado Courts System , ” which showe d that the parents had been subject to two earlier dependency and neglect cases

— one in 2008 and one in 2010

— and the court had determined that ICWA was inapplicable in each case ; and

• reviewing the “TRAILS” system, which reveal ed that a social history record for mother “[ did ] not indicate any Native American heritage other than possible Cherokee heritage.”5

¶ 11 Following a mul ti

- day termination hearing between January and April 2021 , the juvenile court again addressed ICWA’s applicability

. T he court determined that ICWA was inapplicable because the d epartment’s efforts to investigate mother’s report of heritage had not shown reason to know that the child i s an Indian child. The court entered judgment terminat ing the parental rights of mother and father.

II. ICWA ’s Notice Requirement ¶ 12 We first address mother’s assertion that ICWA required the d epartment to give notice of the proceeding to the federally recognized Cherokee and Navajo tribes.
A. Preservation ¶ 13 Initially , we note that , before the termination hearing, the parties stipulated that “there does not appear to be reason to know that ICWA applies to these proceedings” based o n the d epartment’s declaration of its efforts to investigate “possible Native American heritage for the family

. ” ¶ 14 Even so, ICWA ’s notice requirements serve the interests of Indian tribes , giving them “a meaning ful opportunity to participate in determining whether the child is Indian

. ” B.H. v. People in6

Interest of X.H. , 138 P.3d 299, 303 (Colo. 2006); People in Interest of J.O. , 170 P.3d 840, 842 (Colo. App. 2007). Consequently , they cannot be waived by a parent and may be raised for the first time on appeal. J

. O. , 170 P.3d at 842.
B. Standard of Review and Statutory Interpretation ¶ 15 Whether ICWA applies to a proceeding is a question of law that we review de novo. People i n Int erest of M.V. , 2018 COA 163, ¶ 32. We a lso review de novo questions of statutory interpretation. People in Interest of K.C. v. K.C. , 2021 CO 33, ¶ 21

. ¶ 16 In construing a statute, we consider the entire statutory scheme to give consistent, harmonious, and sensible effect to all its parts, and we interpret words and phrases in accordance with their plain and ordinary meanings. Id

. In addition , s tatutes enacted for the benefit of Indians, as well as regulations, guidelines, and state statutes promulgated to implement those statutes , must be liberally construed in favor of Indian interests. People in Interest of A.R. , 2012 COA 195M, ¶ 1 8 ; see also Montana v. Blackfeet Tribe of Indians , 471 U.S. 759, 766 (1985).7 C. The Legal Fram e work ¶ 17 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

. I CWA recognizes that I ndian tribes have a separate interest in Indian children that is equi valent to, but distinct from, parental interests. B.H. , 138 P.3d at 303; see also Miss issippi Band of Choctaw Indians v. Holyfield , 490 U.S. 30, 52 (1989)

. ¶ 18 If the court knows or has reason to know that an Indian child is involved in a child custody proceeding, including one for the termination of parental rights, the petitioning party

— often the d epartment of human services

— 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

. ¶ 19 To comply with ICWA ’ s notice provisions, the d epartment must notify each tribe by registered mail , w ith return receipt requested , of the pending child custody proceeding and the tribe’ s right to intervene. M.V. , ¶ 26. And copies of these notices must be sent to the appropriate regional director of the Bureau of Indian Affairs ( BIA )

. 25 C.F.R. § 23.11(a) (202 1 ); see also M.V. , ¶ 28.8 D. Determin ing When ICWA Applies ¶ 20 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 ch ild. 25 C.F.R. § 23.107(a) (202 1 ); People in Interest of L.L. , 2017 COA 38, ¶ 19

. ¶ 21 For purposes of ICWA, a n Indian child is an unmarried person under the age of eighteen who is either ( 1 ) a member of an Indian tribe or ( 2 ) eligible for membership in an Ind ian tribe and the biological child of a member of an Indian tribe. 25 U.S.C. § 1903(4). Thus, a child’s e ligibility for membership in a tribe does not , in and of itself, render the child an Indian child under ICWA. K.C. , ¶ 24. ¶ 22 But ICWA does not define tribal membership. Id. at ¶ 28

. Rather, membership is left e xclusively to the control of each individual tribe. Id. This means that a tribe ’ s determination of membership or membership eligibility is conclusive and final. Peopl e in Interest of J.A.S. , 160 P.3d 257, 260 (Colo. App. 2007)

. And the court may not substitute its own determination regarding a child’s membership in a tribe, a child’s eligibility for membership in9

a tribe, or a parent’s membership in a t ribe. 25 C.F.R

. § 23.108(b) (2021)

. ¶ 23 Against this backdrop, t he 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 c ourt 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 o f 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 ( 6 ) The court is informed that either parent or the ch ild possesses an identification card indicating membership in an Indian Tribe. 25 C.F.R. § 23.107 (c). These factors are incorporated into the Colorado Children ’ s Code under section 19

- 1

- 126(1)(a) (II)

.10 E. Analysis of Reason to Know ¶ 24 The record established that five of these six factors are not at issue in this case . Mother did not inform the court that the child is an Indian child. Recall that , while mother reported Cherokee or Navajo heritage, she checked boxes indicating that neither she nor the child w as enrolled in a tribe. Nor did the child give the court reason to know that he is an Indian child. And mother confirmed that neither she nor the child had lived on a reservation , the child had not been a ward of a tribal court , and neither she nor the chi ld had a tribal identification card. ¶ 25 Thus, we turn to the remaining reason - to

- know factor

— a participant in the case informs the court that he or she 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 ). ¶ 26 In People in Interest of E.M. , 2021 COA 152, ¶¶ 14

- 15 ( cert. granted in part Mar. 7, 2022) , a division of this court recently concluded that a juvenile court had reason to know that a child i s an Indian child under this factor based on information about the child’s Indian heritage. The division reasoned that , because this factor had a different meaning than being informed that the child is11

an Indian child, it applied when the court ha d inform ation that the child may have ancestors affiliated with a specific tribe but the information does not satisfy all the criteria of the Indian child definition. Id. at ¶ ¶ 16

- 17. ¶ 27 However, another division of this court later d etermined that an assertion of t ribal heritage

— similar to mother’s assertion of Cherokee or Navajo heritage in this case

— does not give the court reason to know that a child is an Indi an child. See People i n Interest of A

- J.A.B. , 2022 COA 31, ¶¶ 72

- 77. The division in
A

- J.A.B. emphasized that the definition of an Indian child “does not apply simply based on a child [’ s] or parent’s Indian ancestry” but depends on “a political relationship” to a tribe. Id. at ¶ 72 (citation omitted)

. A nd it concluded tha t the difference between the

reason - to

- know factors based on a participant informing the court that the child is an Indian child, see 25 C.F.R. § 23.107(c)(1), § 19

- 1

- 126(1)(a)(II)(A) , and a participant informing the court that it has discovered informatio n that the child is an Indian child, see 25 C.F.R. § 23.107(c)(2) ; § 19

- 1

- 126(1)(a)(II)(B), is temporal , A

- J.A.B. , ¶ 73. T his la t ter reason - to

- know factor applies when a12

participant has discovered information during the proceeding indicating that the child is an Indian child

. Id. at ¶ ¶ 7 2

- 74. ¶ 28 We are persuaded by the reasoning of A

- J.A.B. because determining whether a court has reason to know that a child is an Indian child turns on whether a child is either (1) a tribal member

or (2) eligible for membership and the biol ogical child of a tribal member. To be sure, tribal ancestry and lineage are a mong the criteria that tribes may use to determine membership

. See B.H. , 138 P.3d at 303

. Still , an assertion of Indian heritage connected to specific tribal ancestral groups does not , in and of itself, demonstrate a subst antial chance that the child is a tribal member or eligible for membership

. See A

- J.A.B. , ¶¶ 36, 40 (defining reason to know as demonstrating a substantial chan c e that the child is an Indian child under the six reason - to

- know factors )

. ¶ 29 We recognize our supreme court has determined that the threshold requirement for ICWA notice was not intended to be high and that sufficiently reliable information of virtually any criteria on which tribal membership might be based was adequate to trigger ICWA’s notice provisions. B.H. , 138 P.3d at 303

- 04.13

¶ 30 However, at that time , Colorado’s ICWA

- implementing statute required departments to notify tribes if they knew or had reason to believe that the child involved in the proceeding was an Indian child. A

- J.A.B. , ¶ 76; see also § 19

- 1

- 126(1)(b), C.R.S. 2005. O ur legislature has since removed that standard fr om the statute and replaced it with a requirement to notify tribes when the re is reason to know. Ch. 305, sec. 2 , § 19

- 1

- 126 , 2019 Colo. Sess. Laws 279 3

. ¶ 31 The B.H. court also relied on the 1979 BIA Guidelines . Th e se g uidelines contained examples of circumstances that created reason to believe, including when

• any public or state

- licensed agency involved in child protection services or family support has discovered information suggest ing that the child is an Indian child;

or

• an officer of t he court involved in the proceeding has knowledge that the child may be an Indian child. Guidelines for State Courts ; Indian Child Custody Proceedings,
44 Fed. Reg. 67 , 584, 67 , 586 (Nov. 29, 1979). ¶ 32 But the 1979 Guidelines are no longer in effect. And the se definitions are not included as reasons t o know that a child is an14

Indian child under 25 C.F.R. § 23.107(c) or section 19

- 1

- 126(1)(a)(II). As a result, B.H. required notice to tribes under a different s tandard than the one in effect today. A

- J.A.B. , ¶ 76. ¶ 33 For these reasons, we conclude that mother’s report of Cherokee or Navajo heritage was not reason to know that the child is an Indian child trigger ing ICWA’s notice requirements

.

III. Colorado’s Due Diligence Requirement ¶ 34 Having determined that mother’s report of Indian heritage did not give the court reason to know that the child i s an Indian child, we must next consider whether the d epartment met its obligation to exercise due diligence under section 19

- 1

- 126(3)

. A. Standard of Review ¶ 35 A determination of the proper legal standard to be applied in a case and the application of that standard to the particular facts of the case are questions of law that we review de novo. M.A.W. v. People in Interest of A.L .W. , 2020 CO 11, ¶ 31. However, the decision of whether a party has exercised due diligence is within the court’s discretion. See People in Interest of J.C.S. , 169 P.3d 240, 243 (Colo. App. 2007)

. And we will not disturb the court’s factual15

findings when they are supported by the record. Id

. ; see also M.A.W. , ¶ 32. B. The Due Diligence Requirement ¶ 36 In addition to implementing ICWA’s requirements, section 19

- 1

- 126(3) imposes an additional due diligence requ irement i n cases that are brought under the Children’s Code. It provides :

If the court receives information that the child may have Indian heritage but does not have sufficient information to determine that there is reason to know that the child is an Ind ian 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 tha t 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. § 19

- 1

- 126(3) (emphasis added)

. ¶ 37 O ur legislature did not define due diligence under section 19

- 1

- 126(3)

. When a statute does not define a term, we assume that the legislature intended to give the term its usual and ordinary meaning. Roup v. Com. Rsch

. , LLC , 2015 CO 38 , ¶ 8

. Diligence is defined as “steady, earnest, and energetic effort” and “devoted and16

painstaking work and application to accomplish an undertaking.”
A

- J.A.B. , ¶ 50 (citation omitted)

. Due diligence is commonly understood as “[t]he diligence reasonabl y expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation.” Id. (citation omitted) ; see also Minshall v. Johnston , 2018 COA 44, ¶ 18. ¶ 38 As a result, we agree with the division in A

- J.A.B. that the record needs to establish that the d epartment (the petitioning party) earnestly endeavored to gather additional information that would assist the court in determining whether there is reason to know that the child is an Indian child

. A

- J.A.B. , ¶ 59. We also agree that , t o meet this standard, the d epartment must follow up with any parent who discloses Indian heritage to determine the basis of the parent’s belief or understanding. S ee i d

. at ¶ 61. Indeed, t he basis for a parent’s belief or understanding will be the key to determining what due diligence is required in any particular case. Id. ¶ 39 However, we part ways with A

- J.A.B. ’s determination that the d epartment must take certain other steps to s atisfy due diligence under section 19

- 1

- 126(3). Specifically, the division in A

- J.A.B. held that the d epartment was required to contact available family17

members and determine whether they have additional information that would help the court determine whether the child is an Indian child. See id. at ¶ 62

. T hese efforts , in turn, w ould enable the d epartment to determine whether any other persons, agencies, organizations, or tribes ma y have additional information concerning whether there is a reason to know that the child is an Indian child. Id. at ¶ 6 3

. And the division determined that it may be necessary to
contact a tribe or tribes when there are no other satisfactory sources of additional information. Id. at ¶ 64

. ¶ 40 We are not persuaded that a petitioning party must necessarily take such steps to satisfy due diligence under section 19

- 1

- 126(3). First, the statute does not enumerate s pecific steps that a party must take to satisfy due diligence. Second, “[ t ] here is no objective, formulaic standard for determining what is, or is not, due diligence. ” Owens v. Tergeson , 2015 COA 164, ¶ 45 (quoting Abreu v. Gilmer

, 985 P.2d 746, 749 (Nev. 1999 ) ). Nor does due diligence necessarily require the party exercising it to actually succeed in its efforts or exhaust every possible option in attempting to do so. See Minshall , ¶ 18

.18

¶ 41 Consequently, apart from follow ing up with any parent who discloses Indian heritage t o determine the basis of the parent’s belief or understanding , the d epartment is not required to take
pr e scribed steps to satisfy due diligence under section 19

- 1

- 126(3). Rather , a determination of what constitutes due diligence is flexible and will neces sarily depend on the circumstances of , and the information presented to the court in, each case . See Owens , ¶ 45 (recognizing that due diligence must be tailored to fit the circumstances of each case). ¶ 42 After obtaining the additional information necessary to satisfy due diligence, the d epartment must advise the court of the efforts that it has taken and whether it believes that the information rises to the level of reason to know under 25 C.F.R. § 23.107(c) and section 19

- 1

- 126(1)(a)(II). See A

- J.A.B. , ¶ 63. ¶ 43 Based on this additional information, the court must then determine whether the d epartment exercised due diligence and whether there is reason to know that the child is an Indian child

. This determination m ay be based o n (1) the recognition that only a tribe can determine who is a member or eligible for tribal membership; (2) the nature and the credibility of the source of the19

information ; and (3) the basis of the source’s knowledge. Id. at ¶ 66. ¶ 44 In lieu of taking these steps to ascertain the basis for the parent’s claim of heritage and following up on that information, the d epartment may of course give notice of the proceeding to the federally recognized tribes that are included within the ancestr al group identified by the parent. Sending such notice achieves the
same purpose as exercising due diligence under section 19

- 1

- 126(3). E ach tribe c an then provide a definitive answer as to whether the child is a tribal member or eligible for membership and the child of a tribal member. See J.A.S. , 160 P.3d at 260. This information will enable the juvenile court to determine whether the child is an Indian child for purposes of ICWA. C. Application ¶ 45 T he record does not establish that the d epartment satisfied its obligation to exercise due diligence under section 19

- 1

- 126(3)

. T he d epartment’s declaration of diligent efforts shows that it contact ed family members and review ed record s concerning past cases to determine whether the child i s an Indian child. True, the declaration indicates that mother did not know who in her family20

was a tribal member. But, significantly, it does not show that the d epartment follow ed up with mother to ascertain the basis for her belief or understanding that she and the child had Cherokee or Navajo heritage. ¶ 46 Specifically, o n the ICWA ancestry chart , mother identified an “unknown” tribal affiliation for her father (the child’s maternal grandfather). Alth ough mother also indicated that her father (as well as his parents) were deceased, the declaration of diligent efforts does not show that the d epartment investigated whether mother’s understanding or belief that she had Cherokee or Navajo heritage came fro m her paternal family members and, if so, whether there

w as any other person who would have additional information. ¶ 47 Additionally, the information that the d epartment obtained from other family members and past court records focused exclusively on whether t he family had Indian heritage

. T he declaration does not establish whether the family members had additional information beyond an assertion of heritage that would assist the court in determining whether there was reason to know that the child i s an Indian child

.21

¶ 48 Under these circumstances , the record does not demonstrate compliance with the due diligence requirement of section 19

- 1

- 126(3) , and we must remand the case to the juvenile court

.

IV. Procedure on Remand ¶ 49 For the reasons discussed, we remand the c ase for the juvenile court to expeditiously determine whether there is reason to know that the child is an Indian child 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 t he earliest practical time”). ¶ 50 On remand, the juvenile court shall give the d epartment the option of either giving ICWA

- compliant notice to the federally recognized Cherokee and Navajo tribes or gathering additional information under section 19

- 1

- 126(3) . If the d epartment undertakes t he latter option, the court s hall direct the d epartment to exercise due diligence by inquiring of mother about the basis of h er belief or understanding about the family’s Indian heritage. Th is inquir y should include whether mother’s understanding or belief that she ha s Cherokee or Navajo heritage came from her paternal family members , and, if so, whether there is any other person who has additional information.22

¶ 51 Based on the information obtained during this follow up i nquiry, t he d epartment should take further steps to gather additional information that would help the court determine w hether there is reason to know that the child is an Indian child. ¶ 52 After obtaining additional information, the d epartment must make a reco rd of its efforts and advise the court as to whether the information satisfies one of the reason - to

- know factors under 25 C.F.R. § 23.107(c) and section 19

- 1

- 126(1)(a)(II)

. ¶ 53 T he juvenile court must then enter findings as to whether the d epartment has satisfied the due diligence requirement under section 19

- 1

- 126(3) and whether there is reason to know that the child is an Indian child, considering the nature and credibility of the source of the information and the basis of the source’s knowledge. See B.H. , 138 P.3d at 303. ¶ 54 If the juvenile court determines that there is not a reason to know that the child is an Indian child, the d epartment must file a notice with this court along with a copy of the juvenile court’s order within seven days after the issuance of the order making this determination. T he appeal shall then be recertified. A supplemental record, consisting of the court record created on23

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 supp lemental 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, moth er may file a supp lemental brief, not to exceed 3,500 words, limited to addressing the juvenile court’s determination. If mot her files a supplemental brief, then the other parties may file supplemental briefs in response, within fourteen days, not to exceed 3,500 words. ¶ 55 If the juvenile court determines that it has reason to know that the child is an Indian child, the d epartment must file a notice with this court along with a copy of the juvenile court’s order within seven days after the issuance of the order making this det ermination. 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 to24

follow the substantive and procedural requirements under I CWA and section 19

- 1

- 126. ¶ 56 We further order the d epartment 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. JUDGE DUNN and JUDGE WELLING concur.