SUMMARY

April 14, 2022

2022COA43

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 belief 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 instructions 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 2022COA43

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 Jay.J.L. and Jac.J.L., Children,

and Concerning B.J.L. and J.M.G., 

Appellants.

ORDER OF LIMITED REMAND

Division V

Opinion by JUDGE YUN

Dunn and Welling, JJ., concur

Announced April 14, 2022

Kristin M. Bronson, City Attorney, Amy J. Packer, Assistant City 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 

their parent-child legal relationships 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 heritage, 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 under section 19-1-126(3). We further conclude that 
2

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 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.

¶ 4 Because the record does not demonstrate that the petitioning 

party met this obligation, we remand the case to the juvenile court 

for further proceedings.

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 younger sibling who is not subject to this appeal. In the 

petition, the department indicated 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 At the initial temporary 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 is an 

Indian child. Still, it told mother to complete an ICWA ancestry 
3

chart and directed the department to exercise due diligence to 

gather additional information that would assist it in determining 

whether there was reason to know that the child is an Indian child.

¶ 7 Mother promptly completed and submitted an ICWA inquiry 

form, as well as an 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 indicating that she was not 

enrolled in an Indian tribe and that the child was neither enrolled 

in a tribe nor eligible for enrollment. In the ICWA ancestry chart, 

mother identified her tribe as Cherokee, but she did not fill in 

additional sections that sought tribal affiliations for the maternal 

grandparents and great-grandparents.

¶ 8 The 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 

dispositional orders, it later reiterated that the department should

investigate mother’s claim of Cherokee or Navajo heritage.

¶ 9 In December 2020, the department moved to terminate the 

legal relationships between the child and his parents. As part of its 

termination motion, the department asserted that there was no 
4

reason to know, based on inquiries of both parents, that the child is 

an Indian child.

¶ 10 About a month later, the department filed a declaration listing 

additional diligent efforts it had made to determine whether there 

was reason to know that the child is an Indian child. These 

included the following:

• contacting the maternal grandmother, who indicated that 

she “was not aware of any Native American heritage for 

her family”;

• contacting a maternal aunt, who “reported not knowing if 

there was any Native American heritage for her family”;

• reviewing the “Colorado Courts System,” which showed

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 revealed that a

social history record for mother “[did] not indicate any 

Native American heritage other than possible Cherokee 

heritage.”
5

¶ 11 Following a multi-day termination hearing between January

and April 2021, the juvenile court again addressed ICWA’s 

applicability. The court determined that ICWA was inapplicable

because the department’s efforts to investigate mother’s report of 

heritage had not shown reason to know that the child is an Indian 

child. The court entered judgment terminating the parental rights 

of mother and father.

II. ICWA’s Notice Requirement

¶ 12 We first address mother’s assertion that ICWA required the 

department 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 on the department’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 meaningful opportunity to participate 

in determining whether the child is Indian.” B.H. v. People in 
6

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 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.

¶ 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, statutes 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, ¶ 18; see also Montana v. Blackfeet Tribe of 

Indians, 471 U.S. 759, 766 (1985).
7

C. The Legal Framework

¶ 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. ICWA recognizes that Indian tribes have a separate

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

parental interests. B.H., 138 P.3d at 303; see also Mississippi 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 

department 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 department must 

notify each tribe by registered mail, with 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) (2021); see also M.V., ¶ 28.
8

D. Determining 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 child. 

25 C.F.R. § 23.107(a) (2021); People in Interest of L.L., 2017 COA 

38, ¶ 19.

¶ 21 For purposes of ICWA, an 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 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.

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

Rather, membership is left exclusively to the control of each 

individual tribe. Id. This means that 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). 

And the court may not substitute its own determination regarding a 

child’s membership in a tribe, a child’s eligibility for membership in 
9

a tribe, or a parent’s membership in a tribe. 25 C.F.R. § 23.108(b) 

(2021).

¶ 23 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 

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 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 was 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 child 

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 is 

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 is
11

an Indian child, it applied when the court had information 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 determined that 

an assertion of tribal 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 Indian child. See People in 

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). And it concluded that 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 information 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. This latter reason-to-know factor applies when a 
12

participant has discovered information during the proceeding 

indicating that the child is an Indian child. Id. at ¶¶ 72-74.

¶ 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 biological child of a tribal 

member. To be sure, tribal ancestry and lineage are among 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 substantial 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 chance 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. Our 

legislature has since removed that standard from the statute and 

replaced it with a requirement to notify tribes when there is reason 

to know. Ch. 305, sec. 2, § 19-1-126, 2019 Colo. Sess. Laws 2793.

¶ 31 The B.H. court also relied on the 1979 BIA Guidelines. These 

guidelines 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 suggesting 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.

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 these 

definitions are not included as reasons to know that a child is an 
14

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 standard 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 triggering 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 is an Indian child, 

we must next consider whether the department 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 factual 
15

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 requirement in

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 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.

§ 19-1-126(3) (emphasis added).

¶ 37 Our 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 and 
16

painstaking work and application to accomplish an undertaking.” 

A-J.A.B., ¶ 50 (citation omitted). Due diligence is commonly 

understood as “[t]he diligence reasonably 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 department (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,

to meet this standard, the department must follow up with any 

parent who discloses Indian heritage to determine the basis of the 

parent’s belief or understanding. See id. at ¶ 61. Indeed, the 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 

department must take certain other steps to satisfy due diligence 

under section 19-1-126(3). Specifically, the division in A-J.A.B. held 

that the department was required to contact available family 
17

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. These efforts, in turn, would enable the 

department to determine whether any other persons, agencies, 

organizations, or tribes may have additional information concerning 

whether there is a reason to know that the child is an Indian child. 

Id. at ¶ 63. 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 specific 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 following up with any parent who 

discloses Indian heritage to determine the basis of the parent’s 

belief or understanding, the department is not required to take

prescribed steps to satisfy due diligence under section 19-1-126(3). 

Rather, a determination of what constitutes due diligence is flexible 

and will necessarily 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 department 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 department exercised due diligence and 

whether there is reason to know that the child is an Indian child. 

This determination may be based on (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 the 
19

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 

department may of course give notice of the proceeding to the 

federally recognized tribes that are included within the ancestral 

group identified by the parent. Sending such notice achieves the 

same purpose as exercising due diligence under section 

19-1-126(3). Each tribe can 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 The record does not establish that the department satisfied its 

obligation to exercise due diligence under section 19-1-126(3). The 

department’s declaration of diligent efforts shows that it contacted

family members and reviewed records concerning past cases to 

determine whether the child is an Indian child. True, the 

declaration indicates that mother did not know who in her family 
20

was a tribal member. But, significantly, it does not show that the 

department followed up with mother to ascertain the basis for her 

belief or understanding that she and the child had Cherokee or 

Navajo heritage.

¶ 46 Specifically, on the ICWA ancestry chart, mother identified an 

“unknown” tribal affiliation for her father (the child’s maternal 

grandfather). Although mother also indicated that her father (as 

well as his parents) were deceased, the declaration of diligent efforts 

does not show that the department investigated whether mother’s 

understanding or belief that she had Cherokee or Navajo heritage 

came from her paternal family members and, if so, whether there 

was any other person who would have additional information.

¶ 47 Additionally, the information that the department obtained 

from other family members and past court records focused 

exclusively on whether the family had Indian heritage. The 

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 is 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 case 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 the earliest practical time”).

¶ 50 On remand, the juvenile court shall give the department 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 department 

undertakes the latter option, the court shall direct the department 

to exercise due diligence by inquiring of mother about the basis of 

her belief or understanding about the family’s Indian heritage. This

inquiry should include whether mother’s understanding or belief 

that she has 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 

inquiry, the department should take further steps to gather 

additional information that would help the court determine whether 

there is reason to know that the child is an Indian child.

¶ 52 After obtaining additional information, the department must

make a record 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 The juvenile court must then enter findings as to whether the 

department 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 department 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. The appeal shall then be recertified. A 

supplemental record, consisting of the court record created on 
23

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, 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 department 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. 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 
24

follow the substantive and procedural requirements under ICWA 

and section 19-1-126.

¶ 56 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.

JUDGE DUNN and JUDGE WELLING concur.