CO Code § 19-1-126 (2021)
2021 Colorado Code|Title 19 - Children's Code|Article 1 - General Provisions|Part 1 - General Provisions|§ 19-1-126. Compliance With the Federal “Indian Child Welfare Act”

  In each case filed pursuant to this title 19 that constitutes a child custody proceeding, as defined in the federal “Indian Child Welfare Act”, 25 U.S.C. sec. 1901 et seq., and therefore to which the terms of the federal “Indian Child Welfare Act”, 25 U.S.C. sec. 1901 et seq., apply, the court and each party to the proceeding shall comply with the federal implementing regulations, and any modifications thereof, of the federal “Indian Child Welfare Act”, 25 U.S.C. sec. 1901 et seq., located in 25 CFR 23, which outline the minimum federal standards governing the implementation of the “Indian Child Welfare Act” to ensure the statute is applied in Colorado consistent with the act's express language, congress's intent in enacting the statute, and to promote the stability and security of Indian children, tribes, and families. In each child-custody proceeding filed pursuant to this title 19 to which the terms of the federal “Indian Child Welfare Act”, 25 U.S.C. sec. 1901 et seq., apply:     The court shall make inquiries to determine whether the child who is the subject of the proceeding is an Indian child, and, if so, shall determine the identity of the Indian child's tribe. In determining the Indian child's tribe: (a) (I) The court shall make inquiries to determine whether the child who is the subject of the proceeding is an Indian child, and, if so, shall determine the identity of the Indian child's tribe. In determining the Indian child's tribe:   The court shall ask each participant in an emergency or voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child. The inquiry is to be made at the commencement of the proceeding, and all responses must be on the record. The court shall instruct the participants to inform the court if any participant subsequently receives information that provides reason to know the child is an Indian child.    Any party to the proceeding shall disclose any information indicating that the child is an Indian child or provide an identification card indicating membership in a tribe to the petitioning and filing parties and the court in a timely manner. The court shall order the party to provide the information no later than seven business days after the date of the hearing or prior to the next hearing on the matter, whichever occurs first. The information should be filed with the court and provided to the county department of human or social services and each party no later than seven business days after the date of the hearing.       The court, upon conducting the inquiry described in subsection (1)(a)(I) of this section, has reason to know that a child is an Indian child if:   Any participant in the child-custody proceeding, officer of the court involved in the child-custody proceeding, Indian tribe, Indian organization, or agency informs the court that the child is an Indian child;    Any participant in the child-custody proceeding, officer of the court involved in the child-custody proceeding, Indian tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child;    The child who is the subject of the child-custody proceeding gives the court reason to know he or she is an Indian child;    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;    The court is informed that the child is or has been a ward of a tribal court, as defined in 25 U.S.C. sec. 1903; or    The court is informed that the child or the child's parent possesses an identification card indicating membership in an Indian tribe.          If the court knows or has reason to know, as defined in subsection (1)(a)(II) of this section, that the child who is the subject of the proceeding is an Indian child, the petitioning or filing party shall send notice by registered or certified mail, return receipt requested, to the parent or parents, the Indian custodian or Indian custodians of the child and to the tribal agent of the Indian child's tribe as designated in 25 CFR 23, or, if there is no designated tribal agent, the petitioning or filing party shall contact the tribe to be directed to the appropriate office or individual. In providing notice, the court and each party shall comply with 25 CFR 23.111.    The petitioning or filing party shall disclose in the complaint, petition, or other commencing pleading filed with the court that the child who is the subject of the proceeding is an Indian child and the identity of the Indian child's tribe or what efforts the petitioning or filing party has made in determining whether the child is an Indian child. If the child who is the subject of the proceeding is determined to be an Indian child, the petitioning or filing party shall further identify what reasonable efforts have been made to send notice to the persons identified in subsection (1)(b) of this section. The postal receipts indicating that notice was properly sent by the petitioning or filing party to the parent or Indian custodian of the Indian child and to the Indian child's tribe must be attached to the complaint, petition, or other commencing pleading filed with the court; except that, if notification has not been perfected at the time the initial complaint, petition, or other commencing pleading is filed with the court or if the postal receipts have not been received back from the post office, the petitioning or filing party shall file the postal receipts with the court. Any responses sent by the tribal agents to the petitioning or filing party, the county department of human or social services, or the court must be distributed to the parties and deposited with the court.       If there is reason to know the child is an Indian child but the court does not have sufficient evidence to determine that the child is or is not an Indian child, the court shall:   Confirm, by way of a report, declaration, or testimony included in the record, that the petitioning or filing party used due diligence to identify and work with all of the tribes of which there is reason to know the child may be a member, or eligible for membership, to verify whether the child is in fact a member, or a biological parent is a member and the child is eligible for membership; and    Treat the child as an Indian child, unless and until it is determined on the record that the child does not meet the definition of an Indian child.       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.    If the court finds that the child is an Indian child, the court shall ensure compliance with the requirements of the federal “Indian Child Welfare Act”, 25 U.S.C. sec. 1901 et seq.      History. Source: L. 2002: Entire section added, p. 784, § 3, effective May 30. L. 2018: (3) amended,(SB 18-092), ch. 38, p. 410, § 33, effective August 8. L. 2019: Entire section amended,(HB 19-1232), ch. 305, p. 2791, § 2, effective May 28.    Cross references:   For the legislative declaration contained in the 2002 act enacting this section, see section 1 of chapter 217, Session Laws of Colorado 2002. For the legislative declaration in SB 18-092, see section 1 of chapter 38, Session Laws of Colorado 2018. For the legislative declaration in HB 19-1232, see section 1 of chapter 305, Session Laws of Colorado 2019.   ANNOTATION   Law reviews. For article, “Colorado Moves Toward Full Compliance With Federal Indian Child Welfare Act”, see 31 Colo. Law. 77 (Nov. 2002). For article, “Finding the Indian Child Welfare Act in Unexpected Places: Applicability in Private Non-Parent Custody Actions”, see 81 U. Colo. L. Rev. 1119 (2010). For article, “New ICWA Regulations Promote Tribal Sovereignty and Culture for Native American Children”, see 46 Colo. Law. 41 (Apr. 2017). For article, “ICWA on Appeal: New Challenges and New Approaches” see 49 Colo. Law. 8 (Jan. 2020).   Reasonable grounds to believe that a child is an Indian child must depend upon the totality of the circumstances. In light of the purpose of the federal Indian Child Welfare Act (ICWA), however, to permit tribal involvement in child-custody determinations whenever tribal members are involved, the threshold requirement for notice is clearly not intended to be high. B.H. v. People ex rel. X.H., 138 P.3d 299 (Colo. 2006).   Even if a trial court inquires at an initial temporary custody hearing at the commencement of a dependency and neglect proceeding whether there is a reason to know that the child is an Indian child, it must make another inquiry when termination is sought if the court has not already identified the child as an Indian child and the petitioning party has not disclosed what efforts it has made to determine if the child is an Indian child. People in Interest of C.A., 2017 COA 135 , 417 P.3d 909.   Where caseworker knew that child would be able to enroll in a tribe if mother enrolled, this knowledge is sufficient to warrant notice to the tribe of a motion to terminate parental rights. The state's obligation to notify potentially concerned tribes necessarily arises prior to an ultimate determination of the child's Indian status. As long as there is sufficiently reliable information of virtually any criteria on which membership might be based, there is adequate information to trigger the notice provisions of the federal ICWA. People ex rel. S.R.M., 153 P.3d 438 (Colo. App. 2006).   Department of human services must file notices or return receipt cards with the court even if the status of the minor child as an Indian child pursuant to the federal ICWA is undetermined. Failure to file notices or return receipts was not harmless error because department had relevant facts about the child, and it was not possible to determine from the record whether those facts were shared with the tribe. People ex rel. N.D.C., 210 P.3d 494 (Colo. App. 2009).   Father's failure to timely return assessment form did not eliminate the duty of notice and further inquiry under subsection (1)(a). People ex rel. J.O., 170 P.3d 840 (Colo. App. 2007).   Waiver of notice. Tribe does not waive right to intervene, or corresponding right to receive notice, unless it explicitly states that it will not intervene. People ex rel. S.R.M., 153 P.3d 438 (Colo. App. 2006); People ex rel. T.M.W., 208 P.3d 272 (Colo. App. 2009).   Court may not rely on notice given to tribe concerning sibling. Notice was insufficient where court relied on notice given to tribe concerning a sibling to determine another child's membership in, or eligibility to enroll in, the tribe. Although the siblings had the same parents, determination of tribal membership is made on an individual basis and tribe is free to change enrollment criteria at any time. People ex rel. T.M.W., 208 P.3d 272 (Colo. App. 2009).   Notice requirement of the federal ICWA not sufficiently complied with. People ex rel. J.O., 170 P.3d 840 (Colo. App. 2007); People ex rel. N.D.C., 210 P.3d 494 (Colo. App. 2009); People ex rel. E.C., 259 P.3d 1272 (Colo. App. 2010); People in Interest of L.L., 2017 COA 38 , 395 P.3d 1209.   Notice under the federal ICWA not required when court had no reason to know or believe that child had possible Indian ancestry because mother failed to provide information in that regard during termination proceedings. People ex rel. J.C.R., 259 P.3d 1279 (Colo. App. 2011).   The federal ICWA does not set forth any different standard of proof for an adjudicatory hearing in a dependency and neglect proceeding. The state need only prove the allegations set forth in the petition by a preponderance of the evidence in all adjudications, regardless of heritage. People in Interest of L.L., 2017 COA 38 , 395 P.3d 1209.   Trial court erred in using the standard of proof beyond a reasonable doubt in termination hearing because, on the date of the termination hearing, the court could not conclude that the child was an Indian child within the meaning of the federal ICWA. More than 10 days had passed since notice was made to tribes and at least two tribes had responded that the child was not eligible for enrollment. Further, no tribe indicated the child was an Indian child. Although mother provided the department with the child's grandfather's death certificate, and the department had the obligation to make continuing efforts to determine whether the child is an Indian child, the mother should have sought a continuance to require the department to send proper notice based upon information in its possession. Because no tribe responded within the statutory time frame stating that the child was an Indian child within the meaning of the federal ICWA, the trial court was required to apply the clear and convincing burden of proof at the termination hearing. People ex rel. L.O.L., 197 P.3d 291 (Colo. App. 2008).   Juvenile court erred in denying tribe's motion to transfer jurisdiction and entertaining former foster parents' opposition to the transfer. Plain language of the Children's Code applies transfer of jurisdiction requests to pre-adoptive and adoptive placement proceedings and places burden of proof on the party opposing transfer, who in this case lacked standing to oppose motion. People in Interest of L.R.B., 2019 COA 85 , __ P.3d __ (decided prior to 2019 amendment).   Inquiries related to the federal ICWA in a prior case involving the same child(ren) and same parent(s) does not nullify the court's or a department of human or social services' obligation to conduct “continuing inquiries” in a subsequent new case. People in Interest of A.D., 2017 COA 61 , 413 P.3d 290.   The federal ICWA's “active efforts” standard requires more than the “reasonable efforts” standard in non-ICWA cases (§ 19-3-604 ). People ex rel. A.R., 2012 COA 195 M, 310 P.3d 1007.   By expressly defining the term “parent” in the federal ICWA, Congress expressed its intention that the term is not subject to definition by state courts. In re Stockwell, 2019 COA 96 , 446 P.3d 957.   Therefore, even though father was the minor's “legal father” under state law, he was not the minor's “parent” for purposes of the federal ICWA. In re Stockwell, 2019 COA 96 , 446 P.3d 957.   If a person is not a “parent” under the federal ICWA, then an allocation of parental responsibilities becomes a foster care placement and a child custody placement under the federal ICWA. In re Stockwell, 2019 COA 96 , 446 P.3d 957.   Applied in In re People ex rel. A.R.Y.-M., 230 P.3d 1259 (Colo. App. 2010); People in Interest of L.H., 2018 COA 27 , 431 P.3d 663; People in Interest of K.R., 2020 COA 35 , 463 P.3d 336.