Justia Native American Law Opinion Summaries

Articles Posted in Colorado Supreme Court
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A-J.A.B. tested positive at birth for methamphetamine. H.J.B. (“Mother”) admitted methamphetamine use during her pregnancy. In March 2020, less than a month after A-J.A.B.’s birth, the Adams County Human Services Department (“the Department”) filed a petition in dependency and neglect concerning A-J.A.B. The Department’s petition noted that it had no information indicating that A-J.A.B. was an Indian child or eligible for membership in an Indian tribe, although the petition did not identify what efforts, if any, the Department took to determine whether A-J.A.B. was an Indian child. At the shelter hearing, Mother’s counsel informed the court that Mother may have “some Cherokee and Lakota Sioux [heritage] through [A-J.A.B.’s maternal great-grandmother].” However, Mother was uncertain if anyone in her family was actually registered with a tribe and acknowledged that she “probably [wouldn’t] qualify” for any tribal membership herself. The juvenile court ordered Mother to “fill out the ICWA paperwork,” but the court did not direct the Department to exercise its due diligence obligation under section 19-1-126(3). At the next hearing, Mother, who had not filled out the ICWA paperwork, again stated that she had “Native American heritage” through A-J.A.B.’s maternal great-grandmother. Because of these assertions, the juvenile court found that the case “‘may’ be an ICWA case.” By December 2020, the Department moved to terminate Mother’s parental rights. At the pretrial conference, Mother’s attorney informed the court that she spoke with A-J.A.B.’s maternal grandmother, who stated that she “thought that the heritage may be Lakota.” Mother’s attorney told the court “it doesn’t sound like there’s a reason to believe that ICWA would apply” and acknowledged that neither Mother nor A-J.A.B. were enrolled members of any tribe. The juvenile court subsequently concluded that “there [was] no reason to believe that this case [was] governed by [ICWA].” The juvenile court terminated Mother’s parental rights. Mother appealed, arguing the juvenile court erred in finding that ICWA did not apply because the court had a reason to know that A-J.A.B. was an Indian child. The Colorado Supreme Court concluded the Department satisfied its statutory due diligence obligation under section19-1-126(3), and affirmed in different grounds. View "Colorado in interest of H.J.B." on Justia Law

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As relevant here, a trial court has reason to know that a child is an Indian child when “[a]ny 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.” In this dependency and neglect case, the juvenile court terminated Mother’s parental rights with respect to E.A.M. Mother appealed, complaining that the court had failed to comply with Indian Child Welfare Act (“ICWA”) by not ensuring that the petitioning party, the Denver Human Services Department (“the Department”), had provided notice of the proceeding to the tribes that she and other relatives had identified as part of E.A.M.’s heritage. The Department and the child’s guardian ad litem responded that the assertions of Indian heritage by Mother and other relatives had not given the juvenile court reason to know that the child was an Indian child. Rather, they maintained, such assertions had merely triggered the due diligence requirement in section 19-1-126(3), and here, the Department had exercised due diligence. A division of the court of appeals agreed with Mother, vacated the termination judgment, and remanded with directions to ensure compliance with ICWA’s notice requirements. The Colorado Supreme Court reversed, finding that "mere assertions" of a child's Indian heritage, without more, were not enough to give a juvenile court "reason to know" that the child was an Indian child. Here, the juvenile court correctly found that it didn’t have reason to know that E.A.M. is an Indian child. Accordingly, it properly directed the Department to exercise due diligence in gathering additional information that would assist in determining whether there was reason to know that E.A.M. is an Indian child. View "Colorado in interest of E.A.M. v. D.R.M." on Justia Law

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This termination of parental rights case concerned the “active efforts” required under the Indian Child Welfare Act (“ICWA”) to provide remedial services and rehabilitative programs to assist a parent in completing a court-ordered treatment plan. A division of the Colorado court of appeals reversed a juvenile court’s judgment terminating Mother’s parent-child legal relationship with her two Native American children, holding that the Denver Department of Human Services (“DHS”) did not engage in the “active efforts” required under ICWA to assist Mother in completing her court-ordered treatment plan because it did not offer Mother job training or employment assistance, even though Mother struggled to maintain sobriety and disappeared for several months. The Colorado Supreme Court held that “active efforts” was a heightened standard requiring a greater degree of engagement by agencies, and agencies must provide a parent with remedial services and resources to complete all of the parent’s treatment plan objectives. The Court was satisfied the record supported the juvenile court’s determination that DHS engaged in active efforts to provide Mother with services and programs to attempt to rehabilitate her and reunited the family. The appellate court’s judgment was reversed and the matter remanded for that court to address Mother’s remaining appellate contentions. View "Colorado in interest of My.K.M. and Ma. K.M." on Justia Law