December 11, 2017

Colorado Court of Appeals: Dependency and Neglect Court Should Have Followed ICWA’s Notice Requirements

The Colorado Court of Appeals issued its opinion in People in Interest of L.L. on Thursday, March 30, 2017.

Dependency and NeglectIndian Child Welfare ActNoticeBurden of Proof.

In this dependency and neglect case concerning L.L., his mother, A.T., told the juvenile court at a shelter hearing that she had possible Apache Native American ancestry. Later, A.T. filed written information that included tribal card numbers and roll numbers. The Denver Department of Human Services (Department) did not send notice of the proceedings to any of the Apache Tribes. A.T. again stated that she had Indian heritage at a pretrial hearing, but the juvenile court did not address whether the Department used due diligence to identify and work with an Apache Tribe to verify whether L.L. is a member or is eligible for tribal membership. The court also did not treat L.L. as an Indian child pending verification from the tribe. Following a jury verdict, the court adjudicated L.L. dependent and neglected.

On appeal, A.T. contended that the order should be reversed because the Department did not comply with the Indian Child Welfare Act (ICWA) notice requirements. First, when there is “reason to know” the child is an Indian child, the juvenile court must ensure that the Department sends notice to any identified Indian Tribe. Second, the court must “[t]reat 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.’” Here, the Department did not meet its obligation to provide notice of the proceedings to any of the Apache Tribes. The juvenile court did not address whether the Department used due diligence to identify and work with an Apache Tribe to verify whether L.L. was a member or was eligible for membership and did not treat L.L. as an Indian child pending the Tribes’ verification.

A.T. also contended that the juvenile court violated ICWA by not requiring the jury to base its findings on a heightened clear and convincing evidentiary standard. There is no language in ICWA or associated rules or guidelines that indicates a heightened burden of proof for the adjudicatory hearing in a dependency and neglect proceeding. Thus, the state is only required to prove the allegations in the petition by a preponderance of the evidence in all adjudications, whether involving Indian or non-Indian children. The juvenile court did not err when it instructed the jury regarding the Department’s burden of proof.

The judgment was reversed and the case was remanded with directions.

Summary provided courtesy of The Colorado Lawyer.

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Comments

  1. Rosemary Van Gorder says:

    To all the County Attorneys in Colorado who ignore ICWA law –

    take heed that throwing darts in the dark to possible tribal affiliates is not good enough. Its never been good enough. You’ve just gotten away with it for too long and destroyed Native American families because of it.

    To the Family Law Attorneys in Colorado – you must aggressively defend the rights of your parent clients against the collusive and coercive practices in family courts!

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