In this case, the mother of the child repeatedly asserted that the child may have Native American heritage, possibly Cherokee or Lakota Sioux. Despite the mother’s assertions, the Department did not take any additional steps, at least that were apparent in the record, to determine whether there was reason to know the child was an Indian child pursuant to ICWA. Based upon these facts, a division of the court of appeals found that the trial court and Department did not comply with Colorado’s ICWA statute, CRS 19-1-126. The division held that the trial court did not have “reason to know” the child was an Indian child under ICWA; however, Colorado’s ICWA statute still required the court to direct the Department to “exercise due diligence” to assist the court in determining whether there was reason to know that the child was an Indian child. Because the record did not show due diligence, the division remanded the case with instructions for the trial court to direct the Department to take certain enumerated steps to determine whether, with more information, there was reason to know that the child was an Indian child.

This case is significant because it creates a split in authority. In People in Interest of E.M., 2021 COA 152, a different division of the court of appeals held that the trial court had “reason to know” that a child was an Indian child based on information about the child’s Indian heritage similar to the information in A-J.A.B. A-J.A.B. described the split as follows: “But we respectfully disagree with the E.M. division’s conclusion that a court has ‘reason to know’ that a child is an Indian child under section 19-1-126(1)(a)(II)(B) based on ‘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.’” E.M. paragraph 16 (emphasis added).

Note: The Colorado Supreme Court granted cert on E.M. case on March 7, 2022.

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