In this case, the Colorado Supreme Court addressed what constitutes due diligence under Colorado’s ICWA statute, C.R.S. § 19-1-126(3), which provides that, when the court had reason to know a child is an Indian child, it “shall direct the petitioning 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.” In so doing, the Court built on People in Interest of E.A.M., 516 P.3d 924 (Colo. 2022), in which the Court determined that, while a court may have information establishing that a child has Indian heritage, this information alone does not mean there is reason to know that the child is an Indian child under ICWA.
In A-J.A.B., the mother had repeatedly asserted that the child may have Native American heritage, possibly Cherokee or Lakota Sioux. Initially, 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. At the termination hearing, the mother’s attorney reported that the child’s maternal great-grandmother indicated that the maternal great-aunt would have the most information about possible Indian heritage but conceded that the child was not likely an Indian child under ICWA. A-J.A.B. III ¶ 11.
In the first appeal, the Court of Appeals found that, while there was not reason to know the child was an Indian child, the trial court and Department did not comply with the requirement in Colorado’s ICWA statute to exercise due diligence to determine the child’s Indian status. People in Interest of A-J.A.B., 511 P.3d 750, 754 (Colo. App. 2022), abrogated on other grounds, E.A.M., 516 P.3d at 937 (A-J.A.B. I). As part of its holding, the division created a three-step test to determine whether a department exercised due diligence. 511 P.3d at 761. As part of their test, the division emphasized that the Department may contact the tribe or tribes within the identified ancestral group or groups to identify whether there is “reason to know” the parent or child is a member of any tribe, and even went further to state that such contact may be necessary when there are no other sources of additional information. Id.
On limited remand, the Department caseworker tried to contact the mother using three different phone numbers, but the mother never returned any of the caseworker’s calls. The caseworker also reached out to the maternal grandmother (not maternal great-aunt), who informed the caseworker that “the family did not have any Indian heritage” and signed a declaration of non-Indian heritage. People in Int. of A-J.A.B., No. 21CA764, ¶ 9 (Aug. 11, 2022) (A-J.A.B. II). Based on this record, the juvenile court found that the Department exercised its due diligence obligations under § 19-1-126(3) and concluded that there was no reason to know that the child was an Indian child. Id.
The mother appealed again, arguing that the Department did not exercise due diligence because it did not send notice to, or otherwise contact, the tribes or the child’s maternal great-aunt. On the second appeal, the division affirmed, concluding that “the Department followed the remand instructions and that the record support[ed] the [juvenile] court’s finding that the Department had exercised due diligence.” Id. at ¶ 10. The division held that the Department satisfied its due diligence obligations by repeatedly trying to contact the mother and by successfully contacting A-J.A.B.’s maternal grandmother who then signed a declaration of non-Indian heritage.
The mother petitioned for cert. The Colorado Supreme Court affirmed the division’s decision in A-J.A.B II. In so doing, the Court rejected the three-part test outlined in A-J.A.B I, and instead adopted the more flexible standard identified and described in People in Interest of Jay.J.L., 514 P.3d 312 (Colo. App. 2022), abrogated on other grounds in E.A.M., 516 P.3d at 937. Specifically, the Court held that due diligence must be flexible enough to allow the juvenile court to examine the Department’s investigation based on the specific circumstances, and it will necessarily vary with the specific circumstances. A-J.A.B., 2023 CO 48 ¶ 55. “Whether the Department has satisfied its due diligence obligation in any case will ultimately be left to the sound discretion of the juvenile court, which necessarily requires the court to make credibility determinations regarding the source of the information and the basis for the source’s knowledge.” Id. ¶ 58.
Applying this flexible standard to the facts of this case, the Court determined that the trial court could have based its decision on a credibility determination – and therefore, the Department was not required to contact the maternal great-aunt or the tribes, even if that might be best practice. Id. ¶ 63. “[W]e cannot conclude on this record that the division erred in concluding that the Department satisfied its due diligence obligation under section 19-1-126(3). And even if the Department erred, any error is harmless because we now know, definitively, that the child is not an Indian child.” Id. ¶ 64.
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