In this appeal of an order terminating the parent-child legal relationship, the Court of Appeals considers whether ICWA’s notice and inquiry provisions were complied with, as well as the father’s claim of ineffective assistance of counsel.
With regard to ICWA, the juvenile court made multiple inquiries of the father regarding his Native American heritage and the department provided the court ongoing updates of its inquiries of the mother and other relatives regarding Native American heritage. In response to the maternal grandfather’s assertion that he was a registered member of a Choctaw tribe, the department sent notice to three federally recognized Choctaw tribes. Two tribes responded that the grandfather was neither a member nor eligible for membership and the third tribe, the Jena Band, did not respond. The department subsequently moved to terminate the parent-child legal relationship. In a pre-hearing order, the court inquired of the father whether he or the children had any Native American heritage. The department also updated the court regarding its inquiry effort, which at that point also included reaching out to the Bureau of Indian Affairs, who could not identify a tribe, and contacting grandfather, who indicated membership in the Metis tribe, a federally unrecognized tribe.
The Court of Appeals held that these ICWA inquiry and notice procedures were insufficient because the juvenile court only inquired of the father and did not inquire of the other parties, including the GAL. The Court of Appeals also concluded that, based on the record at the time of the termination, the trial court had reason to know that the child may be an Indian child and should have required the department to send notice to the Jena Band. Ultimately, however, the Court of Appeals holds these errors harmless, as the grandfather later clarified that he was enrolled in a federally unrecognized tribe (the Metis Tribe) rather than a federally recognized tribe.
With regard to the father’s ineffective assistance of counsel claim, this Division of the Court of Appeals applies the Strickland but-for analysis to determine prejudice, declining to apply the fundamental fairness test announced by another division of the Court of Appeals in A.R. (This decision was issued prior to the Supreme Court’s decision in People in Interest of A.R., 456 P.3d 1266 (Colo. 2020)). The father’s inability to demonstrate prejudice resulting from the alleged lack of communication with his attorney or the attorney’s alleged performance errors lead the Court of Appeals to reject the father’s claim of ineffective assistance of counsel. The Court of Appeals affirmed the termination order.