In this case, the child’s mother stated at the first hearing that she possibly had Sioux and Apache heritage, but she denied being enrolled in either tribe. She also stated that she wasn’t sure if she or E.A.M. was eligible for enrollment in either tribe. The juvenile court was aware that, in prior D&N cases involving the mother, notice was sent to these tribes and ICWA did not apply. Regardless, the court directed the department to exercise due diligence to investigate whether E.A.M. was eligible for enrollment. The department following up with the information Mother provided and received conflicting information from relatives. The department regularly submitted investigation updates in affidavits of due diligence, all which reported that it had no reason to know E.A.M. was an Indian child pursuant to the definition in ICWA. Because the department determined that the assertions of Indian heritage by the mother and the other relatives fell short of “reason to know”, it did not send notice to any of the identified tribes. Throughout the proceeding and at the termination hearing, the juvenile court also found that it did not have reason to know that E.A.M. was an Indian child and that the department had exercised due diligence. On appeal, a division of the Court of Appeals held that a court has reason to know that a child is an Indian child if it has information that the child may have ancestors affiliated with a specific tribe even if the information does not satisfy all of the criteria of the Indian child definition. On that basis, the COA vacated the termination judgment and remanded the case with direction to satisfy ICWA’s notice requirements.
ICWA defines an Indian child as any unmarried person who is under 18 and is either (a) a member of an Indian tribe; or (b) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. 25 USC 1903(4) Under ICWA, when the court “knows or has reason to know” that a child who is the subject of a D&N case is an Indian child, it has an obligation to ensure that the petitioning party gives notice of the proceeding to any identified Indian tribes. 25 U.S.C. 1912(a). The ICWA Regulations define “reason to know” through a list of six factors; as relevant here, Factor 2 provides that reason to know exists when “[a]ny participant in the proceeding . . . informs the court that it has discovered information indicating that the child is an Indian child.” 25 CFR 23.107(c). Colorado’s ICWA statute, CRS 19-1-126(3) 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 E.A.M., the Colorado Supreme Court looked to the definition of Indian child in ICWA and found that nothing in record demonstrated that EAM was a member of an Indian tribe, eligible for membership in an Indian tribe or the biological child of a tribal member. Considering the ICWA Regulations, the Colorado Supreme Court then determined that the mother’s and relatives’ belief that they may have Indian heritage with the Apache or Sioux tribes did not meet the threshold requirements for the court to have “reason to know” that EAM was an Indian child. Rather, the Colorado Supreme Court found that these assertions gave the department and court sufficient information to trigger the requirement in Colorado’s ICWA statute that the department conduct due diligence to ascertain whether E.A.M. was an Indian child. The Colorado Supreme Court found 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. “In other words, assertions of a child’s Indian heritage do not necessarily establish reason to know that the child is an Indian child.” Because the question of whether the department exercised due diligence as required by CRS 19-1-126(3) was not properly before the Colorado Supreme Court, it declined to rule on this issue. Instead, the Colorado Supreme Court remanded the matter to the Court of Appeals to resolve the mother’s outstanding claim that the department failed to make reasonable efforts to rehabilitate her.Click here to access the case in Westlaw.