The mother in this dependency and neglect case reported to the trial court that she had Cherokee or Navajo Indian heritage but was uncertain if anyone in her family was an enrolled member in either tribe. The trial court instructed the mother to complete an ancestry chart and directed the department to exercise due diligence to gather additional information to assist the trial court in determining whether there was reason to know the child was an Indian child under the Indian Child Welfare Act (ICWA). Prior to the termination hearing, the department filed a declaration listing its efforts to determine whether there was reason to know the child is an Indian child, including contacting maternal relatives and reviewing the court system and TRAILS databases.

Addressing whether the trial court had reason to know the child was an Indian child under ICWA, the Court of Appeals noted the split in authority between divisions of the Court of Appeals. Ultimately, the Jay.J.L division sided with People in Interest of A-J.A.B., 2022 COA 31, rather than People in Interest of E.M., 2021 COA 152.* Specifically, the Jay.J.L. division held that an assertion of Indian heritage connected to tribal ancestral groups alone does not demonstrate a substantial chance that a child is an Indian child pursuant to ICWA. Rather, the the Jay.J.L. division held that, in these circumstances, Colorado’s ICWA statute, C.R.S. 19-1-126(3), requires the department to conduct due diligence in gathering additional information that would assist the court in determining whether the child is an Indian child. Due diligence must include “earnest endeavors to gather additional information that would assist the court in determining whether there is reason to know that the child is an Indian child,” as well as following up with the parent who discloses Indian heritage to determine the basis of the parent’s belief or understanding. However, unlike A-.J.A.B., 2022COA31, the Jay.J.L. division determined that, beyond these efforts, a determination of what constitutes due diligence is flexible and will necessarily depend on the circumstances of each case.

Applying this standard to the facts of the case, the Jay.J.L. division held that the department’s efforts did not satisfy due diligence and remanded the case with detailed instructions regarding the procedures to be utilized on remand.

*The Colorado Supreme Court granted cert on E.M. on March 7, 2022.

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