People In Interest of Jay.J.L. and Jac.J.L., Children

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
April 14, 2022

2022COA43

No. 21CA0659, People in Interest of J.J.L. — American Indian
Law — ICWA — Notice; Juvenile Court — Dependency and
Neglect — Termination of the Parent-Child Legal Relationship
— Compliance with the Federal “Indian Child Welfare Act” —
Knows — Reason to Know — Due Diligence

In this dependency and neglect proceeding, a division of the

court of appeals holds that a parent’s assertion of Indian heritage,

standing alone, is not a “reason to know” the child is an Indian

child that triggers the notice requirements of the Indian Child

Welfare Act of 1978, 25 U.S.C. §§ 1901-1963, and section 19-1-126,

C.R.S. 2021. But such an assertion does trigger the petitioning

party’s obligation under section 19-1-126(3) to “exercise due

diligence” to assist the juvenile court in determining whether there

is “reason to know” that the child is an Indian child.
The division clarifies section 19-1-126(3)’s due diligence

obligation. Like the division in People in Interest of A-J.A.B., 2022

COA 31, this division concludes that the exercise of due diligence

requires the petitioning party — usually a department of human

services — to follow up with any parent who discloses Indian

heritage to determine the basis of the parent’s belief or

understanding. Unlike A-J.A.B., however, this division concludes

that there is no prescribed set of steps that the department must

follow to satisfy section 19-1-126(3)’s due diligence obligation.

Instead, what constitutes due diligence is flexible and will

necessarily depend on the circumstances of, and the information

presented to the court in, each case.

Because the record in this case does not show that section

19-1-126(3)’s obligation was met, the division remands the case

with instructions for the juvenile court to direct the department to

“exercise due diligence” and assist the juvenile court to properly

determine whether, with more adequate information, there is

“reason to know” that the child is an Indian child under section

19-1-126(3).
COLORADO COURT OF APPEALS 2022COA43

Court of Appeals No. 21CA0659
City and County of Denver Juvenile Court No. 19JV1672
Honorable Pax Moultrie, Judge

The People of the State of Colorado,

Appellee,

In the Interest of Jay.J.L. and Jac.J.L., Children,

and Concerning B.J.L. and J.M.G.,

Appellants.

ORDER OF LIMITED REMAND

Division V
Opinion by JUDGE YUN
Dunn and Welling, JJ., concur

Announced April 14, 2022

Kristin M. Bronson, City Attorney, Amy J. Packer, Assistant City Attorney,
Denver, Colorado, for Appellee

Jeffrey C. Koy, Jordan Oates, Lauren Dingboom, Claire Collins, Guardians Ad
Litem

Lindsey Parlin, Office of Respondent Parents’ Counsel, Kaneohe, Hawaii, for
Appellant B.J.L.

The Morgan Law Office, Kris P. Morgan, Colorado Springs, Colorado, for
Appellant J.M.G.
¶1 In this dependency and neglect proceeding, J.M.G. (mother)

and B.J.L. (father) appeal the juvenile court’s judgment terminating

their parent-child legal relationships with J.J.L. (the child). To

decide this appeal, we must dive into the requirements of the Indian

Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963, and

section 19-1-126, C.R.S. 2021.

¶2 It is well established that when the court knows or has reason

to know that an Indian child is involved in a termination

proceeding, the court must ensure that the party seeking

termination provides notice of the proceeding to the potentially

concerned tribe or tribes. But, in this case, we must determine

whether mother’s assertion of Indian heritage, which she connected

to specific tribal ancestral groups, constituted a reason to know

that the child was an Indian child or, in the alternative, whether it

required the petitioning party to exercise due diligence to gather

additional information under section 19-1-126(3).

¶3 We conclude that a parent’s assertion of Indian heritage,

standing alone, is insufficient to trigger ICWA’s notice requirements

but, rather, it invokes the petitioning party’s obligation to exercise

due diligence under section 19-1-126(3). We further conclude that

1
the exercise of due diligence under this provision is flexible and

depends on the circumstances of, and the information presented to

the court in, each case. Nonetheless, the record needs to show that

the petitioning party earnestly endeavored to gather additional

information that would assist the court in determining whether

there is reason to know that the child is an Indian child.

¶4 Because the record does not demonstrate that the petitioning

party met this obligation, we remand the case to the juvenile court

for further proceedings.

I. The Juvenile Court Proceeding

¶5 In November 2019, the Denver Department of Human Services

filed a dependency and neglect petition concerning the two-year-old

child and a younger sibling who is not subject to this appeal. In the

petition, the department indicated that mother reported having

Cherokee or Navajo heritage but was “uncertain which and does not

know if anyone in her family was an enrolled member.”

¶6 At the initial temporary custody hearing, mother also told the

juvenile court that she had Cherokee or Navajo heritage. The court

determined that this was not reason to know that the child is an

Indian child. Still, it told mother to complete an ICWA ancestry

2
chart and directed the department to exercise due diligence to

gather additional information that would assist it in determining

whether there was reason to know that the child is an Indian child.

¶7 Mother promptly completed and submitted an ICWA inquiry

form, as well as an ICWA ancestry chart. On the form, mother

again indicated that either she or someone in her family had Indian

heritage, but she also checked boxes indicating that she was not

enrolled in an Indian tribe and that the child was neither enrolled

in a tribe nor eligible for enrollment. In the ICWA ancestry chart,

mother identified her tribe as Cherokee, but she did not fill in

additional sections that sought tribal affiliations for the maternal

grandparents and great-grandparents.

¶8 The court adjudicated the child dependent and neglected and

entered dispositional orders concerning both parents. Although the

court did not expressly address ICWA’s applicability as part of the

dispositional orders, it later reiterated that the department should

investigate mother’s claim of Cherokee or Navajo heritage.

¶9 In December 2020, the department moved to terminate the

legal relationships between the child and his parents. As part of its

termination motion, the department asserted that there was no

3
reason to know, based on inquiries of both parents, that the child is

an Indian child.

¶ 10 About a month later, the department filed a declaration listing

additional diligent efforts it had made to determine whether there

was reason to know that the child is an Indian child. These

included the following:

• contacting the maternal grandmother, who indicated that

she “was not aware of any Native American heritage for

her family”;

• contacting a maternal aunt, who “reported not knowing if

there was any Native American heritage for her family”;

• reviewing the “Colorado Courts System,” which showed

that the parents had been subject to two earlier

dependency and neglect cases — one in 2008 and one in

2010 — and the court had determined that ICWA was

inapplicable in each case; and

• reviewing the “TRAILS” system, which revealed that a

social history record for mother “[did] not indicate any

Native American heritage other than possible Cherokee

heritage.”

4
¶ 11 Following a multi-day termination hearing between January

and April 2021, the juvenile court again addressed ICWA’s

applicability. The court determined that ICWA was inapplicable

because the department’s efforts to investigate mother’s report of

heritage had not shown reason to know that the child is an Indian

child. The court entered judgment terminating the parental rights

of mother and father.

II. ICWA’s Notice Requirement

¶ 12 We first address mother’s assertion that ICWA required the

department to give notice of the proceeding to the federally

recognized Cherokee and Navajo tribes.

A. Preservation

¶ 13 Initially, we note that, before the termination hearing, the

parties stipulated that “there does not appear to be reason to know

that ICWA applies to these proceedings” based on the department’s

declaration of its efforts to investigate “possible Native American

heritage for the family.”

¶ 14 Even so, ICWA’s notice requirements serve the interests of

Indian tribes, giving them “a meaningful opportunity to participate

in determining whether the child is Indian.” B.H. v. People in

5
Interest of X.H., 138 P.3d 299, 303 (Colo. 2006); People in Interest of

J.O., 170 P.3d 840, 842 (Colo. App. 2007). Consequently, they

cannot be waived by a parent and may be raised for the first time

on appeal. J.O., 170 P.3d at 842.

B. Standard of Review and Statutory Interpretation

¶ 15 Whether ICWA applies to a proceeding is a question of law that

we review de novo. People in Interest of M.V., 2018 COA 163, ¶ 32.

We also review de novo questions of statutory interpretation. People

in Interest of K.C. v. K.C., 2021 CO 33, ¶ 21.

¶ 16 In construing a statute, we consider the entire statutory

scheme to give consistent, harmonious, and sensible effect to all its

parts, and we interpret words and phrases in accordance with their

plain and ordinary meanings. Id. In addition, statutes enacted for

the benefit of Indians, as well as regulations, guidelines, and state

statutes promulgated to implement those statutes, must be liberally

construed in favor of Indian interests. People in Interest of A.R.,

2012 COA 195M, ¶ 18; see also Montana v. Blackfeet Tribe of

Indians, 471 U.S. 759, 766 (1985).

6
C. The Legal Framework

¶ 17 ICWA aims to protect and to preserve Indian tribes and their

resources and to protect Indian children who are members of or are

eligible for membership in an Indian tribe. 25 U.S.C. § 1901(2), (3);

M.V., ¶ 10. ICWA recognizes that Indian tribes have a separate

interest in Indian children that is equivalent to, but distinct from,

parental interests. B.H., 138 P.3d at 303; see also Mississippi Band

of Choctaw Indians v. Holyfield, 490 U.S. 30, 52 (1989).

¶ 18 If the court knows or has reason to know that an Indian child

is involved in a child custody proceeding, including one for the

termination of parental rights, the petitioning party — often the

department of human services — must provide notice to any

identified Indian tribes. 25 U.S.C. § 1912(a); § 19-1-126(1)(b); see

also B.H., 138 P.3d at 302.

¶ 19 To comply with ICWA’s notice provisions, the department must

notify each tribe by registered mail, with return receipt requested, of

the pending child custody proceeding and the tribe’s right to

intervene. M.V., ¶ 26. And copies of these notices must be sent to

the appropriate regional director of the Bureau of Indian Affairs

(BIA). 25 C.F.R. § 23.11(a) (2021); see also M.V., ¶ 28.

7
D. Determining When ICWA Applies

¶ 20 The juvenile court must ask each participant on the record at

the start of every child custody proceeding whether the participant

knows or has reason to know that the child is an Indian child.

25 C.F.R. § 23.107(a) (2021); People in Interest of L.L., 2017 COA

38, ¶ 19.

¶ 21 For purposes of ICWA, an Indian child is an unmarried person

under the age of eighteen who is either (1) a member of an Indian

tribe or (2) eligible for membership in an Indian tribe and the

biological child of a member of an Indian tribe. 25 U.S.C. § 1903(4).

Thus, a child’s eligibility for membership in a tribe does not, in and

of itself, render the child an Indian child under ICWA. K.C., ¶ 24.

¶ 22 But ICWA does not define tribal membership. Id. at ¶ 28.

Rather, membership is left exclusively to the control of each

individual tribe. Id. This means that a tribe’s determination of

membership or membership eligibility is conclusive and final.

People in Interest of J.A.S., 160 P.3d 257, 260 (Colo. App. 2007).

And the court may not substitute its own determination regarding a

child’s membership in a tribe, a child’s eligibility for membership in

8
a tribe, or a parent’s membership in a tribe. 25 C.F.R. § 23.108(b)

(2021).

¶ 23 Against this backdrop, the federal regulations implementing

ICWA provide that a court has reason to know that a child is an

Indian child if

(1) Any participant in the proceeding, officer of
the court involved in the proceeding, Indian
Tribe, Indian organization, or agency informs
the court that the child is an Indian child;

(2) Any participant in the proceeding, officer of
the court involved in the proceeding, Indian
Tribe, Indian organization, or agency informs
the court that it has discovered information
indicating that the child is an Indian child;

(3) The child who is the subject of the
proceeding gives the court reason to know he
or she is an Indian child;

(4) The court is informed that the domicile or
residence of the child, the child’s parent, or the
child’s Indian custodian is on a reservation or
in an Alaska Native village;

(5) The court is informed that the child is or
has been a ward of a Tribal court; or

(6) The court is informed that either parent or
the child possesses an identification card
indicating membership in an Indian Tribe.

25 C.F.R. § 23.107(c). These factors are incorporated into the

Colorado Children’s Code under section 19-1-126(1)(a)(II).

9
E. Analysis of Reason to Know

¶ 24 The record established that five of these six factors are not at

issue in this case. Mother did not inform the court that the child is

an Indian child. Recall that, while mother reported Cherokee or

Navajo heritage, she checked boxes indicating that neither she nor

the child was enrolled in a tribe. Nor did the child give the court

reason to know that he is an Indian child. And mother confirmed

that neither she nor the child had lived on a reservation, the child

had not been a ward of a tribal court, and neither she nor the child

had a tribal identification card.

¶ 25 Thus, we turn to the remaining reason-to-know factor — a

participant in the case informs the court that he or she has

discovered information indicating that the child is an Indian child.

See 25 C.F.R. § 23.107(c)(2); § 19-1-126(1)(a)(II)(B).

¶ 26 In People in Interest of E.M., 2021 COA 152, ¶¶ 14-15 (cert.

granted in part Mar. 7, 2022), a division of this court recently

concluded that a juvenile court had reason to know that a child is

an Indian child under this factor based on information about the

child’s Indian heritage. The division reasoned that, because this

factor had a different meaning than being informed that the child is

10
an Indian child, it applied when the court had 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. Id. at ¶¶ 16-17.

¶ 27 However, another division of this court later determined that

an assertion of tribal heritage — similar to mother’s assertion of

Cherokee or Navajo heritage in this case — does not give the court

reason to know that a child is an Indian child. See People in

Interest of A-J.A.B., 2022 COA 31, ¶¶ 72-77. The division in

A-J.A.B. emphasized that the definition of an Indian child “does not

apply simply based on a child[’s] or parent’s Indian ancestry” but

depends on “a political relationship” to a tribe. Id. at ¶ 72 (citation

omitted). And it concluded that the difference between the

reason-to-know factors based on a participant informing the court

that the child is an Indian child, see 25 C.F.R. § 23.107(c)(1),

§ 19-1-126(1)(a)(II)(A), and a participant informing the court that it

has discovered information that the child is an Indian child, see

25 C.F.R. § 23.107(c)(2); § 19-1-126(1)(a)(II)(B), is temporal,

A-J.A.B., ¶ 73. This latter reason-to-know factor applies when a

11
participant has discovered information during the proceeding

indicating that the child is an Indian child. Id. at ¶¶ 72-74.

¶ 28 We are persuaded by the reasoning of A-J.A.B. because

determining whether a court has reason to know that a child is an

Indian child turns on whether a child is either (1) a tribal member

or (2) eligible for membership and the biological child of a tribal

member. To be sure, tribal ancestry and lineage are among the

criteria that tribes may use to determine membership. See B.H.,

138 P.3d at 303. Still, an assertion of Indian heritage connected to

specific tribal ancestral groups does not, in and of itself,

demonstrate a substantial chance that the child is a tribal member

or eligible for membership. See A-J.A.B., ¶¶ 36, 40 (defining reason

to know as demonstrating a substantial chance that the child is an

Indian child under the six reason-to-know factors).

¶ 29 We recognize our supreme court has determined that the

threshold requirement for ICWA notice was not intended to be high

and that sufficiently reliable information of virtually any criteria on

which tribal membership might be based was adequate to trigger

ICWA’s notice provisions. B.H., 138 P.3d at 303-04.

12
¶ 30 However, at that time, Colorado’s ICWA-implementing statute

required departments to notify tribes if they knew or had reason to

believe that the child involved in the proceeding was an Indian

child. A-J.A.B., ¶ 76; see also § 19-1-126(1)(b), C.R.S. 2005. Our

legislature has since removed that standard from the statute and

replaced it with a requirement to notify tribes when there is reason

to know. Ch. 305, sec. 2, § 19-1-126, 2019 Colo. Sess. Laws 2793.

¶ 31 The B.H. court also relied on the 1979 BIA Guidelines. These

guidelines contained examples of circumstances that created reason

to believe, including when

• any public or state-licensed agency involved in child

protection services or family support has discovered

information suggesting that the child is an Indian child;

or

• an officer of the court involved in the proceeding has

knowledge that the child may be an Indian child.

Guidelines for State Courts; Indian Child Custody Proceedings,

44 Fed. Reg. 67,584, 67,586 (Nov. 29, 1979).

¶ 32 But the 1979 Guidelines are no longer in effect. And these

definitions are not included as reasons to know that a child is an

13
Indian child under 25 C.F.R. § 23.107(c) or section

19-1-126(1)(a)(II). As a result, B.H. required notice to tribes under a

different standard than the one in effect today. A-J.A.B., ¶ 76.

¶ 33 For these reasons, we conclude that mother’s report of

Cherokee or Navajo heritage was not reason to know that the child

is an Indian child triggering ICWA’s notice requirements.

III. Colorado’s Due Diligence Requirement

¶ 34 Having determined that mother’s report of Indian heritage did

not give the court reason to know that the child is an Indian child,

we must next consider whether the department met its obligation to

exercise due diligence under section 19-1-126(3).

A. Standard of Review

¶ 35 A determination of the proper legal standard to be applied in a

case and the application of that standard to the particular facts of

the case are questions of law that we review de novo. M.A.W. v.

People in Interest of A.L.W., 2020 CO 11, ¶ 31. However, the

decision of whether a party has exercised due diligence is within the

court’s discretion. See People in Interest of J.C.S., 169 P.3d 240,

243 (Colo. App. 2007). And we will not disturb the court’s factual

14
findings when they are supported by the record. Id.; see also

M.A.W., ¶ 32.

B. The Due Diligence Requirement

¶ 36 In addition to implementing ICWA’s requirements, section

19-1-126(3) imposes an additional due diligence requirement in

cases that are brought under the Children’s Code. It provides:

If the court receives information that the child
may have Indian heritage but does not have
sufficient information to determine that there
is reason to know that the child is an Indian
child pursuant to subsection (1)(a)(II) of this
section, the court shall direct the petitioning or
filing 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. The court shall direct the petitioning or
filing party to make a record of the effort taken
to determine whether or not there is reason to
know that the child is an Indian child.

§ 19-1-126(3) (emphasis added).

¶ 37 Our legislature did not define due diligence under section

19-1-126(3). When a statute does not define a term, we assume

that the legislature intended to give the term its usual and ordinary

meaning. Roup v. Com. Rsch., LLC, 2015 CO 38, ¶ 8. Diligence is

defined as “steady, earnest, and energetic effort” and “devoted and

15
painstaking work and application to accomplish an undertaking.”

A-J.A.B., ¶ 50 (citation omitted). Due diligence is commonly

understood as “[t]he diligence reasonably expected from, and

ordinarily exercised by, a person who seeks to satisfy a legal

requirement or to discharge an obligation.” Id. (citation omitted);

see also Minshall v. Johnston, 2018 COA 44, ¶ 18.

¶ 38 As a result, we agree with the division in A-J.A.B. that the

record needs to establish that the department (the petitioning party)

earnestly endeavored to gather additional information that would

assist the court in determining whether there is reason to know

that the child is an Indian child. A-J.A.B., ¶ 59. We also agree that,

to meet this standard, the department must follow up with any

parent who discloses Indian heritage to determine the basis of the

parent’s belief or understanding. See id. at ¶ 61. Indeed, the basis

for a parent’s belief or understanding will be the key to determining

what due diligence is required in any particular case. Id.

¶ 39 However, we part ways with A-J.A.B.’s determination that the

department must take certain other steps to satisfy due diligence

under section 19-1-126(3). Specifically, the division in A-J.A.B. held

that the department was required to contact available family

16
members and determine whether they have additional information

that would help the court determine whether the child is an Indian

child. See id. at ¶ 62. These efforts, in turn, would enable the

department to determine whether any other persons, agencies,

organizations, or tribes may have additional information concerning

whether there is a reason to know that the child is an Indian child.

Id. at ¶ 63. And the division determined that it may be necessary to

contact a tribe or tribes when there are no other satisfactory

sources of additional information. Id. at ¶ 64.

¶ 40 We are not persuaded that a petitioning party must

necessarily take such steps to satisfy due diligence under section

19-1-126(3). First, the statute does not enumerate specific steps

that a party must take to satisfy due diligence. Second, “[t]here is

no objective, formulaic standard for determining what is, or is not,

due diligence.” Owens v. Tergeson, 2015 COA 164, ¶ 45 (quoting

Abreu v. Gilmer, 985 P.2d 746, 749 (Nev. 1999)). Nor does due

diligence necessarily require the party exercising it to actually

succeed in its efforts or exhaust every possible option in attempting

to do so. See Minshall, ¶ 18.

17
¶ 41 Consequently, apart from following up with any parent who

discloses Indian heritage to determine the basis of the parent’s

belief or understanding, the department is not required to take

prescribed steps to satisfy due diligence under section 19-1-126(3).

Rather, a determination of what constitutes due diligence is flexible

and will necessarily depend on the circumstances of, and the

information presented to the court in, each case. See Owens, ¶ 45

(recognizing that due diligence must be tailored to fit the

circumstances of each case).

¶ 42 After obtaining the additional information necessary to satisfy

due diligence, the department must advise the court of the efforts

that it has taken and whether it believes that the information rises

to the level of reason to know under 25 C.F.R. § 23.107(c) and

section 19-1-126(1)(a)(II). See A-J.A.B., ¶ 63.

¶ 43 Based on this additional information, the court must then

determine whether the department exercised due diligence and

whether there is reason to know that the child is an Indian child.

This determination may be based on (1) the recognition that only a

tribe can determine who is a member or eligible for tribal

membership; (2) the nature and the credibility of the source of the

18
information; and (3) the basis of the source’s knowledge. Id. at

¶ 66.

¶ 44 In lieu of taking these steps to ascertain the basis for the

parent’s claim of heritage and following up on that information, the

department may of course give notice of the proceeding to the

federally recognized tribes that are included within the ancestral

group identified by the parent. Sending such notice achieves the

same purpose as exercising due diligence under section

19-1-126(3). Each tribe can then provide a definitive answer as to

whether the child is a tribal member or eligible for membership and

the child of a tribal member. See J.A.S., 160 P.3d at 260. This

information will enable the juvenile court to determine whether the

child is an Indian child for purposes of ICWA.

C. Application

¶ 45 The record does not establish that the department satisfied its

obligation to exercise due diligence under section 19-1-126(3). The

department’s declaration of diligent efforts shows that it contacted

family members and reviewed records concerning past cases to

determine whether the child is an Indian child. True, the

declaration indicates that mother did not know who in her family

19
was a tribal member. But, significantly, it does not show that the

department followed up with mother to ascertain the basis for her

belief or understanding that she and the child had Cherokee or

Navajo heritage.

¶ 46 Specifically, on the ICWA ancestry chart, mother identified an

“unknown” tribal affiliation for her father (the child’s maternal

grandfather). Although mother also indicated that her father (as

well as his parents) were deceased, the declaration of diligent efforts

does not show that the department investigated whether mother’s

understanding or belief that she had Cherokee or Navajo heritage

came from her paternal family members and, if so, whether there

was any other person who would have additional information.

¶ 47 Additionally, the information that the department obtained

from other family members and past court records focused

exclusively on whether the family had Indian heritage. The

declaration does not establish whether the family members had

additional information beyond an assertion of heritage that would

assist the court in determining whether there was reason to know

that the child is an Indian child.

20
¶ 48 Under these circumstances, the record does not demonstrate

compliance with the due diligence requirement of section

19-1-126(3), and we must remand the case to the juvenile court.

IV. Procedure on Remand

¶ 49 For the reasons discussed, we remand the case for the juvenile

court to expeditiously determine whether there is reason to know

that the child is an Indian child before recertifying the case to our

court for a decision. See § 19-1-109(1), C.R.S. 2021 (providing that

appeals “shall be decided at the earliest practical time”).

¶ 50 On remand, the juvenile court shall give the department the

option of either giving ICWA-compliant notice to the federally

recognized Cherokee and Navajo tribes or gathering additional

information under section 19-1-126(3). If the department

undertakes the latter option, the court shall direct the department

to exercise due diligence by inquiring of mother about the basis of

her belief or understanding about the family’s Indian heritage. This

inquiry should include whether mother’s understanding or belief

that she has Cherokee or Navajo heritage came from her paternal

family members, and, if so, whether there is any other person who

has additional information.

21
¶ 51 Based on the information obtained during this follow up

inquiry, the department should take further steps to gather

additional information that would help the court determine whether

there is reason to know that the child is an Indian child.

¶ 52 After obtaining additional information, the department must

make a record of its efforts and advise the court as to whether the

information satisfies one of the reason-to-know factors under

25 C.F.R. § 23.107(c) and section 19-1-126(1)(a)(II).

¶ 53 The juvenile court must then enter findings as to whether the

department has satisfied the due diligence requirement under

section 19-1-126(3) and whether there is reason to know that the

child is an Indian child, considering the nature and credibility of

the source of the information and the basis of the source’s

knowledge. See B.H., 138 P.3d at 303.

¶ 54 If the juvenile court determines that there is not a reason to

know that the child is an Indian child, the department must file a

notice with this court along with a copy of the juvenile court’s order

within seven days after the issuance of the order making this

determination. The appeal shall then be recertified. A

supplemental record, consisting of the court record created on

22
remand, is due fourteen days after recertification. Within seven

days of the matter being recertified, if any party wishes to

supplement the record with transcripts of hearings that occurred on

remand, that party shall file a supplemental designation of

transcripts with the juvenile court and this court. If supplemental

transcripts are designated, the complete supplemental record,

including the court record, will be due twenty-one days after the

supplemental designation of transcripts was filed. And within

fourteen days of recertification, mother may file a supplemental

brief, not to exceed 3,500 words, limited to addressing the juvenile

court’s determination. If mother files a supplemental brief, then the

other parties may file supplemental briefs in response, within

fourteen days, not to exceed 3,500 words.

¶ 55 If the juvenile court determines that it has reason to know that

the child is an Indian child, the department must file a notice with

this court along with a copy of the juvenile court’s order within

seven days after the issuance of the order making this

determination. The appeal shall be recertified to permit a division

of this court to issue an opinion vacating the termination judgment

and remanding the case to the juvenile court with directions to

23
follow the substantive and procedural requirements under ICWA

and section 19-1-126.

¶ 56 We further order the department to notify this court in writing

of the status of the juvenile court proceedings if this matter is not

concluded within twenty-eight days from the date of this order, and

to do so every twenty-eight days thereafter until the juvenile court

issues its order on remand.

JUDGE DUNN and JUDGE WELLING concur.

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