The Arapahoe County Department of Human Services failed to adhere to a key provision of the federal law governing adoptions of American Indian children, the state’s Court of Appeals determined on Thursday, returning a case to a lower court for compliance.

After a mother and her newborn tested positive for illegal narcotics, the department filed a petition in dependency and neglect, a legal process for determining whether a child is abused or in an unsafe environment. The county placed the child with relatives, and the mother was subsequently arrested on outstanding warrants. The mother also reportedly had other children who were the subject of custody proceedings centered around her drug use.

Although a three-member panel of the Court of Appeals upheld the decision of the Arapahoe County District Court judge Natalie T. Chase that the newborn was neglected or abused, the panel determined Chase and the department did not comply with the tribal notification requirement of the Indian Child Welfare Act of 1978.

Congress passed ICWA amid a high percentage of indigenous child placements among non-tribal families, and created minimum standards for states to apply when removing an American Indian child from their home. 

Among the key provisions, the law requires courts to provide notice to any relevant tribes if there is reason to believe that an American Indian child is involved in custody proceedings. The tribe of which a child is an eligible member can then intervene in the case. In the instance of the Arapahoe County newborn, identified by the initials L.S.N-N., there was an indication that the father had possible Cherokee heritage.

The department did send notice to the Bureau of Indian Affairs and three federally-recognized Cherokee tribes about the child’s case. But the appellate panel found no evidence to confirm whether the tribes received those notices. Prior Court of Appeals decisions have established that notification must take place by registered mail with a return receipt requested.

“As a result, the juvenile court and the Department did not comply with ICWA’s notice provisions,” wrote Judge Sueanna P. Johnson. The panel returned the case to the lower court for compliance with ICWA.

In an annual report on American Indian child adoption cases, Kathryn Fort of the Michigan State University College of Law and Adrian T. Smith found that state appellate courts across the country decide approximately 200 cases implicating ICWA each year. Of the appeals that cite a lack of tribal notice, appellate judges returned nearly two-thirds of them to lower courts in 2019.

The case is People in the Interest of LWN-N.