B.H. v. People ex rel. X.H.

138 P.3d 299 (2006)

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B.H. v. People ex rel. X.H.

Colorado Supreme Court
138 P.3d 299 (2006)

Facts

B.H. (defendant) was the birth mother of X.H. Neither B.H. nor X.H. had sought enrollment in an Indian tribe. The El Paso County Department of Human Services (the state) (plaintiff) filed a motion to terminate B.H.’s parental rights. The day before the hearing on the motion, the court learned that X.H.’s grandmother had previously informed the state of her Native American ancestry, but the state did not investigate or contact the tribe or the Bureau of Indian Affairs. The trial court reprimanded the state, went forward with the hearing without notice to the tribe, and terminated B.H.’s parental rights. B.H. appealed, arguing that the Indian Child Welfare Act (ICWA) required the court to give notice to the tribe before the hearing. The Colorado Court of Appeals affirmed, though it acknowledged that giving notice to the tribe would have been preferable. On the assumption that B.H. and X.H. were not enrolled in the tribe because they had not sought enrollment, the appellate court held that B.H. had the burden of showing that X.H. was an Indian child but that B.H. did not carry her burden. For that reason, the appellate court affirmed the termination of parental rights. B.H. appealed again.

Rule of Law

Issue

Holding and Reasoning (Coats, J.)

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